THE EXECUTIVE AND PUBLIC LAW: POWER AND ACCOUNTABILITY IN COMPARATIVE PERSPECTIVE

Vol. 16 No.8 (August, 2006) pp.612-616

THE EXECUTIVE AND PUBLIC LAW: POWER AND ACCOUNTABILITY IN COMPARATIVE PERSPECTIVE, by Paul Craig and Adam Tomkins (eds). New York and Oxford: Oxford University Press, 2006. 384pp. Hardback. £50.00/$95.00. ISBN: 0199285594.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel [at] augustana.edu.

THE EXECUTIVE AND PUBLIC LAW, edited by Paul Craig and Adam Tomkins, is a collection of eleven essays by legal scholars on executive power as viewed from the perspective of public law. Nine of the essays are nation studies, written by law faculty from the respective countries, including Britain, USA, three British Commonwealth nations (Australia, Canada and New Zealand) and four western European nations (France, Germany, Italy and Spain). One essay focuses on a sub-national executive (Scotland) and the final essay addresses executive authority in the European Union. The book is a rich source of information about particular aspects of executive power, though the points of emphasis are different from most American treatments of the subject. Perhaps the greatest strength of the volume is the way it develops the connections between administrative policy making and the public law of executive power.

Unlike many collections, the individual articles are consistent in structure and analysis, remarkably so considering the international scope of the volume. As Craig and Tomkins explain in their introduction, each author was asked to address “three sets of questions concerning, respectively, the definition, delimitation and accountability of executive power” (p.3). In most of the essays the first two questions are treated together. The authors avoided the temptation to write thematic or specialized essays and instead produced general overviews of these questions for each country. All of the authors consider political factors when analyzing the scope and accountability of executive power, but the discussion of politics serves mainly as a context for the legal analysis which is the main emphasis of the volume. The essays analyze written constitutions, constitutional conventions, statutory law, case law, and, where appropriate, the law of the European Union. That is not to say that the authors are legal determinists. Legal concepts and structures are depicted as contested and pragmatically flexible, and one is left wondering (as usual) just how much the law matters. As the editors note in the introduction, “Both executive functions and institutions have undergone considerable change in recent years and constitutional law has often labored to keep up” (p.5).

The book seems to have been written for a primarily European audience. The chapters vary somewhat in how user-friendly they are for readers not familiar with a given country’s institutions. In his article on Britain, Adam Tomkins is careful enough about defining terms to satisfy the needs of an advanced [*613] undergraduate, but some of the other chapters assume familiarity with institutions and events. Most of the articles also assume some fluency in legal terminology or, in a few cases, the technical language of public administration. The book is not a page turner, and potential readers might want to start with the Introduction and choose from the nation studies according to their interests.

The subtitle of the collection touts a “comparative perspective,” but that is lacking from most of the chapters. Beyond the excellent but short Introduction, the comparative analysis is left in the hands of the readers. Because of their parallel structure, the individual nation studies contain a great deal of potentially comparative material. It is a shame that the individual authors did not have a chance to read each other’s pieces before revising their own. Because the book lacks a conclusion, I found it quite helpful to re-read the Introduction after plowing through the case studies.

I will not attempt to summarize the substantive chapters but will note some of the major themes identified in the Introduction, adding a few comments of my own. The editors begin with the observation that constitutions (written as well as unwritten) generally fail to provide a definition of executive power. This is true despite the fact that separation of powers is an important public law concept in the various systems studied in the book, including the parliamentary systems that make up most of the cases. The delegation of legislative power and the assignment of quasi-judicial tasks to executive officials are widespread phenomena that have been handled in various ways. Although mechanisms of accountability sometimes encroach on executive power, the authors find more evidence of expansion of executive authority than intrusion on it. The intrusions are mainly reactions to the growth and diversification of executive power.

When it comes to defining the limits of executive power, Craig and Tomkins identify four broad approaches (p. 6-7). None of the jurisdictions, they point out, use an enumeration strategy. Constitutional grants of particular powers, where they can be found, are not exhaustive. What the editors call the “subordinate” approach is also unpopular. Here the executive is seen as the agent of the legislature, authorized to carry out legislation but endowed with no independent authority. (Several of the chapters posit this as an idealized integration of the rule of law with democratic legitimacy in a parliamentary system.) The subordination of executive to legislative authority generally fails, if it is tried at all. The widespread recognition of extra powers – variously called prerogative, inherent, or residual – reflects a general rejection, in practice, of the subordinate model. Despite this pattern, it is true as a practical matter that much of what the modern executive does is based on legislation. This reality lies at the center of what the editors call the “bits and pieces” approach. In lieu of a systematic theory, various executive powers evolve as the legislature responds, or fails to respond, to changing conditions. Finally, a “residual” approach defines executive power negatively as governmental authority [*614] that is neither legislative nor judicial. This model provides flexibility for the executive (perhaps too much) while allowing for doctrines that define, and perhaps protect the integrity of, legislative and judicial powers. Neither the “bits and pieces” nor the “residual” approach is easy to reconcile with the rule of law, but this problem may be ameliorated by the recent emergence in many jurisdictions of judicially enforceable bills of rights.

