Introduction
The rule of law is a loaded concept. It is frequently invoked as a social ideal, but no one appears to know exactly what it means. The thinnest of definitions views the rule of law as merely a set of process criteria that an enactment must meet to properly be deemed “law.”Footnote 1 Broader understandings maintain that the rule of law engenders a set of thicker normative commitments that include respect for fundamental rights and the axiom that “no one is above the law.”Footnote 2
Despite this deep conceptual disagreement, a substantial transnational industry has emerged around the promotion and quantification of the rule of law. The main quantitative rule of law indices, this essay argues, share a common orientation. They focus overwhelmingly on formal, external manifestations of legality. They include constitutional structures and related legal institutions like courts, indicators of public and private corruption, public order, and rights protection.
Yet recent experience has shown that rule of law erosion in many key jurisdictions is attributable to executive branch behavior, the collapse of informal norms, and the sidestepping of internal legal process.Footnote 3 The terms “autocratic legalism” and “executive aggrandizement” have become staples of the scholarly discourse on democratic backsliding in comparative law and political science.Footnote 4 Nevertheless, legality within the executive is not adequately captured or measured by leading existing rule of law indices. And it presents unique quantification challenges.
This essay argues that executive legalism is now a primary determinant of rule of law performance, yet it is largely absent from most widely used rule of law measures. By executive legalism I mean the internal processes, norms, institutions, and professional practices through which executive actors interpret and operationalize legal constraint. The essay describes the limited incorporation of executive legalism in prevailing rule of law measurement approaches and evaluates the factors that complicate quantification of informal executive practices. It concludes with a preliminary outline of criteria for assessing legality within the executive, drawing primarily on the U.S. example.
The essay adds to already widespread conceptual critiques of rule of law indices by highlighting their inattentiveness to executive legalism as an increasingly crucial rule of law determinant.Footnote 5 Mila Versteeg and Tom Ginsburg have shown that leading rule of law indices are strongly correlated despite using different proxies and measurement strategies.Footnote 6 The indices, they argue, reflect some general notion of impartiality of government rather than a distinct rule of law concept. This essay shows that the problem is not just poor concept to measure fit. It is also a failure to capture something fundamental about the rule of law: how executives relate to it.
The Executive Blind Spot of Rule of Law Indices
Modern rule of law metrics focus overwhelmingly on formal manifestations of legality and de-emphasize executive behavior. This is true of indices that rely on coded indicators and surveys as well as those that try to get a deeper sense of the functioning of a legal system by soliciting expert opinions. Figure 1 summarizes the factors measured by four of the main rule of law indices: the WJP rule of law index; the V-Dem index; the World Bank index; and the CPI index. Additional leading indices like those produced by Freedom House and the Heritage Foundation similarly highlight property rights, corruption, judicial independence, criminal justice, and government persecution, but not executive legalism.Footnote 7
Main Rule of Law Indices.
Of the main indices, only V-Dem and WJP include variables related at some level to constitutional and institutional limits on the executive. Although recent WJP reports emphasize global erosion in checks and balances and increased executive consolidation of power as challenges to the rule of law,Footnote 8 the WJP measure itself approaches constraint on the executive at an extremely high level of abstraction. The WJP’s “Constraints on Government Powers” variable focuses primarily on the existence and perceived effectiveness of formal transparency and anti-corruption structures, as well as external institutional checks on the executive.Footnote 9 It does not meaningfully assess the internal legal processes and modalities of executive legalism that often determine how executive power is exercised in practice, especially where judicial review is unavailable or weak.
The V-Dem index, which explicitly links democracy and the rule of law, suffers from a similar problem. It measures broad indicators such as “executive respect for the constitution,” impartial administration, and executive corruption, but it does not capture the subtler mechanisms of executive branch legality that impact the performance of a system along both formal and substantive rule of law dimensions.
