A Theory of the Executive Branch: Tension and Legality

by Margit Cohn

Overview

The executive branch in Western democracies has been granted a virtually impossible task: expected to 'imperially' direct the life of the nation through thick and thin, it is concurrently required to be subservient to legislation meted out by a sovereign parliament.

Drawing on a general argument from constitutional theory that prioritizes dispersal of power over concepts of hierarchy, this book argues that the tension between dominance and submission in the executive branch is maintained by the adoption of various forms of fuzziness, under which a guise of legality masks the absence of substantive limitation of power. Under this 'internal tension' vision of constitutionalism, the executive branch is simultaneously submissive to law and dominant over it, while concepts of substantive legality are compromised.

Building on legal and political science research, this volume classifies and analyses thirteen forms of fuzziness, ranging from open-ended or semi-written constitutions to unapplied legislation. The study of this unavoidable yet problematic feature of the public sphere is addressed descriptively and normatively. Adding detailed examples from two fields of law - emergency law and air-pollution law - in two systems (the UK and the US), the book ends with a call for raising the threshold of judicial review, grounded in theories of participatory and deliberative democracy.

This book addresses an area that is surprisingly under-researched. Despite the increase in executive power across democratic polities and increasing public interest in the executive branch and executive powers, this much-needed book offers a theoretical foundation that should ground all analysis of arguably the most powerful branch of modern government.

Product Details

ISBN-13:	9780198821984
Publisher:	Oxford University Press
Publication date:	04/24/2021
Pages:	352
Product dimensions:	9.30(w) x 6.40(h) x 1.10(d)

About the Author

Margit Cohn is the Henry J. and Fannie Harkavy Chair in Comparative Law at the Faculty of Law of the Hebrew University of Jerusalem. Professor Cohn's teaching and research interests span administrative law, comparative public law, constitutional theory, law and politics, law and society, legal cultures, and judicial review.

Table of Contents

IntroductionPART I: PRELIMINARIES1. Preliminaries2. Reaching the internal tension model3. Maintaining the internal tension modelPART II: CONSTITUTION-GENERATED FUZZY LAW4. Unilateral, non-statutory executive powers5. The nature and use of unilateral executive powers: a comparative analysisPART III: LEGISLATION AND EXECUTIVE-GENERATED FUZZY LAW6. Case-studies: emergency and air pollution, overviews7. Legislation-generated fuzziness: patchwork legislation8. Executive-generated fuzziness: on the spectrum of (non) implementationPART IV: ANALYSIS9. Fuzzy legality and the challenge to proper governance10. Keeping the internal tension under check: the role of the judiciary in a multiple-fora, participatory/deliberative democracyConclusion

Editorial Reviews

"This book is a well-researched and structured warning that the fuzziness of the law is open to exploitation and realpolitik by governments." — Lee Wall, Law Society Gazette

"The executive is central to political ordering in all states. There is nonetheless continuing contestation as to the definition of the executive, its power, and its relationship to other branches of government. Margit Cohn has developed a challenging thesis that addresses these central issues from a comparative perspective. It will be of real interest to lawyers, political scientists, and political philosophers." — Professor Paul Craig, Emeritus Professor of English Law, St John's College, Oxford

"The concept of executive power, the structures through which it is exercised, and the framework of law and practice by which it is constrained are among the most complex topics in comparative constitutional law. This important book by Margit Cohn offers a framework for understanding and analysis, drawing on a challenging comparison between the United Kingdom and the United States. Cohn brings her argument down to earth through two highly topical case studies, on emergency powers and air pollution. This is a valuable addition to the literature, which will attract close attention from others venturing into the field of executive power." — Professor Cheryl Saunders AO, Laureate Professor Emeritus, Melbourne Law School

"Theory of the Executive Branch....Cohn offers us a more descriptive account centred around the novel concept of fuzzy legality, but it is also more critical of the growth of the administrative state and reflects a scepticism towards providing the executive with too much discretion." — Kas de Goede, EuConst

From the Publisher