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The Vices of Institutional Instrumentalism A Comment on Tushnet, The Rights Revolution in the Twentieth Century

Published online by Cambridge University Press:  19 March 2012

Alon Harel
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Extract

Reading Tushnet's careful analysis of the history of the American rights revolution filled me with envy. One of the great advantages of writing about law in the U.S. is the ability to experience and benefit from centuries of sustained legal evolution. The world of an Israeli law professor whose horizons barely reach the middle of the twentieth century is impoverished in comparison to the enriching experience of living in a mature and rich legal tradition such as that of the U.S.

Living in a different legal tradition and being ignorant of legal history—a field which only began to develop in Israel in the late 1990s—it will be pretentious on my part to try and challenge Tushnet's findings or even to try and explore the similarities and differences with the rights revolution in the Israeli legal system. Instead, I wish to explore the relevance of Tushnet's findings to constitutional theory and argue that constitutional theorists have some important lessons to learn from Tushnet's careful historical observations.

Type
Symposium on Mark Tushnet's The Rights Revolution in the Twentieth Century
Information
Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 464 - 471
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Tushnet, Mark, The Rights Revolution in the Twentieth Century (2009)Google Scholar.

2 Tushnet divides his historical observations into two parts: ideas and institutions. But even when he analyzes ideas, he does not discuss the philosophical soundness of ideas concerning rights but the actual ways in which ideas about rights developed in the society served the interests of certain groups and were manipulated by people to pursue certain policies. He is examining therefore the actual discourse of legal practitioners; not the soundness of the ideologies.

3 See this issue Tushnet, Mark, Précis, The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 446 (2009)CrossRefGoogle Scholar.

4 Id. at 449.

5 Id. at 449.

6 Id. at 451 (citing Martin Shapiro, Fathers and Sons: The Court, the Commentators, and the Search for Values, in The Burger Court: The Counterrevolution That Wasn't 218 (Vince Blasi ed., 1983)).

7 Id. at 452-54.

8 Id. at 454.

9 Id. at 456.

10 Id.

11 See, e.g., Dworkin, Ronald, Freedom's Law: the Moral Reading of the American Constitution 34 (1996)Google Scholar. Dworkin maintains that:

I see no alternative but to use a result-driven rather than a procedure-driven standard for deciding them. The best institutional structure is the one best calculated to produce the best answers to the essentially moral questions of what the democratic conditions actually are, and to secure stable compliance with those conditions.

12 See Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980)Google Scholar.

13 Alexander, Larry & Schauer, Fredrick, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359 (1997)CrossRefGoogle Scholar; Alexander, Larry & Schauer, Fredrick, Defending Judicial Supremacy: A Reply, 17 Cont. Commentary 455 (2000)Google Scholar.

14 See Ackerman, Bruce, We the People: vol. 1 Foundations 10 (1991)Google Scholar.

15 For a description, see Harel, Alon & Kahana, Tsvi, The Easy Core Case for Judicial Review, J. Legal Analysis (forthcoming 2010)Google Scholar. An early version of this paper is available at SSRN: http://ssrn.com/abstract=1272493 (describing the difficulties of instrumentalist theories). Page numbers refer to the SSRN version.

16 Id. at 28-32.

17 Komesar, Neil K., Imperfect Alternatives: Choosing Institutions In Law, Economics, and Public Policy 3 (1997)Google Scholar

18 Id. at 7.

19 Id. at 254.

20 Vermeule, Adrian, Judging Under Uncertianty: An Institutional Theory of Legan Interpretation 5 (2006)Google Scholar.

21 See Eylon, Yuval & Harel, Alon, The Right to Judicial Review, 92 Va. L. Rev. 991, 999–1006 (2006)Google Scholar; Harel & Kahana, supra note 15, at 31-48.