Martin Loughlin: Can there be a theory of ‘the executive branch’? (Book Symposium: Margit Cohn’s A Theory of the Executive Branch – Tension and Legality (OUP, 2021))

Margit Cohn has written a book full of insights on an important and relatively neglected subject. The subject is the way that lawyers have responded to the challenges presented by the growth of extensive administrative powers of government.  Although based mainly on a comparative study of practices in the United States and Great Britain, the book aims to draw more general conclusions from these experiences and to contribute to a universal discourse about these modern developments. The comparative treatment is a particular strength, not least in clearly explaining and cogently evaluating the various executive instruments (proclamations, orders in council, executive orders, memorandums, signing statements etc.) that are used to advance governmental interests. And of special value is Professor Cohn’s taxonomical analysis of the ways in which governments derive extensive but ambiguously defined powers from a variety of constitutional, legislative and executive sources.

In these respects, A Theory of the Executive Branch makes a significant contribution to our understanding of this important subject; it will repay close reading by all public lawyers. My aim in this contribution, however, is not to offer an overview of the book’s themes, but to focus on the most ambitious aspect of the work, which is its aspiration to present a general theory of the executive branch of government. I will argue that, notwithstanding the insights that Professor Cohn’s analysis generates, she is unable to deliver on the promise of advancing a robust general theory.  The main reason is that she builds the theory on the foundation of two basic concepts – ‘the executive branch’ and ‘fuzzy legality’ – that are unable to carry the load-bearing weight.

The first of these concepts, the executive branch, derives from eighteenth century constitutional ideas that are of limited relevance to contemporary conditions. These ideas situate the executive within a scheme which assumes that government acquires its authority from popular sanction and that, to ensure it exercises its powers in the public interest, government must be divided into three branches.  Each branch – legislative, executive, and judicial – must keep within their constitutionally-conferred powers. According to this three-branch metaphor, law is made by the legislature and the executive’s task is merely to ensure that this legislative exercise of sovereign will is appropriately enforced.

When this scheme was devised, it was assumed that the legislature would be the most dangerous branch. Consequently, as Montesquieu noted, to ensure that the legislature does not act despotically, the executive power must have ‘the right to check the enterprise of the legislative body’.[1] Today, however, the range and nature of governmental powers have been transformed and, in the process, this three-branch scheme is overtaken. It was upended once the so-called executive branch came to absorb many of the tasks of the other two. The classical scheme turns out to be erected on foundations of sand and, as Edward Rubin argues, now acts as a barrier to understanding.[2]

My point is that a theory of public law for the modern world cannot be advanced if we adhere to this three-branch metaphor. We are obliged to start more objectively from the rudimentary assumption that public law is simply the law relating to ‘the activity of governing’.[3] Professor Cohn glimpses this point, maintaining that hierarchical accounts of the public domain must be rejected and replaced ‘by a model which rests on networks and inter-branch tensions’ (p.2). But rather than building on this insight and developing a theory about the way government seeks to enhance its authority through elaborate institutional schemes that make provision for various types of law-making and various types of institutional interaction, she holds on to this outdated metaphor.

I assume that she does so owing to the heavy reliance on the US literature. Working with an eighteenth-century constitution which states that ‘the executive power shall be vested in a President’, US scholars have an incentive to continue to talk in the language of the classical scheme. But notwithstanding the influence of their scholarship, we should never forget that the US experience is thoroughly exceptional. However useful it might be for comparative analysis, it is unhelpful if the task is to build a general theory of the way that, through law, we build the authority of contemporary government.

