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Blog of the International Journal of Constitutional Law

Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 3 | Thinking About Executive Power

Conor Casey, University of Liverpool School of Law

“There is nothing new under the sun” we are told in Ecclesiastes (1:9). This aphorism applies with particular force to public law scholarship, where we see the same conceptual and normative battles being waged in cyclical fashion by successive scholarly generations. Whether it’s over the pros and cons of judicial review, unitary executives, originalism, political/legal/popular constitutionalism – it is often hard to think of something truly new that can be said in many of these debates.

Professor Cohn’s new book, however, refutes this aphorism in spectacular fashion. Cohn’s book offers a compelling and novel comparative and theoretical study of the executive branch in contemporary constitutionalism. It is one of only a handful of works (the other one that comes to mind being Professor Harvey Mansfield’s Taming the Prince: the Ambivalence of Modern Executive Power (1989)and, way before that, canonical texts like Locke’s Two Treatises on Government and Montesquieu’ Spirit of the Laws) that moves beyond system-specific study of political executives and grapples with the conceptual nature of the executive branch in constitutional theory more broadly. It ought to be, and no doubt will become, required reading for students of constitutional theory and comparative constitutional law.

In this brief comment I will outline what I think the main contribution of the book is before sketching two issues I think emerge from the book that public lawyers should grapple with more than they currently do.

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Published on July 24, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 2 | To the Executive Branch and Beyond

Mark A. Graber, University of Maryland Carey School of Law

Professor Margit Cohn has written a book that is terrific on two dimensions.  The first concerns substance. Readers will be a lot smarter than they were before reading A Theory of Executive Branch.  Professor Cohnhas much to teach constitutional scholars in the United States, the United Kingdom, and across the globe.  The second concerns scholarly development.  A Theory of the Executive Branch promises to be what the great unfortunately late Robert Cover called a jurisgenerative work.  Professor Cohn’s understand of fuzzy law and the relationship between law and discretion should generate rich scholarship on the executive branch, on constitutional development, on constitutional governance and on the interaction between law and politics in constitutional systems.

The very title of Professor Cohn’s work is a major breakthrough in constitutional thinking.  A Theory of the Executive Branch offers a book length theory of the executive branch (readers will have to look elsewhere to determine who is buried in Grant’s Tomb).  Too many scholarly bookshelves are loaded down with A Theory of the Judicial Branch, Another Theory of the Judicial Branch, A Theory of the Judicial Branch Revisited, the second edition of The Theory of the Judicial Branch (the authors changed their mind about Oxford commas) and the like.  A fair case can be made that these theories of judicial branch, like justifications of abortion policy, reached the point of diminishing intellectual returns many years ago.  Fortunately, other governing institutions exist.  Professor Cohn has provided us with a way of thinking about one of those branches.  Even if one disagrees with her theoretical overlay (I do not), just having a theoretical overlay to begin the conversation is a far more vital advance on constitutional scholarship than My Theory of the Judicial Branch and Constitutional Interpretation, which is no doubt forthcoming from at least four university presses in the very near future.

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Published on July 24, 2021
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Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality | Part 1 | Politics as Law: Understanding How (Normatively and Descriptively) to Regulate the Executive Power

Mark Tushnet, Harvard Law School

I offer three comments on Professor Cohn’s terrific book, the first and second focused on the implications for law of her analysis, the third sketching a broader jurisprudential “take” on the material.

1. Justice Jackson’s categories. Early in the book, and reiterated later, Professor Cohn mentions Justice Jackson’s three categories of presidential power, and specifically the second. There “the President acts in absence of either a congressional grant or denial of authority, … [in] a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Professor Cohn doesn’t quote Jackson’s account of how disputes about the scope of presidential power are resolved in this twilight zone: “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.” 

I had expected Professor Cohn’s book to conclude with an explication of the constitutional implications of Jackson’s category-two formulation. In the absence of a discussion from Professor Cohn, I sketch such an explication here. 

