Why Law Matters

Why Law Matters

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Contemporary political and legal theory typically justifies the value of political and legal institutions on the grounds that such institutions bring about desirable outcomes - such as justice, security, and prosperity. In the popular imagination, however, many people seem to value public institutions for their own sake. The idea that political and legal institutions might be intrinsically valuable has received little philosophical attention. Why Law Matters presents the argument that legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. Harel advances the argument in several ways. Firstly, he examines the value of rights. Traditionally it is believed that rights are valuable because they promote the realisation of values such as autonomy. Instead Harel argues that the values underlying (some) rights are partially constructed by entrenching rights. Secondly he argues that the value of public institutions are not grounded (ONLY) in the contingent fact that such institutions are particularly accountable to the public. Instead, some goods are intrinsically public; their value hinges on their public provision.
Thirdly he shows that constitutional directives are not mere contingent instruments to promote justice. In the absence of constitutional entrenchment of rights, citizens live "at the mercy of" their legislatures (even if legislatures protect justice adequately). Lastly, Harel defends judicial review on the grounds that it is an embodiment of the right to a hearing. The book shows that instrumental justifications fail to identify what is really valuable about public institutions and fail to account for their enduring appeal. More specifically legal theorists fail to be attentive to the sentiments of politicians, citizens and activists and to theorise public concerns in a way that is responsive to these sentiments.
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Product details

  • Paperback | 256 pages
  • 159 x 235 x 14mm | 390g
  • Oxford University Press
  • Oxford, United Kingdom
  • English
  • Reprint
  • 0198766211
  • 9780198766216
  • 1,230,013

Review quote

There are plenty of legal scholars today writing about matters of pressing public concern, and there are plenty more who write on theoretical topics touching on our deepest commitments about the nature of law and state. But it is a very rare thing to find a writer who engages with the pressing issues of the day in a way that makes clear precisely how our deepest commitments are at stake and who makes a compelling case for thinking about those issues in a new and
interesting way. Alon Harel has done just that with his stimulating, challenging, and evocative new book, Why Law Matters. It is a book that raises more questions than it answers. Although I doubt that any reader will be convinced by all its arguments, it is hard to imagine anyone finishing Why Law
Matters without having at least some of his most basic beliefs about law and legal institutions unsettled, at least a little. * Malcolm Thorburn, forthcoming in Critical Analysis of Law * Why Law Matters is an indispensable resource for anyone committed to thinking seriously about the justification of the legal institutions and processers that comprise a liberal legal order. While Harel neither purports to offer a general criticism of legal instrumentalism nor a general defense of its non-instrumentalist counterpart, he deftly navigates the challenges surrounding the justification of rights, public institutions, and constitutional
arrangements. In this way, his book offers an innovative and deeply valuable engagement with the challenges that any justificatory account must ultimately confront. * Jacob Weinrib, forthcoming in Canadian Journal of Law and Jurisprudence * 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'. The editors of the Oxford Legal Philosophy book series 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 some major and common assumptions
about the law and especially about constitutional procedures and institutions. * Yossi Nehushtan, forthcoming in Constitutional Commentary * Harel's argument in favor of RC is very original and worth engaging with. It forces one to re-think the meaning and function of law, constitutions and courts. It is a serious attempt to provide a basis for social institutions that Harel believes to be constitutive of justice. * Lorenzo Zucca, International Journal of Constitutional Law * As a whole, Harel's book challenges a dominant view in the literature shared by Thomas Aquinas, Jeremy Bentham, Hans Kelsen, contemporary rights theorists, and utilitarians. Under this dominant view, the value of legal institutions is contingent and depends upon the prospects that legal institutions and procedures improve the quality of decision-making. In Harel's view, contingent considerations often miss the point as they purport to rationalize political
institutions and procedures in terms that do not capture what makes such institutions or procedures politically and morally attractive. Harel's argument is deeply original and well worth engaging with. * Lorenzo Zucca, International Journal of Constitutional Law * Academic books are usually written according to a plan in which not only the research question is defined, but also the conclusion to be established. Sometimes the conclusion is worked out as the book is written. Rare are the cases in which an author finds himself arguing for the opposite of what he aimed to establish. Alon Harel's Why Law Matters? is such a rare case. In his introduction Harel recalls his views as he set out to write the essays collected in the
book: the value of political and legal institutions such as rights, judicial review, and constitutions depends entirely on their contingent instrumental relations to other, independently valuable ends. The book Harel ended up writing defends the opposite view.
I believe this is a testament to Harel's intellectual integrity - sincerely asking a question and following the argument where it leads. A central theme of Alon Harel's deeply thought and elegantly argued book is the claim that certain legal institutions that are often justified instrumentally, in support of prior and independent values such as certain rights, are really best justified non-instrumentally. * David Estlund, Jerusalem Review of Legal Studies * Why Law Matters is a wonderfully bold and inventive book, seeking to demonstrate that a legal system is not merely a useful instrument in pursuit of independently desirable goals, but rather that it has a significant role in constituting those values and goals. On this constitutive account, there are certain things that can only be achieved through distinctively legal form. Harel's catalogue of these distinctively legal goods include both the point of rights and the
carrying out of distinctively public functions, covering both punishment and the fighting of wars. * Arthur Ripstein, Jerusalem Review of Legal Studies * In a nutshell, the argument works from the premise that there's a right to due process, which includes the right to a hearing. By analogy, Harel argues that there's a process value in constitutionalism and judicial review. Just as it's good to give people a chance to be heard even if the hearing doesn't alter the outcome, it's better for rights to be enforced as a matter of duty - by constitutionalism and judicial mandate - even if the legislature might have done the
same thing anyway.
I found this argument fascinating, and thought-provoking, especially because it proceeds on such different lines than American debates about judicial review and constitutionalism normally do. * William Baude, The Washington Post *
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About Alon Harel

Professor Alon Harel is a Mizock Professor of law and member of the Centre for Rationality at the Hebrew University of Jerusalem. He is a co-editor of Jerusalem Review of Legal Studies, a member of the editorial board of Criminal Law and Philosophy and a member of the editorial board of New Criminal Law Review. He writes on legal and political philosophy, criminal law theory, constitutional law theory, law and economics and human rights.
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Table of contents

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