“A State in the disguise of a Merchant”: Tech Leviathans and the rule of law

• Published date: 01 January 2021
• Author: Christian D'Cunha
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12399

VARIETY

“A State in the disguise of a Merchant”: Tech

Leviathans and the rule of law

Christian D'Cunha*

Abstract

The rule of law is a check on power, requiring equal subjection of everyone to the law, irrespective

of wealth or status. Power is not the exclusive preserve of the state, however, especially where

rivalled by private entities that rise, in effect, above the law. Today’s tech giants throw the rule of

law out of kilter by assuming the trappings of the state—one even has its own “supreme court”—

while shunning its accountability. They seek to dissuade, capture and evade any attempt by the

state to mitigate the harms arising from their business models. Policy makers scrambling for innova-

tive legislative techniques are unlikely to repair the consequences of extreme concentration of cor-

porate power so long as underlying social injustices and over-deference in democratic institutions

go unchallenged. Leviathan, whether in the form of govern mentor corporation, cannot coexist with

the rule of law.

1|INTRODUCTION

The rule of law is indispensable to any viable modern state. A society, if it is to function predictably, requires most if

not all of its members to accept the supremacy of the prevailing rules. This ancient concept has waxed and waned,

less itself a source of light than a reflection of more forceful imperatives, such as the constraint of the power of the

state. Power is diffuse, however, and not confined to the machinery of government. There have been moments in

the past when private entities have appeared to rival or even supplant the state in its ability to organise society. A

debate is underway about whether we are living through one such moment.

A few global digital monopolies seem immune to state control. The economic power and staggering levels of

wealth accumulated by their leaders are as much a symptom as a cause of worsening inequality within societies. A

privately-owned social media platform is able to amplify outrage so widely that it results in the formation of militias

or the election of an autocrat. A monopoly search engine can threaten to withdraw its services on which the majority

of the population rely because it objects to an inconvenient draft law under debate in the national parliament. Where

the state is the guarantor of human rights and freedoms, and democratically accountable to the people for its actions,

this is a perilous trend. It indicates that the normal levers of accountability are defective, and that people must

* Official of the European Union, christian.dcunha@protonmail.com. The views expressed in this article are entirely the personal views of the author and

do not necessarily represent those of his current or previous employers. The author wishes to thank Karine Caunes, Paul-Olivier Dehaye, Barry Lynn,

Johnny Ryan and Raluca Stefanuc for their comments on earlier versions of the article.

Received: 20 May 2021 Accepted: 20 May 2021

DOI: 10.1111/eulj.12399

Eur Law J. 2021;27:109–131. wileyonlinelibrary.com/journal/eulj © 2021 John Wiley & Sons, Ltd. 109

instead depend on the voluntary benevolence of private entities. This may be considered the dark side of the rule of

law: how a democratic state can expect to constrain through law a private power greater than itself, a power that

even dons the external paraphernalia of the state in a bid for legitimacy.

In this article, I first explore the concept of the rule of law as a check on arbitrary power, how it can be distin-

guished from law itself, and how it relates to human rights, equality, democracy and justice. I will note that, although

the value of the rule of law is to constrain the powerful, power is not the sole preserve of the state. Often over-

looked has been the application of the principle to non-state actors; but this is now changing, after two decades in

which a small number of multinational companies based in the United States and China have been allowed to acquire

monopoly status through exploiting the opportunities of digitisation. Second, I explore how these companies have

wielded this extraordinary power and exacerbated societal inequalities. In particular, I will look at how they

have begun to behave like surrogate states, the most brazen example being the “oversight board”established by

Facebook, described by its CEO as “almost like a Supreme Court”. Third, I will propose that these inequalities place

the rule of law under pressure. Legal remedies for harmful corporate behaviour risk floundering through unequal

access to justice, legalism and the tendency for these companies to assume, or to have conferred on them, the role

of de facto regulator. Fourth, I will suggest how these ills might be remedied.

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2|THECONCEPTOFTHERULEOFLAWOVERTIMEANDSPACE

This section reviews the theory and origins of the rule of law as a concept distinct from, but intertwined with, the

concepts of human rights and democracy; a concept linking the means of law to the ends of justice in the organisa-

tion of human society. I discuss how the rule of law has typically been set against the power of the public state, yet

is equally relevant in the case of overweening private corporate power; antitrust law, devised at the turn of the

twentieth century, has been the principal such means of redress. Finally, I argue that, following decades of wilful

complacency about wealth and market concentration since the 1970s, a reckoning has begun, crystallised in the

responses of policymakers to Donald Trump's incitement of the January 2021 attack on the US Capitol and his sub-

sequent silencing by the giant social media platforms.

2.1 |The rule of law and power

The rule of law is universally venerated even as it is assailed. In February 2020, the Prime Minister of India

proclaimed that “the rule of law is the foundation of societal values”,

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around the same time his government was

abolishing Jammu and Kashmir's constitutional guarantee of autonomy. In January 2021, the Chinese Communist

Party (CCP) issued the “first special plan for advancing rule by law [by 2035] in the country since the founding of the

People's Republic”, applicable to all “exercise of power”excepting the CCP leadership itself, and without any

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The implications of the power and behaviour of global digital monopolies for the rule of law have been addressed only partially by scholarship to date.

Julie Cohen writes extensively and cogently on the nature of platforms and the adaptation of governance; see J.E. Cohen, Between Truth and Power (Oxford

University Press, 2019) and ‘Law for the Platform Economy’, (2017) 51 U.C. Davis Law Review, 133–204. Mireille Hildebrandt has examined sovereignty,

safety, freedom and human rights in cyberspace and the challenge to the rule of law posed by automated profiling and other techniques in intelligent

networked environments; e.g. M. Hildebrandt, ‘Profiling and the Rule of Law’, (2008) 1 Identity in the Information Society,55–70; ‘Extraterritorial

Jurisdiction to Enforce in Cyberspace? Bodin, Schmitt, Grotius in Cyberspace’, (2013) 63(2) University of Toronto Law Journal, 196–224. Beth Stephens is an

authority on the accountability of companies for complicity in human rights abuses; e.g. B. Stephens, ‘The Amorality of Profit: Transnational Corporations

and Human Rights’, (2002) 20 Berkeley Journal International Law,45–90. Douwe Korff wrote a useful paperfor the Council ofEurope in 2014on ‘The Rule

of Law on the Internet and in the Wider Digital World’(Council of Europe, 2014). Sally Hubbard, Lina Khan, Barry Lynn and Matt Stoller have exposed the

nature of corporate power and reminded us of the purpose of antitrust. Shoshana Zuboff's examination of ‘surveillance capitalism’has brought political

attention to intrusive business models.

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‘Rule of law is foundation of societal values in India: PM Modi at International Judicial Conference’, ANI, 22 February 2020,

https://www.aninews.in/news/national/general-news/rule-of-law-is-foundation-of-societal-values-in-india-pm-modi-at-international-judicial-

conference20200222132508/

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