Alon Harel

Hebrew University of Jerusalem | HUJI · Faculty of Law and Institute of Criminology

AI-based algorithms are used extensively by public institutions. Thus, for instance, AI algorithms have been used in making decisions concerning punishment providing welfare payments, making decisions concerning parole, and many other tasks which have traditionally been assigned to public officials and/or public entities. We develop a novel argumen...

This article defends the claim that the institutional source of a legal norm—be it the constitution, legislation or whatever—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, ‘everyone is equally entitled to X’, t...

This is an introduction to the special issue on criminal law theory.

Contrary to what Cordelli argues, the relationship between Kantian legitimacy and democratic decision-making is contingent rather than necessary. This paper counters the connection between Kantian legitimacy and democracy in three ways: by arguing that democratic authorization is (i) not necessary, (ii) not sufficient, and indeed may be (iii) detri...

Among the major decisions any legal system must make is deciding whether to establish general courts with broad jurisdiction, or specialized courts with limited jurisdiction. Under one influential argument—advanced by both judges and legal theorists—general courts foster coherence within the legal system. This Article identifies a distinct effect o...

This article uncovers the role of framing in the determination of negligence. Negligence disputes fall into two categories: cases in which injurers inflicted harm while seeking to avoid a loss to themselves (loss frame) and those in which they were seeking to obtain a personal gain (gain frame). We develop a theoretical framework whereby the frame...

This article addresses a basic question of general jurisprudence, namely, what difference law makes in moral space. It argues that the difference at issue does not necessarily come to telling us what morality (or justice) might dictate but rather to establishing a way of attributing decisions to all of us and not to any one of us in particular. Thi...

This volume provides a forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning); the philosophical foundations of specific areas of law (from criminal law to evidence to int...

The American administrative state has, of late, been under siege, attacked on two fronts. The war on one front is somewhat parochial – a pitched battle over US constitutional law. It is waged largely by conservative movement lawyers who view the modern administrative state as an affront to the constitutional separation of powers. The war on the oth...

The state and the law seem to be inextricably intertwined: The state is often identified with its legislative and adjudicative capacities. Law and legal institutions are likewise associated with public authority, conjuring the image of public courts and state law. But technological and social transformations, characterizing the modern age, pose a g...

Privatization – the outsourcing of public responsibilities to private actors – is a pervasive phenomenon across the world. Welfare and healthcare delivery, military defense and prisons management are only some of the functions that governments increasingly contract out to private actors. In this chapter, I will argue that even if privatization coul...

The financial information about a financial entity is asymmetrically distributed among those who contract with it. Whether the entity is a publicly traded corporation or a nonprofit state hospital, those parties of the inner circle of the entity, for example the entity’s management, possess information about the financial stability of the entity an...

Privacy seems to belong to the past. The dating website OkCupid asks its users whether they occasionally use illegal drugs, selling that information in real time to marketers. Commercial data brokers hold thousands of data points about individuals. The problem concerns not only apps and websites but also the “Internet of Things” (IoT) that increasi...

The debate over the privatization of government services usually concerns practical considerations like cost and quality. This is not to say that moral questions are absent: in the current controversy over private prisons, for instance, even a supposedly “practical” factor like the “quality” of a prison includes many morally relevant features – lik...

What does privatization mean in the context of domains that have long been considered quintessentially private? Family, marriage, sexuality: each of these spheres of intimate life has been cast as private. Feminist and sexuality scholars have sought to reveal the artificiality of the public/private distinction and the many ways that intimate life i...

Proponents of privatization tend to rest their case on a strikingly simple line of argument. Compared to the mighty private sector, they maintain, the state is hopelessly inefficient at providing goods and services. Trains, hospitals, schools, and even prisons perform better when private corporations take charge, energized by the dynamic logic of c...

Some things should not be for sale. One’s body or one’s children, to take the most glaring examples. But, arguably, more trivial things like the family heirloom or a citizen’s vote should also not be bought and sold. Theorists differ both about the membership of this class (what things should not be for sale) and about the grounds for membership in...

What, if anything, is lost when we privatize criminal punishment? The literature responding to this question is already vast and growing. But it would be a mistake to understand it as forming a single, coherent line of inquiry. Writers on this topic have raised concerns of at least three different sorts. Concerns of the first sort are specific to a...

The chapter discusses how Ripstein differentiates among three types of wars: self-defense, remedial, and punitive. Harel then argues that Ripstein’s reasons for rejecting a right to remedial wars fail. The underlying Kantian principles guiding Ripstein’s own account dictate that remedial wars are permissible. There are very powerful consequentialis...

Introduction. 1. Radicalism, Conservativism and Liberalism. 2. The Egalitarian Proposal and the Liberal Dilemma. Conclusion. References.

In Towering Judges: A Comparative Study of Constitutional Judges, Rehan Abeyratne and Iddo Porat lead an exploration of a new topic in comparative constitutional law: towering judges. The volume examines the work of nineteen judges from fourteen jurisdictions, each of whom stood out individually among their fellow judges and had a unique impact on...

