The Lions and the Greatest Part: the Rule of Law and the Constitution of Employer Power

Abstract

On the limited government conception of the Rule of Law, it is axiomatic that the state may only act for the public good according to law, and not arbitrarily, on pain of forfeiting its authority. That axiom is a great legacy of the seventeenth and eighteenth centuries' anti-absolutist revolutions. The same period yielded another axiom, seldom noticed though nonetheless momentous. It is the belief, usually tacit, that the Rule of Law should not address the potentially arbitrary power of employers. This Article explores the origins of that axiom in the work of John Locke, one of the fountainheads of the limited government tradition. According to the way of seeing power that Locke propagated, there seems to be no reason to wonder whether the constitution of the modern employment relationship is hospitable to arbitrary power, in the limited government sense. Equally, there seems to be no point in asking whether the legitimacy of the employment relationship should depend upon its being constituted according to limited government constraints. However, as I demonstrate, such impressions are at odds with key moral and empirical features of Locke's own analysis. Those tensions represent a challenge not only for Locke's analysis, but also for the liberal Rule of Law project that Locke helped to found. It is a challenge that the tradition is yet to address.

Martin Krygier and the Tempering of Power

“…8 Selznick's inclinations were right. The point has been elaborated across a good half dozen contributions by Krygier and by the legal theorist Robin West (2003West ( , 2011 across the years, 9 and is being refined in a hugely illuminating fashion in the recent work by Julian Sempill (2016Sempill ( , 2017Sempill ( , 2018. 10 It is nevertheless unclear whether Selznick or Krygier himself had settled on the conceptual vocabulary to unite the negative and positive functions of the rule of law in this sense.…”

What Rendered Ancient Tyrants Detestable: The Rule of Law and the Constitution of Corporate Power

“…47 Sempill (2016). 48 For an exploration of the relationship between employer power and the principles of the limited government Rule of Law tradition, see: Sempill (2017). structural features of contemporary Anglophone societies that I call the capitalist constitution.…”

“…According to the English neo-roman writers of the seventeenth century, a distinction is to be drawn between two paths by which the freedom of 98 On wage-slavery and the limited government tradition's Rule of Law project, see Sempill (2017). Until the twentieth century, those using the idiom explored here assumed that the employment relationship involved an oppressive condition of dependence.…”

“…However, anti-capitalists might consider whether the reconstitution 36 of concentrated economic power along Rule of Law (and meaningfully democratic) lines might be part of a transition to a noncapitalist future. Classical Marxists might see it as a temporary measure, to be adopted during the period before "the narrow horizon of bourgeois right [can] be crossed in its entirety" 37 -though, in the light of experience, it might 36 On the nature of constitution and reconstitution, see: Sempill (2017). Although the nature of reconstitution is beyond the scope of this Article, it is important to note that the reconstitution of corporate power along limited government, Rule of Law lines would be inconsistent with what, in the Marxist tradition is called, "private ownership of the means of production": ibid, section 1.1.1.…”

Googling the equivalence of private arbitrary power and state arbitrary power: why the Rule of Law does not relate to private relationships

“…Lest we miss their importance, Locke was kind enough to italicise the phrases quoted here.7For a contrary view, seeSempill (2017;2018).…”