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Why Law Matters (Paperback)
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Why Law Matters (Paperback)
Series: Oxford Legal Philosophy
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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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