This chapter addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.

In The Second Treatise of Government, John Locke seems to support what Quentin Skinner identified as the neo-Roman theory of liberty. That is to say, according to Locke, in order to be free, it is not sufficient to be free from constraint or coercion. It also necessary for you to be free of dependency on the will of another person. The sheer fact of absolute monarchy, of ruling by will rather than law, constitutes an act of war, and the people have the right to take up arms against it. However – and here his story becomes strange – Locke also defends prerogative power. That is, he defends the right of the magistrate to exercise their will over and above the rule of law. This chapter will explore this apparent contradiction and try to make sense of it in Locke’s terms. It will conclude that Locke points to an irresolvable tension between the will and the good, and that while the languages of political thought cannot be historically disentangled, they can have distinct and rich philosophical lives.

In the act of cheating, the cheater (mis)represents himself as conforming with the norms. What prevents constitutional cheating (and resulting arbitrariness) from prevailing in a constitutional democracy is moral and cultural restraint among constitutional actors, resulting from the restrictions and conventions that decent politicians, administrators, and lawyers accept. Moreover, there are institutional mechanisms of constitutional and subconstitutional supervision that patrol the abuse and other misapplications of the law. These are the first to disappear in illiberal democracies. Here the legislative branch and the judiciary engage in professionally indefensible gimmicks. The unfaithfulness to the principles of constitutionalism and the narrowness in interpretation disclose the importance of cheating with law as a central legal and social technique of illiberal democracy. The various legislative and interpretative techniques of legal cheating (circumvention, circularity, denial of facts, denial of jurisdiction, etc.) become systematic in illiberal regimes, undermining public morality.

The chapter starts with an evaluation of the role of the Constitution in the development of an autochthonous approach to judicial review of administrative action in India. Article 14 of the Constitution guarantees citizens a ‘Fundamental Right’ to equality before law and equal protection of the law in. This has been interpreted to include protection from arbitrary state action. Therefore, anyone wanting to challenge administrative action in India can do so by challenging the ‘arbitrariness’ of a decision under Article 14 by way of writ petition to the High Court or Supreme Court. The chapter criticises the dominance of the ‘arbitrariness doctrine’ and the eclipse of grounds of judicial review available at common law. It will demonstrate that in many cases, the Supreme Court has offered little guidance on how to test for arbitrariness. In addition, the use of the writ petition to invoke the constitutional jurisdiction of the courts has led to serious problems for access to justice. Taking for granted that rolling back the doctrine would require massive constitutional change – both unlikely, and disruptive – the chapter makes two arguments for legal reform. The Supreme Court should use traditional common law grounds as a guide to when administrative action is arbitrary. The Supreme Court should also, it argues, emphasise the independent status of common law grounds, in order to promote access to justice: lower courts should decide administrative law claims on common law grounds, easing the burden on the over-stretched writ petition jurisdiction. There is precedent that supports both these moves, and there is reason to hope they mitigate the problems raised by the arbitrariness doctrine, with the added advantage of broadening the public law toolkit of courts and counsel.

Thirty-four different formulations to define abuse of right can easily be derived from a variety of sources. To distill them into a single, internationally acceptable formulation seems impossible. To content one’s self with the words ‘abuse of right’ on the footing that you know it when you see it is to follow a road to arbitrariness. Abuse of process is sui generis and does not belong in the category of abuse of rights.

Each Contracting Party shall accord to investments of investors of the other Contracting Party fair and equitable treatment.

Neither Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established or in the capital, skills, arts or technology which they have supplied ….