Why Law Matters - A Debate
International Journal of Constitutional Law, Forthcoming
18 Pages Posted: 28 Nov 2014 Last revised: 8 Dec 2015
Date Written: November 26, 2014
This is a debate between Lorenzo Zucca and Alon Harel on the nature of constitutionalism. Traditionally constitutions and judicial review are considered to be instruments to protect rights or justice. In his book Why Law matters Harel develops a non-instrumentalist account of legal institutions and procedures. It argues that various legal and political institutions that are often perceived as contingent means to the realization of valuable ends are necessary components of a just society, namely that they matter as such. Part III of Why Law Matters defends a non-instrumentalist defense of constitutionalism (robust constitutionalism). More particularly it defends two aspects of constitutionalism: binding constitutional directives and judicial review.
Zucca rejects this view and defends robust instrumentalism; he argues that constitutions and judicial review are means to bring about social coordination. Zucca raises several objections against binding constitutionalism. He argues that: Harel’s understanding of constitutional entrenchment is flawed; Harel’s argument suffers from infinite regress and Harel’s reliance on republicanism exposes his argument to forceful objections. He further argues that Harel’s theory of judicial review is ultimately an instrumentalist one and that Harel’s understanding of the role of judges is too limited.
The debate touches upon fundamental questions of constitutional theory: is the constitution a means to protect rights or democracy or is it a component of justice? Should the desirability of judicial review hinge only on the instrumental contribution of judges in protecting rights or does judicial review rest also on the very opportunity that individuals have to challenge the state?
Keywords: Constitutions, Entrenchment, Judicial Review, Constitutionalism, Republicanism, Freedom, instrumental justification, right to a hearing
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