Jackson’s formulation is ambiguous: is he simply describing, empirically, how things are likely to come out in twilight-zone controversies, or is he prescribing some sort of (non-abstract) legal rules (and if so, what is that rule)? I suggest that the ambiguity can be resolved by treating the descriptive account as prescribing a rule. 

What I mean is this: according to what I call the Madisonian account of separation of powers, the law of separation of powers consists entirely of the interaction among the branches – for Madison, exclusively the interaction between Congress and the president, today, interactions that occur when the courts (finding a justiciable controversy) intervene. To adapt a phrase J.A.G. Griffith used about the British constitution, in this domain the Constitution is what happens. 

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Published on July 23, 2021
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Introduction: Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality

Rivka Weill, Harry Radzyner Law School, IDC

Professor Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, published by Oxford University Press, could not have been timelier. It arrives on the bookshelves as democratic backsliding and the spread of Covid-19 redefine the relationship between the rule of law and executive power. In this book – which is rich in drawing from different fields of knowledge: political science, philosophy, law, history, and public administration –  Cohn aims to offer a universal theory of the executive relevant to all Western democracies by drawing on two important, yet seemingly opposing traditions, the US and the UK. While these two countries seem to be polar-opposite in their choice of a governing system—the US adopting a supreme formal constitution with a presidential system, and the UK enjoying a flexible constitution with a parliamentary system—Cohn reveals that they share surprising commonalities in the ways executive power is exercised. Cohn finds this convergence to be “no less than astounding” and suggests that it “has never been recognized before.” (p. 162).[1]  

Cohn accurately defines the challenge of the executive in the modern era: the impossible tasks of complying with the law yet addressing exigencies and emergencies of modern life; being subservient to the law and yet, efficient. She finds that the executive achieves this mission by being concurrently subject to the law yet above the law. She offers a rich taxonomy of thirteen different ways in which “fuzziness in law” creates the appearance or formality of the executive’s subjection to the law but substantively allows a relatively free hand to the executive. Cohn’s taxonomy takes into account the identity of generators of fuzziness—the constitution, the legislature or the executive.

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Published on July 23, 2021
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Emergency Law in Spain: the Spanish Constitutional Court’s case law

Germán M. Teruel Lozano, Lecturer in Constitutional Law, University of Murcia

When the Constitution reached its twenty-fifth anniversary, back in 2003, Professor Cruz Villalón highlighted the period of “constitutional normality” that we had lived through. In recent years, that normality has been disturbed by some turbulences that have forced the activation of some exceptional mechanisms provided by the Constitution in order to restore democratic normality. This was the case in 2010 with the declaration of the first state of alarm, in order to face the wildcat strike by air traffic controllers; in 2017 with the insurgency in Catalonia and the application of art. 155 of the Spanish Constitution (SC) to exercise federal coercion; and in 2020-2021 with the declaration of successive states of alarm to face the covid-19 pandemic. In any case, I think the balance is positive: the Spanish Constitution has demonstrated its strength and its validity also in the exception, affirming its guarantees to preserve our freedom and prevent abuses of power.

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Published on July 22, 2021
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How we can detect illiberal constitutional courts and why we should be alarmed – Hungarian and Polish examples

Tímea Drinóczi, Visiting Professor, Federal University of Minas Gerais, Brazil; Professor at the University of Pécs.

In the last couple of years, formerly well-respected liberal constitutional courts have been transformed into illiberal constitutional courts. We should learn lessons from Poland and Hungary, especially in Europe.

