This article maps the conceptual contours of discretion and arbitrariness in law, highlighting their precise distinction and the conditions that separate legitimate discretionary action from impermissible arbitrariness. Discretion is characterized as reasoned, justified on objective factors, and accountable decision-making within legal boundaries, whereas arbitrariness arises when decisions lack justification, rational coherence, or adherence to legal principles. Drawing on Hart’s legal philosophy, legal dogmatics, and case law, the study identifies the elements that sustain lawful discretion and prevent arbitrariness. Furthermore, it introduces a typology of arbitrariness, distinguishing procedural and substantial arbitrariness.
This article critically examines attempts to identify the nature of legal authority. It challenges the soundness of grounding the “nature” of legal authority in universal or necessary ontological properties. Instead, it argues that constitutive and contingent properties of legal authority can be identified within a specific theoretical reconstruction. I offer a theoretical reconstruction within jurisprudence, adopting a conceptual approach, according to which the central property of legal authority is competence: the power to create, apply, or enforce norms, as ascribed by valid legal norms. This framework emphasizes the importance of distinguishing conceptual analysis from normative (political-moral) argumentation and distinguishes political-moral normativity from epistemological normativity.
This article critically and contextually explores Kaarlo Tuori’s thought as articulated in Ratio and Voluntas: The Tension Between Reason and Will in Law, emphasizing how the tension between legal rationality (ratio) and political will (voluntas) forms the conceptual foundation of the modern rule of law. Through an interpretive approach to constitutional structure, the doctrine of the rule of law, and critiques of legal positivism, this study argues that the rule of law is not free from internal paradoxes. On the contrary, its sustainability and legitimacy depend on how it balances political flexibility with the rational constraints embedded in legal practice and constitutional culture. The article elaborates on the differences between the deductive model of continental law and the inductive approach of the common law tradition, while highlighting the dilemma of “totalitarianism through law” as debated in the works of Hayek, Dworkin, and Allan. By positioning ratio and voluntas as a critical reading framework, the article seeks to open new reflective avenues on contemporary constitutional thought amid the demands of democracy and the supremacy of law.
An important set of critiques regarding exclusionary reasons targets the scope of exclusion. According to these critiques, it is always or sometimes impossible to determine the scope of exclusion without recourse to the balance of the first-order reasons. Thus, exclusionary reasons cannot fulfil the function assigned to them. The paper first attempts to fill in the gaps in Raz’s account of exclusionary reasons. It converts the conditions for legitimate authority, such as the expertise, the dependence, and the efficacy conditions for political/legal authorities, into scope restriction criteria. It does so by making use of the “clear mistakes” doctrine. Then, based on the foregoing, it demonstrates that the critics are mistaken in their claims that the determination of the scope of exclusionary reasons always or sometimes depends on the weights or the balance of first-order reasons.
