Unilateral Executive Power: What is Wrong with the Rule by One in a Constitutional Democracy?

Student thesis: Doctoral ThesisDoctor of Philosophy

Abstract

The aim of this dissertation is to investigate a particular way in which a head of government can abuse her power, namely, by making unilateral decisions. I conceive of ‘unilateral executive power’ as a form of arbitrary power (i) exercised exclusively by the head of government (albeit in many cases with the assistance of a cabinet or group of ministers) and (ii) not duly constrained by the constitution, the law, or any other agency of government or group of people. This form of power is possible due to the absence or excessive indeterminacy of the law, which allows the head of government to make single-handed decisions without being subject to the due process through which decisions should be made. This project aims to argue that, although the head of government may use her unilateral executive power to make abusive decisions that violate basic human rights or favour only her own interests, she does not necessarily have to do so. Rather, she may use such power to make benevolent decisions that are based on her particular account of what the common good is or what would be advantageous for the community. This means that this form of power is arbitrary not only in the sense that the head of government can make cruel or selfish decisions, but also in the sense that she can make decisions that are completely discretionary or depend solely on her good will. This thesis thus concludes that unilateral executive power is problematic not only because it is incompatible with deliberative democracy, the rule of law, and the separation of powers, but also because, independently of how benevolently it is exercised, it is a form of domination that disrespects autonomy and dignity by creating uncertainty and disappointed expectations and by treating people in condescending and patronising ways.

In the first chapter, I define the concept of ‘unilateral executive power’ and provide the basis for an answer to the question of what exactly is wrong with it. I begin by comparing and contrasting the concepts of ‘legal black holes’, ‘legal grey holes’, and ‘fuzziness’, that is, circumstances in which either there is no law regulating the exercise of power by the head of government or the law that exists is insufficient to prevent such exercise from being arbitrary. I then argue that these three circumstances may grant the head of government the authority to make unilateral decisions. I conclude by suggesting that the fundamental problem with the exercise of unilateral executive power is not necessarily that it is a form of interference (in the sense that it threatens the basic rights, interests, and civil liberties of citizens), but rather that it is a form of domination (in the sense that it undermines the principles of participatory and deliberative democracy and the procedural conception of the rule of law).

In the second chapter, I clarify the fundamental sense in which the exercise of unilateral executive power is incompatible with democracy. I begin by comparing and contrasting three different arguments for the instrumental value of democracy (i.e. the strategic argument, the epistemic argument, and the virtue argument) and two distinct arguments for its intrinsic value (i.e. the interests argument and the capacities of judgment argument). I then associate these five arguments with either an aggregative or a deliberative conception of democracy. This leads me to argue that the aggregative conception is implausible, as being treated as an equal requires not only being counted or having one’s interests equally considered, but also being able to participate in the decision-making process and having an equal opportunity to exercise one’s capacities of judgment. I conclude by suggesting that the exercise of unilateral executive power is incompatible with the deliberative aspects of democracy, as it fails to show an equal respect for the capacities of judgment of all citizens.

In the third chapter, I explain the fundamental sense in which the exercise of unilateral executive power is incompatible with the rule of law. I begin by comparing and contrasting three different conceptions of the rule of law (i.e., the formal conception, the procedural conception, and the substantive conception). I then argue that the fundamental problem with the exercise of unilateral executive power is not that it is incompatible with the substantive conception, but rather that it is incompatible with the formal and procedural conceptions. I conclude by suggesting that the rule by one (i.e. the exercise of unilateral executive power) is at odds with both the rule by many and the rule of law.

In the final chapter, I analyse the fundamental role of the doctrine of separation of powers (and the principle of checks and balances) in preventing the exercise of unilateral executive power. I begin by comparing and contrasting two different accounts of the meaning of the separation of powers (i.e. the pure doctrine and the reconstructed view) and three distinct approaches to its value (i.e. the freedom approach, the efficiency approach, and the integrity approach). I then argue that the freedom and efficiency approaches are fundamentally problematic in two senses. Firstly, they assume that it is possible to determine the functions that the executive should carry out and, secondly, they suppose that doing so is enough to prevent the exercise of unilateral executive power. I conclude by suggesting that the only approach that can explain how the doctrine of separation of powers (and the principle of checks and balances) may prevent the exercise of unilateral executive power is the integrity approach. This is because it requires that each function has a distinct integrity and that the exercise of power as a whole is articulated and orderly (as opposed to compressed and undifferentiated), which contributes to the consolidation of the procedural conception of the rule of law.
Date of Award1 May 2024
Original languageEnglish
Awarding Institution
  • King's College London
SupervisorJames Grant (Supervisor) & Massimo Renzo (Supervisor)

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