The role of the rule of law

1. The role of the rule of law • Nic Suzor, QUT School of Law • 20090620 State of Play VI, New York

2. Avoiding the false-dichotomy: governance is always already limited by private law.

3. “If these attempts by cyborg communities to formulate the laws of virtual worlds go well, there may be no need for real-world courts to participate in this process. Instead, the residents of virtual worlds will live and love and law for themselves.” • -- Hunter and Lastowka

4. What do we do when private governance does not ‘go well’?

5. “With great power comes great responsibility” • -- Stan Lee

6. Situating governance

7. Power relations “operate in [...] ‘analytic borderlands’: between public and private, between technical and social, and between network and body. Mapping these borderlands requires descriptive and analytical tools that do not simply reduce them to borders. • -- Julie Cohen

8. Evaluating governance in the borderlands

9. these “power relations [...] are fundamental constitutional issues that should be informed by fundamental constitutional principles” • -- Fitzgerald; see also Berman

10. The boundaries of private law regimes are constitutive boundaries

11. What values are at stake?

12. Legitimacy.

13. The rule of law • Discourse about good governance; • Legal limits on the raw exercise of power.

14. No arbitrary punishment “no [person] is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” • -- A V Dicey

15. Substantive limits • Property • Legal enforcement • Discrimination • Speech • Privacy

16. Formal limits • Clear, equal, reasonably constant, promulgated rules • Procedural fairness • Consent

17. A rule of law, not of individuals • Governance free from bias, error, cupidity, and whim.

18. Remember Bartle-world • There are no absolutes; • Different values will be important in different contexts; • Some contexts will need none of these values; • This does not mean that all values will always be unimportant.

19. Conclusion: reading private law by governance principles

20. The rule of law is “the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.” • -- A V Dicey

21. If private governance will be bound by private law regimes, thenprivate law regimes should reflect governance values.