The role of the rule of The role of the rule of lawlawNic Suzor, QUT School of LawNic Suzor, QUT School of Law20090620 State of Play VI, New York20090620 State of Play VI, New York

Avoiding the false-Avoiding the false-dichotomy: governance dichotomy: governance

is always already is always already limited by private law.limited by private law.

““If these attemptsIf these attempts by cyborg by cyborg communities to formulate the communities to formulate the

laws of virtual worlds laws of virtual worlds go well, go well, there may be no need for real-there may be no need for real-

world courts to participate in world courts to participate in this processthis process. Instead, the . Instead, the

residents of virtual worlds will live residents of virtual worlds will live and love and law for themselves.”and love and law for themselves.”

-- Hunter and Lastowka-- Hunter and Lastowka

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

““With great power With great power comes great comes great

responsibility”responsibility”-- Stan Lee-- Stan Lee

Situating governanceSituating governance

Power relations “operate in [...] Power relations “operate in [...] ‘analytic borderlands’: between ‘analytic borderlands’: between

public and private, between public and private, between technical and social, and between technical and social, and between

network and body. network and body. Mapping these Mapping these borderlands requires borderlands requires

descriptive and analytical descriptive and analytical tools tools that do not simply reduce them that do not simply reduce them

to borders.to borders.-- Julie Cohen-- Julie Cohen

Evaluating governance Evaluating governance in the borderlandsin the borderlands

these “power relations these “power relations [...] are fundamental [...] are fundamental

constitutional issues that constitutional issues that should be informed by should be informed by

fundamental fundamental constitutional principles”constitutional principles”

-- Fitzgerald; see also Berman-- Fitzgerald; see also Berman

The boundaries of The boundaries of private law regimes are private law regimes are

constitutive constitutive boundariesboundaries

What values are at What values are at stake?stake?

Legitimacy.Legitimacy.

The rule of lawThe rule of law

Discourse about good governance;Discourse about good governance;

Legal limits on the raw exercise of power.Legal limits on the raw exercise of power.

““no [person] is punishable or no [person] is punishable or can be lawfully made to suffer can be lawfully made to suffer in body or goods except for a in body or goods except for a

distinct breach of law distinct breach of law established in the ordinary established in the ordinary

legal manner before the legal manner before the ordinary courts ordinary courts

of the land.”of the land.”

-- A V Dicey-- A V Dicey

No arbitrary No arbitrary punishmentpunishment

Substantive limitsSubstantive limits

PropertyProperty

Legal enforcementLegal enforcement

DiscriminationDiscrimination

SpeechSpeech

PrivacyPrivacy

Formal limitsFormal limits

Clear, equal, reasonably constant, Clear, equal, reasonably constant, promulgated rulespromulgated rules

Procedural fairnessProcedural fairness

ConsentConsent

A rule of law, not of A rule of law, not of individualsindividualsGovernance free from bias, error, Governance free from bias, error, cupidity, and whim.cupidity, and whim.

Remember Bartle-worldRemember Bartle-world

There are no absolutes;There are no absolutes;

Different values will be important in Different values will be important in different contexts;different contexts;

Some contexts will need none of these Some contexts will need none of these values;values;

This does not mean that all values will This does not mean that all values will always be unimportant.always be unimportant.

Conclusion: reading Conclusion: reading private law by private law by governance principlesgovernance principles

The rule of law is “the The rule of law is “the result of judicial decisions result of judicial decisions

determining determining the rights of private the rights of private

persons in particular persons in particular cases brought before the cases brought before the

courts.”courts.”

-- A V Dicey-- A V Dicey

If private governance will be If private governance will be bound by private law bound by private law

regimes, thenregimes, then

private law regimes should private law regimes should reflect governance values.reflect governance values.