The Rule of Law in Private Law: A New Animating Ideal for Employment Law?

Abstract

The rule of law is a key precept in public law. But it often seems to be assumed that the concept should have little traction in the private law domain, where the State is nowhere to be seen. This paper contests that assumption. Defining the rule of law as being concerned with protecting the role of courts in stating the law and applying it to all parties equally, this paper argues that the rule of law has real relevance to private law. In private law, just as in public law, there is a need to prevent parties from placing themselves outside of, or above, the reach of law. After a thumbnail sketch is offered of what the rule of law means in a private law context, attention turns in the second part of this paper to how the rule of law underpins aspects of employment law. It is argued, in particular, that the United Kingdom Supreme Court’s recently-articulated approach to written agreements in the employment law context in Autoclenz Ltd v Belcher [2011] UKSC 41 is motivated by a desire to prevent parties from arrogating to themselves (and away from the courts) the power to determine the law: a desire, in other words, to uphold the rule of law. The final part of the paper reflects on how viewing the rule of law as an animating ideal for employment law serves as a useful reminder of the value of dialogue across different parts of the law, and may prove helpful for employment law in particular.