Arbitrary Power: Caricature and Concept

Law and Philosophy https://doi.org/10.1007/s10982-024-09509-0  The Author(s) 2024 FARRAH AHMED ARBITRARY POWER: CARICATURE AND CONCEPT (Accepted 22 May 2024) ABSTRACT. Arbitrary power is often understood as bearing some kind of relation to tyrannical rule, a relation that is thought to explain why arbitrary power is objectionable. But what is tyrannical rule? What precisely is the relationship between arbitrary power and tyranny? Why (if at all) is arbitrary power objectionable? Arbitrary power, this paper argues, is best understood through the figure of the tyrant. The figure of the tyrant is a caricature with stock character traits, usually of a disliked other, who is, or is thought to be, powerful. Arbitrary power, the paper argues, is power that is constituted to express, or enable the expression of, caricatured tyrannical traits. Arbitrary power is bad or objectionable (if and when it is) for mimetic reasons. Understanding arbitrary power in this way allows us to see problems with how it is deployed, understood and communicated and has advantages over standard accounts. I. INTRODUCTION The rule of law is often understood in opposition to arbitrary power, an opposition that is often thought to explain why the rule of law is valuable. Arbitrary power is often understood as bearing some kind of relation to tyrannical rule, a relation that is thought to explain why arbitrary power is objectionable. But what is tyrannical rule? What precisely is the relationship between arbitrary power and tyranny? Why (if at all) is arbitrary power objectionable? Arbitrary power, this paper argues, is best understood through the figure of the tyrant. The figure of the tyrant is a caricature with stock character traits, usually of a disliked other, who is, or is thought to be, powerful (Section II). Noone argues that only tyrants possess or exercise arbitrary power. Rather, wielders of arbitrary power are thought to be like F. AHMED tyrants. Since rule by tyrants is objectionable, rule by those with tyrannical powers is also objectionable (continues the thought). But in what respect are wielders of arbitrary power like tyrants? Arbitrary power, the paper argues, is power that is constituted to express, or enable the expression of, caricatured tyrannical traits. Arbitrary power is bad or objectionable (if and when it is) for mimetic reasons (Section III). Understanding arbitrary power in this way allows us to see problems with how it is (and has been) deployed, understood and communicated (Section IV) and has advantages over standard accounts (Section V). While drawing on genealogical and historical sources, the account offered here is interpretive – it aims to makes sense of how arbitrariness is used in discussions about the rule of law, including in legal doctrine.1 II. WHAT IS A TYRANT? Amongst contemporary accounts of what makes power arbitrary, in discussions of the rule of law, Gerald Postema’s stands out for its force and richness: Arbitrary power is capricious and arrogant. ‘‘I will do this, because I can,’’ says the wielder of arbitrary power. To be subject to the arbitrary power of another is to be subject to the whim, the mere pleasure, of the wielder. The wielders’ will is their only law; they are, we say, laws unto themselves. A will that is law unto itself is a feral will. …Nothing outside themselves constrained them, nothing but their absolute choice. The wielder’s action says, ‘‘My will alone matters; yours is irrelevant. Do this for no reason you need to bother about but only because I say so.’’2 One of the virtues of Postema’s personification of arbitrary power is that it compels us to reckon with the figure of the tyrant that looms, often unacknowledged, over contemporary discussions of the rule of law. Reckoning with this figure requires acknowledging the continuity between our contemporary understanding of arbitrary power and historical thought on the tyrant as the wielder of arbitrary power. This reckoning is essential to arrive at a good account of arbitrary power with the potential to illuminate the rule of law. Foregrounding the figure of the tyrant is also essential to explore deep-seated problems with how the concepts of arbitrary power and the rule of law are deployed. 1 On such interpretive aims, see Stephen A. Smith, Contract Theory (Oxford University Press, 2004), p. 18. 2 Gerald J. Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford University Press, 2023), p. 29. ARBITRARY POWER: CARICATURE AND CONCEPT Anglophone neo-Roman thinkers inherited and contributed to a tradition in Western thought which employed a caricature of a disliked other to represent a tyrant, and to describe arbitrary power. For the neo-Roman thinkers, this other was the Ottoman Sultan, often described as a despot.3 Further back, for classical thinkers,4 the subject of the tyrannical caricature was the Persian emperor, with caricatures of the emperor Xerxes being particularly well-known.5 We can identify stock traits typically associated with tyrants in Western political thought, particularly by neo-Roman Anglophone writers (thought to be particularly influential over our contemporary ideas of the rule of law and arbitrary power).6 1. The tyrant is greedy, and particularly power-hungry7 with a tendency to ‘‘overreach’’.8 Power is important to the tyrant who is often characterized as seeking further power.9 The tyrant’s devotion to power is such that he ‘thrive[s] when there are [wide] discretionary powers’.10 2. The tyrant does not recognize any moral constraints to act only according to the law,11 natural law or religion.12 Many of these traits 3 See generally, Noel Malcolm, Useful Enemies: Islam and The Ottoman Empire in Western Political Thought, 1450-1750 (Oxford University Press, 2019). 4 Ibid.; Melissa Lane, ‘‘Of Rule and Office: Plato’s Ideas of the Political’’ in Of Rule and Office (Princeton University Press, 2023), p. 42–83; Kurt Raaflaub, The Discovery of Freedom in Ancient Greece (University of Chicago Press, 2004). 5 Emma Bridges, Imagining Xerxes: Ancient Perspectives on a Persian King (Bloomsbury, 2014). 6 Julian Sempill, ‘‘Ruler’s Sword, Citizen’s Shield: The Rule of Law & the Constitution of Power’’, Journal of Law & Politics 31 (2016): pp. 333–374, p. 374; See also the similarities in the neo-republican account of arbitrariness offered by Philip Petit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997), p. 55–58. 7 Sempill, supra note 6, at p. 375. 8 Jordan Jochim, ‘‘Aristotle, Tyranny, and the Small-Souled Subject’’, Political Theory, 48(2) (2020): pp. 169–191, p. 185. 9 Quentin Skinner, Liberty before Liberalism (Cambridge University Press, 2012), p. 56; Quentin Skinner, ‘‘Civil Liberty and Fundamental Rights: A Neo-Roman Approach’’ in Workshop on Law, Philosophy, and Political Theory (2019), p. 13. 10 Ibid. at p. 51. 11 Malcolm, supra note 3, at p. 359; Henry Parker, The Case of Shipmony Bri (...truncated)