Seminar talk with:
Prof. Margit Cohn
Faculty of Law, Hebrew University of Jerusalem
Fuzziness in Emergency Law
Wednesday, January 29, 2020 between 14:15-15:45
Room 1013, Terrace building, University of Haifa*
Lecture is available on YouTube
Abstract
This paper presents part of a book in writing, A Theory of the Executive Branch: Tension and Legality’. The book is virtually the first in a surprisingly underdeveloped area of public law research. Although interest in the executive branch and executive powers has been on the rise, more so in today’s ‘neo-populism’, virtually no general theory or systematic comparative analysis of the executive branch has been offered. Almost all of the existing research is system-based, and its interdisciplinary nature is rather limited.
Resting on the unresolved tension between the requirement to be subservient to legislation and the executive’s de facto political dominance, much of the law that regulates the executive branch is shaped in ways that enable and maintain action under law without submitting to its constraints. Between the poles of ‘perfect legality’ and ‘perfect illegality’, ‘grey holes’ (Dyzenhaus 2006) are various legal forms that present mere façades of legality and offer executives the relative freedom to act unfettered. I extend the discussion beyond the usual attention to expansively-penned statutes and broad grants of discretion, and offer a taxonomy of twelve forms of ‘fuzzy’ law, generated by constitutions, legislators, and executives. Although often unavoidable or preferable politically, such fuzzy nodes of law are a threat to proper governance. Under the rule of law, executive action must be drawn from a detailed statute enacted by the people’s representatives; opacity severely constrains citizens’ reliance on rules when planning ahead, and facilitates their inconsistent application; furthermore, accountability and review processes, when available, are weakened due to the limited visibility of law-in-action (Cohn 2016).
The paper discusses the emergence and retention of these modes of fuzziness during perceived or actual emergencies, and focuses in two systems, the United States and the United Kingdom. Finding that fuzziness is endemic to emergency law, I discuss the political economy of fuzziness, considering both internal and, especially, external pressures that contribute to the flourishing of fuzziness. Internal factors include historical patterns, retained due to institutional stickiness/fear of reform. External pressures that frustrate the adoption of non-fuzzy rules include the political inability to decide in this contested field, the marginalization of considered deliberation during periods of urgency, and conscious choices made by all participants in the practice of government, inter alia choices directed at garnering political support during perceived or actual difficult periods.
I end with an assessment of the ways fuzziness can be judicially reviewed and restrained. The argument for active participation of courts, during emergency or normalcy, draws on a theory of multi-player deliberative democracy. Under this theory, courts function as intermediary fora; they offer persons and groups lacking direct access to the decision-makers an opportunity to be heard and considered. Furthermore, applying the image of ‘the marketplace of ideas’, the judiciary is one of multiple fora in which policy decisions are tested: in comparison to decisions made in a single forum or by a small number of fora, testing in this forum alongside others contributes to the possible conduction of a well-rounded examination of the decision under consideration, and improves the likelihood of reaching an optimal decision. Despite the obvious sensitivity of the intervention of courts in this contested field, these benefits remain; systems should strive to their achievement.
* The Center is located on floor 1 of the Terrace building (Hamadrega). See map
For more details, contact Michal at This email address is being protected from spambots. You need JavaScript enabled to view it.
