Swati Jhaveri: Obstacles to a “general” theory of the executive branch? (Book Symposium: Margit Cohn’s A Theory of the Executive Branch – Tension and Legality (OUP, 2021))

Margit Cohn’s A Theory of the Executive Branch (TEB) is an important contribution to the enterprise of mainstreaming the mostly neglected executive branch in public law theory.  This symposium engages with almost all aspects of Margit’s thesis in TEB.  The contributions highlight the obstacles that exist when undertaking the task of crafting a ‘general’ theory of the executive branch.

TEB makes three key arguments:

  1. Rejection of hierarchical views of how power is distributed and organised.  Margit puts forward the view that public power should not be seen as being organised around some settled, linear or one-directional hierarchy but instead should be seen as distributed across interconnected networks.  The interaction between the branches of government is much more complex than traditional theories suggest. A more complex theory – based on the idea of networks – reveals to us that the executive branch can be seen as both subservient to law and dominant over it.  Implicit in this model of power distribution is the existence of inter-branch tension. 
  2. Law enables this dominance / subservience of the executive through its ‘fuzziness’.  The concept of “fuzzy law” dominates the book – and indeed much of the discussion in this symposium.  “Fuzzy law” allows the executive to operate under a ‘façade of legality’ without imposing any real limits or boundaries on the exercise of power.  Margit’s volume offers a taxonomy of thirteen forms of fuzzy law generated by constitutions, legislation and instruments / practices of the executive.  This includes: constitution-generated legality though open-ended constitutional provisions; fuzziness under unwritten constitutions; non-textual constitutional norms; open-ended statutory provisions; grants of expansive discretionary power; ‘patchwork’ legislation which create gaps; the existence / creation of multiple and indeterminate decision-makers within the executive branch’ ‘lopsided’ statutes which under-legislate and push the executive to utilise other powers to implement a particular area of policy; executive-led selective enforcement enforcement of statute which creates a de facto set of norms outside the normative framework of formal legislation; ignored or unimplemented statutes; extra-statutory parallel regimes; and multiple sources of legality across complex hyper-legislated policy areas that can be manipulated to create a facade of legality. 
  3. The response to ‘fuzzy law’ and how it enables the executive to operate behind a façade of legality is enhanced judicial review.  Active and enhanced judicial review can easily be justified on the basis of the rule of law.  Margit proposes further rationalising active judicial review on the basis of theories of participatory and deliberative democracy.  Judicial review should aim at facilitating participation in government by providing access to those who cannot otherwise participate in government with an additional forum for articulating their concerns.

Margit’s book makes a major contribution to discussions about the executive branch.  This has been a much-neglected branch in constitutional theory – with much of the focus being the legislative and judicial branches.  In rejecting simpler hierarchical accounts of the executive branch and its connection with other branches of government it brings into focus the increasing complexity of inter-branch interactions. Finally, in its discussion of ‘fuzzy law’ it prompts us to think more closely about the question of legality and accountability when it comes to the executive branch.  What exactly are the threats to ‘proper governance’ and given the many sources of threats, how should we respond in the way we design accountability systems?

A successful book will, amongst other things, invigorate conversation in the field.  And this symposium is a testament to that mark of success.  The contributors to this symposium interrogate the thesis; questioning aspects of it that require further analysis and development. 

In the opening post, Peter Cane looks at three aspects of Margit’s thesis: the first concerns the ideas of ‘complementarity’ and ‘tension’ that are central to Margit’s theoretical approach – and the role of ‘fuzzy law’ in this respect; the second is whether Margit’s theory is a theory of the executive (can the bureaucracy / administrative service be ignored); the third concerns Margit’s goal to produce a general theory (can the theory achieve its aspirations of yielding insights that transcend national borders; can we produce a theory of the executive branch as a universal element in all democracies). 

Martin Loughlin’s post continues interrogating Margit’s aspirations to develop a general theory of the ‘executive’.  Martin’s contribution argues that we need to move past classical / orthodox ways of thinking of government as organised in “branches” and of “law” as an expression of sovereign will that’s main aim is subjugation of power.  The executive is a ‘branch’ of government that is much more complex and fragmented than the other two ‘branches’ (legislature and judiciary).  Martin Loughlin argues that a theory that rests on the idea of ‘three branches’ – as Margit’s does – will run into difficulties as it is unable to capture this complexity of power, in general, and executive power, more specifically.  Secondly, the idea of “fuzzy law” as enabling the executive to operate behind a façade of ‘legality’ rests on a traditional understanding of law as an expression of sovereign law – where the main aim is restraint, versus a more genuine account of law that is grounded in reality.  For example, the idea of law as serving public needs and as a tool of coordination of activity.  When we embrace this grounded view of law – we can see that the laws under discussion in Margit’s book are not “fuzzy” as such but have been crafted in a way that best achieves those public needs and coordination.

