The Accountability of Executive Power: New Paths into a Constitutional Black Box, by G Tusseau

Is there anything new to say about such a classic subject as executive power? Two books, Comparative Executive Power in Europe: Perspectives on Accountability from Law, History and Political Science and Regional Accountability and Executive Power in Europe both edited by Marcel Morabito and myself, answer this question with a resounding “yes”. Both professors at Sciences Po Law School in Paris, we are in charge of the REGALIEN research programme (Responsibility of Governments, Accountability and Legitimacy in European Nations). We decided to bring together a large group of scholars from different disciplines to shed new light on what has become the most prominent actor in contemporary political systems. With the Covid crisis, global environmental emergency, global democratic backsliding, terrorist threats, civil and international wars, the times seem ripe for a new age of imperial presidencies and strong governments. A fresh and updated perspective on the current organisation and functions of the executive in Europe, which has not been spared by the preceding trends, was urgently needed. Indeed, the current situation poses many challenges to the Montesquieuan framework on which Western constitutionalism has been based for more than two centuries.

The first book, Comparative Executive Power in Europe: Perspectives on Accountability from Law, History and Political Science, provides updated material by renowned international scholars on the current situation in the jurisdictions they cover: Belgium (Marc Verdussen), France (Chloë Geynet-Dussauze and Priscilla Jensel-Monge), Germany (Yoan Vilain), Greece (Antonis Pantelis), Hungary (Peter Kruzslicz), Italy (Maurizia De Bellis), the Netherlands (Leonard F.M. Besselink), Poland (Krzysztof Wojtyczek), Portugal (Rui Lanceiro), Romania (Elena Simina Tănăsescu), Scandinavia (Eivind Smith), Spain (María Ruiz Dorado), Switzerland (Thierry Tanquerel) and the United Kingdom (Paul Daly). Each chapter looks in turn at the local constitutional history, the current structure of the executive, the evolution of the political and institutional balance between heads of state, governments, ministers, parliaments and judges, and discusses what lies ahead. These successive constitutional portraits also insist on the accountability of the executive, which is the concept that allows political institutions to be understood not in isolation but in relation to each other, thus highlighting the dynamics of contemporary institutional settings. Accountability is thus seen as one of the most fundamental building blocks of an all-encompassing constitutional culture. The book sets the stage for comparative studies such as those proposed by Ariane Vidal-Naquet in her concluding chapter. Beyond the idiosyncratic technicalities that each case study offers, the focus on the concept of accountability says much about our mentality as constitutional scholars and, more generally, as citizens of constitutional states. By moving between history, constitutional theory, legal norms and recent politics, the book helps to unpack the culture of constitutionalism. It illuminates the tension between the use of a common grammar to frame political power, on the one hand, and the multiplicity of understandings and local applications of this way of thinking, on the other. In this respect, the motto on the Great Seal of the United States, E pluribus unum, is apt.

The second book, Regional Accountability and Executive Power in Europe, brings together several perspectives that shed new light on the problem of executive accountability. Scholars from different disciplines (administrative law, economic law, philosophy, civil law, sports law, history of law, political science, legal theory, etc.) and with different sensibilities begin by offering a fresh look at the subject. This first series of contributions by Hafida Belrhali, Malik Bozzo-Rey, Jean-Baptiste Donnier, Amaia Errecart, Cécile Guérin-Bargues, Clémentine Legendre, François Quastana and Xavier Magnon, both individually and in combination, clearly challenge the traditional constitutional analysis. They allow us to broaden the scope of the investigation and to sharpen our understanding of the specificities of the regime(s) of accountability to which the executive is subject. These perspectives connect well with the contributions of the first volume and offer so many contrasting and at the same time complementary ways of approaching concrete cases. A second series of contributions intends to vary the level of analysis. While the first book focused on national cases, the second volume seeks to address other testing grounds for traditional concepts of public law. It combines an analysis of local and supranational governance through the lens of executive accountability. Contributors to this second part of the book include Mercedes Bresso, Claus Dieter Classen, Aurore Gaillet, Yoan Vilain, Virginie Donier, Laurent Carrié, André Viola, Stéphane Mouton, Luigi Lacchè, Paolo Ponzano, Jacques Ziller, Fabienne Peraldi-Leneuf, Julien Padovani, Emilien Quinart, Juan Fernando López Aguilar, Sophie in’t Veld, Jean-Paul Jacqué, Hanan Qazbir and Audrey Bachert-Peretti. The more local perspectives go hand in hand with the more global ones. This choice also reflects an ambition to benefit from the insights of practitioners who have experienced executive power and executive accountability at the infra-national, national and supranational levels. This mix of theoretical and grounded approaches again testifies to deep tensions in the understanding of political (post)modernity. It questions the existence of a unified European tradition, embodied in a common set of discourses, practices and institutional designs, and the extent to which this common grammar can accommodate a plurality of more or less contradictory understandings. The implementation of state-centred concepts at the EU level is a crucial testing ground for the viability of eighteenth-century constitutionalism in our time.

By approaching the subject from different angles, this second volume paves the way for a self-consciously kaleidoscopic methodology. It offers a tentative example of where this pluralistic approach can lead and how fruitful it can be. Seen from such a variety of angles, executive accountability appears not as a fixed element we find in our constitutional norms, but as a site of legal, political, cultural and conceptual contestation. In order to address it properly, legal scholarship must at the same time be more sensitive to theoretical and methodological issues, be enriched by other disciplines, and adopt a pragmatic perspective that allows it to remain in touch with the lived world of practitioners. For this reason the 41 chapters that make up these two volumes reflect a kind of contemporary unease about the challenges facing contemporary political societies. They confirm that these two collections of essays were much needed, not to end the discussion, of course, but to bring new material and new perspectives into it. They both illustrate a more general tendency in French constitutional scholarship, based, for example, on the new research programmes developed by the Association française de droit constitutionnel, to promote innovative intellectual strategies for approaching constitutional objects through new lenses, and possibly to contribute to changing the ‘style’ of constitutional scholarship.

Posted by Professor Guillaume Tusseau (Sciences Po Law School, Paris)