The analysis of the accountability of executive power is based on a fundamental distinction between political and legal accountability. Political scientists will find the discussions of political accountability to be superficial, and comparative analysis is limited by the fact that the United States is the only case of a pure presidential system. These discussions are nonetheless helpful in providing a context for the more extensive treatment of legal accountability. One example of this is the issue of ministerial responsibility. In some systems, cabinet ministers are responsible for maladministration in the bureaucracy under their supervision. This convention is counterbalanced by a tendency to see the executive as a unitary entity held directly to account by the people in national elections. In general, this debate raises important questions for the relations between political executives and the permanent bureaucracy. This relationship is in turn a significant contextual factor for the legal accountability of administrative action.

The role of sub-national governments is potentially important for both the political and legal control of executive power. The book contains an interesting variety of cases ranging from full blown federalism to recent experiments with devolution of power within formally unitary systems. Power sharing constrains national executives who must depend on politically independent regional officials for the administration of public policy. On the other hand, the superior fundraising capacities of national governments and the need for coordination where responsibilities overlap create opportunities for executive influence. The chapter by Paul Craig introduces a further layer of vertical integration brought about by the emergence of the European Union (EU). The structure of the Union provides several new, and unique, venues for executive politics. Unfortunately, I found this chapter to be confusing, though experts on Europe probably will not.

For me, the book’s greatest strength is its analysis of legal accountability. Delegation of legislative authority is a fact of life in the modern state, and this challenge to the democratically accountable rule of law has provoked vigorous, if diverse, responses. Judicial review of executive action is significant in all the systems studied, and it has recently expanded in several of them. These developments are unfolding in a context of growing significance of constitutional courts and rights-based jurisprudence.

The discussion of legal accountability is most fully developed in relation to administrative law. Some nations follow the lead of the US and have a general [*615] statute on administrative procedures; for others, procedures vary by policy area. The judicial response to the exercise of administrative discretion is a prominent topic in the book, and most of the chapters go into some detail on judicial review of rule making and other administrative action. In general, review centers on the legal authority for an action, adherence to procedural norms, and, to some extent, the substantive correctness of an action. There is considerable variation with respect to all of these, especially the latter. While judicial deference as to findings of fact is common, it is not universal. Substantive standards of review like rationality, proportionality, and equality recur in various jurisdictions. As the editors point out, one must go behind the doctrines to gage the degree of deference given to administrative actors (p.9). What several authors refer to as the “intensity” of judicial review is an intriguing concept, worthy of further comparative research.

The chapter on the US, by Ernest Young of the University of Texas Law School, is somewhat out of synch with the other chapters. To some extent this is inevitable given that most of the cases are parliamentary systems. Young’s chapter is brief on judicial review of administrative agencies, a subject covered in some detail elsewhere in the book. On the other hand, he emphasizes war powers and detention of terror suspects, topics barely mentioned elsewhere. Of course, the actions of the American President in these areas are of worldwide concern.

Young concludes with a rather strained argument about the effectiveness of constitutional structures that distribute governmental powers to various institutions. He distinguishes between a “separated powers” strategy that relies on textual enumeration of powers – with judicial enforcement – and a “checks and balances” approach that creates countervailing centers of power and institutional mechanisms that give each branch some supervisory authority over the others. He then contends that the domination of American federalism by the national government reveals the weakness of the separated powers strategy, while the continued existence of a “meaningful balance” between the branches of the national government shows the effectiveness of checks and balances. Young then argues that the Supreme Court has been relatively aggressive in constraining executive power in relation to the detention of terror suspects to compensate for the lack of legislative checks and balances in this area. On the other hand, the Court has been deferential with respect to War Powers because Congress has adequate checks.

This argument is not entirely persuasive. The fact that an enumerated powers scheme drafted in 1787 came into crisis in the 20th Century is hardly a sign of failure. The purpose of the original enumeration of powers in Article I, section 8, was to reconcile the framers’ wish to create an effective national government with the political reality that the states were not willing to share all of their powers. It was a success, and the essays in this volume show that more recent federal constitutions have adopted [*616] versions of the strategy of enumeration. Of course, “parchment barriers,” standing alone, are not sufficient to contain power (Madison, 1961). Enumeration, by its nature, assumes the existence of “countervailing centers of power.” Whether these centers of power must have some supervisory authority over each other in order to maintain a meaningful balance is an interesting question, but difficult to answer on the basis of the examples given. Fisher (2004) argues persuasively that in the area of war powers the balance between Congress and the President has swung decisively away from that envisioned by the framers. With respect to the detention of terror suspects, is not the Supreme Court a “countervailing power” seeking to defend its “supervisory authority” over the detention of prisoners?

Overall, THE EXECUTIVE AND PUBLIC LAW is a high quality collection that contains a great deal of information about legal responses to executive power around the world. The volume is particularly strong on the topic of executive-judicial relations. The material on the legal structure and accountability of administrative decision making should stimulate further comparative research. I do not expect that this book will have a wide American audience, but it is a good source for those who want the benefit of a comparative perspective on executive power.

REFERENCES:

Fisher, Louis. PRESIDENTIAL WAR POWER, Second Edition, Revised. Lawrence, Kansas: University Press of Kansas, 2004.

Madison, James. 1961. #48 from Alexander Hamilton, James Madison, and John Jay. THE FEDERALIST PAPERS. Clinton Rossiter, ed. New York: New American Library.

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