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W imieniu organizatorów serdecznie zapraszamy na wykład prof. Alona Harela z Uniwersytetu Hebrajskiego w Jerozolimie pt.:

„The Case for Robust Constitutionalism: Why Constitutions Matter”

Wykład odbędzie się w Salach Reprezentacyjnych Pałacu Larischa we wtorek, 29 października, o godz. 17:00.

Wykład oparty będzie na wybranych wątkach z książki prof. Harela pt. Why Law Matters (OUP 2014, książka dostępna przez extranet UJ).

Alon Harel jest profesorem prawa na Uniwersytecie Hebrajskim w Jerozolimie. Doktorat obronił na Oksfordzie, pod kierownictwem Josepha Raza, a w toku kariery był visiting professor na Columbii, Harwardzie, w Chicago i Toronto. W obecnym roku akademickim prowadzi badania w Instytucie Badań Zaawansowanych w Berlinie. Prof. Harel znany jest ze wszechstronności swoich zainteresowań, poczynił on znaczący wkład do takich dziedzin, jak filozofia polityczna, filozofia prawa, prawo konstytucyjne, ekonomiczna analiza prawa karnego, behawioralna ekonomiczna analiza prawa. Jego ostatnia książka, Why Law Matters, należy do najszerzej komentowanych tekstów w filozofii prawa ostatniego dziesięciolecia, była tłumaczona na niemiecki i hiszpański.

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Alon Harel

For many years I have been engaged in trying to address the question of Why Law Matters which is also the title of a book I published in 2014. This 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 conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matters as such.

The book contains many illustrations of this claim. For instance I argued that public institutions are not merely means to secure independently specifiable ends.They are constituent aspects of a just society and the contribution they make to it is not contingent but necessary. I also argued and this will be the focus of my talk that entrenched constitutional rights and the practice of judicial review may be justified: not by the prospects of thereby securing just or correct outcomes nor even by procedural fairness but by the way they express an urgent moral duty that binds legislators and by constituting a right to a hearing and a forum in which that hearing can play out. I defend therefore robust constitutionalism – constitutionalism which does not rest on contingent conjectures concerning the likely contingent effects of constitutionalism but is grounded in the aim of transforming and restructuring the relations between the state and its citizens.

This lecture is founded on disillusionment from a dominant way used by political philosophers to justify the authority of constitutions and of judicial review – instrumentalist (or consequentialist) constitutionalism.  It is fashionable among political and legal theorists to justify the entrenchment of a constitution and authorizing courts powers to review statutes in terms of contingent desirable effects of such institutions. Under instrumentalist constitutionalism, to establish that constitutions are desirable, it is necessary (and, perhaps, also sufficient) to point out that the entrenchment of constitutions results in better decisions than those that would have been rendered in the absence of constitutions. Similarly, to assert that judicial review is desirable requires pointing out that judicial review results in better decisions than those that would have been rendered in the absence of judicial review. Thus for instance many believe that  constitutions are desirable because they are conducive to the protection of human rights, to the protection of democracy, to coherence and stability or to guarantee the persistence of foundational values. Those desirable outcomes are not necessary outcomes; they are contingent outcomes that allegedly follow from the entrenchment of constitutional provisions or from the establishment of judicial review.

This talk disputes the methodological starting point of instrumentalist constitutionalism. It also defends what I labelled in the past robust constitutionalism. What characterizes robust constitutionalism is the nature of the justification provided for constitutions and for judicial review. Under robust constitutionalism, the value of binding constitutional directives and the value of the institutional mechanism designed to defend these provisions (namely, judicial review) do not hinge (merely) on their contingent contribution to the substantive merit of the political or legal decisions. In contrast to instrumentalist constitutionalism, constitutions as well as judicial review are not mere instruments to guarantee good, just or coherent decisions and their success is not judged exclusively by their consequences.

For many years the dominant position in constitutional theory has been instrumentalism. Under instrumentalist constitutionalism, constitutions and judicial review are justified to the extent that they are likely to bring about contingent desirable consequences, most typically, it is claimed that they improve the substantive merit of the resulting decisions. While there are important differences among different instrumentalist constitutional theorists they all share prominent structural similarities. Under each one of these theories, the constitutional theorist differentiates sharply between two stages of analysis: a normative and a descriptive one. At the first normative stage, the theorist addresses the question of what the point of the constitution is and, consequently, how it should be interpreted. Constitutions are desirable because they protect human rights, protect minorities, facilitate democracy, guarantee stability etc.  Once the “point” of the constitution is settled, the theorist turns to the second descriptive stage and identifies the institutions or procedures best capable of realizing the “point” of the constitution. Instrumentalist theories of constitutions or of judicial review perceive this second step, namely identifying the institutional structures, as subservient to the findings in the first stage. Both the establishment of the constitution and its interpretation are contingent institutional means to better the decisions rendered by the polity.

