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The Public Constitution

Speaker: Prof Alon Harel (The Hebrew University of Jerusalem) Respondents: Prof Oliver Gerstenberg (UCL Laws) and Natalia Morales Cerda (UCL Laws) Chair: Ronan McCrea (UCL Laws) About the book The Public Constitution argues that constitutions have distinct normativity which differs from that of statutory law. More specifically it argues that the value of legal norms does not depend solely on their content but also on the institution and deliberative process through which they are created. It is sometimes particularly important to protect a constitutional right or a statutory right as the value of the right hinges sometimes on the question of whether the right is constitutional or statutory. Rights provide institution-dependent goods; their value depends on the institution which created them. Constitutional norms serve to publicly affirm obligations and commitments that bind independently of popular will, whereas statutory norms derive their value (partly) from reflecting the choices of the political community. Constitutions are not merely pragmatic devices for better outcomes but are indispensable in signalling that certain rights and commitments are beyond the realm of democratic choice. Conversely, some goods can only be realised through statutory processes because their value hinges on their democratic pedigree. Consequently, (at least some of) the statutory norms lose their distinctive value when making them fails to result from our choices. On the proposed account, constitutional and statutory norms are not mere means to create good or just norms whose value is determined independently of the institution in charge of creating them. Instead, the value of such norms hinges on the institutionthat calls them into being and the deliberation that is characteristic of the institution. The book also shows that these observations have important doctrinal implications. This seminar was part of the Public Law Seminar Series.