The external, formal orientation of the leading rule of law measurement approaches when it comes to executives is unsurprising. The rule of law concept has been strongly associated with public, stable, and enforceable legal constraint rather than the fuzzy internal norms of government actors. Fuller’s classic account emphasized publicity, prospectivity, consistency, and congruence between legal rules and official conduct.Footnote 10 Joseph Raz similarly stressed the importance of stable and public rules capable of guiding conduct as the defining features of the rule of law.Footnote 11
As a result, in Jonathan Gould’s words, the most influential twentieth-century accounts of the rule of law focus “on whether legal rules governing private conduct have certain qualities that matter to those bound by law.”Footnote 12 They have de-emphasized “what the rule of law has to say about how public power is organized and exercised.” Jeremy Waldron has similarly maintained that rule of law as a concept is biased toward private law, which “make[s] it difficult to develop an understanding of how the rule of law applies in the realm of public administration.”Footnote 13
Another reason to focus on formal, consistently observable parameters in rule of law quantification is the many challenges related to measurement and cross-jurisdictional comparison. It is particularly hard to see and measure internal norms and practices that constantly evolve and may vary greatly from one country to another. The same is true to some degree of other rule of law parameters that the indices do try to capture like public corruption or respect for human rights, but those parameters have a far larger footprint than malleable norms and bureaucratic behavior within the executive branch.
For instance, judicial independence can be assessed through formal institutional design features like tenure protection, judicial tendencies to rule against the government,Footnote 14 compliance with court orders, expert perceptions, and sometimes the judges themselves.Footnote 15 Courts occupy a central role in many rule of law accounts because they are public institutions that produce public legal opinions and reasoning that can be deciphered and scrutinized.
Corruption can be approximated through enforcement actions, surveys, and public reporting. Versteeg and Ginsburg’s recent work, discussed above, shows that existing rule of law measurement indices boil down to perceptions of administrative even-handedness and anti-corruption.Footnote 16 Both are observable rule of law features that have more to do with the government’s interaction with private parties than how government conducts itself.
Rights protections can be evaluated through constitutional text, legislation, documented abuses, court cases, NGO reporting, and oversight by international organizations. Using those proxies effectively is not an easy task, but at least there is something to work with.
In contrast, legality within the executive often leaves few stable, visible, and measurable traces. A substantial amount of executive branch lawyering occurs confidentially, informally, or through classified channels entirely inaccessible to outside observers. And practices may vary dramatically from one chief executive to the next, and even at different points in the same tenure.Footnote 17 For example, President Obama famously ran a highly bureaucratic, cautious, process-heavy White House and frequently solicited legal advice.Footnote 18 President Trump, by all accounts, runs a highly personal operation that relies on allies, supporters, family, and business associates, and treats legal advice as an afterthought.Footnote 19
Presidential decision-making norms vary across many other dimensions.Footnote 20 Some presidents share information liberally while others limit internal access to information to exert control. Some are personally involved in many issues while others delegate authority to advisors. Some are open to working with the legislature and make an effort to maximize cooperation, while others default to unilateralism.
This context explains the executive legalism blind spot of the leading rule of law indices. But if we are to have effective rule of law measurement strategies, we cannot forgo evaluating the rule of law as it operates within the executive—not just in courts, through formal features of the legal system, or in relation to private parties.
The Rise of Executives
Executive power has been on the rise in democratic and hybrid regimes. In the last century, the United States has seen a constant accumulation of power in the hands of the president at the expense of Congress, which seems to have broken new records under President Trump.Footnote 21 The EU has interpreted its treaties broadly and creatively to increasingly consolidate power in Brussels at the expense of member states. The EU Council and Commission have leveraged a series of emergencies to invoke rarely used constitutional emergency powers to push through wide-ranging economic reforms with smaller majorities and without the European Parliament.Footnote 22 Israel, Turkey, Brazil, Venezuela, Poland, Hungary, and others have seen authoritarians rise and consolidate power under cover of law, with varying degrees of pushback.Footnote 23
The rise of executives who deploy legal and other techniques to consolidate power is nothing new, but it has attracted tremendous interest from scholars of late.Footnote 24 What distinguishes this new form of executive consolidation is the use of law and institutions by charismatic populist leaders to subvert constraints and checks long deemed essential features of liberal democracy.Footnote 25 Leading theorists have identified executive aggrandizement and autocratic legalism as major drivers of democratic backsliding across jurisdictions. As Nancy Bermeo put it, “the defining feature of executive aggrandizement is that institutional change is either put to some sort of vote or legally decreed by a freely elected official—meaning that the change can be framed as having resulted from a democratic mandate.”Footnote 26 The change often manifests in measures to undercut opposition, dismantle accountability institutions, weaken courts, and curtail media criticism. When successful, external supervision of the executive gradually diminishes, and governance becomes an increasingly unilateral exercise.
