On the value of constitutions and judicial review

Valentini, Laura (2016) On the value of constitutions and judicial review. Criminal Law and Philosophy. pp. 1-16. ISSN 1871-9791

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Abstract

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining.

Item Type:	Article
Official URL:	http://link.springer.com/journal/11572
Additional Information:	© 2016 Springer Science and Business Media Dordrecht
Divisions:	Government
Subjects:	B Philosophy. Psychology. Religion > B Philosophy (General) K Law > K Law (General)
Date Deposited:	11 May 2016 15:00
Last Modified:	14 Sep 2024 07:05
URI:	http://eprints.lse.ac.uk/id/eprint/66489

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