—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).
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.
Among the more exceptional examples, Cohn discusses, for example, the British “Ram doctrine” under which a government department is authorized to do anything a natural person may do, provided it is not forbidden. This doctrine is extremely surprising since we traditionally treat the requirement that the executive needs legal authorization to act as the most basic tenant of the rule of law. Another interesting example is the proliferation of executive orders in the US that list multiple sources of authority for an action to cover the lack of any clear authorization. It reminded me that when I would vacation with my toddlers, I would assign a specific adult to be responsible for each of them because when everyone is responsible, no one is.
Cohn is not satisfied with an analytical portrayal of different forms of fuzziness in law that enable the executive relative freedom to act while still acting under law. She also offers a detailed analysis of two areas of law affected by this fuzziness: emergency law and regulation of air pollution. Her choice of case studies is motivated by the public prominence of these two issues in the twenty-first century.
Cohn recognizes that fuzziness in the law challenges the values embedded in the rule of law. She argues that democratic societies should minimize this tension but acknowledges that they cannot resolve it. She accepts that some fuzziness may be unavoidable for good governance though, at times, fuzziness is the result of less well-intentioned motives, such as the political will to aggrandize executive power or is the result of lack of agreement on a better arrangement.
At the same time, Cohn rejects theories that leave executive power unfettered and subject to the court of public opinion alone. Under her vision, the judiciary plays a robust role, not as a final decision-maker, but as a promoter of deliberation and participation in addition to its role as a protector of the rule of law. The judiciary is especially important under her account for those who would otherwise have limited access to government power.
This is but a brief overview of a few of the book’s insights. Cohn’s work is deep, multi-layered, complex and avoids binary thinking. It is a highly recommended reading, especially in these turbulent times when we want to understand the dynamics of democratic backsliding.
Suggested citation: Rivka Weill, Introduction: Book Roundtable on Margit Cohn’s A Theory of the Executive Branch: Tension and Legality, Int’l J. Const. L. Blog, July 23, 2021, at: http://www.iconnectblog.com/2021/07/introduction-book-roundtable-on-margit-cohns-a-theory-of-the-executive-branch-tension-and-legality/
 I am sympathetic to her argument in light of my work that argues that the US and UK share a common Anglo-American constitutional model for the past 200 years. See, e.g., Rivka Weill, Evolution vs. Revolution: Dueling Models of Dualism, 54 Am. J. Comp. L. 429 (2006); Rivka Weill, Constitutionalism Reborn, Columbia J. Trans. L. (forthcoming).