THE FEDERAL POLYTECHNIC ADO EKITI, EKITI STATE

SCHOOL OF BUSINESS STUDY

DEPARTMENT OF OFFICE TECHNOLOGY AND MANAGEMENT

AN ASSIGNMENT ON
HOW JUSTIFIABLE IS THE ASSUMPTION THAT THE PRINCE
OUGHT NOT ADMINISTER JUSTICE IN PERSON BECAUSE HE WILL
NOT ACHIEVE EFFIENCY AND THERE IS LIKELIHOOD OF
ARBITRARY RULE

COURSE CODE: GNS 121

COURSE TITLE: CITIZENSHIP EDUCATION II

PREPARED BY:
GROUP C
KEHINDE CORNELIUS TOBI – GROUP LEADER
OGUNDARE HENRY AYODELE
OGUNSOLA OLUMIDE TEMITOPE
OLOMOLA FUNKE OLUWANIFEMI
OLORUNFEMI MICHAEL AYOBAMIDELE
OYINLOLA AKEEM OKIKIOLA
AFOLABI ABOSEDE OLUWADAMILOLA
ADEBAYO DAMIARE VICTOR
ADEWALE SUNDAY SAMUEL
AJISAFE ESTHER MORENIKEJI
OGBEYEMI MICHAEL OLUWAGBEMIGA
OJO OLUWATIMILEYIN FAVOUR
OLADUNJOYE IFEDOLAPO TEMITOPE

SUBMITTED TO:
MR. DARAMOLA
INTRODUCTION

An arbitrary definition law explains decisions made or actions taken that are not necessarily

based on established facts, but instead based in large part on opinions. Arbitrary decisions do not

reflect accepted legal precedence, nor are they made with regards to existing facts or established

circumstances. They are often associated with individuals or forces that operate outside the realm

of the law, such as tyrants and autocrats that use accumulated or delegated power to set personal

agendas.

In judicial terms, determining whether or not a law or decision is arbitrary most often occurs

when a court is asked to render an opinion on the actions of an administrative body of a

government agency. Administrative agencies derive their authority through vesting clauses in

federal and state constitutions to establish rules and regulations, and issue orders arising from

disagreements.

Non-elected officials appointed to find ways to circumvent gridlock and cut through red tape to

make the government run more efficiently staff these agencies. However, in their zeal to get

things accomplished, they can at times act with disregard for the due process imposed by the law

and procedures created by elected legislatures or laws established by the courts.

Arbitrary rule is used in reference to a judge’s ruling in a court case, arbitrary means based on

individual discretion rather than a fair application of the law. For example, finding someone

guilty of a crime simply because they have a beard would be an arbitrary decision. However, a

discretionary decision is not always arbitrary. Although, the law sometimes gives judges

discretionary powers, it also requires them to act within boundaries when applying general

principles of law to the facts of a particular case. As a result, a judge cannot act in disregard of

the evidence or ignore established precedent. Such disregard would be arbitrary.

Historically, arbitrary has also been used to describe the actions of the executive and legislative

branches. The concern of arbitrariness arose in part because chancellors’ broad discretionary

powers were often accused of being arbitrary. In a democracy, arbitrariness cannot be allowed;

but discretion is sometimes allowed by law.

Judicial Review and Arbitrary Law

The opportunity for courts to review administrative decisions, known as judicial review, is one of

the most important rights granted to the judicial branch of government. These cases arise when a

business, an individual or, in in the case of a class action suit, a group of individuals asks a court

to review a decision which they believe harms them in some way. Judicial review was

established by legislatures to protect the rights of citizens from capricious acts by the executive

branch, while also providing executive agencies the authority to establish rules and regulations.

In 1948, the U.S. Congress established the scope of the court’s authority to review actions by

federal agencies by enacting the Administrative Procedure Act. Among the key elements of this

Act:

 It tasks the court with determining whether a rule or regulation was created arbitrarily

without following established procedures and not founded on a reasoned evaluation of

relevant factors.

 The burden falls to the agency to prove that its decision was based on fact and made with

regard to established standards.

 If the court determines the agency acted arbitrarily, it may set aside the agency’s action to

avoid injustice.

A key feature of judicial review is the benefit of the doubt the court can afford an agency based

upon the expertise of its members on the relevant subject matter and the underlying facts
supporting their decision. However, that does not mean that the courts should ignore

inconsistencies between the agency’s interpretations of facts and existing legal precedence. The

court has the authority to determine how the facts should be applied and depend on the technical

application of the governing law.

If a court determines that an agency’s actions were indeed arbitrary it may:

 Overturn the agency’s decision

 Remand the case back to the agency with instructions to consider the facts as determined

by the court.

“Arbitrary and Capricious” as Applied in Appeals

The “arbitrary and capricious standard” defines an act as occurring with complete disregard for

established facts and an overt willingness to abuse the power held by an agency, and is one of the

most frequently applied rules for overturning an action by the executive branch of government.

