By MICHEL PARADIS
Review of Why Law Matters, by Alon Harel
Oxford: Oxford University Press, 2014
Why does the law matter? Legal theorists of all stripes have become habituated to answering this question by focusing on the capacity of legal institutions to serve other, seemingly more certain human values. They do not advocate for the value of law, as such. Instead, they defend the law with the same kind of technocratic thinking that motivates people to justify music education with its ability to improve test scores in math. We forbid torture because we do not want innocent people to suffer arbitrarily. We guarantee the freedom of speech because doing so gives us a robust political process. We have marriage to foster stable households and to make property rights easier to figure out after someone dies. If these things were possible in the absence of law, “if men were angels” in Madison’s phrase, then so much the better. But they are not. So, we protect rights to due process, to speak, and to marry in order to better enable us to pursue happiness.
Even on the “natural law” side of the jurisprudential debate, where you would expect more essentialist justifications for legal institutions, you see the same recourse to ostensibly irreducible human goods, such as personal autonomy, as the rationale for the existence of particular rights (such as speech or marriage). Ronald Dworkin, to take the most prominent example, accounts for their particularity as specific rights as nothing more than an administrative artifact, “flowing from past political decisions about when collective force is justified.”
In his refreshing new book, Why Law Matters, Israeli scholar Alon Harel objects to all of this. For Harel, law does not matter because it is good at giving our society what we want. Law matters because legal institutions and procedures are constituent aspects of a just and democratic society. If we dismantle them, even for better practical outcomes, we irreparably undermine human dignity.
Harel, in essence, is returning to Kant. But his core objection to instrumentalism is not rooted in a priori notions of moral duty. Instead, it is based on the observation that instrumental arguments for the value of the law and legal institutions are insincere. People genuinely care about the integrity of legal institutions. People are offended when justice is corrupted, not simply because the policy outcomes will be worse, but because justice itself has been corrupted. People do not only obey laws to avoid punishment or because doing so advances some underlying policy goal. They comply with laws – even ones they disagree with – because there is an intuitive sense that it is just the right thing to do. Harel insists that this basic habit of the democratic mind should be taken seriously and needs to be accounted for by any jurisprudence that seeks to accurately describe, let alone prescribe, how legal institutions operate.
Harel’s point then is that we must account for why the law has value, as such. Indeed, instrumentalism has a very difficult time accounting for why the law seems to matter even when it offers no obvious benefit beyond the validation that only the law seems able to confer. This is often born out in practice, overtly so in the decisions of Justice Anthony Kennedy, with the gay marriage cases being a clear example.
In 2013, Kennedy wrote a decision (United States v. Windsor) invalidating the denial of federal marriage benefits to married same-sex couples. Part of Kennedy’s opinion was naturally devoted to various ways in which this federal law caused gay families material harm, such as in the loss of tax and social security benefits. But the bare accounting of these benefits was a somewhat perfunctory exercise. What really drove Kennedy was the fact that “marriage is more than a routine classification for purposes of certain statutory benefits. ... This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.”
In the 2015 Obergefell decision, Kennedy wrote the decision upholding the right of same-sex couples to marry as a fundamental right applicable to the States. Again, the standard recitation of marriage’s practical benefits was only ancillary to the “dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
Obergefell was as jurisprudentially frustrating to many gay rights advocates as it was to gay rights opponents. Gay right advocates wanted Kennedy to hold that sexual orientation was a suspect class for equal protection purposes. Had he done so, gays and lesbians would have had an easier time in future cases challenging other forms of discrimination in housing, the workplace, etc. Ironically, Kennedy took the same criticism from opponents of the decision, particularly Chief Justice John Roberts, who dismissed the opinion as lacking any serious “doctrinal background.” Not that this would have persuaded the Chief Justice, who tersely, if circularly, opined that equal protection was not denied because “distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.” But Roberts’ overarching complaint was that Kennedy’s “aggressive application of substantive due process [broke] sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.”
To a certain extent, both of these criticisms are entirely justified. But they are also beside the point. Obergefell is not a ruling about discrimination. It is a ruling about marriage as a fundamental right. And more particularly, it is ruling about the role of judicial review in protecting fundamental rights, as such. The problem, in other words, was not that laws denying same-sex couples the right to marry discriminated against them. It was that these laws burdened the free exercise of the right to marry. And this focus on the right involved, as opposed to the protection of the class of individuals harmed, is a direct repudiation of the limited judicial role advocated most forcefully by John Hart Ely.
