Executive Lawyers and Executive Power: A New View of the Cathedral

Conor McCormick

Queen’s University Belfast

Introduction

In an influential contribution to the Harvard Law Review in 1972, Guido Calabresi and Arthur Douglas Melamed caveated their paper with the following memorable disclaimer: 

“[a]s Professor Harry Wellington is fond of saying about many discussions of law, this article is meant to be only one of Monet’s paintings of the Cathedral at Rouen. To understand the Cathedral one must see all of them.

I was reminded of this metaphor several times as I read and reflected on the excellent Gatekeepers article by Conor Casey and David Kenny that I have been invited to comment on for this symposium. The article in question organises an impressively ambitious set of insights into the ‘important but highly variable role’ of senior executive legal advisers, as understood in the light of a comparison between four subtly different approaches that have been adopted in the English-speaking world (viz the United Kingdom, Ireland, Canada, and the United States). As someone who has laboured over the role of executive legal advisers in my own work, albeit with a different focus, I was struck by the originality of the conceptual framework advanced in this paper, as well as the parallels between that conceptual framework and others which have been developed with slightly different actors and audiences in mind. In this post, though there are many aspects to the Gatekeepers article that I could discuss, I will confine myself to elaborating on this observation about its conceptual framework in three stages. First, I will recapitulate the essential contours of the conceptual framework that Casey and Kenny have devised. Second, I will draw the authors’ attention to an analogous model for understanding the role of local government lawyers and compare certain features of that framework with theirs. Finally, I will return to Monet’s paintings of the Cathedral at Rouen by way of emphasising my shared belief in the value of having multiple perspectives on this important area of research.

The Casey and Kenny View

Casey and Kenny ably demonstrate that the work of executive lawyers ‘seems to have at least four crucial variables’ by reference to a range of persuasive examples that can be read in the paper itself. For present purposes, the authors’ distillation of various rules and practices into four constitutionally significant variables is the most relevant aspect of their contribution. According to Casey and Kenny, executive lawyers working at the apex of each system they have studied fall somewhere between two poles on at least four conceptual axes:

1. An axis where at one end, the executive legal advisers are political, while at the other they are technocratic;

2. An axis where at one end, the executive legal advisers publish their advice either to parliament or to the public, while at the other there is a culture of secrecy surrounding their advice-giving functions;

3. An axis where at one end, the executive legal advisers formulate their legal advice primarily by trying to mimic, predict or pre-empt judicial decision-making, while at the other, their advice is formulated primarily by reference to the particular position, powers, and responsibilities of the branches of government being advised;

4. An axis where at one end, the executive legal advisers are centralised in a single office or entity close to the political head of government, while at the other, they are diffused in a way that may allow the political head of government to choose between different sources of legal advice.

Importantly, Casey and Kenny acknowledge that their conceptual framework was created with the work of ‘apex legal advisers’ in mind, namely ‘those who provide advice to the political executive on the most salient issues.’ What I find interesting, however, is the extent to which the variables they have discerned in that context resemble those which emerged from a domestic study of local government lawyers by TPB Rattenbury. 

The TPB Rattenbury View

In an under-appreciated book called Public Law Within Government: Sustaining the Art of the Possible, a long-serving government lawyer named Timothy P. B. Rattenbury has argued that ‘seen from within, administrative law is not about challenging government but about sustaining it.’ His thesis suggests that public law within government is a perennial process of determining and sustaining the boundaries of what it is possible for the government to do and his conceptual framework for advancing that thesis can be summarised by considering three batches of terminology he uses to structure his analysis. 

The first batch of terminology comprises five abstract terms which, Rattenbury argues, represent key variables in the workings of public law and administration: disposition, information, latitude, autonomy, and consequences. Disposition, he suggests, covers ‘what the key actors want to do and how badly they want to do it.’ Information is defined as ‘how much the key actors know about the relevant law.’ Where statutory provisions deliberately provide for discretion, or where the precise meaning of a statutory provision is uncertain and must be given an operative interpretation, Rattenbury describes that variable as the latitude of the situation. Autonomy is the term he uses to describe a variable relating to ‘the extent to which a decision-maker can achieve his or her ends without the intervention or assistance of others,’ while the final variable he considers involves an assessment of the potential consequences of a particular decision. 

The second batch of terms Rattenbury uses serve the purpose of linking the five variables above to practical government operations; policy and law, in contexts determined by organisation, he contends, are ‘readily recognisable descriptions of the three main forces’ underpinning his study of public law within government. He defines policy simply as ‘the collective disposition’ of the government, namely what a government ‘wants to do and how badly it wants to do it.’ Understanding a government’s collective disposition, as best as possible, is necessary because it will determine ‘which legal issues it must confront and whether it finds its legal powers in any particular context to be adequate or constraining.’ Organisation, Rattenbury suggests, is about ‘who takes what decisions and in consultation with whom.’ It will influence the degree of autonomy and the amount of information public decision-makers may have in a particular context. 

