The rule of law and private law – Revisiting the Rule of Law book forum

30.11.2023
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Kristen Rundle’s remarkably readable and insightful book, Revisiting the Rule of Law, reminds us that the idea, or ideal, of the rule of law means different things to different people. The ‘rule of law’ is a highly contested concept. It is perhaps particularly vulnerable to elasticity because it inevitably has different meanings in different constitutional contexts, and that is not always acknowledged. For example, AV Dicey generally remains the go-to theorist for judges when writing about the rule of law (see, for example, Australian judicial recourse to Dicey in Palmer v Western Australia at [23]-[25]; Garlett v Western Australia at [128]-[129], and in South Africa: City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd at [60]; Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma at [140]). Yet Dicey described the rule of law in the context of the English unwritten constitution. That is a quite different context from the arrangements of other constitutional systems.
When thinking about how to respond to the book from the perspective of a judge with legal practice and judicial experience in both South Africa and Australia, the first thought that struck me is that judges seldom have occasion in their everyday work of deciding the cases that come before them to think or write about the rule of law. That may be different at the heady heights of apex courts where the ‘big’ constitutional cases are decided, but even for a judge doing a lot of public law – in particular in holding the executive to account through the mechanism of judicial review of administrative decisions – the occasion for conscious thought about the rule of law seldom arises. That recognition raises a question about the function of the rule of law and judges’ private law work. Consideration of the possible relevance of the rule of law to the resolution of problems in private law is often neglected, and Rundle gives it little explicit attention – although aspects of her analysis are applicable to private law. 
Rundle describes the rule of law’s core preoccupation as being the demand ‘that ruler and ruled alike must be subordinate to law’ (at 48). The bulk of rule of law scholarship is directed toward the relationship between the state and its subjects – constraints on governmental power and the rights held by individuals against governments. Implicit in many accounts of the rule of law is that it is fundamentally concerned with public law, what Austin and Klimchuk dub in Private Law and the Rule of Law (Oxford, 2014) the ‘public law presumption’ (at 1). Private law features in some theories of the rule of law, ranging from Raz’s acknowledgement that the exercise of “private powers” ought to conform to the strictures of the rule of law where possible, to Dicey’s vision of common law constitutionalism in which individual liberties are developed through civil, though state-supported, litigation, to Hayek’s argument that to be a society governed by the rule of law there must be a flourishing of a private ‘spontaneous order’. But it usually assumes a modest place compared with the focus on the legitimate exercise of state power (Austin & Klimchuk at 4-5). However, a consideration of the relationship between the rule of law and private law may enrich our understanding of the rule of law and its role in the work of judges.
A crucial aspect of the rule of law is the concern to safeguard against arbitrary power (Rundle at 6-7). Arbitrariness is objectionable because it undermines the values of autonomy, dignity, equality before the law and disdain for unjustified impingements on liberty that underlie the rule of law (W Lucy, ‘The Rule of Law and Private Law’ in Austin & Klimchuk at 43). As Rundle recognises (at 33), both state-sanctioned violence in the public law domain and unreliable enforcement of contractual rights (or the actions of other individuals) (Lucy, 63) in the private law domain are liable to produce arbitrariness which offends the rule of law. Private law is not only a potential site of arbitrariness but also a means by which the values of the rule of law may be furthered. By establishing rules governing interpersonal conduct, property, tort and contract law create and protect a sphere of activity free from the domination of others – be they fellow rights-bearing subjects of the state, corporations or government entities (who are also actors in the private law space, capable of purchasing property, committing torts and entering contracts) (Lucy at 62-63). Those bodies of private law, being as they are relatively stable, consistent, and generative of rights capable of enforcement, fulfil a similar function to the rule of law – they allow individuals to know where they stand and to plan for the future in the pursuit of their own particular aspirations (Lucy at 63).
Appreciating the relationship between the rule of law and private law may offer guidance to judges in common law jurisdictions in determining the legality of private action. The law of vitiating factors in contract is a well-known example of private law’s respect for autonomy and non-domination (Lucy at 64). Tackling a contemporary controversy in private law, Radin argues that ‘rights deletions’ such as mandatory arbitration clauses and class action, negligence and privacy waiver clauses contained in modern American boilerplate terms and conditions employed by large corporations in mass consumer contracts are contrary to the rule of law and as such ought not be capable of enforcement (M Radin, ‘Boilerplate: a Threat to the Rule of Law?’ in Austin & Klimchuk at 288). Radin contends that the use of such terms and conditions at scale erodes autonomy and rights and obligations that are constitutive of civil society, and undermines equality before the law because the result is a subset of powerful corporate persons arbitrarily depriving others of remedies and reinforcing their dominant position over others. Contractual clauses ostensibly authorising self-help may also raise important questions about arbitrariness and hence the rule of law (StockCo Agricapital Pty Ltd v Tucki Hills Pty Ltd at [36]-[37] and Monteiro v Diedricks at [14]). Rundle’s urging (in section 3.4) that attention be given to the relationship between the “official” and the “subject”, albeit couched in public law terms, is compelling also in its relevance to private law relationships.
The jurisprudential alignment of private law with the values advanced by the rule of law has been referred to by some, such as Hugh Collins, as the ‘constitutionali[s]ation of private law’. Advocates of this approach contend that judges should interpret and develop private law rules in a way that is consistent with fundamental rights embedded in constitutional doctrines and documents. Sceptics respond that aligning public and private law in this manner risks distracting from other key tenets of private law such as efficiency and freedom of contract, eroding the distinction between two functionally different areas of law, and introducing uncertainty and instability into private law. However, Collins points out that a judicial approach that is rights-conscious in a private law context requires consideration of the constitutional rights of both parties to the dispute; disruption to settled rules of private law is hence likely to be ‘rare and only at the margins’ (Collins at 11). Endorsing Dworkin’s rights-based conception of the rule of law, Collins contends that the constitutionalisation of private law presents a desirable trajectory for the evolution of the common law. Development of this nature is required by s 39(2) of the South African Constitution, and it is evidenced in the cases, eg, Barkhuizen v Napier and Beadica 231 CC v Trustees for the Time Being of the Oregon Trust.
It is questionable how novel the ‘constitutionalisation of private law’ really is. The evolution of the common law occurs in the context of fidelity to a judicial method which involves detailed consideration of precedent and, in difficult cases in the ‘penumbra’, at the fringes of settled authority, of normative considerations like consistency in the law. As Chief Justice Gleeson wrote, ‘in truth, for all the excitement that erupts occasionally about activism, the capacity for judicial creativity is, by comparison with other forms of human inventiveness, limited’ (at 7). 
To consider ‘public law’ rule of law values like respect for autonomy, non-arbitrariness, certainty and clarity where challenging cases arise in a private law adjudicative context is to have regard to the consistency of the legal system as a whole and the concepts underpinning it, of which the notion that all legal persons have rights is foundational. That approach is consistent with the orthodox development of the common law. As Edwin Cameron has argued, it is also an aspect of a judge’s responsibility to subject power, in whatever manifestation, to careful scrutiny (at 517).
Author’s note: I gratefully acknowledge the assistance of my Associate, Lucy Nason, in preparing this response to Rundle.
Angus Stewart is a judge of the Federal Court of Australia.
Suggested citation: Angus Stewart, ‘The rule of law and private law – Revisiting the Rule of Law book forum’ (30 November 2023) <https://www.auspublaw.org/blog/2023/11/the-rule-of-law-and-private-law-revisiting-the-rule-of-law-book-forum>