Sonia Cruz Dávila
Cite: Sonia Cruz Davila, Why We Should Care About the Arbitrariness of Our Leaders, Global South Network Blog, 13 November 2023, https://globalsouthnetwork.com/why-we-should-care-about-the-arbitrariness-of-our-leaders/
Authoritarianism in all forms appears to be on the rise. Be it Vladimir Putin’s invasion of Ukraine, Ali Khamenei’s morality police in Iran, or Benjamin Netanyahu’s judicial reforms to weaken Israel’s Supreme Court (and, more recently, his involvement in his country’s war crimes against Palestine), more and more nations in the so-called ‘non-Western world’ seem to be subject to the unconstrained power of their leaders. As should be apparent, however, the absence of constraints on power is not exclusive of authoritarian regimes or developing democracies. We saw it across the world during the coronavirus pandemic, when leaders of all political positions dealt with the crisis by exercising powers that were not clearly constrained, some of which were delegated by the legislature and some of which were granted by the constitution.[1] This lack of clear constraints on power poses its risks. Leaders may take advantage of the emergency to implement long-lasting limitations on the basic rights and civil liberties of citizens.[2] And even if they do not do so, they may simply exempt themselves from obedience to the laws they make.[3] This was made abundantly clear by Boris Johnson and his government, who saw it fit to breach the COVID-19 regulations that they themselves had imposed. Beyond crises and emergencies, however, are our heads of government truly constrained, in the sense that their power is limited by the constitution, the law, and political institutions such as the legislature and the judiciary? And if they are not, why exactly should we care?
The answer to these questions is by no means straightforward. After all, it depends on the circumstances of each state. This, however, does not preclude us from adventuring some answers. Firstly, the law, either the one contained in the constitution or the one enacted by the legislature, is inherently indeterminate. This means that there is a limit to the guidance that the law can provide in particular cases, as each of them presents specific challenges.[4] This grants the head of government a certain degree of discretion in exercising her power. Even if the head of government actually applies the law, then, she can make a choice among alternative courses of action.[5] This, in itself, is not necessarily a cause for concern. Most of the times the law is determinate enough to prevent the head of government from making abusive decisions that violate fundamental human rights or favour only her own interests.[6] The problem arises when the law is so indeterminate that the head of government can make decisions that, although not necessarily barbaric or selfish, are based on her capricious choice or personal preference, instead of being based on the so-called ‘original intention’ of the law. In such cases, we may well say that the excessive indeterminacy of the law has made the exercise of power by the head of government arbitrary, not only in the sense that she can make cruel or self-interested decisions, but also in the sense that she can make decisions that are completely discretionary or depend solely on her good will.
In addition to the inherent indeterminacy of the law, another aspect that may determine if our heads of government are truly constrained is the constitutional design (whether it is a parliamentary or presidential regime), as well as the electoral system (whether it is a first-past-the-post or proportional-representation system) and the party system (whether it is a two-party or multiparty system).[7] Indeed, whether a head of government is truly constrained depends above all on the support she has in the legislature and the tools there may be to hold her accountable. This depends on multiple factors. In a parliamentary regime with a first-past-the-post system and just two main political parties (such as the United Kingdom), the likelihood that the head of government will be able to carry out her political agenda without much opposition grows considerably. This is because, in such a regime, the political party of the head of government is much more likely to have a majority of seats in the legislature than in a regime (be it parliamentary or presidential) with proportional representation and a multitude of parties.[8] That said, there are tools to hold the head of government accountable in parliamentary regimes. The motion of no confidence, for example, prevents the head of government from making unpopular decisions for which there is not much public support, as the other members of her political party may always vote against her permanence in office. This is less likely in presidential regimes, where the only tool to remove the head of government from office is the much more cumbersome impeachment.[9]