Ely insisted that in a democracy, the courts’ job is to ensure that “insofar as political officials had chosen to provide or protect X for some people (generally people like themselves), they had better make sure that everyone was being similarly accommodated or be prepared to explain pretty convincingly why not.” The judicial task is to prevent majorities from taking short-cuts to achieving policy goals by dropping the burdens of a law on a politically helpless minority. Not only is this unfair to members of the minority, it also suggests a breakdown in the quality of the decision-making. The role of the judiciary, therefore, is not to protect individuals’ rights against beneficial social policies. It is to make sure that any infringement of those rights in the service of a social policy is shared sufficiently equitably across the class of individuals who enjoy the benefits of the policy.
Kennedy’s reasoning in Obergefell, by contrast, is all about the rights involved. And it is an example of what Harel describes as the “real case for judicial review.” Harel’s defense of judicial review, like his defense of law more generally, is specifically indifferent to the courts’ capacity to foster “other desirable contingent consequences that follow from judicial decisions.” (202). Instead, judicial review is necessary for the protection of fundamental rights, as such, because it takes disputes about those rights out of the democratic process altogether. It requires those disputes to be resolved by “the procedures and the mode of deliberation that characterize courts.” For Harel, that mode of deliberation is characterized by three features that make up the “right to a hearing”: 1) an opportunity to be heard about the infringement of a right; 2) moral deliberation by a decision maker on the circumstances giving rise to the claim of infringement; and 3) a willingness to honor the right if the infringement is morally and/or rationally unjustified. (205). This kind of analysis puts the courts squarely in the business of deciding whether particular rights are fundamental and is not just hostile, but indifferent to Ely’s core concern over the quality of the democratic process that led to the infringement.
This indifference to the democratic process is at the heart of Roberts’ attack on Obergefell: “Just who do we think we are?” For Roberts, Kennedy’s reliance on moral reasoning is not only illegitimate, it is not judicial. “[A] Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’” But for Harel, and apparently for Kennedy, moral reasoning over the infringement of fundamental rights is the essence of judicial review. “The obligation to provide a hearing is not an instrumental obligation designed to improve the quality of decision-making and, consequently, its force does not depend on whether the hearing is more likely to generate a better decision. The obligation to engage in moral deliberation is owed to the purported right-holder as a matter of justice.” (206).
This lofty appeal to justice undoubtedly poses non-trivial methodological problems. For the conservatives on the Supreme Court, the essence of the debate in Obergefell was over the scope of the right claimed. As Roberts complained, “the fundamental right to marry does not include a right to make a State change its definition of marriage. … The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.” But for Kennedy, the fundamental right to marry was viewed at a higher level of generality. “Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’ Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.” In other words, while it is defensible to say that judicial review is necessary in order to withdraw disputes over fundamental rights from the democratic process, Harel sidesteps the threshold and often fraught question of how you know whether a fundamental right is involved in the first place.
Also, the resort to moral reasoning about what “human dignity” requires lends itself to doctrinal murkiness. Justice Scalia inveighed against Obergefell’s appeal to fundamental rights and paean to human dignity, calling them risible “mummeries.” For Ely, and others disposed to his kind of thinking, the vagueness of rights is a serious problem and a reason to move away from “rights talk.” Indeed, the prolific federal appeals court judge, Richard Posner, derides the resort to moral reasoning in judicial opinions as nothing more than superstition or affectation. What really matters, he insists, is the practical effect of the decision.
While this latter critique is a serious one, it is not altogether satisfying either. The real problem is that the language available to explicate fundamental rights does not admit of the precision necessary for cost-benefit analysis. It is difficult, in other words, to find words better than “dignity” to express the intuitively apparent value of rights like marriage.
Indeed, even Posner, whose utilitarian thinking about the law is the opposite of Harel’s in almost every meaningful respect, ultimately ignored cost-benefit analysis, when confronted with the indignities that bans on gay marriage impose. One of the principal issues when the case was litigated in his court was whether a State could deny same-sex couples marriage by offering them civil unions. A civil union provided same-sex couples the same rights and duties as marriage. It just denied them the title of “marriage.”
Posner’s opinion invalidating the bans on gay marriage in Indiana, Wisconsin, and Illinois is a tour-de-force of judicial writing. It enumerates not only the practical harms that result when a State denies same-sex couples the right to marry, but also the value same-sex families add to the society. Marriage equality was necessary, he reasoned, because despite these real harms and benefits, the States had failed to come forward with any good reason for discriminating. Yet, as compelling as Posner’s opinion is, there is also something disingenuous about it. He describes himself a “realist” only concerned with the “consequences of judicial rulings.” But why exactly are civil unions not good enough? When separated from the practical benefits, it is difficult to see what practical value “marriage” has. Why was it necessary for the judiciary to recognize same-sex marriage when the democratic process offered the same rose by another name?