This methodology suffers from several major deficiencies and it faces serious challenges. The critical flaw underlying the constitutional instrumentalism is the conviction that the authoritativeness of constitutions must be instrumentally justified, i.e., that it be grounded in contingent desirable features of constitutions or of courts which are assigned with the task of interpreting them (for example, the quality of constitutional texts, the superior decisions rendered by judges, the superior ability of judges to protect rights, the special deliberative powers of judges, the greater stability and coherence of legal decisions, and so on). Let me point out the two main defects in this methodology.

First, it is often diffiuclt if not impossible to establish that the constitution serves any worthy goals. Can social science establish that courts are typically more attentive to minority concerns than legislatures? Are constitutional norms which bind the legislature more or less conducive to justice than legislative supremacy? Is judicial supremacy more or less conducive to justice than legislative supremacy? Given the breadth and generality of such sweeping statements social science is impotent in substantiating such claims.

Second, the traditional structure of justifications suffers from insincerity or inauthenticity; it fails at times to identify (or capture) the real sentiments underlying the urge to sustain or design political institutions or procedures. To use an analogy, a theorist may provide perfectly sound utilitarian justification for a categorical prohibition of slavery, or for an absolute prohibition on torture and other inhumane practices. But such justifications miss the point as they fail to explain why torture is wrong. In particular, they fail to explain the revulsion triggered by such practices – revulsion that is not attributable to utilitarian considerations. Similarly, even perfectly sound contingent arguments for or against certain entrenched political institutions or procedures may miss the point as they purport to rationalize political institutions and procedures in terms that do not capture what make such institutions or procedures politically and morally attractive.

The challenge is to explore whether we can do better than make instrumental conjectures. To do better one needs to provide a ‘robust justification’, namely one that does not rest on contingent features of constitutionalism. Instead, robust justification rests on the conviction that constitutionalism is valuable as such. I will first discuss the value of constitutions and then the value of judicial review.


The Talmud tells a story of a Gentile who missed a great business opportunity because he did not want to disturb his father by taking a key that was under his father’s pillow. The red cow that was his reward for honoring his parents was of immense value at the time. Rabbi Ulla inferred from this story the lesson that if a Gentile, who is not commanded by God to honor his parents, was rewarded so profoundly, a Jew, who is subject to the commandment to honor his parents, would be rewarded even more for so doing. Rabbi Ulla based this conclusion on a statement by Rabbi Hanina that “he who is commanded and fulfills [the command] is greater than he who fulfills it though not commanded.” This section applies this lesson to the legislature, and argues that a society in which the legislature honors rights but is not “commanded to do so,” i.e., is not constitutionally bound to do so, is inferior to a society in which the legislature “is commanded to do so,” i.e., bound by constitutional duties protecting individual rights (and complies with them). The latter society is superior for the reason that in such a society individuals do not live “at the mercy” of the legislature; their rights do not depend on the legislature’s judgments (concerning the public good) or inclinations.

Compare a state A in which a benevolent legislature refrains from violating the rights of individuals or even, protects these rights vigorously, with a state B in which rights are protected to the same extent as in state A, but they are also enshrined in a constitution or bill of rights. Given that there are no other differences between the two states, which scheme (if any) is superior? Is it valuable to constitutionally entrench pre-existing moral/political rights even when such an entrenchment is not conducive to the protection of these rights? Do constitutional rights as such matter, and, if so, why?

