Published online by Cambridge University Press: 20 July 2015
In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between that interpretive role, and the rule of law. In the two decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.
This article was developed from The Coxford Lecture, “Interpretation and the Rule of Law”, delivered March 28, 2013 at Western Law. I am grateful to Caroline Norris for clerical assistance, and to Richard Bronaugh and Tarun Khaitan for comments on a draft.
1. Constitution of India, 1950, Article 14.
3. Centre for Public Interest Litigation & Others v Union of India & Others, Supreme Court of India, Writ Petition (Civil) No 423 of 2010, decided on 2 Feb 2012 [2G Spectrum].
4. Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
5. Canada (Attorney General) v PHS Community Services Society  SCC 44,  3 SCR 134 [Insite] at para 127.
6. Rodriguez v British Columbia  3 SCR 519 at 594-95, R v Malmo-Levine  SCC 74,  3 SCR 571 at paras 77-78.
7. Insite, supra note 5 at para 131.
8. Ibid at para 133.
9. Other things might not be equal if, e.g., the impugned decision has some other public benefit that can legitimately be pursued, or if the alternative to the impugned decision would be costly.
10. Through the Bentham Project at University College, London, you can be part of a crowd-sourced programme to transcribe Bentham’s mass of unpublished writings, for a projected seventy-volume collection of his works: blogs.ucl.ac.uk/transcribe-bentham.
12. The Works of Jeremy Bentham, ed by Bowring, John (Edinburgh: William Tait, 1838-1843), vol 1 Google Scholar, ch 4. Cf ‘the species of pseudonomia—of sham, and Judge-made law, styled Common Law’, Principles of the Civil Code, ch XVII, § XXI, art 14.
13. Ibid at vol 5, 231-37 at 235-36; www.ucl.ac.uk/Bentham-Project/tools/bentham_online_texts/truthvash.
14. Ibid at chapter XVII. Principles of the Civil Code was first published by Etienne Dumont in 1802, in French translation from papers that Bentham had given him in 1788. An English translation of Dumont’s work was published in Bowring’s collection of Bentham’s works forty years later (from which the quotations here are taken); that version can be seen at http://www.laits.utexas.edu/poltheory/bentham/pcc/pcc.pa01.c17.html. Dumont had evidently done some extensive editing of the work; see the Introduction to Charles Milner Atkinson, ed, Bentham’s Theory of Legislation (Oxford University Press, 1914)Google Scholar.
15. Fuller, Lon, The Morality of Law, 2d ed (New Haven: Yale University Press, 1969)Google Scholar at ch 2; Finnis, John, Natural Law and Natural Rights, 2d ed (Oxford: Oxford University Press, 2011) at 270–21Google Scholar; Raz, Joseph, The Authority of Law, 2d ed (Oxford: Oxford University Press, 2009) at 214–18Google Scholar.
16. Bentham, Jeremy, Principles of the Civil Code (Tait, W, 1843)Google Scholar at ch XVII, ‘The Power of Laws over Expectation’: www.laits.utexas.edu/poltheory/bentham/pcc/index.html.
18. Finnis, supra note 15 at 270.
19. I do not mean that they should never do so; in fact, it would be damaging to a legal system if they had no jurisdiction or no willingness to depart from legislation on grounds of equity, or on grounds of perversity; Bentham himself gave the example—already a chestnut in his day—of a surgeon who operates on a person in an emergency after an accident in the street, and is prosecuted for an offence of drawing blood in public.
20. See Endicott, Timothy, ‘The Value of Vagueness’ in Marmor, Andrei & Soames, Scott, eds, Philosophical Foundations of Language in the Law (Oxford: Oxford University Press, 2011).Google Scholar
21. Bentham, Jeremy, Constitutional Code, ed by Rosen, F & Burns, JH (Oxford: Oxford University Press, 1983)Google Scholar at ch XII, § XX, art 2. Bentham wrote this Code in the early 1820s.
22. Ibid at ch XII, § XIX, art 1.
23. Ibid at ch XII, § XXI, art 1-3.
24. Ibid at ch XII, § XXI, art 13.
25. In fact, the good sense of asking your mom, if she is available, reflects a difference between the authority of a parent and the authority of a legislature; in political community we need the virtues of the rule of law, which include the value of dispute resolution by an interpreter that is independent of the lawmaker. Even a household may well need certain analogues of the rule of law (certain forms of stability, openness, intelligibility, and consistency in the rules). Yet it may be just and convenient in a household, for a parent to have a power in a form that would be tyranny in a political community. We might say that a parent’s power to decide what you get to eat is an arbitrary power. ‘Because I said so’ may actually be all the justification that the parent needs to give to a person subject to the power. If so, it is all right for parents to have certain forms of arbitrary power.
28. Insite, supra note 5 at para 105.
29. 2G Spectrum, supra note 3 at para 79.
30. Ibid at para 76.
31. Ibid at para 77.
32. Ibid at para 80.
33. Securing a bribe is, you might be tempted to say, a reason for action, but it is a reason that the law ought to treat as no reason at all.
34. Even then, such a rule would be a novel creation out of a guarantee of equality in the Constitution. The guarantee in Article 14 that ‘the State shall not deny to any person equality before the law…’ does obviously entail a rule that the State should not draw certain sorts of arbitrary distinction between people (in an appropriate sense of arbitrariness). But the Court seems to have extended this rule into a general prohibition on arbitrariness, detached from equality between persons. The Court has crafted a rule that even if no person’s equality is denied, it is unlawful for natural resources to be allocated in a way that is corrupt. You might say that the doctrine does arise from Article 14, because a public official who sells a public good for private profit is denying everyone else’s equality with himself or herself. But then Article 14 would become a source for any conceivable rule prohibiting wrongdoing that affects the public; and that would treat it as an unruly authorisation for judicial law making.
35. Ibid at para 69.
36. Insite, supra note 5 at para 131.
37. See supra note 9.
38. Supra note 29.
39. Supreme Court of India, Special Reference No.1 of 2012, opinion handed down on 27 September 2012.
40. Ibid, para 129.
41. Ibid, para 120.
42. Ibid, para 135.
43. Chaoulli v Quebec  SCC 35,  1 SCR 791 at paras 130, 231-33, citing Rodriguez v British Columbia  3 SCR 519 at 594-95.
44. Chaoulli, ibid at para 164.
45. As noted by the Court in the Insite case at para 132, although in the Insite case, the unanimous Court held that the government’s decision should be struck down on either of the two views expressed in Chaoulli. For an account of Chaoulli and of the unsettled state of the arbitrariness doctrine, see Sharpe, Robert J & Roach, Kent, The Charter of Rights and Freedoms, 5th ed (Toronto: Irwin Law, 2013) at 249–52Google Scholar.
46. Insite, supra note 5 at para 105.
47. Ibid at para 140.