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This chapter considers and rejects hegemony and other form‐based conceptions of domination. It defends instead an arbitrary power conception, according to which one person or group experienced domination to the extent that it is dependent on a social relationship in which some other person or group wields arbitrary power over them. The idea of arbitrariness is analyzed with the aid of a discussion of social conventions. Democratic and other substantive interpretations of arbitrariness are rejected in favor of a procedural interpretation.

This chapter discusses the court system. When an enormous or arbitrary power establishes itself in a country, the court system is created. A court exists when a person, by virtue of his enormous power, constantly occupies a more elevated and central position in relation to a relatively large number of individuals who depend on him in order to gain, keep, and increase their wealth, status, and chance of appearing and being seen and admired. This system depends on the effective power of the signore to distribute to the courtiers material and symbolic benefits and to threaten them, equally effectively, with the loss of those goods. In the court system, the prince too depends to a certain degree on the courtiers and all those whom he can benefit or threaten. However, the superior power of the signore and his central position are not in question. Ultimately, the most important reason for a court's existence is the practice of servitude.

This chapter explores a number of unmistakable signs that servants can be recognized by. The first is fear. Those who live under the arbitrary power of another man never feels safe, even if they are not oppressed, because they know that the man who is dominating them can take their lives, or humiliate them, or deprive them of their property. They are downcast, they do not look other men in the eye, they are inclined to lie and dissimulate, and most important of all, they are incapable of courage. In contrast, the distinctive mark of political liberty is the sentiment of security and safety, understood as the absence of fear. Along with fear, another distinctive sign of dependency is servility, that is, the inclination to indulge a powerful man in order to obtain or maintain privileges. The flatterer, in order to perform his duties properly, must also insult, denigrate, and deride the enemies of the prince.

Constitutional law and practice aspire to conform to the rule of law, conceived as a fundamental ideal linked to ideals of liberty and justice. The special value of legality is best understood as compliance with the conditions that secure liberty as independence. The writings of Dicey, Hayek, and Locke can be seen as contributions to that republican notion of freedom. It is an ideal that extends beyond formal equality to embrace a more substantive conception of equal citizenship: the equal protection of the law. A bill of attainder cannot qualify as law; nor can measures based on irrational (unjustifiable) discrimination. The rule of law is a bulwark against arbitrary power, from whatever source it arises; it invokes and informs a moral conception of law. Since administrative discretion threatens liberty as independence it must be checked by judicial review, enforcing rigorous standards of due process.

The rule of law promises protection and recourse against the arbitrary exercise of power. The guiding aim of the rule-of-law ideal is served when law’s rule extends to all forms of power in the polity, social as well as political—the rule of law is not only a mode of governance, but also a mode of association. This chapter defends the centrality to the rule of law of the task of protecting individuals from power wielded by non-governmental entities and individuals. It also argues that the rule of law takes hold in a polity only when law is planted firmly in a commonwealth of mutual faithfulness to the differentiated and interconnected responsibilities of fidelity to law (mutual accountability). Law rules not only when government officials are held accountable for the discharge of their duties under law, but also when ordinary citizens structure their relationships by law and hold each other accountable to the common, public terms that the law provides.

Chapter 5 mounts the main argument of the book to show that oppression makes everyone unfree. The main ideas are that oppressions are despotic over their victims, that they can endure only if they try to suppress all actual or potential resistance, that any institutional feature of society that suppresses resistance has established authority, that institutional features with established authority are central social institutions, while suppressing resistance to central social institutions counts as authoritarian tactics used against everyone, that such tactics count as arbitrary power, and that to be subjected to such power is to be subjected to unfreedom of the kind theorized by neo-republicans and Hayekian competitive-order theorists. And since we all have a decent-life interest in freedom from arbitrary power, we are all harmed by such oppression, since it sets back this interest for everyone in society.

This chapter argues that contemporary republicanism is mistaken in its claim that the rule of law is compatible with individual liberty (understood as non-domination), because it is non-arbitrary. It considers three republican definitions of non-arbitrariness—in terms of consent, interests, and control—and argues that all three are dubious and that the rule of law does not satisfy any of them. The chapter then analyzes republican concerns with arbitrariness as resistance towards discretionary powers and argues, finally, that the republican idea of eliminating discretionary power is not always desirable or essential to political freedom. Discretionary powers are not necessarily dominating and may be independently desirable, and non-discretionary powers can be dominating. The exclusive focus on arbitrary interferences with liberty obscures principal forms of political domination.

In today’s USA, transactions between firms and consumers (or businesses in the position of consumers) routinely contain fine-print terms deleting rights to legal remedies against the firm. Remedial rights should not be treated as mere default rules routinely waivable through receipt of fine-print contracts (‘boilerplate’), because such rights deletions threaten the rule of law by undermining rights structures that are central to the state’s obligations toward the public. Boilerplate rights deletions place recipients into ‘quasi-anarchy’, a one-sided situation resembling, for recipients, the anarchy that the state is supposed to supplant. They underwrite a scheme of privatization that amounts to the exercise of arbitrary power over recipients; and they transgress the principle of equality before the law by separating people that retain legal rights from people that do not. Such rights should remain situated in the public realm.

This chapter explores some of the connections between Wollstonecraft’s ideas about slavery and property and anti-slavery arguments of the 1790s about slavery as a state of war, the illegitimate exercise of arbitrary power, and freedom as intrinsically connected to owning a property in the person. There were a plurality of languages about slavery and property available to Wollstonecraft, some of it Lockean, others more radical or republican, and she made intriguing use of them all in the context of a wider political discourse about encroaching executive despotism and arbitrary political power. By locating Wollstonecraft’s ideas about slavery and property in the context of this anti-tyrannicism and related anti-slavery arguments about improvement, property in the person, humanity, barbarity, and degradation, this chapter draws out the implications of her arguments for the development of the public sphere and a sense of belonging to civil society in the late eighteenth century.

This chapter examines the complex relationship between judicial accountability and judicial independence. If judges are unaccountable to the public, they can become the people's rulers. Yet, if they are too accountable to the public they can exercise arbitrary power. The chapter describes mechanisms of achieving accountability through various methods of judicial appointment and removal. But, it argues, more important than those methods is the idea of ensuring judicial accountability by insisting that judges be accountable to the law. That notion, too, is complex. It includes some idea of responsibility to past law-makers, coupled with some idea of accountability to contemporary professionals who define for judges what it means to make decisions according to law.

A dysfunctional legislature and a powerful executive severely weakens the rule of law. Lawmaking should not become an exercise of power by the majority but instead strictly adhere to the legal process which includes dialogue, reasoning, and open debate. By examining the functioning of Parliament and state legislatures over the years, the adherence, or otherwise, to the established process in the making of laws is critically analysed. The nature of the modern state, particularly a state that has a primary role in the social and economic life of society, has meant a regular exercise of the power of delegated legislation. Delegated legislation is accompanied by the threat of an arbitrary exercise of power as well as the influence of irrelevant considerations in decision-making. Using specific examples, the chapter examines whether the use of delegated legislation in India has been a threat to the Rule of Law.

This chapter explores Locke’s lifelong concern with the issue of toleration against the background of the political and religious crises through which he lived. It is argued that the constancy of Locke’s interest in this issue is rivalled only by his concern with natural law. The chapter charts the development of Locke’s thought about toleration from the authoritarian views of his early writings to the more liberal views of his later works for which he is famous. The chapter also discusses the biographical and political factors that help to explain the development of his views; attention is paid to the impact of Shaftesbury, the Exclusion Crisis, the Revocation of the Edict of Nantes, and the ‘Glorious’ Revolution of 1688.