I maintain that constitutional rights matter as such; the constitutional entrenchment of pre-existing moral/political rights is valuable (independently of whether such an entrenchment is conducive to the protection of these rights). I defend “binding constitutionalism,” namely a scheme of constitutional directives binding the legislature. Binding constitutionalism is characterized by the constitutional entrenchment of pre-existing moral and political rights-based duties (constitutional directives). Such an entrenchment of pre-existing moral/political rights need not be conducive to the greater or more efficacious protection of the rights enshrined in the constitution. Its value is grounded in the fact that constitutional entrenchment of moral or political rights is in itself a form of public recognition that the protection of rights is the state’s duty rather than merely a discretionary gesture on its part, or that it is contingent upon its own judgments concerning the public good. I believe also that this analysis can be extended to global constitutionalism and I argued in the past that the appeal of international law is attributable not only to its instrumental contribution to the effective protection of rights and the promotion of justice but to the fact that it imposes duties on the state and that the honoring of these duties is not discretionary; it does not depend on the good will of the state or on the discretion of its legislature.  The entrenchment of constitutional and international law duties is essential to the protection of freedom. Citizens are freer in a society in which such rights are recognized as duties rather than as resulting from the mere judgments or inclinations of legislatures.

To justify binding constitutionalism, examine the difference between state A and state B. In state A the legislature refrains (generally) from violating rights. But, given the absence of any constitutionally entrenched rights, there are no publicly recognized limitations on the powers of the legislature. The legislature’s decision not to violate rights does not depend upon its publicly recognized duties; instead, it is publicly understood to be contingent on the legislature’s judgments (or inclinations). The citizens of A are “at the mercy” of the legislature’ inclinations (or judgments); they live under the shadow of the legislature’s whims. In contrast, in state B, the legislature is publicly bound to conform to the constitutionally entrenched duties and, consequently, citizens’ rights do not depend upon the legislature’s inclinations; they are publicly understood to be duties to which the legislature ought to conform rather than discretionary decisions on its part.

The rationale underlying binding rights-based constitutionalism is grounded in the significance of the public recognition of rights-based duties binding the legislature. In particular, the rationale is grounded in the publicly salient differentiation between discretionary legislative decisions, (namely those decisions that are grounded in the legislatures’ inclinations/preferences/tastes/judgments), and those decisions that are grounded in the legislature’s rights-based duties. While in both state A and state B the fundamental freedoms are protected to the same degree, only in state B they are honored, i.e., protected as rights which bind the state rather than as discretionary measures the protection of which is at the mercy of the state. While it is possible that (given their existing judgments or inclinations) the legislature in state A refrains in fact from violating rights (and also will refrain from violating rights in the future), individuals in state A are subject to “domination,” namely to the risk of a potential shift in the legislature’s judgments or inclinations. Individuals “are subject to arbitrary sway: being subject to potential capricious will or the potentially idiosyncratic judgment of another.”

A real life example taken from the abortion debate in Germany could help to appreciate the significance of constitutional entrenchment. The Constitutional Court in Germany was faced with the question whether the legislature has a duty to criminalize abortion given the conviction that abortion is a violation of the right to life. Among the interesting claims made by the Bundestag it was argued that decriminalizing abortion would, in fact, reduce the rate of abortions in society and, consequently, more lives would be saved if abortions were decriminalized.

This argument was rejected by the Court and, under my analysis it is evident why. When there is no criminal law prohibiting abortion the decision of the mother not to abort is based on her inclinations (or even her judgment that it is permissible), not on a publicly recognized right of the fetus. The insistence of the German Constitutional Court to maintain that abortion is a crime (even though, not punishable if normative counseling is conducted), can be rationalized precisely on the grounds that protecting the fetus’ right to life is to be left neither to the mercy of the pregnant woman nor to the to the inclinations of the Bundestag. To borrow with slight modification what Thomas Nagel said: to be aborted would be terrible; but to be aborted and also to be someone it was not wrong to abort (like the fetuses after decriminalization) would be even worse.

The abortion debate in Germany has much deeper significance than is often recognized. It is not merely about the right to life, or whether the fetus is a human being whose life ought to be protected. More specifically, this debate highlights the sharp difference between protecting life and protecting a right to life. Life can be protected in a state without protecting a right to life.


Constitutional theory has been obsessed for many years with an attempt to provide an adequate justification for judicial review. This section joins the search for a rationale for judicial review. It joins the effort of many to defend judicial review against the recent numerous rising voices that either wish to abolish judicial review altogether or to limit or minimize its scope. It deviates however from previous efforts in that it rejects instrumentalism. Under my proposal, judicial review is designed to provide individuals with a right to a hearing or a right to raise a grievance. More particularly, I argue that judicial review is indispensable because it grants individuals opportunities to challenge decisions that impinge (or may have impinged) upon their rights, to engage in reasoned deliberation concerning these decisions, and to benefit from a reconsideration of these decisions in light of this deliberation. Under this view, judicial review is intrinsically rather than instrumentally desirable.  The right to a hearing is grounded in the fundamental duty of the state to consult those who complain (justifiably or unjustifiably) that their rights have been violated.