The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimat...

The rise of populist political rhetoric signals a departure from accepted models of democratic representation. Nowadays, in Israel and in other democratic countries, many elected officials purport to give effect to the raw convictions of their constituents. We contend that calls for elected officials to mirror popular views undermine democratic rep...

In the past twenty years, international criminal law has become one of the main areas of international legal scholarship and practice. Most textbooks in the field describe the evolution of international criminal tribunals, the elements of the core international crimes, the applicable modes of liability and defences, and the role of states in prosec...

Basic Law: Israel as the Nation State of the Jewish People declares that Israel is the nation state of the Jewish people. It also includes several symbolic and operative provisions which are designed to strengthen the Jewish character of the state. The Basic Law purports to legally define and entrench the particular rather than universal values of...

The ‘Basic Law: Israel as the Nation-State of the Jewish People,’ passed by the Knesset on July 19, 2018. This Article describes the main provisions of the Basic Law; it discusses some of the past history leading to the legislation. It also provides some evaluation as to its effects and speculations concerning its future. Last I use this basic law...

This chapter is founded on the conviction that legal institutions and legal procedures are not mere means to achieve some desirable contingent outcomes: the protection of rights, the flourishment of democracy, coherence, and stability, and so forth. Instead, often institutions which are typically justified on these grounds are valuable as such. Mor...

Law, liberty and technology: criminal justice in the context of smart machines - Volume 15 Special Issue - Roger Brownsword, Alon Harel

Under the traditional view, the decision to privatize hinges exclusively on the question of who is most likely to make the just or correct decision: a public official or a private entity. This chapter challenges the traditional approach and argues that massive privatization as such has costs as it severs the link between decision-making processes a...

This article analyzes the category of extreme cases—cases involving catastrophic consequences the avoiding of which requires severe measures (e.g., torture, shooting a plane in 9/11 situations). Our proposal maintains that what is most pernicious is not the violation of moral rules as such but their principled or rule-governed violation. Maintainin...

Under the law, the power to sue and collect damages is granted exclusively to victims, namely to those who can show that their interests were set back by others' behavior. By contrast, the law is much more generous in identifying defendants. A defendant can be liable for no reason other than that she is the "cheapest cost avoider." This Article que...

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge (only) on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that a...

It is often argued that international criminal law (ICL) is designed to overcome deficiencies in national legal systems. When the state is incapable or unwilling to punish, it must be replaced by a reliable and impartial agent. Under this view, ICL is a pragmatic solution to the partiality and/or ineffectiveness of national legal systems. This Art...

Individual human rights are secured by both constitutional law and international law. The coexistence of constitutional and international law norms is inevitably a source of conflict: Which (if any) provision should have the upper hand? This article argues that the conviction that one system is superior to the other is false. Instead, we embrace co...

This is a critical comment on an Article by Joshua Greene in which he uses brain studies and contemporary psychological findings in order to settle the dispute between consequentialist and deontological theories. I first summarize Greene’s main claims and later raise several objections to them. In contrast to Greene, I argue that consequentialist t...

Why Law Matters defends the view that public institutions and legal procedures are not merely means to secure independently specifiable ends. They are constituent aspects of a just society, and the contribution they make to it is not contingent. I argue that various legal institutions and legal procedures, often perceived as contingent means to fac...

Individual rights are secured by at least two legal sources: constitutional law and international law. The co-existence of constitutional and international law norms is inevitably a source of conflict: When there is a conflict between a constitutional provision and an international law provision, which (if any) provision should have the upper hand?...

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is p...

This book deals with various aspects of criminal law, including its relationship to a wide range of disciplines such as philosophy, sociology, and technology. It first considers a range of approaches and methods used in the analysis of criminal law, including economics, feminist studies, critical race theory, criminology, history, and literature. I...

This book presents chapters which critically engage with formative texts in criminal legal thought since Hobbes. It aims to contribute to the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and, at the same time, to present a snapshot of contemporary work on criminal law within that histor...

This article is a survey of behavioural analysis of criminal law. Behavioural analysis of criminal law exploits social science methodologies (behavioural economics, psychology and even sociology) to explore the effects of criminal law norms and enforcement policy on criminals, judges, juries, lawyers and other decision-makers, to determine the opti...

Criminal sanctions are typically inflicted by the state and by the state alone. This chapter investigates (by using tools of political philosophy) the normative rationales for the exclusive control of the state over the infliction of criminal sanctions and, further, it explores whether the state has not only an exclusive right to punish but also a...

This is a survey of the debates concerning public and private law. It provides a link between two debates which are typically conducted separately from each other: the debates concerning the autonomy of private law and the use of private law to promote public ends on the one hand and the debate concerning privatization on the other hand. It shows t...

'. . . the book is a largely successful and thought-provoking attempt to analyse criminal law in utilitarian and economic terms. Fundamentally the book offers up a number of economic analyses of criminal law - and therefore encompasses the social sciences, including economics, behavioural economics, psychology and, to some extent, sociology. Those...