This problem is compounded by employment of the idea of ‘fuzzy legality’. Cohn acknowledges that in this field law is vague not only because of the inherent indeterminacy of language, but also because of dynamic political and social factors that justify the allocation of discretionary powers to governmental institutions. Recognising that such open-endedness is a necessary feature of modern government and can be employed for the public good, she nevertheless expresses concern that such ‘fuzzy law’ is also liable to be abused. On the crucial questions of constraint and review, however, the answers proffered are, well, rather fuzzy. Cohn’s concern is not so much with open-endedness but only with ‘excessive open-endedness’ (p.270: emphasis in original). She agrees with ‘some of the critics of the growth of the administrative state but only to a certain degree’ (p287: emphasis added). Fuzzy law, she argues, ‘severely hampers the meting out of justice and fairness, and the maintenance of equality, obstructs the clarity and accessibility so vital for the proper operation of law, and thwarts the proliferation of forms of accountability and review’ (p.3). But the proposed solutions – bolstering the rule of law and the processes of participation, deliberation, and representation – are all rather general and contestable notions.

If the highly ambitious task of devising a general theory is to be pursued, a more fruitful starting point would be to build on the innovative work of early twentieth century European public lawyers. Recognising the way that government growth had unsettled this classical scheme, these jurists rejected the traditional categories of legal thought and sought to present a more realistic, sociologically informed account of the challenges of governing through law. These scholars – Hauriou and Duguit in France, Romano in Italy, Heller, Schmitt and Smend in Germany – advanced institutional theories of law more appropriate to their times. Much of their innovative work was embraced in Britain by Laski, Jennings and Robson, scholars who do not figure in Cohn’s account but whose work provides a firm foundation for appreciating the jurisprudential challenges presented by contemporary government.

One of the most radical of these shifts was advocated by Léon Duguit. Rejecting the classical scheme founded on the idea of law as an expression of sovereign will as an anachronism, he maintains that public law has been transformed from a system of subjective rights (whether expressed as the command of the sovereign or of individual rights) into an objective law. This objective law is the principle of ‘public service’, that which ‘serves the public need and secures the co-ordination of the modern corporate life’.[4] Duguit’s account overturns the hierarchical conception of legal instruments and the theory of delegation it implies. A legal instrument, whether ordinance, legislation, or constitutional provision, binds not because of its source but because of its purpose. And once purpose becomes the overarching criterion, all legal acts are reviewable in the light of this ‘objective law’. Further, this review function is not a special duty attached to courts: it is incumbent on all institutions and officers to ‘intervene to protect and guarantee against all obstacles … to the realization of social solidarity’.[5]

The shift in the juridical basis of modern government that Duguit identifies acknowledges the variety of institutions charged with advancing the public good. As these proliferate, the role of government shifts from command to co-ordination, from formulating rules to evolving standards, and from maintaining strict jurisdictional controls to promoting a multiplicity of review mechanisms. The formal logic of legal/illegal is thus supplemented, and may even be superseded, by the disciplinary logic of proportionate/disproportionate. Duguit might not have presented a fully developed theory of the role of law in administrative government but he does present us with a realistic juridical foundation for it.[6]

The shift proposed by European jurists has commonly been overlooked in Anglo-American discourse and Margit Cohn’s book is no exception. Her book performs a significant service in providing a detailed analytical framework of the range of governmental instruments employed in the modern regulatory state. She rightly rejects the normativism of Ackerman’s argument that the emergence of what he calls ‘executive constitutionalism’ is the product of a power grab,[7] and is rightly sceptical of Posner and Vermeule’s undervaluation of the role of law in regulating administrative government.[8] But in adhering to an anachronistic Enlightenment model of constitutional government, she misses the chance of laying the foundations of a theory of public law for our time.

Martin Loughlin is Professor of Public Law at the London School of Economics & Political Science.

[1] Montesquieu, The Spirit of the Laws, Bk XI, ch.6.

[2] Edward L. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton: Princeton University Press, 2005

[3] Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), chap. 2.

[4] Léon Duguit, Law in the Modern State Frida and Harold Laski trans. (London: Allen & Unwin, 1921), 118.

[5] Léon Duguit, ‘The Law and the State’ (1917) 31 Harvard Law Review 1-185, 184.

[6] See further, Martin Loughlin, Foundations of Public Law ((Oxford: Oxford University Press, 2010), chap. 15.

[7] Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, MA: Belknap Press, 2010).

[8] Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011).


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