Context

The purpose of this literature review is to survey the research on “arbitrariness,” broadly construed. This includes an abstract view of arbitrariness as a philosophical concept. While formal definitions are elusive, the general approach is to look for a “family resemblance,” or the overlapping ideas and functions that construct the concept of arbitrariness. Nevertheless, the anchoring point for developing a conception of arbitrariness will be rooted in Canadian jurisprudence; more specifically, as a fundamental principle of justice (pursuant to s. 7).

By way of overview, three observations are useful to keep in mind. First, in Canadian jurisprudence, the key cases are PHS (2011), Bedford (2013), and Carter (2015). However, Mary Liston[1] argues that Roncarelli (1959) significantly contributes to the development of conceptions of arbitrariness. [In my opinion, Liston is the best source for a sustained analysis of arbitrariness.]

Second, the philosophical literature hardly looks at arbitrariness as a concept in itself. Much of the discussion focuses on John Rawls’s notion of the morally arbitrary within his broader political philosophy. Other philosophers engage in a linguistic analysis of arbitrariness, which has some connection to the law insofar as statutory interpretation.

Third, US and international jurisprudence on arbitrariness often focuses on administrative arbitrariness and on arbitrariness in sentencing (mostly, on the death penalty). In this vein, there is a focus on decision procedure, bias, and empirical research in psychology and sociology.

Philosophical Conceptions

For Rawls, the original position is derived from the idea that morally arbitrary features (e.g. gender, race, social class) do not count for determining the requirements of justice. Political liberalism generally holds premises of the equal moral worth of individuals or Kantian respect for autonomy, and non-arbitrariness is required for these ideals to be realized. Brian Barry[2] builds on this by arguing that the contents of what is morally arbitrary is linked to equal opportunity (i.e. equal opportunity is the elimination of morally arbitrary determinants). Formal equality involves having equal access to social positions and there must be no arbitrary barriers to advancement.

Joseph Raz[3] understands an act of arbitrary power as “was done either with indifference to serving the purposes that alone justify use of such power, or with belief that it will not serve them.” Raz believes that arbitrariness is inextricable with the exercise of legal power insofar as there is a human element or a “subjective core.” For Raz, this kind of arbitrariness is problematic in a narrower set of circumstances, namely, when it interferes with a person’s dignity. Note that in contrast to Rawls, who seems to blur notions of arbitrariness with luck and inequality, Raz shifts the focus to individuals and their decision procedures.

Some philosophers of language[4] have analyzed arbitrariness as flowing from boundaries drawn in the vagueness of natural language. Language is thought to be arbitrary because the connections between words and what they signify can be vague; in these cases, it is entirely arbitrary how one assigns meaning.  This is ostensible a problem for legal interpretation and larger questions in legal theory (e.g. Dworkin, Fuller, Hart).

Canadian Conceptions

Canadian jurisprudence on arbitrariness is made explicit in PHS, Bedford, and Carter, but there are arguably significant developments made in Morgentaler (1988) and (as Mary Liston argues) Roncarelli. Although the definition of arbitrariness was unsettled in PHS, the “rational connection” test (i.e., a law is arbitrary if there is no rational connection between its objective and its effects…) was settled by the Court in Bedford and Carter. Similar (but different, per Bedford) to the proportionality analysis of s. 1, the idea is that the law’s interference must meet a minimum level of rationality, which is not a difficult for the government to meet.

A number of scholars note the tension with arbitrariness and the rule of law. Timothy Endicott[5] understands arbitrariness as the absence of justification for a decision except for the fact that the decisionmaker made it; for example, executives do not require justification justifications for adhering to judicial orders other than that it was a decision by the court. Alana Klein[6] makes similar observations in that arbitrariness and gross disproportionality are not explicitly tied to rule of law; instead, there is room for problematic subjectivity in the POFL analysis.

Mary Liston develops a reading of Roncarelli whereby a disregard for the rule of law is developed into four dimensions: “the overly broad delegation of discretion; the lack of institutional independence; the failure to give reasons; and the denial of access to justice.”[7] Justice Rand, championing the rule of law, notes that “no legislative Act can, without express language, be taken to contemplate anunlimited arbitrary power exercisable for anypurpose, however capricious or irrelevant, regardlessof the nature or purpose of the statute.”[8]

US & International Conceptions

US and international jurisprudence on arbitrariness largely focuses on arbitrariness review and incorporates empirical studies. For instance, in the context of US admin law, arbitrariness acts as a check against “irrational or discriminatory” decisions and filters out serious “analytic errors.”[9] The focus is on the subject in a position of power and their biases, inappropriate motives, or personal preferences (in a public role). This can be tracked through empirical methods – for example, arbitrary sentencing and looking at death penalty cases.[10] Indian common law also tethers arbitrariness to the rule of law and it is an instrument used to strike down illegitimate uses of discretionary power.[11]

Notably, a contrast might be drawn between the philosophical conceptions of arbitrariness and the empirically based conceptions which focus on psychological irrationality (of those in power). As Robert Goodin[12] suggests, discretionary powers gone awry lead to uncertainty, unpredictability, and insecurity.

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[1] Mary Liston, “Witnessing Arbitrariness: Roncarelli v. Duplessis Fifty Years On” (2010) 55:3 McGill LJ 689.

[2] Barry, Brian. “Equal Opportunity and Moral Arbitrariness” in Julian Lamont, ed, Distributive Justice (Milton Park: Routledge, 2016)

[3] Raz, Joseph. “The Rule of Law and Its Virtue” in Robert L. Cunningham, ed, Liberty and the Rule of Law (College Station: Texas A&M University Press, 1979).

[4] Kompa, Nikola. “The Role of Vagueness and Context Sensitivity in Legal Interpretation in Geert Keil and Ralf Poscher, ed, Vagueness and Law: Philosophical and Legal Perspectives (Oxford: Oxford University Press, 2017).

[5] Timothy Endicott, “The Coxford Lecture Arbitrariness” (2014) 27:No. 1 Can JL & Jur 49.

[6] Alana Klein. “The Arbitrariness in “Arbitrariness” (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 63. (2013).

[7] Supra, note 1, at 696.

[8] Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140, 16 D.L.R. (2d) 689

[9] Thomas J Miles & Cass R Sunstein, “The Real World of Arbitrariness Review” (2008) 75:2 U Chicago L Rev 761.

[10] David C Baldus, Charles A Jr Pulaski & George Woodworth, “Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts” (1986) 15:2 Stetson L Rev 133.

[11] Abhinav Chandrachud, “How Legitimate Is Non-Arbitrariness: Constitutional Invalidation in the Light of Mardia Chemicals v. Union of India” (2008) 2:1 Indian J of Constitutional L 179.

[12] Robert E Goodin, “Welfare, Rights and Discretion” (1986) 6:2 Oxford J Leg Stud 232.