Chapter 5 argues that there is a distinctive activity and with it a particular problem, a particular kind of mischief, that is the central concern of the rule of law ideal. The activity is the exercise of power. The focus is not on the purpose of power’s exercise, for which we have other concepts, but the way it is exercised. The goal is to minimise arbitrary ways of exercising it. The chapter explicates the notions of power and arbitrariness. It argues that power itself is not an evil but a necessity for many good things. Nor for that matter is arbitrariness evil in itself. Rather, it is the combination of arbitrariness with power, when substantial, that is obnoxious. It suggests several reasons why it is both intrinsically immoral and likely to have bad consequences. The chapter concludes by arguing that hostility to arbitrary power is rarely the only game in town, but it is almost always justified. Power that is not arbitrary is not what we most want out of life, but it is a condition for many of the things we do want. Hostility to it is immanent in the rule of law ideal.

This chapter advocates for Alter-Native Constitutionalism’s prioritisation of vernacular understandings of property and housing within South African law, challenging the colonial legacy of ‘lex nullius’ that undermines Black South Africans’ land claims. It critiques the uncommon law’s failure to recognise the Ntu’s historically-rooted, multigenerational land-based relationships and emphasises the interconnectedness of property and housing. The chapter uses Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation set out in Chapter 6 to critique the ways in which, in its precedents, the Constitutional Court has interpreted the property and housing clauses to the near-complete exclusion of vernacular law’s layered property rights system. It argues that courts, as part of the state, should enforce these constitutional protections using Alter-Native Constitutionalism to uphold vernacular land rights. Further, arguing that the courts must prioritise equitable housing access over strict property rights, the chapter uses the Salem case’s limited ‘sharing model’ attempts vis-à-vis restitution to show that vernacular law’s ‘access-to-occupation’ could be feasibly extended throughout South African ‘property law’ in a manner that would reduce forced evictions and balance state, ‘owner’ and beneficial occupiers’ interests. The chapter thus illustratively pushes for judicial interpretations that better reflect ordinary people’s socio-economic realities, needs and sociocultural values, as well as constitutional commitments.

The chapter examines the legal challenges of rationality of automated decision-making through constitutional due process in the US, and via judicial review in the UK and Australia. The existing legal frameworks of these jurisdictions are premised on human decision-making and the concept of human rationality. Automated decisions that fail the test of rationality can be invalidated. Following this, the chapter will consider three main issues in terms of reviewability of the rationality of a decision: what is seen as constituting a “decision”, who is the decision-maker, and what factors and criteria can be used in making a decision.