Under such conditions, preserving even the formal aspects of the rule of law depends in large part on internal executive structures and norms. Traditional external checks like formal constitutions, legislatures, and courts—which existing quantitative indices highlight—still obviously matter, but their role in governance diminishes. Government lawyers, processes for incorporating legal advice into decision making, and susceptibility to external critique of legal positions shape whether at least some executive actors understand themselves to be bound by law, and how they operate within the law. Yet contemporary rule of law accounts and metrics largely fail to capture this dimension of legality.
Growing executive unilateralism in the American context has generated a substantial literature on internal executive legalism. The Justice Department’s Office of Legal Counsel has produced quasi-judicial opinions deemed binding on the executive and has shaped legal interpretation of the president’s authority. Many of those opinions have been made public, which makes executive legalism in the U.S. easier to measure compared to other systems that lack OLC-style advice giving and publication.
Nevertheless, a substantial and growing portion of executive branch (il)legalism occurs outside formal OLC advice. Daphna Renan has argued that modern presidents have manipulated legal advice internally by carefully curating the executive branch components that take part in the process to increase the likelihood of the desired outcome.Footnote 27 Neal Katyal described “internal separation of powers” as an essential mechanism for constraining executive authority from within the administrative state.Footnote 28 Jack Goldsmith’s account of post-9/11 executive branch lawyering illustrates how legal norms, institutional culture, and external observers all shape executive behavior even in domains where courts play only limited roles.Footnote 29
Those internal mechanisms may structure the decisions of good faith executives and help align them with legal requirements. They may counteract the urges of ill-motivated executives to skirt or violate the law by adding friction to the process. Or they may simply be ignored or discarded. The ability of internal actors and processes to constrain the executive depends on a combination of factors that rule of law measures should grapple with. Since the scope of this essay does not allow for the development of a thorough roadmap for measuring executive legalism, the aim here is to spark a conversation about what an adequate, practical measure would look like.
A measure of executive branch legalism should focus on indicators related to the inner workings of the executive branch that affect the likelihood of an executive acting arbitrarily and without concern for legal constraint. Based on the American experience, two groups of indicators could prove useful. One group has to do with the integration of legal advice into the executive branch. Is there a structured mechanism for generating legal advice? Is it enshrined in law or guidance, or is it norm-based? Is it adjacent to the chief executive, or is it more broadly incorporated into different executive branch components? Is the advice binding on the executive? Under what conditions? Are there reputational sanctions for furnishing flawed advice or failing to comply with that advice? Are there actual sanctions? What is the institutional standing of executive branch lawyers? Are they protected civil servants or political appointees subject to removal by the chief executive?
The other group of indicators has to do with the susceptibility of the executive to critique of its legal positions, even absent judicial review. Is major legal advice generally published? Are processes for generating legal advice transparent within the executive branch? Are there robust mechanisms for implementing judicial orders? Does the executive habitually comply with judicial decisions?
There will likely be disagreement about the indicators, and they are not meant as an expression of a normative stance on the proper relationship between political control and “the rule of lawyers.”Footnote 30 They are simply meant to measure the degree to which executives internalize legal constraint, communicate that they perceive themselves to be bound by law, and follow processes that are at least somewhat predictable, stable, and public.
Conclusion
Understanding and evaluating executive legalism is a pressing challenge for the rule of law measurement industry. Rule of law measures focus primarily on formal rule of law indicators and government interaction with private parties. The rule of law has long been associated with formal legality, and the performance of those aspects of the rule of law is easier to measure. Yet powerful executives that operate with limited judicial review and decreasing legislative oversight have shown themselves to be one of the most pressing threats to the rule of law today. However one defines it, the rule of law therefore depends on whether executives themselves are attentive to legal constraint in their internal decision making. Rule of law measurement indices should do a better job capturing that aspect.
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