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Finding Leviathan in Hegel: The Private Rule of Law and its Limits

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Abstract

This paper uses Gerald Postema’s Law’s Rule to take up one of the most controversial questions in rule of law scholarship: whether the ideal can provide the basis for criticizing the state alone, or private individuals and entities exercising power over others as well. An account of the characteristics of states in virtue of which the rule of law licenses control over their power is developed, followed by an examination of some cases in which non-state holders of power over others might take on some of those characteristics. Under such circumstances, there are rule of law reasons to demand state control of private power.

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Notes

  1. E.g., Paul Gowder, The Rule of Law in the Real World (New York: Cambridge University Press, 2016), pp. 9–10.

  2. E.g., Paul Gowder, ‘Resisting the Rule of Men’, Saint Louis University Law Journal 62(2) (2018): pp. 356–357.

  3. E.g., Julian A. Sempill, ‘The Lions and the Greatest Part: The Rule of Law and the Constitution of Employer Power’, Hague Journal on the Rule of Law 9(2) (2017): pp. 283–314; Julian A. Sempill, ‘What Rendered Ancient Tyrants Detestable: The Rule of Law and the Constitution of Corporate Power’, Hague Journal on the Rule of Law 10(2) (2018): pp. 219–253.

  4. E.g., Martin Krygier, ‘The Ideal of The Rule of Law and Private Power’, CEU Democracy Institute Working Paper, 2023, pp. 18–19.

  5. Elizabeth Anderson, Private Government : How Employers Rule Our Lives (And Why We Don`t Talk About It) (Princeton: Princeton University Press, 2017).

  6. Tarleton Gillespie, ‘Regulation of and by Platforms’, in Jean Burgess, Alice Marwick, and Thomas Poell (eds.), The Sage Handbook of Social Media (London: SAGE, 2018), p. 30; Kate Klonick, ‘The New Governors: The People, Rules, and Processes Governing Online Speech’, Harvard Law Review 131(6) (2018): pp. 1598–1670.

  7. Nicolas Suzor, ‘Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms’, Social Media + Society 4(3) (2018): pp. 1–11; David Kaye, Speech Police: The Global Struggle to Govern the Internet (New York: Columbia Global Reports, 2019).

  8. Gerald J. Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (New York: Oxford University Press, 2023), p. 32.

  9. Postema (2023), pp. 33–35.

  10. Postema (2023), p. 34.

  11. Postema (2023), p. 36.

  12. Postema (2023), pp. 37–38.

  13. Some kinds of power over others arguably involved in climate change, such as coercive misconduct of petroleum companies in oil-producing countries, can fairly be understood (per the argument of the rest of this paper) as an instance of state power, or, depending on the details of a particular situation, a source of rule of law demands on states to take control of that power.

  14. David S. Law, ‘A Theory of Judicial Power and Judicial Review’, Georgetown Law Journal 97(3) (2009): pp. 723–802.

  15. Recent examples include Yemen (Michael Knights, ‘The Military Role in Yemen’s Protests: Civil-Military Relations in the Tribal Republic’, Journal of Strategic Studies 36(2) (2013): pp. 278–279), Tunisia (Risa Brooks, ‘Abandoned at the Palace: Why the Tunisian Military Defected from the Ben Ali Regime in January 2011’, Journal of Strategic Studies 36(2) (2013): p. 206), and Argentina (David Pion-Berlin and Harold Trinkunas, ‘Civilian Praetorianism and Military Shirking During Constitutional Crises in Latin America’, Comparative Politics 42(4) (July 1, 2010): pp. 402–404).

  16. E.g., Dana Milbank, ‘Disney Should Leave Florida. It’s Time for Desanty World’. Washington Post, April 22, 2022, https://www.washingtonpost.com/opinions/2022/04/22/disney-world-should-leave-florida-desantis/. For a description of the conflict, see Anthony Izaguirre, ‘Disney Sues Florida Gov. Ron Desantis, Alleging “Targeted Campaign” of Retaliation’, PBS NewsHour, April 26, 2023, https://www.pbs.org/newshour/nation/disney-sues-florida-gov-ron-desantis-alleging-targeted-campaign-of-retaliation.

  17. Sempill (2018), p. 231.

  18. Brian Naylor, ‘Attorney General Barr Defends Response to Protests Near the White House’, NPR, June 4, 2020, https://www.npr.org/2020/06/04/869718579/watch-live-justice-department-holds-press-conference-amid-nationwide-protests.

  19. In Walker v. City of Birmingham, the Supreme Court scolded Martin Luther King Jr. for defying an anti-protest injunction because ‘no man can be judge in his own case’ and ‘respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom’ (388 U.S. 307, 320–321 (1967)).

  20. Krygier (2023), p. 18.

  21. Paul Gowder, The Rule of Law in the United States: An Unfinished Project of Black Liberation (Oxford: Hart, 2021), pp. 96–98.

