Kristen Rundle: Fuzzy Legality in Focus (Book Symposium: Margit Cohn, A Theory of the Executive Branch: Tension and Legality (OUP, 2021))

On return to Australia following a decade elsewhere, it didn’t take me long to notice that executive branch practice in my home jurisdiction was a breeding ground for what Margit Cohn calls ‘fuzzy legality’. Innovative forms of non-compellable discretionary powers, an ever-widening range of executive-made legal artefacts that apparently qualify for the title of ‘legislative instruments’, a burgeoning habit of contracting-out government functions to the private sector – in Australia we’ve got it all, and more.

My efforts to gain perspective on these phenomena have much in common with Cohn’s in A Theory of the Executive Branch (hereafter, TEB). Above all, I have shared her urge to illuminate howexecutive power is aggrandised through particular legal devices and practices that have proven congenial to that end. The expansion of executive power doesn’t come from nowhere or travel through nothing: it needs vehicles. My engagement with these questions has (like Cohn’s) been first and foremost an exercise in description and diagnosis, even if (again like Cohn) normative questions about what needs to change or be reclaimed have never been far from view. My most recent work has also shared Cohn’s appeal to constitutional theorists to pay more attention to the executive branch, and specifically to actors and activities of the contemporary administrative state.  I stand with her in thinking that too much of what goes on in what I have called the “small spaces” of government power is overlooked by design within the “high level” questions that occupy the primary focus of contemporary constitutional theory (see especially TEB p304 ).

Which is to say, Cohn has definitely found an intellectual friend in me. My contribution to this symposium might well have pursued some of these matters of shared concern from an Australian perspective. Reading TEB, however, I could not quite settle some disquiet about its central conceptual protagonist: ‘fuzzy legality’. Cohn makes clear that she does not wish to engage with “the weighty question of the nature of law” in her handling of this idea, and we must respect her choices in that regard (p260 TEB). Still, because the term ‘fuzzy legality’ may come to take on a life of its own, I think it is important to untangle what is going on within it.

Fuzzy legality unpacked

In TEB, Cohn uses the terms ‘fuzzy law’ and ‘fuzzy legality’ to describe devices and practices in which “a façade of legality masks the absence of substantive limitation on power” (TEB , pp 2, 59) and which individually or together facilitate “executive dominance in the shadow of the law” (TEB, p 322). It is therefore clear that Cohn wants us to understand ‘fuzzy legality’ in functionalterms. ‘Fuzziness’ is about what particular legal devices or administrative practices do: how they expand executive branch power by lessening effective legal constraints on that power.

Identifying the theoretical commitments that underpin the ‘legality’ aspect of ‘fuzzy legality’ is straightforward. Cohn clarifies early in the book that the legal artefacts and practices to which she assigns the designation of ‘fuzzy law’ are exclusively those “generated” by recognised law-giving or law-applying constitutional institutions: constitutions, statutes, and statutorily reposed or non-statutory ‘prerogative’ executive powers.  The source-based pedigree of ‘fuzzy legality’ is further confirmed in Cohn’s rejection of ‘soft law’ instruments – executive branch-made policies, guidelines and so forth – as instances of ‘fuzzy law’ on the basis that they are not generated by recognised law-giving or law-applying constitutional institutions (TEB, Chapter 3 and 66). The theoretical anchor of the ‘legality’ side of ‘fuzzy legality’ is thus a positivist source-based test for determining what is and what is not valid law within a given legal system.

In keeping with that theoretical commitment, we must take Cohn as thinking that ‘fuzzy legality’ is not a law problem per se. That is, even if it might pose a threat to “proper governance” – an idea that for Cohn embraces a robust commitment to the rule of law as well as to democratic participation and deliberation – such normative aspirations will have no bearing on the claim of instances of ‘fuzzy legality’ to being validartefacts or practices of the legal system within which they are found.

