Enforcement without Responsibility? On the Institutional Blind Spot of the Rule of Law

Modern states governed by the rule of law increasingly face the problem that the consistent enforcement of legally established unlawfulness can generate substantial social costs. Unlawfulness remains clearly identifiable and legally confirmed, yet it is often remedied selectively, in graded form, or not at all. Such de facto cost-based enforcement and non-enforcement decisions typically occur informally, opaquely, and without a clear attribution of responsibility.This paper argues that this deficit stems from a structural blind spot in the classical separation-of-powers model. While the legislature, judiciary, and executive cover lawmaking, the legal determination of unlawfulness, and enforcement respectively, there is no independent institutional assessment of the societal costs and consequences of enforcement itself. As a result, cost-based decisions about enforcement and state non-enforcement remain situated in a normative grey zone.In response, the paper develops the concept of a functionally understood “missing fourth power,” conceived as an independent enforcement-impact review body. This instance neither alters the validity of legal norms nor interferes with judicial decisions. Instead, it renders cost-based enforcement choices transparent, subject to public justification, and open to revision. Unlawfulness remains normatively intact, while responsibility for its limited realization becomes institutionally visible. In this way, the proposed model aims to strengthen the normative integrity of the rule of law under conditions of increasing complexity and persistent scarcity.