The Rule of Law and Private Power
The rule of law sets the minimum requirements of a legal order that rejects arbitrary governmental power. It is understood to require public officials and private citizens to obey the law. Yet the problem of private arbitrary power poses a challenge for both aspects of the rule of law. The focus on public forms of arbitrary power can appear not only indifferent to private power, but can reinforce scepticism of regulatory action and aggravate its problems. And the focus on fidelity to law can not only create resentment when the state is seen as a partisan supporter of one group’s domination of another, but it can enlist the state in enforcing private domination by suppressing actions that contest it. The panel explores the possibility that the rule of law has the resources for addressing the problem of private power. Each paper explores the hypothesis that the rule of law is an ideal that regards private arbitrary power as a rule of law problem much as it does public arbitrary power.