WHY LAW MATTERS BY ALON HAREL
In Why Law Matters, Alon Harel asks us to reconsider instrumentalist approaches to theorizing about the law. These approaches, generally speaking, understand legal rules and institutions as means to achieve desirable ends but not as valuable goods in themselves. Constitutionally entrenched rights, for example, may be considered desirable because they promote pre-existing and free-standing values. From this perspective, rights are merely instrumental to attaining values. Consider that the right under s. 8 of the Canadian Charter of Rights and Freedoms, "to be secure against unreasonable search or seizure," (1) has been defined by the Supreme Court of Canada as protecting an underlying right to privacy, or as the notion that Canadians enjoy a reasonable expectation of privacy. (2) Privacy, in turn, is protected partly because it promotes the underlying value of autonomy. As Justice Dickson, referencing American fourth amendment jurisprudence, noted in Hunter v Southam, privacy is at least partly a "right to be let alone by other people." (3) In contrast, Harel argues that the relationship between the right and the underlying value is not unidirectional, but reciprocal. (4) The constitutional entrenchment of a right does not merely promote its underlying values, but contributes to the development and appreciation of those values. Rights are therefore not contingent goods but are intrinsically valuable in themselves, defining the activities through which values are realized.
Harel's argument is divided into three parts. In Part I, he advances the aforementioned argument that an instrumentalist understanding of rights (or, the primacy of values hypothesis) is deficient, positing instead a position he calls the reciprocity hypothesis. In Part II, he argues that public institutions and public actors are not merely preferable but indeed required to carry out certain types of actions which cannot be performed privately-thus, instrumental justifications for privatizing certain government functions must fail, since these functions cannot be performed by other than a sufficiently public actor. In Part III, Harel argues for "robust constitutionalism", the notion that a binding constitution is valuable independent of whether that constitution contributes to protecting the rights entrenched within; the follow-on to this argument is a strong defence of judicial review as the embodiment of the right to a hearing.
Many of the underlying ideas and arguments presented in Why Law Matters aren't new; Harel himself acknowledges that Why Law Matters builds on his scholarship in the areas of philosophy of rights, public/private actors, and constitutionalism. (5) But Harel shows his careful development of these ideas as he persuasively argues against instrumentalist accounts to conclude that rights and institutions are to be valued in themselves, not merely as means to some end. Harel's discussion of these concepts is nuanced and at times complex. As a result, readers without some background in moral philosophy may have difficulty keeping up. But Harel doesn't take the reader for granted, often briefly surveying the existing philosophical literature before arguing against it or providing concrete examples of the concept under discussion. (6) Why Law Matters presents a compelling argument about how we should think about, judge, and value our legal institutions.
In Part I, Harel begins his argument by establishing that rights are goods which he terms "reason-dependent demands." (7) As such, justifying a demand as worthy of protection through entrenchment as a right requires examining the reasons which justify that protection. Not all reasons justify protection. Harel uses the example of freedom of expression to...