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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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Identification Number: 10.1007/s11572-016-9390-9

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)
Sets: Departments > Government
Date Deposited: 11 May 2016 15:00
Last Modified: 20 Mar 2019 02:56
URI: http://eprints.lse.ac.uk/id/eprint/66489

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