Posner only addressed the issue briefly with an analogy to the bans on interracial marriage that existed until the late 1960s. He reasoned that a law that grants all the benefits of marriage while “withholding the term ‘marriage’ would be considered deeply offensive, and, having no justification other than bigotry[.]”
While this is undoubtedly true, so what? That a law is “offensive” is hardly a compelling reason to say that it is unconstitutional if you are only concerned, as Posner claims he is, with the “effect of a doctrine or decision on the predictability of law, on caseloads, on administrability, on the work of other branches of government (such as the legislative branch, which would be thrown into a disarray if judges paid no heed to statutory language), and on reasonable expectations both private and public.” If anything, invalidating laws because of their perceived “offensiveness” seems guaranteed to yield a whole new raft of unpredictable constitutional challenges. In other words, when push came to shove, even Posner was forced to concede (albeit implicitly) that the only reason “almost marriage” is not a substitute for the real thing is because of its inability to confer equal dignity on gays and lesbians, and that it was the role of the courts to prevent the denigration of their romantic relationships as second-class.
This, for Harel, is why law matters. It is not that legal institutions yield better results that satisfy more people. Law matters, both in theory and in practice, because people believe that “the institution that settles the dispute uses reason.” (143). A government that obligates itself to answering anyone’s complaint, including against its own policies, based solely on the reasoned application of pre-existing rules is a government that prioritizes the dignity of each person over society’s general political desires. Harel therefore insists that we need to stop pretending that law is just a tool for making democratic societies better. Instead, he argues that law matters because law is what gives us a democratic society. The rights set forth in a constitution are not mere illustrations of some deeper policy values via examples, such as the rights to due process, speech, or marriage. Instead, the fact that specific rights are guaranteed gives them value, as such, in their particularity.
This argument has fascinating implications. For example, he rejects rights that are merely enjoyed by accident. If you are someone who is only concerned with a law’s ability to get results, a society that has no free speech rights but also no censorship would be the same (if not preferable) to one in which censorship laws were enacted but then struck down after a lengthy legal process for violating the freedom of speech. For Harel, the opposite is true. It is the affirmative declaration of a right as something the government must respect that defines a “just or legitimate society.” (135). If anything, the very opportunity to challenge a law as “unconstitutional” is a kind of public ritual that reaffirms, in and of itself, the basic human dignity that is implicit in the government’s obligation to protect the right.
To illustrate this point, Harel offers an interesting case study of the ways in which Germany has dealt with the problem of abortion. For many decades, due to Germany’s history of eugenics, its Constitutional Court required the Bundestag to enact criminal laws that prohibited abortion in order to guarantee the fetus’ constitutional right to life. This changed in the mid-1990s, when the Court decided instead to allow the government to replace the ban with pre-natal counseling. This would arguably lower the number of abortions through what is sometimes called a “nudge” law – a law the does not prohibit something, but which through a combination of information, inconveniences, and incentives, makes it less likely. This, the German Court found, was sufficient to respect the fetus’ right to life.
Harel, who professes to favor abortion rights, nevertheless opposes the revised approach. If the law protects a fetus’ right to life, then the government has the obligation “not merely to protect life (by reducing as much as possible the number of abortions or the likelihood that abortion takes place) but also to protect the right to life by criminalizing abortion (even when a criminalization is not conducive as an empirical matter to the protection of life).” (183-84). In other words, by relieving the government of the obligation to protect fetal life, the Court, in fact, abolished the fetus’ right to life altogether.
Harel is undoubtedly liable to the criticism, given by the editors of this very review, that he is arguing by means of italics. And Harel does use an awful lot of italics. But that is largely a function of the ultimate object of his larger argument, which is to draw a very specific distinction between the “permissibility or impermissibility of certain forms of reasoning.” (117). Instrumental reasoning asks how a particular value is best protected. Legal reasoning asks whether that particular value is protected as a right and if it is, government actors may not reason instrumentally about the underlying value when deciding how to respect the right. Harel’s argument is that there needs to be a hard, impermeable wall between the right and its rationale if law is to be anything other than a form of ad hoc politics.
One sees this most clearly when he argues against non-punitive torture. Torture, he argues, effectively abolishes the victim’s dignity by turning them into an object, a mere vessel for the brain that contains information his torturer wishes to discover. To paraphrase the antebellum Supreme Court, such a human object has “no rights which the [torturer] was bound to respect.” This leads Harel to reject proposals to codify exceptions for the hypothetical “ticking time bomb” into the laws prohibiting torture. As an Israeli, he is undoubtedly sensitive to this issue. But his theory of jurisprudence requires the law to remain out of it. If it is to be done, it is extra-legal. The right remains violated even if there was a good reason for violating it. He echos Jeremy Waldron’s objection to “dragging” the law to the water boards, because “[i]n extreme cases, the agent ought not only to act in a different way than she acts in non-extreme cases, but she also ought to reason differently.” (117).
