Margit Cohn

“Everything Flows”: Mark Tushnet's Rights Revolution and the Impact of Constitutional Dialogue

It is my pleasure to contribute to the workshop on Mark Tushnets manuscript. Good literature is sometimes identified by its ability to elicit responses on different levels. While reading Tushnets compelling manuscript, my thoughts about the validity of the historical analysis were supplemented by immediate comparisons to the much shorter history of the rise of “rightspeak” in Israel. Then there were some thoughts about the possible links between this manuscript and Tushnets earlier works and between this manuscript and other studies of the subject. Finally, I found myself linking and comparing Tushnets implicit normative arguments with my own views on the role of courts in liberal democracy.

NON-STATUTORY EXECUTIVE POWERS: ASSESSING GLOBAL CONSTITUTIONALISM IN A STRUCTURAL-INSTITUTIONAL CONTEXT

This article analyses the source, nature, and use of unilateral, non-statutory executive powers, frequently employed as a governance tool but rarely studied in a comparative context. Exercised in the absence of direct statutory authorization, such powers are often invoked by executives in emergency and foreign affairs contexts, but are equally central to domestic policy-making. Unilateral executive power challenges two central democratic values that support the separation of powers ideal: representation and deliberation. Different structural treatments of these powers are considered through a comparison of three constitutional regimes, those of the United States, the United Kingdom and Israel. Despite material structural differences between these systems, the emerging patterns are similar enough to support the argument that direct law-making by the executive is an unavoidable element of the political sphere. Developing a template for comparison analysis, this article shows that a pattern of functional convergence has emerged, unsupported by overt transplantation or borrowing between these systems. The results set a possible challenge to the growing recognition of global world constitutionalism, at least in structural-institutional contexts.

The Executive Branch, Grey Holes and Fuzzy Law: Maintaining the Internal Tension between Subservience and Dominance

The executive branch has been extensively researched in the U.S. and elsewhere, yet this body of research is almost entirely concerned with the nature of the executive in specific legal systems, and does not aim to develop a general explanatory model. Drawing on the rich literature, the article aims to fill the theoretical gap. First, this article reaches the proposed model by analyzing and rejecting three alternative models and adopting a fourth, which amalgamates some of the insights offered by the former models. The subservience model, which draws on the separation-of-powers ideal, is challenged by the political dominance of the executive. The second, the imperial or dominance model, consists of two strands of research, managerial and exception-based: both offer a vision of a politically dominant executive, but fail to fully address the implications for legality. The third, “bipolar” model advances a vision of the executive as alternating between subservience and dominance, “leaping” into action when exigencies so require, mainly during wars and other emergencies. Joining the critics that challenge the clear separation between peacetime and emergencies, the article moves to the fourth, internal tension model, which acknowledges the internal irresolvable tension between subservience and dominance, which shapes executive powers: the “paradox” of the executive, then, is inherent to the branch. To accommodate and maintain this tension, legal systems offer a variety of ways in which the executive may act within law, though in the absence of detailed direction. Drawing on David Dyzenhaus’ concept of legal “gray holes,” the article offers a taxonomy of forms of fuzziness, all of which enable the executive to act under law but without being substantially directed by it. The widespread creation and use of fuzzy legal sources enables the executive to formally act within law, while the substantive rule of law is compromised, due to the deficit in clarity, foreseeability and accountability. The article concludes with some normative comments on the role of checking mechanisms. I argue that the higher the degree of fuzziness, the stronger the justification for vigorous review. Focusing on the role of the judiciary, I submit that politics and political culture do not suffice; vigorous review of the executive is required to minimize abuse of power through reliance, and development of fuzzy forms of governance. For the current version of the article please contact the author.

Form, Formula and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems

This article addresses the judicial penchant for formula-based decision making, evident in all fields of law. I distinguish between legal constructs, doctrines or rules on the one hand and formulas, tests and criteria designed as tools for the application of such constructs on the other hand, and focus on the strategic and political aspects of formulas. The design and retention of a formula can be strategically motivated, as formulas have a distancing effect, enabling judges to decide under a facade of objectivity. The judicial replacement of an operating formula can operate a signaling device; by transforming a legal formula, the judge proclaims to all available audiences that the revolution is of such proportions that it requires a rethinking of previous modes of reasoning. The article also identifies a possible link between the longevity of a formula in public law and the well-being of the constitutional ethos of the legal system in which the formula has evolved. These aspects are considered in the context of the formulas used to apply the political question/justiciability doctrine, a doctrine directly linked to perceptions of the role of the judiciary in the public decision-making sphere. The analysis of the life of justiciability formulas in the United States, Israel and the United Kingdom offers insights into the interface between law and politics, inherent to public law, and serves to emphasize the utility of the study of legal form as an aid to normative study.