But that, of course, is not the main point about ‘fuzzy legality’. Even if it meets a source-based test of legal pedigree, and even if it manifests the superficial trappings of legal form, the gist of ‘fuzzy legality’ is that it doesn’t function in a law-like way. ‘Fuzzy legality’ does little or nothing to constrain power; indeed, it expands it. This is precisely where things start to get tricky. ‘Fuzzy legality’ appears to combine two ordinarily irreconcilable theoretical positions. Its ‘legality’ aspect aligns with H L A Hart’s source-based legal positivism, but its ‘fuzzy’ aspect aligns with Lon Fuller’s arguments in response to that position.  And so we might ask: can a project that positions the idea of ‘fuzzy legality’ at its centre entirely “set aside the weighty question of the nature of law”? 

Before offering my own thoughts in response to that question, it is important to note that Cohn clearly knows Fuller’s jurisprudence well, at least in its association with the idea of ‘the rule of law’. Her appraisal of identified instances of ‘fuzzy legality’ against the eight principles widely understood to represent Fuller’s ‘account’ of the rule of law is an especially sophisticated demonstration of how those principles might aid critical reflection on instances of executive branch practice of the ‘fuzzy’ kind (TEB, pp260-262). As she puts it, “[m]ost of Fuller’s principles resonate fuzziness” (TEB, p 260). Yet Cohn also makes clear that although things ‘fuzzy’ have hitherto been examined through a rule of law prism, the latter is insufficiently specific to illuminate the particular kinds of problems that they pose. I agree. But where Cohn appears to take this as a reason to move on from Fuller’s jurisprudence, I would head instead to the debate that started it all.

Fuzzy legality then

The so-called ‘Hart-Fuller debate’ has had an enduring hold on Anglo-American legal thought because the dilemmas with which its protagonists engaged never really go away. The agenda of the debate was set by Hart, and on its face was framed around the connections (or lack thereof) between ‘law’ on the one hand and ‘morality’ on the other. Hart turned to the question of the legal status of Nazi law as part of this agenda in reaction to the apparent practice of the postwar German courts of invalidating Nazi era laws on the basis of the immorality of their content (Hart’s ‘Positivism’ pp615-621). His target was the German legal philosopher, Gustav Radbruch, whose ‘formula’ for addressing “statutory lawlessness” apparently required a court to invalidate an otherwise pedigree-valid statute if its content was extremely unjust.

In responding to Hart, Fuller did his bit to defend the actions of the postwar German courts. He was however much more interested in Hart’s legal philosophy than he was in Radbruch’s.  As Fuller saw it, Hart treated the ‘was Nazi law legal?’ question as if it bore no relation to how, if at all, Nazi law operated to constrain power.

Fuller elaborated this complaint by analysing two Nazi-era statutes that, by any measure, were prime examples of what Cohn calls ‘fuzzy law’ (Fuller, ‘Positivism’, pp 653-655). He did so for two main reasons. The first was to challenge Hart to explain why power that cloaks itself in no more than “a tinsel of legal form” should be granted the title of law (Fuller, ‘Positivism’, 660). This was a classic ‘Fullerian’ intervention because, in his jurisprudence, law is distinctive not for its pedigree but for how its form functions to constrain power in favour of the agency of legal subjects (Rundle, ‘Forms Liberate” pp 2, 4, 10, 116). With his eye on those legal subjects, Fuller also sought to push Hart to explain the implications of the “mutilated” Nazi legal system for those who were forced to live under it (Fuller, ‘Positivism’, 646). This challenge went to the authority of Nazi law, or to use Fuller’s term, to why and on what basis Nazi legal officials and subjects alike would have had “fidelity” to it (Fuller, ‘Positivism’, 646).