Both Peter and Martin’s posts cast doubt on the continuing utility of traditional ways of thinking about government power – especially through tools like the separation of powers.  While seemingly pushing back on the way traditional separation of powers theories think of the organisation of power, Margit still views government as organised in branches.  Unlike other authors – like Edward Rubin (see Chapter 2) – there is still a seeming reluctance to abandon the idea of ‘branches’ and ‘separation of powers’. This causes the difficulties that Peter and Martin touch on.

Kristen Rundle’s post engages further with the idea of “fuzzy law”.  This time by asking whether fuzzy law can even be considered “law”.  Kristen’s post tries to decode the theoretical commitments that underpin Margit’s definition of “ fuzzy law” – are we looking at a source-based test of legal pedigree grounded in the legal positivist tradition or functional Fullerian tests of “law” (does ‘fuzzy law’ function like law?).  Kristen concludes that there is a possible entanglement of these theoretical commitments that need to be confronted more intentionally by the author.  And it is important to clarify these theoretical commitments if we are to understand the true nature of the problem with ‘fuzzy law’ that Margit is putting forward as enabling the executive to operate under a ‘façade of legality’.

This idea of ‘legality’ is the subject of the the contribution by Vanessa MacDonnell.  Vanessa looks more closely at Margit’s argument that with ‘fuzzy law’ there is an ongoing risk that the executive will act in a way that is ‘alegal’ or ‘illegal’; harmful to proper governance.  Vanessa suggests that we need to take the relationship between the executive and law much further – arguing that not only is there a risk that the executive can act above or outside the law; but that the executive – in executive-led legislative systems especially – can control the content of the law in the first instance.  When viewed in this way, we can see that aside from any risk that the executive will be able to operate outside the law, we can appreciate the risk that even when they might actually be operating within the law; it is law they have largely created themselves.

To these provocations, I add my own thoughts on two key issues:

  1. Who is the ‘executive’?

As Peter and Martin’s posts recognise, this question is an increasingly complex one. Aside from the reasons they discuss, the complexity comes from the fact that there is an ongoing dispersal of power away from the politically elected executive and ministerial bodies.  The power to govern has gradually been transferred to independent regulatory agencies, the bureaucratic administration and private agents (as contracting counterparties) who are invisible to the electorate and sometimes the legislature.  The challenge this presents is that a significant number of decisions that are ‘executive’ in nature (i.e. connected to governance) are being made beyond and outside the processes typically associated with the political executive – which is the institution Margit is discussing in TEB.  More importantly, these are decisions that are being made outside the value system typically associated with the state (for example, commercially motivated profit-based activities versus welfare-oriented decision-making).  In this environment of the dispersal of executive functions, what should be the rightful unit of analysis when devising a general theory of the ‘executive’ – should we take an institutional starting point (as Margit does in her book) or should we instead focus on executive power and functions (irrespective of the identity of the powerholder)? 

2. Do we need to commit more strongly to marginalising the courts and mainstreaming the executive?

TEB is a welcome departure from the traditional focus on courts and the legislature in public law theory.  It reflects the need to better the way that government is organised and who actually wields power when it comes to the initiation and operationalisation of public policy.  The growth in the use of ‘soft law’ by the executive to structure its discretion is a signal that the legislature is involved less and less in the definition of policy goals, with statutes becoming the secondary vehicles for housing and structuring power.  Given the potential strength of the executive in the overall balance of powers in most common law systems, the lack of a focus on the executive is surprising as Margit recognises.  Margit concludes TEB by reposing faith in the courts to deal with the executive branch.  However, do all theories of the executive need to ultimately collapse into theories about the appropriate scope of judicial review?  When looking at the executive should we move past viewing the executive as something to be cabined and controlled?  Or should we try and better understand the functional aspects of executive decision-making – understand “law” and “accountability” and “legality” from the perspective of the executive rather than through the lens of external systems of checks and balances (i.e. from the perspective of courts and the legislature?

These are just some of the questions that TEB will generate. Margit’s TEB will revitalise conversations within public law theory on the task of theorising the executive branch.  This symposium aims at being a site of such discussion.

Swati Jhaveri is a candidate for the DPhil in Law at the University of Oxford.

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