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

Introduction Law exists so that principles, and not purely power, govern relations between people in a society. The rule of by extension, is just concerned with maintaining and upholding, steadfastly, those principles of against reach of naked power. That simple formulation of rule of consists of many strands, however. Most rule of literature focuses on how principles of can be maintained and upheld against reach of naked public power in realm of public law.1 What this paper focuses on is a forgotten strand of rule of law: need for principles of to be maintained and upheld by courts away from public where powerful private parties seek to place themselves above, or outside of, to secure an advantage for themselves. This strand is called in what follows the rule of in private What is meant by private is that area of generally involving two private parties (though sometimes involving 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 of contract and of torts. The rule of in private is simply application of rule of precepts to that context. This paper seeks to unravel meaning of rule of as well as to show that strand of rule of identified above may already be woven into fabric of private law. Only a single case study of an area of employment is selected to test this claim, but it is tentatively suggested that the rule of in private law might, with further investigation, be shown to be at work underneath logic of decisions in employment and private as a whole.2 It should be noted that this paper focuses on cases in employment involving two private parties, without State involvement, and does not intend to take any firm position on debate over whether employment should be classified as part of public 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 tapestry of employment specifically. Viewing pattern that gives effect to rule of in private may help to spark thinking about underlying ideals of employment and about way in which employment should interact with other bodies of such as public in developing concepts like rule of in private law. The paper's structure reflects development of these three points. Part I sketches contours of the rule of in private law, explains how it can be situated within broader rule of thinking, and examines whether idea survives logical scrutiny. Part II explores a case study to show that, in employment across several jurisdictions, courts' approach to whether a party is an employee or independent contractor reflects operation of rule of in private law. Close attention is paid in this regard to recent United Kingdom Supreme Court judgment in Autoclenz Ltd ? Belcher - its background, procedural history, relevant analysis, and relationship to rule of in private - and New Zealand parallel to this judgment is mentioned in passing.3 Finally, Part III considers how rule of in private might become a non-ideological animating ideal for employment and notes that process of applying rule of in private to employment is a reminder of 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 forces driving many judgments in employment sphere. It is an inquiry, even more than that, that enjoins us all to work harder to improve dialogue between employment and other fields of in a manner that proves to be profitable for all participants in that conversation. …