Academic journal article Constitutional Commentary

The Case for Modest Constitutional Instrumentalism

Academic journal article Constitutional Commentary

The Case for Modest Constitutional Instrumentalism

Article excerpt

WHY LAW MATTERS. By Alon Hard. (1) Oxford: Oxford University Press, 2014. Pp. xii + 240. $65.00 (cloth).

INTRODUCTION

"This fascinating volume offers arguments that are both significant and surprising ... a major work from a leading writer, it will force many to re-think why and how law matters" (p. viii). The editors of the Oxford Legal Philosophy book series, just quoted, got it right. Harel's book is a constitutional and philosophical treat. It is innovative and thought-provoking (much like Harel's previous work on related issues). It forces the reader to re-think major and common assumptions about the law and especially about constitutional procedures and institutions. The fact that I disagree with many of Harel's arguments--and with his main thesis--is marginal to the pleasure of reading the book and to the great challenge that it poses to those who do not share its main argument. This argument, in short, is that various legal and political institutions and procedures (constitutions and judicial review, for example) are desirable as such, i.e. regardless of their ability to facilitate the realization of valuable ends and of their prospects to realize such ends.

Interestingly, that was not Harel's original position, which was the exact opposite of the view presented in the book. According to Harel's original position, the desirability of constitutional directives hinges on the question of whether such directives are likely to guide the state or individual agents to act as they ought to. Accordingly, the desirability of judicial review and its optimal scope hinges exclusively on the question of whether judicial review is conductive to reaching the right decision or acting in accordance with reason.

Had Harel chosen to write a book that established these arguments, this review would have been much shorter and less skeptical. However, Harel changed his views and now the book

   examines various legal and political institutions and procedures
   and argues that the desirability of these institutions and
   procedures is not contingent and does not hinge on the
   prospects that these institutions are conductive to the
   realization of valuable ends. Instead, various legal institutions
   and legal procedures that are often perceived as a contingent
   means to facilitate the realization of valuable ends matter as
   such (p. 2).

I will start by raising doubts as to whether Harel does make a case for anti-instrumentalism with regard to some constitutional procedures and institutions. I will then question Harel's noninstrumentalist approach with regard to constitutionalism and judicial review and will conclude with a short defense of modest constitutional instrumentalism. I will not discuss Harel's application of his general non-instrumentalist approach to the specific issues of "rights" and "privatization."

1. DOES HAREL MAKE A CASE FOR NONINSTRUMENTALIST CONSTITUTIONALISM?

In the introduction to the book, Harel makes it clear that he does not argue that instrumental justifications necessarily fail and that he does not make a general argument against applying instrumental justifications in legal or political theory. He does argue that instrumental justifications that rest exclusively on contingencies are not free of difficulties. He also argues that with regard to the examples presented in the book, non-instrumental justifications are sound (p. 5). His more specific arguments later on imply that with regard to the examples presented in the book, non-instrumental justifications are not merely sound, but also superior.

At this point, we face a preliminary, conceptual difficulty. Throughout the book, Harel establishes his argument that constitutional institutions and procedures are important as such and that they have intrinsic value, in the sense that their desirability is not contingent and does not hinge on the prospects that these institutions are conductive to the realization of valuable ends. …

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