Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0012
M. Cohn
To conclude, this book has traced the ways two central Western democracies, the United Kingdom and the United States, have developed and retained fuzzy modes of law that were relied upon by aggrandized heads of the executive branch. Viewed as an unavoidable feature of governance, the resulting argument for a similar aggrandizement of review by courts, designed to curb some of the ensuing abuse of power, is central to the rounded model offered in the book.
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Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0002
M. Cohn
This chapter introduces the setting for the study of the executive branch, and sets aside several issues that may be considered as challenges to the project. A short section on the definition of ‘the executive branch’ is followed by an overview of the literature on the executive, showing that the immense body of research is almost entirely system-based, and contains limited theoretical and comparative analysis. To date, no general theory, or model of the executive branch, can be found in the current academic literature. An exposé of the central analytical concept used in this book—that of the ‘internal tension’ element of constitutionalism, leads to the discussion and rejection of two challenges to the project, which draws on the law and political practices of the United States and the United Kingdom. The first focuses on the alleged incomparability of parliamentary and presidential regimes, the second on the so-called ‘breaking down’ of the executive branch and the devolution of many of its functions to agencies placed outside the ‘core executive’. Variations do exist, but sufficient similarities, the existence of complex structures that do not follow simple binary divides, and the de facto dominance of the executive in both systems, fully support the analyses presented in the book.
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Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0007
Margit Cohn
The chapter offers general introductions to the legal ordering of two fields—national emergency and air pollution. In addition to providing general backgrounds for those analyses, the introductions present initial accounts on the complexity of both bodies of law in two legal systems, thereby offering four glimpses of the ways fuzziness can, and does, develop and flourish in law. These overviews may also be useful to those who study these fields. Commentaries on specified areas of law often tend to direct their attention to a small number of measures—those that could be considered the ‘legislative mandates’ under the ideal-type vision of regulation—but, true to one of the themes of this book, attention should also be cast elsewhere. The overviews presented here span the legal rules directly targeting the regulation of these two fields of government action, originating from customary international law; international law treaties and documents; EU law, as long as applicable; domestic law; and unilateral measures such as orders in council and executive orders.
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Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0006
M. Cohn
Constitutions and constitutional constructs offer executives a repository of fuzzy sources of power which enable unilateral action. This chapter focuses on one of these forms: executive making of (semi)-formal unilateral measures. These orders and edicts have an important edge: on their face, they are ‘lawlike’, and seemingly carry the imprimatur of binding law, even when their legal status is fuzzy. The chapter uses comparative methodology in order to show the strong similarity between such measures as they emerged and continue to be applied in the two systems compared in this book. Orders in Council, Executive Orders and the like, such as the ones brought before the courts in Bancoult and Youngstown, have been at the focus of extensive study; yet to date, such measures, issued in both systems, have never been conjointly discussed. This chapter offers the first comparative analysis. This novel comparative exercise leads to the discovery of a surprising convergence—surprising, if attention is focused on structural regime elements. The findings support two of the main themes advanced in this book: that the emergence and retention of fuzzy legality is an unavoidable feature of the state, despite the ingrained danger it poses to the proper functioning of democracies. A third theme, concerned with the need to constrain fuzziness by robust judicial oversight, is addressed in the last chapter of this book. This chapter also offers new insights on the unclear distinction between constitutional- and statute-derived fuzziness, again, a feature shared by both systems.
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Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0011
M. Cohn
Concerned with the role of the judiciary as a constraining agent of fuzzy law, the chapter is laid out in two layers. First, in light of the special problems attached to reliance on fuzzy law, it advances arguments that call for enhanced review in this context. Secondly, the chapter joins the ongoing general debate over the role of the judiciary in the shaping of the public sphere. The argument for active review is based both on the principles reflected in the rule of law ideal, and on an argument from governance. Setting judicial review in a framework that seeks to enhance participation, the judiciary, stripped of accusations of supremacy over all other forms of decision-making, operates as an intermediator by offering members of society, especially those who do not have direct access to government corridors, an additional forum for voicing their concerns and thereby contributing to public deliberation over all contested aspects of social and political life.
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Pub Date : 2021-02-24DOI: 10.1093/oso/9780198821984.003.0004
M. Cohn
This chapter is dedicated to an overview of the ways the internal tension model operates to empower the executive branch, simultaneously under law and beyond its confines; the maintenance of the internal tension between the need to grant power and the need to retain a façade of legality, is achieved through practices under which an authorizing rule may present a façade of legality that derives from its binding formal status, while its content or application offer broad options for action (and possible abuse) which conceals a reality of a-legality. Beyond general and philosophical studies of the indeterminacy of law, the scholarship in this context has been conducted under the parallel paths discussed in this chapter (delegation and discretion; ‘soft law’; ‘fuzzy law’; and ‘grey holes’. The second part of the chapter is dedicated to an analysis of thirteen types of such fuzzy/grey legal constructs, organized according to the identity of their generators—the constitution, the legislature, and the executive. The resulting taxonomy of thirteen different forms of fuzziness offers a basis for the next part of this book, dedicated to case-studies of several such fuzzy measures.
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