In a presidential regime with proportional representation and more than two political parties, by contrast, the likelihood that the head of government will be able to pass her legislative proposals without much opposition shrinks exponentially. This is because, in such a regime, the political party of the head of government is less likely to hold a majority of seats in the legislature than in a regime (be it parliamentary or presidential) with a first-past-the-post system and just two main parties.[10] Now, although this arrangement can certainly constrain the exercise of power by the head of government, it may also create deadlock between her political party and parties in the opposition. This can be solved more easily in parliamentary regimes with the same design, as the head of government is able, and may be willing, to compromise on her policy proposals and negotiate with members of political parties in the opposition to build a coalition government. In presidential regimes, on the contrary, there is no easy way of solving the impasse, as the head of government is often unable, and unwilling, to form a coalition government with members of the opposition.[11] Despite these constraints on the power of the head of government, presidential regimes are also characterised by the scarcity of tools to hold her accountable. Besides the impeachment, the only tool available is the possibility of judicial review by the courts to determine if the actions of the head of government are compatible with the constitution, but this tool depends on the interpretation that the judges make of the law, which may well be indeterminate.[12]
All this accentuates the importance of the constitutional design and the electoral and party systems when trying to establish the extent to which our heads of government are truly constrained. And yet, there are authors who argue that these arrangements and tools do not really affect the way in which the head of government acts and, if they do, it is not because they have the legal force to constrain her, but rather because they exert political pressure on her.[13] Indeed, such authors claim that the constitution, the law, and political principles such as the separation of powers and the rule of law have very little impact on the way in which the head of government exercises her power, and that other elements, such as democratic politics and public opinion, have a much bigger influence.[14] Their claim is based on the fact that, in the administrative state, an enormous amount of power is concentrated in the hands of the head of government, either in the form of delegated legislation, discretionary powers, prerogative powers, executive decrees, executive vetoes, and so on.[15] This concentration of power threatens the ability of the legislature and the judiciary to constrain the head of government, as any de jure limit they attempt to implement will be confronted by her de facto power to act in ways which are not clearly constrained.[16] Despite this, these authors insist that there is no reason to worry as, even if the head of government is not constrained by the law, she is constrained by politics, which prevents the most extreme forms of abuse of power.[17]
The exercise of power by the head of government faces a number of political constraints. These include the electoral process (encompassing elections and re-elections), which allow citizens to exercise a certain degree of democratic control over the head of government. Additionally, credibility and popularity play a crucial role by enabling the head of government to garner public support for her political agenda and persuade people about her benevolence.[18] Although these constraints do not necessarily cause the head of government to pursue the common good or produce the best decisions, at least they do prevent her from violating basic rights and civil liberties. And, according to these authors, that is all we can aspire to in an age of executive-centred and legally-unconstrained government.[19] Now, the problem I see with accepting political constraints as a replacement for legal constraints is that, even if the former are able to prevent the head of government from violating the fundamental human rights of citizens, they are insufficient to prevent other, equally serious, forms of abuse of power. Consider a head of government who, due to the excessive indeterminacy of the law and a favourable constitutional design (e.g., one in which her political party has a majority of seats in the legislature), is able to exercise her power arbitrarily, namely, in a way that is not clearly constrained by the constitution, the law, or political institutions such as the legislature and the judiciary. Now imagine that this head of government is nevertheless reasonable and thus receptive to the political pressure exerted by other members of her political party, members of parties in the opposition, and the general public.
In such circumstances, it is sensible to suppose that the head of government will not make abusive decisions that lead her to lose the support of the majority in the legislature or the general public. After all, she cares about being re-elected or, in those cases in which re-election is not possible, about her policy legacy and place in history.[20] This, however, does not preclude her from making decisions that, although not necessarily despotic or self-serving, are based on her particular understanding of what the common good is or what would be advantageous for society. In other words, the fact that the head of government is responsive to political pressure does not deny the fact that she is still able to exercise her power arbitrarily, namely, in a way that is completely discretionary or depends solely on her good will. This is problematic not only because it is incompatible with political principles such as deliberative democracy, the rule of law, and the separation of powers (which, some authors may argue, are only instrumentally valuable and thus not fundamental if the same results can be accomplished through alternative means),[21] but also because it disrespects the autonomy, dignity, and maturity of citizens.[22] Even if the head of government makes decisions that track the perceived ideas and interests of citizens[23] or give due weight to genuinely respect-worthy expectations and rights,[24] then, the fact that she makes them single-handedly renders them condescending and patronising. And any decision which has these two attributes necessarily disrespects human autonomy, dignity, and maturity.
