Law exists so that principles, and not purely power, govern relations between people in a society. The rule of law, by extension, is just concerned with maintaining and upholding, steadfastly, those principles of law against the reach of naked power. That simple formulation of the rule of law consists of many strands, however. Most rule of law literature focuses on how principles of law can be maintained and upheld against the reach of naked public power in the realm of public law.1 What this paper focuses on is a forgotten strand of the rule of law: the need for principles of law to be maintained and upheld by the courts away from public law, where powerful private parties seek to place themselves above, or outside of, the law to secure an advantage for themselves. This strand is called in what follows "the rule of law in private law". What is meant by private law is that area of law, generally involving two private parties (though sometimes involving the State acting in some private capacity), where no special duties or obligations attach to either party because of their affiliation to branches of government: obvious examples include the law of contract and the law of torts. The rule of law in private law is simply the application of rule of law precepts to that context.
This paper seeks to unravel the meaning of the rule of law, as well as to show that the strand of the rule of law identified above may already be woven into the fabric of private law. Only a single case study of an area of employment law is selected to test this claim, but it is tentatively suggested that "the rule of law in private law" might, with further investigation, be shown to be at work underneath the logic of decisions in employment law, and private law as a whole.2 It should be noted that this paper focuses on cases in employment law involving two private parties, without State involvement, and does not intend to take any firm position on the debate over whether employment law should be classified as part of public law or private law. Examples of employment cases with two private parties do not prompt that debate.
This paper argues, too, that there may be merit in identifying this underlying pattern in the tapestry of employment law specifically. Viewing the pattern that gives effect to the rule of law in private law may help to spark thinking about the underlying ideals of employment law, and about the way in which employment law should interact with other bodies of law, such as public law, in developing concepts like the rule of law in private law.
The paper's structure reflects the development of these three points. Part I sketches the contours of "the rule of law in private law", explains how it can be situated within broader rule of law thinking, and examines whether the idea survives logical scrutiny. Part II explores a case study to show that, in employment law across several jurisdictions, the courts' approach to whether a party is an employee or independent contractor reflects the operation of the rule of law in private law. Close attention is paid in this regard to the recent United Kingdom Supreme Court judgment in Autoclenz Ltd ? Belcher - its background, procedural history, relevant analysis, and relationship to the rule of law in private law - and the New Zealand parallel to this judgment is mentioned in passing.3 Finally, Part III considers how the rule of law in private law might become a non-ideological animating ideal for employment law, and notes that the process of applying the rule of law in private law to employment law is a reminder of the need for dialogue between different bodies of law. This is not just some interesting but fruitless journey down a theoretical rabbit warren. Rather, it is an inquiry that can help explain and understand some of the forces driving many judgments in the employment law sphere. It is an inquiry, even more than that, that enjoins us all to work harder to improve the dialogue between employment law and other fields of law in a manner that proves to be profitable for all participants in that conversation. …