Arbitrariness: Why the Most Importance Idea in Administrative Law Can't Be Defined, and What This Means for the Law in General

Abstract

Briefly, I will argue that understanding arbitrariness in the law requires an understanding of the conflict between "invariantist" and "contextualist" approaches to the idea of the arbitrary. Contextualism, as I shall define it below, offers the best available understanding of how the idea of arbitrariness actually functions in the law. As we better understand the forms of contextualism, we then understand better the context-dependent multiple meanings of arbitrary. In turn, better understanding the idea of arbitrariness helps us better understand the murkiness and contestedness of the law in general.