How, then, does all of this relate to our initial question about the importance of legal constraints on the exercise of power by our heads of government? Why exactly should we care if our heads of government are not legally constrained (i.e., by the constitution, the law, and political institutions such as the legislature and the judiciary), if there are political constraints (i.e., democratic politics and public opinion) protecting the basic rights and civil liberties of citizens? Why should we not rely on the benevolence of our heads of government, even if they actually advance the common good and make good decisions? Well, because the exercise of arbitrary power by the head of government is a form of domination that leaves everybody else at the mercy of how she wishes to act.[25] And as serious as this is the fact that it may also enable the advancement of demagogy, paternalism, and populism.[26] After all, the fact that the head of government can exercise her power arbitrarily (because she has, let’s say, excessive discretion) may encourage her to act in ways that either (i) seek the support of citizens by appealing to their concerns, desires, and prejudices instead of their reason, (ii) infantilise people by treating them as children or in ways which deny their maturity, or (iii) delegitimise other political actors and institutions. This last way of acting is particularly problematic, as it arises from the contempt of the head of government for any actor or institution who acts independently from her or expresses disagreement.
Although the arbitrariness of our heads of government has its roots in the absence of legal constraints, then, it has important ramifications on the way in which they act and on their capacity to undermine our political institutions and principles. This has been seen around the world with the rise of populist personalities such as Hugo Chávez, Rafael Correa, Boris Johnson, Andrés Manuel López Obrador, Narendra Modi, Evo Morales, Viktor Orbán, Donald Trump, and others.[27] And it helps explain why we should care about the excessive indeterminacy of the law and work towards strengthening our political institutions.
References
Ackerman Bruce, ‘The Emergency Constitution’ (2004) 113 [5] The Yale Law Journal 1029.
Arneson Richard J, ‘Democratic Rights at the National Level’ in Christiano Thomas (ed), Philosophy & Democracy: An Anthology (Oxford University Press 2003).
Caldwell Michael & Moe Terry M, ‘The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems’ (1994) 150 [1] Journal of Institutional and Theoretical Economics 171.
‘Desmantelando el Estado’ Nexos (Mexico City, Sunday 1st October 2023) <https://www.nexos.com.mx/?p=75498> accessed Wednesday 1st November 2023.
Dworkin Ronald, A Matter of Principle (Harvard University Press 1985).
Gorsuch Neil M, ‘Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution’ Time (Friday 6th September 2019) <https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/> accessed Wednesday 1st November 2023.
Hart HLA, The Concept of Law (2nd edn, Penelope A Bulloch & Joseph Raz eds, Oxford University Press 1961).
Haslett Emma, ‘Timeline: All the lockdown breaches by politicians and government employees so far’ The New Statesman (London, Wednesday 8th December 2021) <https://www.newstatesman.com/science-tech/coronavirus/2021/12/timeline-all-the-lockdown-breaches-by-politicians-and-government-employees-so-far> accessed Wednesday 1st November 2023.
Ho Vivian, ‘First Thing: Putin unleashes Russian invasion of Ukraine’ The Guardian (London, Thursday 24th February 2022) <https://www.theguardian.com/us-news/2022/feb/24/first-thing-putin-declares-war-russia-invades-ukraine> accessed Wednesday 1st November 2023.
House of Lords, COVID-19 and the use and scrutiny of emergency powers (Select Committee on the Constitution, 3rd Report of Session 2021-22).
Kingsley Patrick, ‘Netanyahu Surges Ahead with Judicial Overhaul, Prompting Fury in Israel’ The New York Times (New York City, Thursday 12th January 2023) <https://www.nytimes.com/2023/01/12/world/middleeast/netanyahu-israel-judicial-reform.html> accessed Wednesday 1st November 2023.
Lijphart Arend, ‘Constitutional Choices for New Democracies’ (1991) 2 [1] Journal of Democracy 72.
Linz Juan José, ‘The Perils of Presidentialism’ (1990) 1 [1] Journal of Democracy 51.
Locke John, Two Treatises of Government & A Letter Concerning Toleration (first published 1690, Ian Shapiro ed, Yale University Press 2003).