Baking override conditions into the rights themselves effectively abolishes the right because it invites the routine use of “forms of reasoning which are not acceptable in non-extreme cases.” (117). It puts the exception “on equal footing” with the prohibition. Like the decriminalization of abortion in Germany, codifying a routine exception to a right is no different than abolishing the right altogether. The exception becomes “part of a routine requiring agents [of the government] to consider each and every time” the prohibition is applied. (118). It makes the individual right permanently contingent, which implies that the government’s respect for each individual’s dignity will only last for so long as is convenient.
Like the gay marriage cases, the judicial resolution of national cases generally confirms the descriptive force of Harel’s theory. Harel offers a lengthy discussion of the German Constitutional Court’s decision to strike down a law that had authorized the government to shoot down hijacked airplanes. (124-128). Aaron Barak, when Chief Justice of the Israeli Supreme Court famously ruled that torturing terrorism suspects was always illegal, but hinted that the torturer could always raise a necessity defense to prosecution. And in the United States as well, the Supreme Court held that Guantanamo Bay detainees could petition for habeas corpus despite arguments that allowing them into court would interfere with the military’s prosecution of a war.
The Guantanamo habeas case is particularly illuminating because the legal wrangling lasted years and, in the course of it, the Bush Administration sought to circumvent habeas corpus by giving the detainees military detention hearings. Following Congressional action, the results of these hearings could be appealed all the way up to the Supreme Court. While acknowledging that these military hearings offered largely the same procedural rights the detainees could reasonably expect from habeas corpus, the Supreme Court (with Kennedy again writing the majority opinion in Boumediene v. Bush) nevertheless ruled that habeas corpus, as such, was necessary because of its traditional role in protecting “the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.”
One could reasonably ask, as Chief Justice Roberts did in dissent, why all the fuss over habeas corpus if the military hearings gave the detainees basically the same opportunity to plead their case? Harel’s book provides a compelling answer. The Guantanamo debate – and the passions it inflamed – was not about the practicalities of military detention. It was over whether the government was obligated to respect the detainees’ dignity as human beings. The Bush Administration insisted that these men had no rights the government was duty bound to respect. Conceding that the detainees had the right to habeas corpus, in particular, and its hoary identification with the Anglo-American rule of law, gave them status as persons entitled to respect under the Constitution. The Court’s rejection of the “almost-habeas corpus” hearings in favor of the real thing, like Posner’s rejection of civil unions, was a statement that the law was unwilling to accept the dehumanization of terrorism suspects even for such compelling social goods as national security. It required the government to defend these men’s prolonged captivity on the basis of legal argument, not mere expediency.
To be sure, Harel’s loftiness is not without its downsides. Harel never grapples with the cynicism that valuing law for its own sake can engender. He defends, for example, the constitutions of Ireland and India, which enshrine unenforceable rights, as valuable because they memorialize the government’s duties to those it governs. But he does not take adequate account of the risk that promising rights that are never, in practice, enjoyed is more likely to inspire contempt for the law than civic-mindedness. The constitution of North Korea promises many wonderful rights after all. Or to take a less extreme case, when vice offenses are “decriminalized” through under-enforcement instead of legalization and regulation, the only real value the law retains is as an expression of public disapproval. But this invariably leads to arbitrariness in enforcement, through approaches like “stop and frisk” that cause legal institutions to lose the respect of the community. Such pseudo-crimes are like the fetus’ pseudo-right to life in Germany: a political veil behind which lawmakers can avoid genuine accountability for the content of the law.
Ultimately, Harel’s failure to resolve these finer questions of implementation is a minor flaw, because the core insight of his broader project is phenomenological. People care about the law because legal institutions promise to resolve disputes with an indifference that respects our dignity as individuals. That sentimental view of the law both gives it force and reflects its force in a democracy. It is therefore inapt, even profane, to insist that the law be measured by what practical goods it achieves. Instead, Harel insists that jurisprudence must account for the fact that law matters because it formalizes a basic respect for individual human dignity in a political system that otherwise allocates costs and benefits on the basis of majority rule.
Posted on 16 December 2015
MICHEL PARADIS is an international and constitutional litigator presently with the U.S. Department of Defense. The views represented in this review are his own and do not reflect the views of the Department of Defense, the United States government or any agency or instrumentality thereof. He is also the author of a forthcoming book on war crimes trials in the Pacific during World War II, due out from Simon & Schuster in 2017.