There are several examples of this standard being applied in appeal cases:

 In 2016, a New York State Supreme Court judge ruled that an evaluation of a New York

teacher’s performance was based upon an “arbitrary and capricious” evaluation system

developed by then New York State Education Commissioner John King, and

implemented by the New York State Education Department.

 In 2017, the US District Court for the District of Rhode Island applied the “arbitrary and

capricious” standard in a case where Emhart Industries successfully defended itself

against an Environmental Protection Agency order relying upon the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), also known as

Superfund.
The Administrative Procedure Act and its establishment of “arbitrary and capricious” as a

standard for judicial review serves as an excellent example of the concept of checks and balances

established by the US Constitution.

RULE OF LAW

The mechanism, process, institution, practice, or norm that supports the equality of all citizens

before the law, secures a nonarbitrary form of government, and more generally prevents the

arbitrary use of power. Arbitrariness is typical of various forms of despotism, absolutism,

authoritarianism, and totalitarianism. Despotic governments include even highly institutionalized

forms of rule in which the entity at the apex of the power structure (such as a king, a junta, or a

party committee) is capable of acting without the constraint of law when it wishes to do so.

Ideas about the rule of law have been central to political and legal thought since at least the 4th

century bce, when Aristotle distinguished “the rule of law” from “that of any individual.” In the

18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of

law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since

profoundly influenced Western liberal thought.

In general, the rule of law implies that the creation of laws, their enforcement, and the

relationships among legal rules are themselves legally regulated, so that no one—including the

most highly placed official—is above the law. The legal constraint on rulers means that the

government is subject to existing laws as much as its citizens are. Thus, a closely related notion

is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges

that are not extended to all and that no person shall be immune from legal sanctions. In addition,

the application and adjudication of legal rules by various governing officials are to be impartial

and consistent across equivalent cases, made blindly without taking into consideration the class,
status, or relative power among disputants. In order for those ideas to have any real purchase,

moreover, there should be in place some legal apparatus for compelling officials to submit to the

law.

Not only does the rule of law entail such basic requirements about how the law should be

enacted in society, it also implies certain qualities about the characteristics and content of the

laws themselves. In particular, laws should be open and clear, general in form, universal in

application, and knowable to all. Moreover, legal requirements must be such that people are able

to be guided by them; they must not place undue cognitive or behavioral demands on people to

follow. Thus, the law should be relatively stable and comprise determinate requirements that

people can consult before acting, and legal obligations should not be retroactively established.

Furthermore, the law should remain internally consistent and, failing that, should provide for

legal ways to resolve contradictions that can be expected to arise.

Despite those basic features, however, there has never been a generally accepted or even

systematic formulation of the rule of law (but not for lack of attempts by jurists and political

philosophers). The idea that the law should contribute to beneficial ways of channeling and

constraining the exercise of public power can be interpreted in different ways; such differences

are especially apparent over time and across different polities.

Institutions and legal culture

For such reasons, the rule of law is best seen not as a blueprint for institutional design but as a

value, or cluster of values that might inform such a design and that can therefore be pursued in a

variety of ways. Nonetheless, several rather simple and generalizable institutional insights follow

from the idea that those who judge the legality of exercises of power should not be the same as

those who exercise it. For instance, a typical rule-of-law state will institutionalize some means of
shielding legal officials from interference, political or otherwise, that threatens their

independence. Accordingly, the institutional separation of the judiciary from other branches of

government is commonly thought to be an important feature of rule-of-law states. Other

measures to ensure fair access to legal institutions may also be important for rule-of-law regimes.

In addition, a binding written constitution is widely believed to aid the rule of law and has been

adopted by most states of the world.

While certain institutional traditions and conventions, as well as written laws, may be important

to ensure that judicial decisions are grounded within plausible interpretations of existing laws, no

single institutional character of a state should be seen as necessary or sufficient to the rule-of-law

ideal. The rule of law is tied neither to any one national experience nor to any set of institutions

in particular, although it may be better served in certain countries and by some institutions.

Moreover, the institutional arrangements that ensure the rule of law in one polity might not be

easily duplicated in or transplanted to another. Different polities embody their own judgments

about how to implement specific rule-of-law ideals given their particular legal and cultural

traditions, which naturally influence the character of their institutions. Nonetheless, the initial

sociological condition for the rule of law is shared across cultures: for the rule of law to be more

than an empty principle, most people in a society, including those whose profession it is to

administer the law, must believe that no individual or group should be above the law.

The concept of liberty or freedom (I will use the words interchangeably) is surprisingly elusive,

given how frequently we invoke it and how fervently we depend on it. For some, especially

today, it has an essentially negative meaning: a freedom from some kind of constraint, coercion,

or interference. For others, it has a more positive sense, as a freedom to achieve certain ends, or

realize one’s agency. Sometimes it is conceived of in relation to external threats, like other
people; sometimes, in relation to internal threats, like passions or delusions. It can name

primarily the liberty of individuals, or the liberty of communities and states vis-à-vis other

communities. Sitting somewhere near the nexus of all these meanings, however, is a concept of

liberty that dominated the eighteenth century, but that we often ignore now at our peril. Like all

concepts of freedom, this one is best understood in terms of the unfreedom it shuns: in this case,

the unfreedom of arbitrary power.

