Academic

Harel on Vermeule on Law & the Limits of Reason

By Lawrence Solum

Alon Harel (Hebrew University of Jerusalem - Faculty of Law) has posted The Vices of Epistemic Institutionalism (Jerusalem Review of Legal Studies, Vol. 2, p. 5-15, 2010) on SSRN. Here is the abstract:

This is Alon Harel's contribution to the symposium on Adrian Vermeule?s book ?Law and the Limits of Reason.?

And from the paper:

Adrian Vermeule provides a thorough and a comprehensive proposal concerning the optimal allocation of constitutional interpretative powers. His starting point is what I shall label in this comment ?epistemic institutionalism.? Epistemic institutionalism is defined here as the view that the design of legal institutions and the allocation of powers among these institutions ought to be guided (primarily or exclusively) by epistemic considerations. The institution which ought to be empowered to make decisions concerning the Constitution is the institution which is most likely to decide rightly or correctly, namely to render decisions which are, as a rule, superior to those rendered by other institutions. Note that epistemic institutionalism conflicts with a different and equally compelling theoretical principle which guides another school of constitutional theorists, namely the view that the optimal allocation of power among different institutions as well as the optimal composition and design of these institutions ought to be dictated by the concern for legitimacy, and the concern for legitimacy is independent (or, at least, partially independent) of epistemic considerations. The recent popular (and, if I may add, populist) accusations against courts in Israel and the efforts to curb their powers concerning constitutional issues are founded on legitimacy-based concerns not epistemic ones. They are based on the alleged ?democratic deficit? of the judicial branch and not on its incompetence in identifying what the right decisions are.

Recommended.

Full post as published by Legal Theory Blog on December 13, 2010 (boomark / email).