Illiberal constitutional courts intentionally undermine the democratic minimum core but only indirectly – they attack the ethos of liberal democratic constitutionalism. They are already more interested in maintaining the illiberal order, in which they believe – mainly because they have already been packed. Illiberal constitutional courts could be detected, beyond their composition, if we also study the procedures, which tend to be abusively initiated or discretionally invented and reinvented, and the content of their decisions whose quality of reasoning starts to become low, and which shows a pattern of serving either one or two masters. We should not be misguided by their initial or occasional pretense of being the defender of fundamental rights or engaging in a meaningful dialogue with other courts. Instead, we should be alarmed by the first signs of changes, starting with their packing and use of abusive judicial review. Otherwise, the abusiveness of their constitutional review, from the perspective of the ethos of liberal constitutionalism, will become the norm and the standard of the illiberal regime, and we will be facing, most probably unpreventable, the dangers illiberal constitutional courts mean.

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Published on July 21, 2021
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What’s New in Public Law


Matteo Mastracci, PhD Researcher, Koç University, Istanbul


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere. To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Poland’s Constitutional Tribunal declared that the interim measures imposed by EU’s Court of Justice (in the case C-204/21) on the Polish judicial system affecting the powers of the Disciplinary Chamber of the Supreme Court conflict with the Polish Constitution.
  2. Romania’s Constitutional Court ruled against a bill introduced by the government coalition which provides for a minimum experience required for anti-corruption magistrates.
  3. Spain’s Constitutional Court ruled that strict home confinement included in a national state of emergency to curb the first wave of COVID-19 infections last year was unconstitutional.
  4. The Constitutional Court of the Slovak Republic declared the suspension of the effectiveness of the Public Health Authority (ÚVZ) ordinance that changed the rules for travelling across borders.
  5. The Constitutional Court of Ukraine declared the constitutionality of the Law of Ukraine “On Ensuring the Functioning of the Ukrainian Language as the State Language” regulating the use of the state language in the field of consumer service.
  6. The Constitutional Court of Zimbabwe dismissed the appeal filed by human rights lawyer Musa Kika requesting the judges’ recusal from the case of Chief Justice Luke Malaba.
  7. The European Court of Justice ruled that employers can prohibit workers from wearing headscarves or other religious symbols when it is necessary to present a neutral image towards customers or to prevent social disputes

In the News

  1. Demonstrations took place in France against plans to restrict restaurants and cultural spaces to those that have been vaccinated or recently tested negative for COVID-19.
  2. Indonesia’s parliament ratified a new autonomy law for the Papua region aimed at boosting development in the poorest area.
  3. Several groups signed a statement against the Cambodian government’s inability to conduct an independent investigation into the death of prominent political analyst Kem Ley
  4. The European Commission started legal steps against Hungary’s law banning LGBTQ content for minors and Poland’s “LGBTQ-free” zones.
  5. The Pakistani parliament passed a bill that criminalizes torture and prevents killings in custody by police or other government officials.
  6. The rector of Boğaziçi University in Istanbul, Melih Bulu, has been suspended from his post by a presidential decree after months of protest by several student associations.
  7. The Supreme Court of Nepal restored its parliament, which was dissolved by interim prime minister KP Sharma Oli in May and ordered his rival Sher Bahadur Deuba to be appointed as prime minister.

New Scholarship

  1. Brendan Sweetman, The Crisis of Democratic Pluralism. The Loss of Confidence in Reason and the Clash of Worldviews (forthcoming, 2022) (developing a novel approach to pluralist disagreement and reinterpreting the relationship between religion, secularism and politics)
  2. Claire O. Finkelstein and Richard W. Painter, Presidential Accountability and the Rule of Law: Can the President Claim Immunity If He Shoots Someone on Fifth Avenue?, 24 University of Pennsylvania Journal of Constitutional Law (2021) (discussing the concept of presidential immunity and contrasting the idea that presidential immunity is part of presidential powers under Article II of the Constitution)
  3. Erin R. Pineda, Seeing Like an Activist. Civil Disobedience and the Civil Rights Movement (2021) (exploring the role of civil disobedience of the Civil Rights Movement and advocating the importance of civil activism)
  4. Maurice Adams and Mark Van Hoecke (eds.), Comparative Methods in Law, Humanities and Social Sciences (2021) (discussing how comparative methodologies work from different disciplines and perspectives)
  5. Raymond Wacks, The Rule of Law Under Fire? (forthcoming, 2022) (offering both historical and empirical analysis on the major risks and challenges to the rule of law)
  6. Zaid Al-Ali, Arab Constitutionalism. The Coming Revolution (2021) (offering a thorough account on post-Arab Spring constitutionalism in the Middle East)

