Arbitrary power is a key concept in both politics and philosophy. The rhetoric use of this notion in political contexts usually serves the purpose of discrediting power. This article focuses on possible theoretical use of arbitrary power beyond its applications within political contexts and its negative connotation, frequent even in philosophical language. At first, the notion of arbitrary power is analyzed by contrast to similar concepts, such as «nonsensical», «discretional» and «absolute» power, in order to provide a definition of «arbitrary power» in relation to the problem of the «limits of power». In this perspective, liberalism is indicated as the ideology of «limited power»; according to different authors in political and legal theory, liberalism answers differently the question of which limits have to be imposed on power. This preliminary analysis is functional to the proposal of three specific definitions of «arbitrary power» in relation to the concepts of «rationality», «legality» and «equality». In its first meaning, «arbitrary» is a power acting «irrationally», regardless of whether rationality is understood in terms of natural law rationalism, instrumental use of rationality, reasonableness as flexibility in decision-making processes, or even rationality as consistency of norms belonging to different levels. In its second meaning, «arbitrary» is a power acting «illegally», in opposition to two fundamental characteristics of the rule of law: gubernaculum sub lege and gubernaculum per leges. The first forces the power to respect higher norms; the latter imposes general and abstract laws. In its third meaning, «arbitrary» is a discriminating power in a twofold sense exemplified by the judge who does not treat two citizens as equals «before the law» and Parliament’s discriminating laws, in a sense quite similar to what legal theorists call «reasonableness of the law».

Sul potere arbitrario. Esercizi di ridefinizione

CUONO, MASSIMO
2011

Abstract

Arbitrary power is a key concept in both politics and philosophy. The rhetoric use of this notion in political contexts usually serves the purpose of discrediting power. This article focuses on possible theoretical use of arbitrary power beyond its applications within political contexts and its negative connotation, frequent even in philosophical language. At first, the notion of arbitrary power is analyzed by contrast to similar concepts, such as «nonsensical», «discretional» and «absolute» power, in order to provide a definition of «arbitrary power» in relation to the problem of the «limits of power». In this perspective, liberalism is indicated as the ideology of «limited power»; according to different authors in political and legal theory, liberalism answers differently the question of which limits have to be imposed on power. This preliminary analysis is functional to the proposal of three specific definitions of «arbitrary power» in relation to the concepts of «rationality», «legality» and «equality». In its first meaning, «arbitrary» is a power acting «irrationally», regardless of whether rationality is understood in terms of natural law rationalism, instrumental use of rationality, reasonableness as flexibility in decision-making processes, or even rationality as consistency of norms belonging to different levels. In its second meaning, «arbitrary» is a power acting «illegally», in opposition to two fundamental characteristics of the rule of law: gubernaculum sub lege and gubernaculum per leges. The first forces the power to respect higher norms; the latter imposes general and abstract laws. In its third meaning, «arbitrary» is a discriminating power in a twofold sense exemplified by the judge who does not treat two citizens as equals «before the law» and Parliament’s discriminating laws, in a sense quite similar to what legal theorists call «reasonableness of the law».
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http://www.teoriapolitica.com
Arbitrary; Discretionary; Reasonableness; Power; Liberalism
M. Cuono
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/2318/101966
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