Beyond Interpretation Judicial Authority in the Face of Unjust Norms

The YTL Centre is delighted to welcome Professor Alon Harel from the Hebrew University of Jerusalem to discuss the role of judges in addressing unjust laws and their authority to align legal norms with justice.

Abstract

What should a judge do when she is called upon to apply a flagrantly unjust law? Both theorists and judges have discussed this question and provided conflicting answers. Theorists often argue that judges should commit acts of civil disobedience and refuse to apply the law. In contrast, judges, typically, stress that they are committed to apply the law unconditionally.

In this chapter I wish to address this question by shifting the focus from the ex-post question, namely from the case of a judge asked to apply flagrantly unjust law to the ex-ante question, namely to a person who considers whether to apply for a judicial post and deliberates under what conditions can she accept such a post.

Professor Harel argues that no person can commit herself to apply the law unconditionally unless they are assured that they would never be required to apply flagrantly unjust law. To provide such an assurance, one must assume that courts have the power to transform the norms including constitutional norms (or other foundational norms) in a way that resolves conflicts with justice. Note that in so doing, judges do not commit an act of disobedience; nor do they simply refuse to apply the law. Instead, they rewrite the law in away that removes the inconsistency of law with justice and, subsequently, abide by the new rule. By doing so, they become co-authors of the law including, at time, co-authors of the constitution.

The argument supporting this claim can be described as a transcendental argument. A legal system which does not authorize judges to co-author or amend the constitution in cases of flagrantly unjust law cannot be a legitimate legal system and, therefore, such a power on the part of the judges ought to be presupposed in (almost) every legal system.

Professor Harel holds it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.

Professor Alon Harel

Alon Harel is the Mizock professor of Law at the Hebrew University of Jerusalem and a member of the Federmann Center of Rationality, The Hebrew University of Jerusalem. He is the author of Why Law Matters (OUP, 2014) and Reclaiming the Public (CUP, 2023). He is currently working on a book on constitutional theory.

Find out more about the Centre and its work on the Yeoh Tiong Lay Centre for Politics, Philosophy & Law webpages.