A Theory of the Executive Branch: Tension and Legality

Margit Cohn has written a terrific new book about the executive branch of state. Writing against the backdrop of a wave of executive aggrandizement in constitutional democracies around the world, Cohn sets herself the ambitious task of constructing a theoretical account of executive power. What emerges is a theory built around the twin themes of tension and legality. In most constitutional systems, she argues, the law provides broad general authorization for executive action, leaving the state with a wide margin to maneuver while still being able to brandish the mantle of legality. For Cohn, this raises rule of law and democracy concerns. In this review essay, I suggest that we should follow Cohn's twin themes through to their logical conclusion. Perhaps controversially, I suggest that where this takes us is not exactly where Cohn ends up. Rather than countering strong executives with strong courts, we should adopt the plural approach Cohn mentions in passing at the outset of the book. This means exploiting institutions' strengths and attempting to respond meaningfully to their weaknesses. In doing so, we must be careful not to adopt responses to executive power that erect unnecessary obstacles to governance in the public interest.