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.