Abstract
In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining.
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Notes
There is something a little odd about this formulation, in that Harel qualifies his necessity claim by using the adverb “often.” Given the emphasis Harel places on “non-contingency,” at least for now, I discount the “often” qualification.
I will define “ontology” and “axiology” in Sect. 2.
Harel does not clearly distinguish between them.
What I offer below is my own reconstruction of Harel’s arguments.
It does not matter, here, what type of non-instrumental value freedom as non-domination has. It could be “intrinsic,” “constitutive,” or both. Harel is not fully clear about this. What does matter is simply that part of freedom’s value is non-instrumental.
Harel (2014, 175) claims not to want to endorse the specifics of Pettit’s republican conception. That said, he relies on the broad structural features of Pettit’s notion in his defence of the non-instrumental value of constitutions.
At times, Harel (2014, 151) suggests that these rights matter “as such,” which is typically interpreted to mean “intrinsically.” This gloss, though, seems inaccurate given how Harel characterizes the relationship between constitutional entrenchment and freedom as non-domination. Reference to intrinsic value appears more appropriate in relation to the “public recognition” function of constitutions, which I will briefly discuss later in this section.
This is so at least if one is sympathetic to “modally robust” understandings of freedom. See List and Valentini (forthcoming) for discussion.
A third—and promising—option, which I do not have the space to discuss here, is for a notion of freedom to focus on social, or socio-legal, possibilities: i.e., what is possible given how “the social world works.” Notice, however, that social possibilities are not reducible to what is “legally or socially permissible.” For example, it may be socio-legally impermissible to cross the road when the light is red—due to the existence of a positive legal norm that forbids it—and yet socio-legally possible to do so, say, if the rule is routinely ignored and not enforced. See List and Valentini (forthcoming).
Thanks to Alon Harel for drawing my attention to this passage.
This may also explain the qualification I mention in note 1.
The idea of non-domination itself (especially when it is not used to flesh out a conception of freedom) is underpinned by a concern with persons’ equal status.
Harel talks about a “right to a hearing,” but given what he has in mind, I find “fair hearing” a better label.
Harel (2014, 192) is clear about this.
In the next few paragraphs, partly drawing on Valentini (2013), I sketch some key moves in the rich and complex debate about the justification of democracy. A lot more could be said about this debate, and many more of its participants could be mentioned. Due to space constraints, and the limited purposes of my argument, I cannot be comprehensive here.
The validity of my argument is independent of what exactly counts as “reasonable.” Different readers may simply use their preferred “reasonableness threshold.” Note, also, that I am treating acceptance of fundamental rights as only a necessary condition for reasonableness.
For an overview, see Harel (2014, 195–198).
To be precise, epistemic considerations play a part in Dworkin’s and Brettschneider’s arguments for judicial review, but do not exhaust them.
Instrumental institutional evaluation is not exhausted by epistemic considerations. Crucially, it matters greatly whether institutions are able to maintain peace, security, and the protection of fundamental (non-reasonably-disagreed-upon) rights. My discussion presupposes that, at least under “normal” political circumstances, constitutional democracy is defensible on these non-epistemic instrumental grounds.
The authors cited defend subtly different versions of this general claim.
Harel (2014, 144–145, 201–202) would disagree with this statement. In his view, depriving individuals of a right to a say—even when there would be an epistemic justification for doing so—would problematically offend their dignity. I struggle to see how this would be the case, in the absence of thick reasonable disagreement.
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Acknowledgments
I am grateful to Christian List and Alon Harel for reading and commenting on this paper, and to the participants in the workshop on Why Law Matters at the University of Warwick (May 2014) for questions and feedback.
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Valentini, L. On the Value of Constitutions and Judicial Review. Criminal Law, Philosophy 11, 817–832 (2017). https://doi.org/10.1007/s11572-016-9390-9
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DOI: https://doi.org/10.1007/s11572-016-9390-9