Fuzzy legality now

Fuller’s objective in pushing these questions in Hart’s direction was to show that positivism’s narrowly conceived source-based standard for determining what is ‘legal’ is agnostic not only to the content of law, but also to its form. The question for us is what this means for how we are to understand and address ‘fuzzy legality’ today. In thinking this through, we might remind ourselves that some things in the life of a constitutional order don’t change. Executive branch actors seek power wherever they are able to find it. A ‘test’ for what is ‘legal’ – and thus also for what is enforceable – limited solely to questions of institutional source can only be helpful to that cause.

Observing this spectacle on repeat in my own jurisdiction has led me to conclude that if one’s interest lies with identifying, describing and diagnosing the legal, political, institutional and relational implications of ‘fuzzy legality’, a candid confrontation with what was at issue in the Hart-Fuller debate is not just inescapable, but necessary. The reason why is because that debate demands that we think more deeply about what it means to engage with ‘weighty questions’ about the nature of law, and what is at stake if we do not. Resistance to this endeavour is understandable: who would want to bring the contests of jurisprudence into problems that are already unruly enough. But to my mind at least, neither Cohn nor anyone else can entirely escape those contests if the gist of what is troubling about ‘fuzzy legality’ is that it does not function like ‘proper’ law should. Is this not an at least implicit argument about the ‘nature’ of law?

A big part of the problem here lies in how the idea of ‘validity’ has become basically interchangeable with the idea of ‘legality’. Or, put differently, the question of ‘what is law?’ tends these days to be answered solely by the question of ‘what makes law valid?’. In the face of this pattern of legal thought, it is worth reminding ourselves that questions about “the nature of law” have never been wholly reducible to questions about what makes law ‘valid’. When Fuller observed the formal legal pathologies endemic to the Nazi system and declared that it was “not hard” for him to deny that system “the name of law” (Fuller, ‘Positivism’, 660), he had a range of other matters fundamental to the life of a legal system in view: the demands of its distinctive form, the conditions for its authority, and how it is experienced by those living within it. It was only after considering these fundamentals that he suggested that they might sensibly have informed determinations about the validity of the Nazi statutes (Fuller, ‘Positivism’, 660).

The point, then, is that things that look like law but do none of its work are as much a product of jurisprudential thought as they are a product of opportunistic political and legal practice. The allegory about life in Utopia with which Cohn’s concludes TEB is not merely a stylistic nod to Fuller’s allegory of King Rex in The Morality of Law. It is clearly also designed to convey the latter’s message that very serious things are at stake in the phenomenon of “legality in form but not in substance” (TEB, 69). But here again we might need a slightly longer conversation than what Cohn is willing to have in TEB. The ‘substance’ with which she is concerned is not the opposite of ‘form’ but rather speaks to the work that we expect that form to do. If this is the key problem with ‘fuzzy legality’ – and Cohn certainly thinks that ‘fuzzy legality’ is a problem – my point is simply that a broader legal imagination than that supplied by legal positivism will be needed to understand it, and still more to do anything about it.

It is therefore fitting to conclude this entry by noticing how TEB frequently turns its attention towards us, the people living within constitutional orders that have become alarmingly tolerant towards practices and devices of ‘fuzzy legality’. This can especially be seen in Cohn’s effort to engage citizen-empowering theories of participatory and deliberative democracy in the normative evaluation of ‘fuzzy legality’, but it is also evident in her many passing observations about the effect of things ‘fuzzy’ on people’s everyday lives (TEB, 265, 268 and 302).

In turning her gaze in this direction, Cohn takes some valuable steps towards remedying the tendency of theoretically-minded public lawyers to overlook the “small spaces” within which we experience our relationships with government (Rundle, ‘Orphaned Responsibility’ 90). It is gratifying to see those caught in the ‘fuzz’ being given some overdue attention. But when we do give that attention, we also open up a jurisprudential Pandora’s box. After all, the work we expect law to do in constraining rather than expanding power matters most to those who are subject to it. ‘Fuzzy legality’ is not just a troubling phenomenon of contemporary executive branch practice: it also tells us something important about how we think about law.

Kristen Rundle is a Professor at Melbourne Law School.

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