Why Law Matters.

• Jurisdiction: United States
• Author: Nehushtan, Yossi
• Date: 22 September 2015

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. It is not always clear, however, to which of the possible meanings of "intrinsic value" Harel refers--and whether all these meanings accurately explain what having "intrinsic value" actually means. We can find in the book at least four possible meanings of being "valuable as such" or for having "intrinsic value."

   Intrinsic value type 1 can be expressed as: "X is always good regardless of the consequences." For example, "autonomous decisions are always valuable regardless of the content of such decisions." This is probably the strongest, "purest" claim for something being valuable "as such." Some may claim that this is the only possible meaning of being "valuable as such."

   Intrinsic value type 2 can be expressed as: "X always brings about better consequences than the alternatives." For example, "autonomous decisions are always superior in terms of their content to non-autonomous decisions." This is a mixed argument with both instrumentalist and non-instrumentalist foundations (with the former being more dominant).

   Intrinsic value type 3 could be described as: "X is always preferable, other things being equal." For example, "good decisions have added value if they are autonomous--and bad autonomous decisions have more value than bad nonautonomous decisions." This is a mild claim for something being valuable as such.

   Intrinsic value type 4 is: "X is a necessary (yet not sufficient) prerequisite for doing good." For example, "being autonomous is a necessary (yet not sufficient) prerequisite for making good decisions." This argument (much like type 2) also has instrumentalist foundations as our concern here is the consequences of X (being autonomous), which is making the right decisions. In that respect, X is merely a means to an end, at least in part.

   It is evident that different types of meaning of "intrinsic value" or "being valuable as such" require different justifications or supporting arguments. Also, some types require more evidence or more powerful arguments in order to be convincing with regard to a particular X. In any event, it is clear that one can argue that X is valuable "as such" in many different ways. While reading Harel's arguments for different constitutional procedures and arguments being valuable "as such," one can admire their clarity and novelty. Concerns, however, may be raised with regard to their consistency. More accurately, I suspect that throughout the book Harel argues for different types of meaning being "valuable as such" without explicitly differentiating between these types.

   For example, Harel argues that the desirability of various legal and political 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). This is clearly an "intrinsic value" argument of type 1 ("X is always good regardless of the consequences"). However, Harel also argues that the book "sides with those who believe that sometimes the justness or correctness of a decision depends on the institution making the decision and/or on the procedure by which the decision came about" (p. 2); that "legal institutions and procedures are often not mere contingent instruments to realize valuable ends; they are often necessary components of a just society" (p. 3); and, more specifically, that "constitutional entrenchment of rights is therefore a necessary precondition for freedom rather than merely a contingent instrument for protecting freedom" (p. 7). These are intrinsic value statements of type 4 ("X is a necessary yet not sufficient prerequisite for doing good").

   Harel also suggests that "constitutions as well as judicial review are not mere instruments to guarantee good, just or coherent decisions; they are valuable for other reasons and their value does not depend only or primarily on the degree to which they contribute to the substantive merit of the resulting legislation or executive decision" (p. 133). Here Harel acknowledges that constitutions as well as judicial review are valuable also because and in so far as they guarantee good and just decisions. This is a modest argument according to which constitutions and judicial review are valuable both "as such" and as long as they contribute to the substantive merit of the resulting legislation or executive decision. It is quite clear that here Harel does not argue that constitutions and judicial review are always valuable regardless of the consequences (intrinsic value argument type 1) or that they are a necessary but not sufficient prerequisite for doing good (intrinsic value type 4). It is not clear, however, whether Harel argues that constitutions and judicial review will always bring about better consequences than the alternative (no constitution or judicial review), which would in fact be an intrinsic value argument of type 2; or whether he argues that constitutions and judicial review are always preferable "other things being equal" (i.e., it is better to have them even when we get the same results without having them), which would be intrinsic value argument type 3.

   Another concern regarding Harel's commitment to noninstrumentalism arises from the following. Harel departs from those who argue that first we need to identify the "right" or correct decision--and then to identify the institution or procedure that is most likely to get it right. Instead, Harel argues that "sometimes the justness or correctness of a decision depends on the institution making the decision and/or on the procedure by which the decision came about" (p. 2). He also argues that "there is a close (or strong) affinity between legal and political institutions and procedures on the one hand and the desirable goals or values, such that the latter can, even in principle, be realised only by establishing the former" (p. 5). This is, again, an...