Fundamentals

What Is Arbitrary State Power and Why Does It Threaten the Rule of Law?

By Daniel Sardá · Published on May 24, 2026

Arbitrary state power appears when public authority acts like personal will: it decides, punishes, permits, bans, or targets people without sufficient reasons, clear limits, or real checks. It is not just a bad government decision. It is a way of exercising authority that leaves the citizen dependent on the changing judgment of whoever holds power.

The central question is simple: does the state act under known rules, or does it act according to convenience, caprice, political pressure, or favoritism?

That difference supports much of the rule of law. When power is constrained by general rules, public reasons, and independent review, citizens have a basis for planning their lives. When power acts arbitrarily, law stops being a shield and becomes a source of uncertainty.

In plain terms: state power is arbitrary when public authority uses its power without sufficient legal and rational justification, or without limits that allow its decision to be challenged.

What arbitrary state power means

The RAE legal dictionary defines arbitrariness as conduct contrary to justice, reason, or law, dictated by will or caprice and lacking sufficient reasoning. The basic idea is straightforward: what is arbitrary is not guided by reasonable rules, but by a will that does not explain itself or recognize limits.

Applied to the state, the problem becomes more serious because public authority does not merely express opinions. It can fine, close, detain, expropriate, deny permits, tax, inspect, regulate, judge, or use public force.

That is why arbitrary state power should not be treated as any ordinary administrative mistake. An office can make an error, a court can misread a rule, or a public policy can fail. Those cases may deserve criticism, but they are not always arbitrary.

Arbitrariness appears when public power acts with one or more of these traits:

• It lacks a clear legal basis.
• The decision gives no sufficient reasons.
• Similar cases receive different treatment without justification.
• The authority uses a power for a purpose different from the one legally intended.
• The measure is disproportionate to the stated objective.
• The citizen has no real way to challenge the decision.

The point is not that every public decision must please everyone. The point is that authority must be able to explain why it acts, under what rule it acts, and before whom it can be controlled.

Arbitrariness is not the same as discretion

A common mistake is to think that every exercise of discretion is arbitrary. It is not.

Laws cannot foresee every concrete situation. That is why many institutions need some room for judgment: an official evaluating an application, a judge weighing evidence, a regulator applying technical criteria, or an authority choosing among several measures allowed by law.

That discretion can be legitimate if it meets basic conditions:

• It is authorized by law.
• It pursues a defined public purpose.
• It relies on relevant facts and criteria.
• It gives understandable reasons.
• It respects equality, proportionality, and due process.
• It can be reviewed by an independent body.

The distinction matters. Without discretion, public administration could become mechanical and unable to handle complex cases. But without limits, discretion becomes personal power.

A simple example: an authority may have room to decide whether a business meets safety requirements. That is not arbitrary if it applies public criteria, reviews evidence, and allows a defense. It becomes arbitrary if it shuts down some businesses and excuses others because of friendship, political pressure, or hostility, without explaining its reasons.

Why the rule of law rejects arbitrariness

The rule of law does not simply mean that laws exist. It means that power itself is subject to law.

The United Nations describes the rule of law as a principle of governance in which persons, institutions, and entities, including the state itself, are accountable to public laws that are equally enforced and independently adjudicated. That idea includes legality, equality before the law, separation of powers, legal certainty, procedural transparency, and avoidance of arbitrariness.

The World Justice Project summarizes the rule of law through four principles: accountability, just law, open government, and accessible and impartial justice. The Venice Commission, in its Rule of Law Checklist, highlights legality, legal certainty, prevention of abuse of power, equality before the law, and access to justice.

All of these formulas point to the same institutional intuition: citizens should not be subject to unchecked official will.

Non-arbitrary power needs rules before it acts, reasons when it decides, and checks after it decides. Without those three pieces, authority can turn law into a selective instrument.

How it appears in public life

Arbitrary state power can appear in many areas. It does not always look like a dramatic abuse. Sometimes it operates through procedures, permits, inspections, sanctions, or administrative silence.

