On Normative Power and Exploitative Abuse in Digital Markets – Navigating Heike Schweitzer’s Notion of the Private Law Society

Abstract Normative power has been defined as “the power to shape current and future normality, normativity, markets, social relations, behaviour, and truth”. In digital markets, this power stems not only from the formal power to set the rules of engagement, but also from the more subtle “steering” and design capabilities that dominant platform operators and ecosystem orchestrators enjoy. This gives them a unique ability to exclude competitors and exploit users at scale. This paper aims to better understand the nature of this power and scrutinise competition law’s ability to tackle its exploitative effects. To this end, the paper draws inspiration from two concepts put forward by Heike Schweitzer: rule-setting (regulatory) power as market power; and her notion of the norms that shape the private law society as a decentralised coordinating system. Expanding the former notion of rule-setting power to encompass novel manifestations of normative power, the paper uses insights from the latter to ascertain when and how competition law intervention into exploitative practices is possible.