The final batch of Rattenbury’s terms simply elaborate on what is meant by his conception of law in the second batch. While he appreciates that the concept of law has been subjected to much academic debate, he names its two dimensions given law and operative law. Given law is the term he uses to describe ‘the objective legal propositions that can be clearly stated when a government begins the process of considering an exercise of its powers.’ Operative law is ‘the law as it is understood when decisions are actually taken,’ in other words ‘the final statement of what the applicable law in a particular situation is understood to be.’ He states that where the operative law is not clearly dictated by the given law it is determined by professional judgment. In the distance between the given law and the operative law lies a degree of latitude resulting from ‘the uncertainties of statutory interpretation.’ Decisions are made on the basis of an interaction between law and policy, he continues, ‘to produce outcomes that are a balance between the strength of the disposition and the scope of the available latitude.’ These interactions between law and policy do not follow a regular pattern and, in recognition of this, Rattenbury suggests labelling the ‘modes of engagement’ between them subliminal, peripheral, determinative or contested.

I have set out Rattenbury’s little-known theoretical model in some detail here because I think it helpfully illustrates the extent to which Casey and Kenny’s conceptual framework for considering senior executive lawyers interestingly complements the relatively small bundle of scholarship on government lawyers that has preceded it, as well as the extent to which there appears to be a common core among the variables that have been identified in such studies to date. To take just two examples, for reasons of space, I think it is more than a little intriguing that the fourth variable identified by Casey and Kenny as having constitutional significance for senior executive lawyers in various jurisdictions (concerning the extent to which legal advisers are structurally centralised inside government) chimes harmoniously with Rattenbury’s emphasis on the overarching significance of organisation to the work of local government legal advisers. Likewise, I am fascinated by the similarity between Casey and Kenny’s third variable (concerning the nature of government legal advice and its capacity to be both court-mimicking and endogenously focused) and Rattenbury’s understanding of the latitude available to local government legal advisers when deciding how to carry out their advice-giving functions. Indeed, I suspect Casey and Kenny might agree with Rattenbury that ‘[t]here are many ways, all equally justifiable, of performing the lawyer’s role,’ given that they expressly refute the notion of an ‘optimal’ structure for executive legal review. 

The Value of Various Views

I hope I will be pardoned for confessing at this point that I think Casey and Kenny go slightly too far when they say that the role of executive lawyers is ‘unexplored in the literature on comparative constitutional law’ and that it has not yet ‘been the subject of sustained and broad comparative enquiry.’ It is certainly an under-explored topic, though I do not think it is accurate to say it is unexplored, largely on account of a terrific collection of constitutional essays edited by Gabrielle Appleby, Patrick Keyzer, and John M. Williams in 2014 (Public Sentinels: A Comparative Study of Australian Solicitors-General). In my review of that collection for the Irish Yearbook of International Law 2015, I praised it for ‘establishing a laudable framework for organising future collections on the under-researched subject it explores’; noting in particular that ‘the collection leaves no room for doubt over the merits of treating the roles of government lawyers as a field worthy of serious constitutional scholarship.’ I owe it to the editors of that volume to affirm those comments here, but in doing so I do not mean to detract from the originality of the conceptual framework that Casey and Kenny have produced in their Gatekeepers article and its assured utility for a certain group of readers. I suspect it will be a particularly useful resource for anyone tasked with considering how to establish or reform a system for the provision of executive legal advice at the top tiers of government in a wide variety of jurisdictions, who are bound to appreciate the clarity with which Casey and Kenny have articulated the ‘difficult normative tradeoffs’ involved. In this way, I think their Gatekeepers article makes a uniquely useful contribution to comparative constitutional law scholarship. 

According to the text of his inaugural lecture at Queen’s University Belfast, partially reproduced on page 8 of this book, Simon Lee once extended the Monet metaphor introduced at the outset of this post in the following terms:

Each analysis of law gives us one view of the cathedral of law. It can do no more. It cannot paint the cathedral of law from all angles. At different times, the view from the same place is different. Each picture tells us something about the cathedral but also something about the painter and his or her vantage points. Monet produced thirty studies of the cathedral at Rouen… Each study adds something, it builds on Monet’s experience, as well as reflecting the different light and shade from the different time of day.

Later in his lecture, Lee added that ‘there is nothing wrong, and everything right, in legal philosophers and other academic lawyers returning again and again to the same theme,’ as ‘[i]t is sometimes the thirtieth study which captures the imagination.’ I daresay Casey and Kenny’s Gatekeepers article may prove Lee to be right at least in so far as their article appears likely to inform the imagination of anyone interested in establishing or reforming a system for the provision of executive legal advice at the top tiers of government. 

Conor McCormick is a Senior Lecturer in the School of Law at Queen’s University Belfast. 

Suggested Citation: Conor McCormick, ‘Executive  Lawyers and Executive Power: A New View of the Cathedral’ IACL-AIDC Blog (7 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/7/executive-lawyers-and-executive-power-a-new-view-of-the-cathedral.