Practical warning signs include:

• Unpredictable permits. A citizen meets the requirements, but the authority approves or rejects the request based on political closeness, informal pressure, or unofficial payment.
• Selective sanctions. The same conduct is punished in some cases and ignored in others, without a public criterion.
• Rule changes without transition. An activity allowed yesterday is punished today without reasonable notice or clear legal basis.
• Decisions without reasons. The authority affects rights or property without explaining facts, rules, and reasoning.
• Closed procedures. The affected person cannot present evidence, see the file, or go before an independent judge.
• Political use of legal powers. A general rule is applied to reward allies or punish opponents.

These situations affect more than case files. They affect the basic trust that lets people live under shared rules.

When a person does not know whether a permit will depend on public requirements or favoritism, investment becomes less secure. When a civil organization does not know whether an inspection will be technical or intimidating, it starts to self-censor. When an owner does not know whether a title will be respected, private property loses part of its protective function.

Why it threatens liberty

From a classical liberal perspective, arbitrary state power is dangerous because it turns public coercion into domination. The state can compel, prohibit, and punish. That capacity can be necessary to protect rights, but it becomes dangerous when it is not constrained by general rules.

Liberty does not depend only on the promise that power will act well. It depends on institutional limits that work even when those in power have incentives to abuse.

The practical consequence is this: if rules change according to the will of the authority, no one can plan with confidence.

That affects several dimensions of social life:

• Individual liberty. People moderate their conduct out of fear of unpredictable decisions.
• Individual rights. The protection of individual rights becomes selective if it depends on official sympathies.
• Property. Assets become less secure when permits, registries, takings, or sanctions are discretionary without control.
• Markets. Investment and exchange need general rules, not case-by-case favors.
• Civil society. Associations, media outlets, churches, unions, and neighborhood organizations need to know that authority cannot punish them for being inconvenient.

That is why arbitrariness is not a topic reserved for lawyers. It is an everyday question: it determines whether common life is organized by public rules or by fear of the official handling the case.

Which institutions reduce it

No institution eliminates the risk of arbitrariness completely. Every political system can fail. But some rules reduce the room for authority to act as if it owned public power.

The most important are:

• Legality. Authority may act only within defined legal powers.
• Reasoned decisions. Acts that affect rights must explain facts, rules, and reasons.
• Legal certainty. Rules must be public, relatively stable, and understandable.
• Equality before the law. Similar cases should receive similar treatment unless there is a reasonable justification.
• Due process. The affected person must be able to know the charges, present a defense, and appeal.
• Transparency. Decision criteria should not disappear inside a bureaucratic black box.
• Separation of powers. No body should concentrate the power to legislate, execute, and judge without checks.
• Independent justice. Citizens need an institution capable of reviewing abuses without obeying political power.

These conditions connect arbitrary state power with limited government and the distinction between limited government and a minimal state. Limiting power does not mean blocking every public action. It means requiring public action to operate under rules that protect the citizen.

What should not be confused

Arbitrary state power is often mixed with nearby concepts. Separating them helps avoid both exaggeration and minimization.

An unpopular decision is not always arbitrary

A policy can be costly, debatable, or unpopular and still not be arbitrary. If it was adopted under legal powers, with public reasons, open procedures, and possible review, the criticism should focus on its content, not necessarily on arbitrariness.

A legal decision can be arbitrary in application

The opposite can also happen. An authority can invoke a valid rule and apply it in a capricious, selective, or disproportionate way. In that case, the problem is not only the existence of a law, but the concrete use of power.

Discretion must have limits

Room for judgment can be necessary. But if that room does not require reasons, criteria, proportionality, or review, it stops being administrative discretion and moves toward personal power.

This is one of the most harmful forms of institutional failure: the institution exists to apply common rules, but it ends up producing uncertainty, privilege, and dependence.

The core idea

Arbitrary state power is incompatible with a free society because it replaces rules with will. Where arbitrariness governs, citizens do not know whether their rights will be respected, whether their contracts will be protected, whether their property will be secure, or whether legitimate criticism will be treated as a threat.

The remedy is not to trust virtuous rulers. Nor is it to deny that every authority needs some room for judgment. The institutional remedy is more demanding: public laws, limited powers, reasoned decisions, equality before the law, due process, independent justice, and effective checks.

Key idea: public power is compatible with liberty only when it can be known, limited, explained, and reviewed.

A political community can have many laws and still be arbitrary. What matters is whether those laws protect the individual from power, or whether they allow power to treat the individual as something available for official use.

That is why arbitrary state power is not a technical detail. It is a basic test of the rule of law.