Academic

Harel & Kahana on Non-Instrumental Justification in Constitutional Theory

By Lawrence Solum

Alon Harel and Tsvi Kahana (Hebrew University of Jerusalem - Felt Center for Legal Studies) have posted The Real Case for Judicial Review: A Plea for Non-Instrumentalist Justification in Constitutional Theory (Judicial Review, Forthcoming) on SSRN. Here is the abstract:

This paper defends judicial review on the ground that judicial review is necessary for protecting "a right to a hearing." Judicial review is praised by its advocates on the basis of instrumentalist reasons; i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist justifications for judicial review are bound to fail and that an adequate defense of judicial review requires justifying it on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of the judicial process.

In searching for a non-instrumental justification, we establish that judicial review is designed to protect the right to a hearing. 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 have impinged) on one's rights, and the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merits of the decisions generated by the judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in interpreting the Constitution are misguided because they are detrimental to the right to a hearing.

And from the text:

The contours of our position favoring judicial review can now be discerned more clearly. There are two types of cases that, under our view, justify judicial review of legislation. First, when a person has a right and that right is (justifiably or unjustifiably) infringed by the legislature, that person is owed a right to a hearing. Second, when there is a dispute over whether a person has a right and the legislature passes a statute that, arguably, violates the disputed right, the individual is owed a right to a hearing.94 In both cases, the right to a hearing consists of a duty on the part of the state to provide the rightholder an opportunity to challenge the infringement, a willingness on the part of the state to engage in moral deliberation and provide an explanation, and a willingness to reconsider the presumed violation in light of the deliberation. Furthermore, the moral deliberation required of the state cannot consist of an abstract or general deliberation ? the kind of deliberation that characterizes the legislative process. It must consist of a particularized or individualized deliberation that accounts for the particular grievance in light of the particular circumstances.

The right to a hearing is not designed to improve decision-making. We are not even committed to the view that granting a right to a hearing is more likely to generate superior decisions. The soundness of the right-to-a- hearing conception of judicial review does not depend on establishing that judicial review is more congenial to the protection of the rights than alternative systems, or that granting the right to a hearing better protects democracy, stability, the dual-democracy structure or any other substantive value. This is precisely what makes this position immune to the objections raised against instrumentalist views. The only virtue of judicial review is the fact that it constitutes the hearing owed to citizens as a matter of right.

Highly recommended.

Full post as published by Legal Theory Blog on April 14, 2009 (boomark / email).