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The role of the rule of law in virtual communities

Suzor, Nicolas P. (2010) The role of the rule of law in virtual communities. Berkeley Technology Law Journal, 25(4), pp. 1818-1886.

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Abstract

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values.

In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

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ID Code: 37850
Item Type: Journal Article
Additional URLs:
Keywords: digital constitutionalism, rule of law, virtual communities, governance, mmorpg, social networking sites
ISSN: 1086-3818
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > Research Centres > ARC Centre of Excellence for Creative Industries and Innovation
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2010 Nicolas Suzor
Copyright Statement: Available under Creative Commons BY-NC-SA 3.0 (AU) (http://creativecommons.org/licenses/by-nc-sa/3.0/au/). Attribution must be made to Nicolas Suzor, first published in Berkeley Technology Law Journal.
Deposited On: 13 Oct 2010 09:00
Last Modified: 30 Aug 2011 08:45

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