  22. Mark Bevir and R. A. W. Rhodes, The State as Cultural Practice (Oxford: Oxford University Press, 2015).

  23. Swati Srivastava, Hybrid Sovereignty in World Politics (New York: Cambridge University Press, 2022).

  24. During the civil war, the Taliban operated a ‘parallel justice system’ through which it violated human rights by carrying out excessive punishments. Amnesty International, Amnesty International Report 2017/2018: The State of The World’s Human Rights (London: Amnesty International UK, 2018), p. 69.

  25. Postema (2023), pp. 35, 267 sensibly makes this state-conferred nature part of the basis for his account of the applicability of the rule of law to some sorts of private power.

  26. State v Mann, 13 N.C. 263 (1829).

  27. For example, Eric Mack defends a natural law right to property while recognizing that specific configurations of rules of property are created (or at least evolved) by groups of people (what he calls ‘artificial’ methods of establishing property rights and ‘rule-constituted practices of private property’). Eric Mack, ‘The Natural Right of Property’, Social Philosophy and Policy 27(1) (2010): pp. 53–78.

  28. E.g., Robert L. Hale, ‘Bargaining, Duress, and Economic Liberty’, Columbia Law Review 43(5) (1943): pp. 603–628.

  29. See Paul Gowder, ‘Equal Law in An Unequal World’, Iowa Law Review 99(3) (2014): pp. 1021–1081 for one argument along these lines.

  30. Moreover, revisiting the analogy noted above in the context of slavery between private holders of state-conferred power and public officials like police suggests that (1) applies to private power to the same extent it applies to the behavior of public officials qua individuals. That is, in some sense a police officer too is just a private person who was granted state power as a tool of the job, but sometimes we address rule of law critique in the form of (1) to such an officer.

    It might be objected that public officials use state-conferred power for public purposes, while private persons use state-conferred power for their own purposes. But, of course, it is possible for public officials to [mis-]use state-conferred power for their own purposes too. A police officer who uses their authority to extort free meals from local restaurants by threatening to bring frivolous health inspections down on them is blamable not just for converting the state’s authority, but also in rule of law terms for exercising arbitrary power.

  31. Postema (2023), p. 32.

  32. Gowder (2016), pp. 9-10.

  33. Sempill (2018), p. 242.

  34. Postema (2023), p. 18.

  35. Postema (2023), p. 81.

  36. Postema (2023), p. 144.

  37. Postema (2023), p. 88.

  38. Postema (2023), p. 93.

  39. Postema (2023), p. 289; Aziz Z. Huq, ‘The Public Trust in Data’, Georgetown Law Journal 110(2) (2021): pp. 333–402.

  40. For example, Deborah Tussey, ‘Facebook: The New Town Square’, Southwestern Law Review 44(2) (2014): pp. 385–410. On common carriers, see James B. Speta, ‘Boden Lecture: The Past’s Lessons for Today: Can Common-Carrier Principles Make for a Better Internet?’ Marquette Law Review 106(4) (2023): pp. 741–765.

  41. E.g. Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000).

  42. Mancur Olson, ‘Dictatorship, Democracy, and Development’, The American Political Science Review 87(3) (1993): pp. 567–576.

  43. Gowder (2016), pp. 59-62.

  44. Jeremy Waldron, ‘How Law Protects Dignity’, Cambridge Law Journal 71(1) (2012): pp. 200–222.

  45. E.g., Leo E. Strine, ‘A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications’, Journal of Corporation Law 41(1) (2015): pp. 71–116.

  46. Davey Alba, ‘How Duterte Used Facebook to Fuel the Philippine Drug War’, BuzzFeed News, September 4, 2018, https://www.buzzfeednews.com/article/daveyalba/facebook-philippines-dutertes-drug-war; Paul Mozur, ‘A Genocide Incited on Facebook, with Posts from Myanmar’s Military’, The New York Times, October 15, 2018, https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html.

  47. Klonick (2018), p. 1623.

  48. Amanda Meade, Josh Taylor, and Daniel Hurst, ‘Facebook Reverses Australia News Ban After Government Makes Media Code Amendments’, The Guardian, February 23, 2021, http://www.theguardian.com/media/2021/feb/23/facebook-reverses-australia-news-ban-after-government-makes-media-code-amendments.

  49. For a general account of platforms along these lines, see Paul Gowder, The Networked Leviathan: For Democratic Platforms (Cambridge: Cambridge University Press, 2023).

  50. E.g., Lina M. Khan, ‘The End of Antitrust History Revisited (Review of Tim Wu, The Curse of Bigness)’, Harvard Law Review 133(5) (2020): 1655–1682.

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    Paul Gowder

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Gowder, P. Finding Leviathan in Hegel: The Private Rule of Law and its Limits. Law and Philos (2024). https://doi.org/10.1007/s10982-024-09497-1

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