ELTRG Seminar: ‘Arbitrariness v The Rule of Law

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Sonia Anaid Cruz Davila will be presenting her paper on ‘Arbitrariness v The Rule of Law: The Legal Basis of Concealed Domination?’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will still be circulated beforehand through our mailing list. To subscribe, please send an email to [email protected].

Author bio: Sonia completed her doctoral degree in Law Research at the Dickson Poon School of Law, King's in September 2023. Sonia's research interests lie at the intersection of legal, moral, and political philosophy, as well as constitutional and democratic theory. Her dissertation addresses a particular way in which a head of government may abuse her power, namely, by making unilateral decisions. Sonia is currently interested in the incompatibility between the doctrine of the rule of law and the exercise of arbitrary power.

Abstract: This paper addresses the constitutional and legal roots of the abuse of power by the head of government. In an era of growing authoritarianism, political extremism, and populism, it contributes to develop a more detailed account of the various ways in which our heads of government may abuse their power. I begin by analysing the relationship between legal indeterminacy, the rule of law, and the exercise of arbitrary power by the head of government. This analysis leads me to argue that, although the first and second are compatible, the second and third are not. That said, excessive legal indeterminacy can make the exercise of power by the head of government incompatible with the rule of law and thus arbitrary. More precisely, excessive legal indeterminacy can make the exercise of certain executive functions (e.g., delegated legislation, discretionary power, royal prerogative, executive decree, and executive veto) arbitrary. With that in mind, the purpose of this part of my paper is to ask: ‘When is legal indeterminacy excessive?’. I then examine the concept of arbitrariness and the difference between arbitrary power and the republican account of domination. Whereas some argue that power is arbitrary if it is irrational, purposeless, and immoral or fails to track the ideas and interests of citizens, others claim that it is arbitrary if it departs from ‘the reason of the law’ or fails to give weight to respect-worthy expectations and rights. This examination leads me to claim that a too broad conception of arbitrariness commits us to a too demanding conception of the rule of law. This is problematic not only because it blurs the difference between the rule of law and other values, such as democracy, but also because it identifies arbitrariness with almost any evil that may afflict a state, such as domination. In fact, distinguishing between arbitrariness and domination allows us to have a better understanding of the various ways in which our heads of government may abuse their power. I conclude by investigating the relationship between the exercise of arbitrary power by the head of government and the advancement of populist personalities. This investigation leads me to suggest that thinking of arbitrariness not as identical to, but as an instance of, domination enables us to explain why these personalities are problematic. The fact that the head of government can exercise her power arbitrarily does not necessarily mean that she will make bad decisions. It may mean that she will make good decisions that nevertheless (i) seek the support of citizens by appealing to their concerns, desires, and prejudices instead of their reason, (ii) infantilise them by treating them as children or in ways which deny their maturity, or (iii) delegitimise other political actors and institutions. The fact that these decisions are ‘good’, then, does not take away from the fact that they are forms of domination. Indeed, no matter how benevolent, any decision that is the result of arbitrariness disrespects the autonomy and dignity of citizens by treating them in condescending and patronising ways.

Host or Publisher Edinburgh Law School, University of Edinburgh