Calls for Papers and Announcements

  1. Bilgi IT Law Institute & KUIS AI invites applications for the “International Summer School on AI: on the trail of human rights, democracy and the rule of law” to be held from August 2 to September 30, 2021. The application deadline is July 26, 2021
  2. LUISS University, Department of Political Science, invites applications for one research grant (of 20 months) on the area of “Societal challenges in the Twenty-first century EU: comparing research and innovation cultures and processes” under the supervision of Prof. Robert Schuetze. Deadline for applications is July 19, 2021, 2 p.m. CEST.
  3. The Australian Feminist Law Journal (AFLJ) Editorial Board welcomes papers for the upcoming AFLJ Special Issue on ‘Conceptualisations of Violence’. Deadline for abstract submissions is November 15, 2021. The Special Issue will be published in June 2022.
  4. The Doctoral Programme Democracy Studies and DemocracyNet invites submissions for the research workshop on the topic of “Vested Interests and Democracy”, which will take place at the University of Zurich on December 9-10, 2021. Abstract should be sent by September 10. Researchers interested in attending without presenting should apply by October 1, 2021.
  5. The EU-funded COST Action “Constitution-making and deliberative democracy” (CA17135) invites papers for the Conference “Under-Representation, Direct Democracy and Deliberation: Mapping Contemporary Challenges” to be held in Ljubljana next September 7-8, 2021. The deadline for applications is July 30, 2021.
  6. The Indian Yearbook of Comparative Law (IYCL) accepts submission of original pieces across any legal discipline (public or private law) from a comparative lens for the IYCL 2020. Expression of interest together with a brief abstract of the paper must be sent to iycl@jgu.edu.in. Complete papers are expected to be delivered by September 1, 2021.
  7. The Minerva Law Network invites participants to attend “Post-WWII Occupied Germany: Examining the Effect of a Male Majority Military on the Political Power, Legal Rights, and Economic Opportunities of Women in a Female Majority Land,” a public talk by Cornelia Weiss. The event will take place on July 30, 2021.

Elsewhere Online

  1. Andrea Pritoni, What is the role of political science in public debate? A sobering lesson from Italy, The Loop
  2. David Rossiter and Charles Pattie, Another nail – but whose coffin? Redrawing Britain’s constituency map (again) and the future of the UK’s voting system, The Constitution Unit Blog
  3. Haimo Li, The Bolingbrokean Constitutional Argument in John Adams’s 1766 Clarendon Letter, Journal of the American Revolution
  4. Hana Ben Abda, The Provisional Instance of Tunisia: An Insufficient Substitute for a Constitutional Court, IACL-IADC Blog
  5. Mohd Imran, Unpaid Internships at International Courts & Tribunals: An Instrument in Expanding the Gap between the North and the South, Asia Blogs
  6. Paul Gowder, Don’t Count the Constitution Out of the Deep State Battle Yet, Balkinization
  7. Sümeyye Elif Biber, Machines Learning the Rule of Law, Verfassungsblog
  8. Vikram David Amar and Jason Mazzone, New Texas Abortion Statute Raises Cutting-Edge Questions Not Just About Abortion but About the Relationship Between State and Federal Courts, Verdict Justia | US Constitutional Law Blog
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Published on July 19, 2021
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Ius Publicum Network Review | Call for Submissions after ICON·S 2021 Mundo Conference


Gabriella M. Racca, University of Turin


After the great success of the ICON·S 2021 Mundo Conference “The Future of Public Law”, the IUS Publicum Network Review invites professors, academics, researchers and scholars who are interested in publishing the paper they presented at the ICON·S 2021 Mundo Conference, to submit it for review and publication. Papers may be submitted by email to: coordination.iuspublicum@gmail.com.