‘Mahsa Amini: Woman dies after arrest by Iran’s morality police’ Al Jazeera (London, Friday 16th September 2022) <https://www.aljazeera.com/news/2022/9/16/iranian-woman-dies-after-moral-polices-detention-reports> accessed Wednesday 1st November 2023.
Ortiz Samantha & López Ayllón Sergio, ‘Los Modos Ciegos de la 4T’ Nexos (Mexico City, Sunday 1st October 2023) <https://www.nexos.com.mx/?p=75492> accessed Wednesday 1st November 2023.
‘Palestinian militants launch surprise assault, Israel strikes targets in Gaza’ Australian Broadcasting Corporation (Saturday 7th October 2023) <https://www.abc.net.au/news/2023-10-07/israel-targets-hamas-rocket-attacks/102947766> accessed Wednesday 1st November 2023.
Pettit Philip, ‘Freedom with Honor: A Republican Ideal’ (1997) 64 [1] Social Research 52.
Posner Eric A & Vermeule Adrian, The Executive Unbound: After the Madisonian Republic (Oxford University Press 2010).
Raz Joseph, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979).
Tushnet Mark V & Bugarič Bojan, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2022).
Urbinati Nadia, Me the People: How Populism Transforms Democracy (Harvard University Press 2019).
[1] House of Lords, COVID-19 and the use and scrutiny of emergency powers (Select Committee on the Constitution, 3rd Report of Session 2021-22) 2-3.
[2] Bruce Ackerman, ‘The Emergency Constitution’ (2004) 113 [5] The Yale Law Journal 1029, 1029-1032.
[3] John Locke, Two Treatises of Government & A Letter Concerning Toleration (first published 1690, Ian Shapiro ed, Yale University Press 2003) book II, ch XII, para 143-148, 164-165.
[4] HLA Hart, The Concept of Law (2nd edn, Penelope A Bulloch & Joseph Raz eds, Oxford University Press 1961) 124-126.
[5] ibid 127-136.
[6] Locke (n 7) book II, ch XII, para 143-148, 164-165.
[7] Juan José Linz, ‘The Perils of Presidentialism’ (1990) 1 [1] Journal of Democracy 51.
[8] Donald L Horowitz, ‘Comparing Democratic Systems’ (1990) 1 [4] Journal of Democracy 73.
[9] Juan José Linz, ‘Presidential or Parliamentary Democracy: Does it Make a Difference?’ in Juan José Linz & Arturo Valenzuela (eds), The Failure of Presidential Democracy: Comparative Perspectives, vol 1 (The Johns Hopkins University Press 1994).
[10] Arend Lijphart, ‘Constitutional Choices for New Democracies’ (1991) 2 [1] Journal of Democracy 72.
[11] Michael Caldwell & Terry M Moe, ‘The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems’ (1994) 150 [1] Journal of Institutional and Theoretical Economics 171.
[12] Ronald Dworkin, A Matter of Principle (Harvard University Press 1985) 9-32.
[13] Eric A Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford University Press 2010) 3-5.
[14] ibid 5-7.
[15] ibid 7-10.
[16] ibid 11-12.
[17] ibid 12-15.
[18] ibid 113-123.
[19] ibid 124-153.
[20] ibid 13.
[21] See, for example, Richard J Arneson, ‘Democratic Rights at the National Level’ in Thomas Christiano (ed), Philosophy & Democracy: An Anthology (Oxford University Press 2003) 95-115, arguing that democracy is only instrumentally valuable.
[22] Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) 210-228.
[23] Philip Pettit, ‘Freedom with Honor: A Republican Ideal’ (1997) 64 [1] Social Research 52.
[24] Julian A Sempill, ‘Ruler’s Sword, Citizen’s Shield: The Rule of Law and the Constitution of Power’ (2016) XXXI Journal of Law & Politics 333, 366-374.
[25] Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press 1997) 171-205.
[26] Nadia Urbinati, Me the People: How Populism Transforms Democracy (Harvard University Press 2019).
[27] Mark V Tushnet & Bojan Bugarič, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2022) 1-5.
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