In his thought-provoking book, Why Law Matters, Alon Harel defends two key
claims: one ontological, the other axiological. First, he argues that constitutions and judicial
review are necessary constituents of a just society. Second, he suggests that these institutions
are not only means to the realization of worthy ends, but also non-instrumentally valuable. I
agree with Harel that constitutions and judicial review have more than instrumental value,
but I am not persuaded by his arguments in support of this conclusion. I argue that Harel’s
ontological claim is unsustainable, and that his axiological claim needs revision. Regarding
the former, I show that constitutions and judicial review are only contingent constituents of a
just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions
and judicial review. Harel grounds the non-instrumental value of constitutions in
freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value
lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems
from its embodying a right to a fair hearing. I argue that this right has non-instrumental value
only under a particular set of circumstances. I thus conclude, contrary to Harel, that the noninstrumental
value of judicial review is contingent on those circumstances obtaining.

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• On the Value of Constitutions and Judicial Review