Once alerted to the importance of this fear of the “arbitrary,” we start to notice it all over

eighteenth-century political writings, including the debates surrounding the American Founding.

Consider one of the classic early statements of the colonists’ cause, James Otis’s The Rights of

the British Colonies Asserted and Proved (1763). In it, he enumerates six fundamental rights for

which the colonists contend, all of which in some way revolve around this concept, but two of

which name it specifically:

3rdly. No legislative, supreme or subordinate, has a right to make itself arbitrary.

4thly. The supreme legislative cannot justly assume a power of ruling by extempore arbitrary

decrees, but is bound to dispense justice by known settled rules, and by duly authorized

independent judges.

An arbitrary power is a power of mere will. It is, as it were, mere power or absolute power in the

most precise sense of the term: power unconstrained and unbound. Indeed, it was a concept

derived from theology, and the famous medieval disputes about God’s potentia absoluta (the

theoretical power of his unlimited will) and his potentia ordinata (the actual ordained power of

his will as he had determined and declared it). And just as God’s ordained power could be

described in terms of law (the “eternal law” of scholastic theory), so the opposite of human

arbitrary power was the rule of law, “a government of laws rather than men,” as John Adams—
following Aristotle, Livy, and Harrington—declares in his attack on the arbitrary power of

Parliament (in the Novanglus of 1774).

This, then, was the first point to be made about freedom from arbitrary power: it was the freedom

to be governed, and to live “by known settled rules,” whether these took the shape of

immemorial customs or formally promulgated laws. Indeed, when one reads the Declaration of

Independence, one is struck to find that its most recurrent complaint is that Britain has interfered

with the colonists’ ability to pass laws.

Here we begin to understand the connection between the enigmatic definitions of Montesquieu.

Freedom is not ultimately an external state of affairs, as important as that may be; the prisoner

who cowers in his cell with no idea that the door is unlocked and the guards asleep does not

experience freedom, whereas the prisoner who is cheerfully reconciled to his present

confinement in full confidence of his impending vindication may well feel quite free. And

precisely because freedom is above all a psychological condition, it depends on stability, or, in

Montesquieu’s words, “an opinion of security.” Freedom this moment that may be gone the next

is not experienced as freedom. Thus the critical importance of the rule of law: only by means of

law, of “known settled rules,” can we have confidence about the field of action available to us,

and our power to act within it.

Freedom in this view requires a certain durability; contra Hobbes, life under a benevolent despot

cannot be freedom whether or not he is actively coercing us. The mundane example of the

“horrible boss” drives home the psychological insight here: anyone subject to the whims of a

moody and mercurial employer will tend to censor himself even when his boss does not censor

him. He will guard his steps and words, he will acquire habits of flattery rather than truth-telling.
He will work just hard enough, but not too hard. So, too, the people under a despot: liberty of

spirit will wither, even where liberty of action may outwardly persist.

Of course, an important corollary follows from this denunciation of arbitrary power: the

necessity of government by consent. Whereas it was enough for a perfect and immutable God to

limit his power by his own reason and declaration, that simply won’t do for fallible and

inconstant men. An earthly ruler who pledges his word to govern according to certain laws is

surely better than one who openly indulges his fickle fancies, but his people will still live in

uncertainty and insecurity. Emperor Nero, after all, was reputed a good and just ruler for his first

five years on the throne. Genuinely lawful rule, with the stability that brings liberty, must be

accountable rule, accountable to individuals or institutions beyond those making and executing

the laws—accountable, ultimately, to the whole people. To be free is to be one’s own ruler, and

to be a free people is to rule and be ruled by laws that reflect the people’s consent.

It is easy to hear the frequent early modern trumpeting of “the consent of the governed” and to

imagine in it something like the modern idol of consent. Freedom in this view, contra

Montesquieu, “consists in doing what one wants.” Law is made compatible with freedom simply

because the law first gets every citizen’s permission before limiting him or her in some way. But

of course, this conception is hard to square with the fiction of representation and the authority of

majority rule: quite clearly, many citizens are often constrained without and even against their

consent. Indeed, this conception of freedom ironically reproduces precisely the tyranny that the

early English republicans associated with King Charles I’s exercise of the royal veto. If the will

of any one individual can thwart the will of law, the freedom that depends on the rule of law is

undermined. As Quentin Skinner summarizes, “To live under such a constitution is to live
subject to the perpetual danger that the body politic will be moved to act by a will other than that

of the nation as represented in parliament.”

A constitution constantly subject to the veto of individual rights claims would compromise

freedom in two ways. First, the liberty of the people to act in their corporate capacity (people as

the singular noun it used to be, not the plural that we are apt to default to) is lost, since they

cannot move forward, and cannot pursue any common good, until each and every person is on

board. Second, the liberty of each individual would evaporate inasmuch as liberty depends on

“the opinion that each one has of his security,” and this security depends on knowing from day to

day what the law will and will not be. Law, of course, must change as human society changes,

but they should change no faster; otherwise, a paralyzing air of uncertainty takes hold.