The IUS Publicum Network Review is a network founded by the Board of Directors of Die VerwaltungDiritto amministrativoPublic LawRevista de administración pública and Revue française de droit administratif, with the aim of following the evolution of Public Law in each country involved, highlighting its influences on the development of Administrative and Public European Law and its connections with other legal cultures.

The International Journal of  Constitutional Law and the Diritto Pubblico joined the network in 2015.

The Ius Publicum Network Review is available online for free and all contributions are published in open access on polythematic issues.

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Published on July 15, 2021
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The First Week of the Chilean Constitutional Convention

Lucas MacClure, Boston College

The Chilean Constitutional Convention has begun the work that will lead, one hopes, to the replacement of Pinochet’s 1980 constitution. In this piece, I summarize the Convention’s first week and highlight themes we comparativists often discuss under the banner of the optimal design of constituent assemblies.[1]

The first week of the Convention began on Sunday, July 4th, 2021, when its 155 delegates met for the first time as a collective decision-making body. The next day, the delegates of the Convention attempted to hold a new session. It was abruptly cancelled and postponed for two days due to logistical problems discussed below. The delegates resumed their work on Wednesday, July 7th, and Thursday, July 8th.

In this short week, the Convention accomplished the following five official acts: First, the delegates inaugurated the Convention. Second, the delegates elected Elisa Loncon as president and Jaime Bassa as vice-president. Third, the delegates decided they will add seven members to the Board of the Convention, for a total of nine. Fourth, the delegates agreed to create a committee in charge of proposing rules to govern the proceedings of the Convention; they also agreed on a committee of budgeting and administration and an ethics committee. Fifth, the delegates approved a declaration that asked Congress and the President to transform how the criminal justice system handles protesters indicted for involvement in the often-violent 2019 demonstrations that originated the constitution-making process.

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Published on July 15, 2021
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New Frontiers of Gender Constitutionalism in Asia (2): Gender Identity and Sexuality

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In this second post in the two-part series on new frontiers of gender constitutionalism in Asia, I explore the constitutional treatment of gender identity and sexual orientation in the region. Sexual and gender diverse people (SGPD) have made significant yet uneven strides in claiming equal citizenship in the constitutional arena across several Asian jurisdictions. As such, these constitutional innovations warrant detailed and context-specific comparative scrutiny.[1]

Since decolonisation, the great majority of jurisdictions in Asia have adopted in their constitutional and legal frameworks a binary classification of gender as either male or female based on sex assigned at birth, coupled with a heteronormative framing of sexuality. This position reflects a combination of colonial legal legacies (or transplants in the few Asian jurisdictions that were never colonised such as Thailand, Japan, Nepal, and Bhutan) and the cultural and religious norms of dominant groups. The uneven advancement of SGDP rights in the constitutional arena across Asia is explained by the highly context-specific nature of this phenomenon, which hinges on factors internal and external to the constitution. In particular, the strength of social movements and their ability to catalyse change in social attitude towards gender and sexual diversity have a profound impact on legal reform and – most importantly – on the everyday life of queer individuals and groups. Over the last two decades, the constitutional sphere has become both a key instrument to advance SGDP rights and a crucial symbolic target of activism in itself to affirm gender justice.

The advancement of SGDP rights in the constitutional arena can be conceptualised as taking place along two axis: removal of harm (e.g. decriminalisation of certain forms of conduct, constitutional norms and/or legislation forbidding discrimination, etc.) and the granting of positive entitlements (e.g. forms of recognition, affirmative action, quotas, etc.).

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Published on July 14, 2021
Author:          Filed under: Analysis