The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may impinge) upon one’s rights, and the duty to reconsider the initial decision giving rise to the grievance. When and why do individuals have a right to a hearing? The right to a hearing, I argue, depends on the right-holder’s claim concerning the existence of an all-things-considered right that is subject to a challenge. The right to a hearing therefore presupposes a moral controversy concerning the existence of a prior right.

Infringements of rights can give rise to two distinct complaints on the part of the right-holder and the difference between these two helps to establish the intuition underlying the right to a hearing. One complaint is simply that the infringement is an unjustified infringement, i.e., that it is a violation. The second complaint, however, is procedural in nature. When one infringes another’s rights, one typically encounters a complaint based not on the conviction that the infringement is unjustified, but on the grounds that an infringement, even when justified, must be done only if the (alleged) right-holder is provided with an opportunity to raise a grievance and to challenge the infringement. The disappointed promisee may protest: “you have no right to break your promise without consulting me first.” This rhetorical use of “right” invokes the commonplace intuition that when someone’s rights are at stake, that person is entitled to voice her grievance, demand an explanation, or challenge the infringement.

There are three components of the right to a hearing: an opportunity for the victim of infringement to voice her grievance (to be heard), the duty to provide an explanation to the victim of the infringement that addresses her grievance, and a principled willingness to honor the right if it transpires that the infringement is unjustified. To establish the importance of these components, consider the following example. Assume that A promises to meet B for lunch, but unexpected circumstances, e.g., a memorial, disrupts A’s plans. The promisor believes that these circumstances override the obligation to go to the lunch. It seems that the promisee under these circumstances deserves a “hearing” (to the extent that it is practically possible), consisting of three components. First, the promisor must provide the promisee with an opportunity to challenge her decision to breach. Second, she must be willing to engage in meaningful moral deliberation, addressing the grievance in light of the particular circumstances. Finally, the promisor must be willing to reconsider the decision to breach.

The judicial process provides an opportunity for an individual to form a grievance and challenge a decision. It also imposes a duty on the part of the state (or other entities) to provide a reasoned justification for the decision giving rise to the challenge. Lastly, the judicial process involves, ideally at least, a genuine reconsideration of the decision giving rise to a challenge, which may ultimately lead to overriding the initial decision giving rise to the grievance. The right-to-a-hearing justification for judicial review accounts not only for the need to establish some institution designed to honor this right but also establishes the claim that the institution conducting a hearing necessarily operates in a court-like manner and effectively become a court. After all, hearing is what judges do and even if we do not call it courts any institution which conducts hearings operate like a court. “if it walks like a duck, quacks like a duck, looks like a duck, it must be a duck.” Similarly, if it provides an opportunity to raise grievances, examines these grievances and reconsiders the decision giving rise to the grievance, it is nothing but a court irrespective of what its title is.

This Article aims first to criticize instrumentalism in constitutional theory and then to provide a new robust justification to two features of constitutionalism: binding constitutional directives and judicial review. I established why constitutional directives matter as such (rather than merely as means for protecting rights or promoting justice). It is only binding constitutional directives which constitute publicly recognized limitations on the powers of the legislature. In the absence of such directives, the legislature’s decision not to violate rights is publicly understood to be contingent on the legislature’s judgments (or inclinations), I also defended judicial review on the grounds that judicial review is an embodiment of the right to a hearing. Judicial review is grounded in the importance of the right to raise a grievance, the right that the grievance be addressed and the right that a decision be made on the basis of such a deliberative process.

The potential ambition of this Article is not merely to challenge instrumentalist constitutionalism but to illustrate how instrumentalism can and should be challenged more generally. The proposed methodology urges legal theorists to abandon instrumentalism and to ground legal and political institutions and procedures in non-instrumental considerations. It is often the case that the real justification for legal and political institutions is not contingent and does not hinge on the contingent prospects that these institutions are conducive to the realization of valuable ends. Instead, I believe that various legal institutions and legal procedures that are perceived as contingent means to facilitate the realization of valuable ends matter as such.

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