Author Interview: Why Law Matters

Alon Harel tells us about his 2014 book, Why Law Matters, which has recently been translated into Spanish (as Por qué el derecho importa) and is also available in German (as Wozu Recht? Rechte, Staat und Verfassung im Kontext Moderner Gesellshaften).

Tell us a little bit about the book

'Law is a means…not an end', said Hans Kelsen. That view was shared by Aquinas and Bentham, by rights theorists and by economists. They all regarded law as an instrument that is to be evaluated according to how well it serves its proper ends. Under this view, what makes a legal or a political institution valuable is its ability to decide correctly or rightly and what makes a procedure valuable is its propensity to generate just or correct decisions and bring about valuable ends. This view can be labelled legal instrumentalism.

The book Why Law Matters challenges legal instrumentalism. It 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 or procedures are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.

To do so, I use what can be called an inductive approach: I look at various institutions and procedures and develop ways of conceptualizing them and exploring their rationale in ways that focus on their intrinsic value. For instance, chapter 3 argues against the private provision of punishment (private prisons). I argue there that certain goods, e.g., punishment can only be provided by public institutions. This is not (as John Locke thought) because public institutions are typically better in rendering decisions concerning punishment or can, as a rule, better calibrate the just harshness of the criminal sanction but because only public institutions can condemn wrongful behaviour in the name of the political community as a whole. Precisely as it is only parents who can legitimately punish their children (because of the special relations between parents and children), so it is only the state that can legitimately punish its citizens (because of the nature of the relations between citizens and the state).

I also argue in chapter 6 that judicial review is valuable not only or primarily because courts make better decisions than other institutions concerning the protection of rights but also because individuals have a 'right to a hearing' namely a right to challenge the state's decisions concerning their rights. Judicial review is not designed to improve decision-making but to provide an opportunity for individuals to raise grievances and for the state to examine the grievances and reconsider the decisions giving rise to the grievances. Other chapters explore other issues using the same methodological approach, namely focusing on the intrinsic value of institutions or procedures.

What is the nature of the contribution of the book to constitutional law?

Part III of the book (chapters 5 and 6) is devoted to constitutional theory. This part rejects what I label 'constitutional instrumentalism', namely the view that constitutions are designed merely as instruments to promote just decisions and defend, instead, what I label 'robust constitutionalism' namely the view that constitutionalism is intrinsically valuable. In contrast to the prevalent view, constitutions and judicial review are not mere instruments to protect rights, promote justice or coherence and integrity. Instead, they are valuable because they transform and restructure the relations between the state and its citizens.

By robust constitutionalism I refer to two distinct phenomena. Chapter 5 defends the view that the constitutional entrenchment of rights is valuable because entrenched constitutional provisions acknowledge and affirm the fact that rights are not merely discretionary; their force does not only depend on our will or whim or even on our considered judgements as a political community. Instead, the protection of rights is a duty imposed on us independently of what we think, judge or prefer. I argue that citizens are freer in a society in which their rights are publicly recognized as duties imposed on the legislature rather than as resulting from the mere judgments inclinations or preferences of the legislature or the political community. Constitutions guarantee not only that the rights be protected but that they be protected in the right way, namely in a way that does not hinge merely on the good will or the right judgment of the legislature.

I extend this analysis also to international law. I argue that the rise of global constitutionalism can be conceptualized not as an effort to better protect rights but, instead, to affirm the fact that the protection of rights does not hinge on the good will or the right judgement of states. Precisely as the turn to constitutionalism protects us from the prospects of living at the mercy of legislatures, so the turn to globalism and internationalism protects us from the prospects of living at the mercy of states. Hence, even if the legislature or the state is highly enlightened and devoted to the protection of rights and justice, the mere fact that our rights are 'at its mercy' is a deficiency that needs to be addressed by using constitutional and international tools.

Chapter 6 pursues this line of thought and defends judicial review on non-instrumentalist grounds. It argues that whenever a person argues (justifiably or unjustifiably) that her rights are violated, the state ought to provide a hearing. The duty to provide a hearing requires the state: a) to provide individuals with the opportunity to challenge decisions that they believe (rightly or wrongly) violate their rights, b) to require the state to justify its decisions, and c) to require the state to reconsider its decisions on the basis of the deliberation and to act in accordance with the results of this deliberation.

Judicial review is valuable not because it is likely to result in 'better' decisions or to better promote or protect rights or minorities, but because judicial review is nothing but a hearing to which individuals have a right. One main advantage of this view is that its soundness does not hinge on the speculative and unsubstantiated claim that courts are indeed better in protecting rights and justice than legislatures. Even if courts are not as a general rule superior to legislatures, judicial review is justified on the grounds that it enables citizens to exercise their right to a hearing.

Constitutionalism is typically justified on instrumentalist grounds. Constitutional instrumentalism is the dominant position among constitutional theorists who regard constitutional provisions and judicial review as contingent means to protect valuable ends. Part III of the book which is devoted to the examination of constitutionalism challenges this view and defends robust constitutionalism.

What inspired you to take up this project? (This could be an issue in the wider world, a teacher, the work of a particular author, an encounter with legal issues in practice…)

What primarily triggered this project was the evident gap between constitutional theory and political reality. I noticed again and again that despite (and perhaps because of their) sophistication, theories of constitutional law fail to capture and voice the sensibilities and passions which underlie political and legal controversies concerning constitutional law. I was guided by the conviction that this gap should be bridged and, to do so, one should look at constitutions from within through the perspective of those who support and cherish the constitutions or even oppose them or engage with them. In this work, I tried to be attentive to the sentiments of politicians, citizens and activists and to theorize their concerns in a way that is as authentic as academic enterprise can be.

Whose work was influential on you throughout the course of the project?

The book is not a Kantian book and I am not a Kantian scholar. Yet the Kantian spirit of anti-consequentialism can be found in every page of this book.

What challenges did you face in writing the book? (of method, of philosophy, of law, or just of life…)

The main challenge in writing this book was to distance and free myself from the current academic literature and to think afresh in simple, intuitive ways that reflect common layperson's rather than academic understandings. Legal and political theory in general and constitutional theory in particular are very valuable. But it is sometimes important to transcend academic theory and rethink the fundamentals in a way that does not engage with theory but observes reality in a way that is unmediated by previous academic writings.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

I regard the primary contribution of the book in transforming the way we think about legal and constitutional phenomena. While I hope my specific views concerning rights, privatization, constitutional directives and judicial review will have an impact, I regard the main contribution of the book in transforming the method by which we think about legal institutions and procedures. Instead of rationalizing institutions and procedures in terms of their contingent desirable ends, we should focus on their social meaning and intrinsic value. I want therefore that the book not only transforms what we think about public institutions, constitutions judicial review etc but also how to think about these issues; what types of justifications are acceptable and why.

What’s next?

I wish you will tell me!

Author Interviews