Why Law Matters by Alon Harel

Author:Alon Harel
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2014-07-14T16:00:00+00:00

C. Summary

Constitutionalism is typically justified on instrumentalist grounds. Constitutional instrumentalism is the dominant position among constitutionalists and non-instrumental legitimacy-based concerns are typically used to reject constitutionalism. In this part I have argued against constitutional instrumentalism. I have also raised doubts concerning the presumptive case for democratic or participatory procedures.

Most importantly, I wish to emphasize again the contribution of robust constitutionalism to the levelling of the playing field in constitutional theory. Advocates of instrumentalist constitutionalism fight with one hand tied behind their back because they start with the premiss that constitutionalism must rest exclusively on instrumental grounds. Principled or legitimacy-based considerations can serve only opponents of constitutionalism. Robust constitutionalism remedies this defect; it adds legitimacy-based arguments to the arsenal of arguments favouring constitutionalism. Chapters 5 and 6 develop the case for robust constitutionalism. Chapter 5 defends binding constitutional directives (and also global binding constitutional directives) and Chapter 6 defends judicial review on non-instrumental grounds.

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