Why Law Matters - A Debate

International Journal of Constitutional Law, Forthcoming

Hebrew University of Jerusalem Legal Research Paper No. 15-35

18 Pages Posted: 28 Nov 2014 Last revised: 8 Dec 2015

See all articles by Lorenzo Zucca

Lorenzo Zucca

King's College London – The Dickson Poon School of Law

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Date Written: November 26, 2014

Abstract

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

Suggested Citation

Zucca, Lorenzo and Harel, Alon, Why Law Matters - A Debate (November 26, 2014). International Journal of Constitutional Law, Forthcoming; Hebrew University of Jerusalem Legal Research Paper No. 15-35. Available at SSRN: https://ssrn.com/abstract=2531103 or http://dx.doi.org/10.2139/ssrn.2531103

Lorenzo Zucca (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

Alon Harel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

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