Introduction This chapter attempts to justify a differential treatment of hate speech in accordance with the discourse to which it belongs. More specifically, it argues that hate speech that constitutes an integral part of a comprehensive and valuable form of life (what I will call “deeply rooted” hate speech) should be protected more stringently t...

This article develops a non-instrumental argument against privatization of certain forms of political violence. Its primary foci are the privatization of prisons and the use of mercenaries in wars. The article maintains that some governmental decisions simply cannot be executed by private entities. While private individuals may act in conformity wi...

This article analyses the category of extreme cases – cases involving catastrophic consequences the avoiding of which requires severe measures (e.g. torture, shooting a plane in 9/11 situations, etc). We first reject two traditional solutions to extreme cases: deontology/threshold deontology (as traditionally understood) and consequentialist soluti...

This Article develops a theory of "inherently governmental functions" and argues that these functions concern powers designed to execute or implement fundamental state decisions-e.g., the decision to criminalize certain behavior, the decision to inflict a certain sanction, or to the decision to initiate or end a war. While most theorists agree that...

Freedom of speech is among the most cherished constitutional rights in liberal democracies. The primary task of this survey is to examine why (and whether) speech ought to be protected more (or differently) than non-speech activities. To address the normative question of why speech is protected as well as to identify what counts as speech we examin...

This article analyses the category of extreme cases - cases involving catastrophic consequences the avoiding of which requires severe measures (e.g. torture, shooting a plane in 9/11 situations, etc). We first reject two traditional solutions to extreme cases: deontology/threshold deontology (as traditionally understood) and consequentialist soluti...

The central characteristic of responsibility as developed by Duff is the 'triadic relational concept' consisting of a relation between an agent A who is responsible for something X to somebody S and in virtue of being a member of a unit of responsibility, e.g., a neighbourhood or a state. This chapter rejects several justifications for Duff's theor...

This paper identifies two normative challenges to law and economics. The first challenge relates to commensurability and the second focuses on agency, in particular the agency of the state. The first part of the paper establishes that under the current legal system not all potential outcomes are comparable to one another in the way dictated by law...

The traditional premise of criminal law is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to identical sentences. This article provides an efficiency-based rationale for discriminatory sentencing, i.e., establishes circumstances under which identical crimes ought to be subject to differential sent...

This article explores and evaluates theories that we label “theories of constrained judicial review.” These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both legislative and judicial supremacy and adopt an intermediate position that grants courts a privileged but not supreme role in interpr...

This is The Jerusalem Review of Legal Studies’ second issue. It consists of a published version of two book symposia held at the Hebrew University of Jerusalem. The first symposium was dedicated to a discussion of Adrian Vermeule’s “Law and the Limits of Reason” (Oxford University Press, 2009). It includes critical comments by Prof. Alon Harel, Dr....

This paper examines a case in which the German Constitutional Court declared a provision authorizing the downing of a plane in cases in which the plane is used as a weapon unconstitutional. We examine the possibility of analyzing the case from a consequentialist perspective and from the perspective of deontology and threshold deontogloy as currentl...

This paper defends judicial review on the ground that judicial review is necessary for protecting “a right to a hearing.” Judicial review is praised by its advocates on the basis of instrumentalist reasons; i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue tha...

Most contracts in which we engage in the marketplace, we do not care to read. Consequently, a classic question arising in the law of contracts is whether, and to what extent, the content of such agreements ought to be subject to special scrutiny of courts, regulators or legislatures. This paper, accordingly, develops an economic theory of the optim...

Should a court convict a defendant for unspecified offenses if there is no reasonable doubt that he committed an offence, even though no particular offence has been proven beyond reasonable doubt? Suppose a defendant is charged with two unrelated offenses, for example, pick-pocketing and rape, allegedly committed at different times and places. The...

In a short book and in his contribution to this volume, Richard Posner articulates his vision concerning the most talked about subject in today's legal world: the legal treatment of terrorism. I deliberately say the most talked about subject in today's legal world, rather than the most urgent or important subject because I do not share the convicti...

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 cent...

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to in...

A defendant is charged with four offences, allegedly committed in four different times and places. The probability that he committed each one of the offences is 90%. Assume that the minimum threshold required for conviction is 95%. Under prevailing criminal law the defendant would be acquitted of all four charges since no offence can be attributed...

IntroductionThe Nature of Rights: Logic, Substance, and StrengthRights and Their Role in Moral TheoryConclusion References

A defendant is charged with four offences, allegedly committed in four different times and places. The probability that he committed each one of the offences is 90%. Assume that the minimum threshold required for conviction is 95%. Under prevailing criminal law the defendant would be acquitted of all four charges since no offence can be attributed...

This chapter explains why only the state may inflict criminal sanctions and presents arguments against privately inflicted criminal punishment. It suggests that there is a link between the state's judgments concerning the wrongfulness of the act and the infliction of sanctions, and that this link is indispensable to the legitimacy of the infliction...

This paper establishes that there may be an inverse relation between the rate of detection and the deterrent effects of stigma. The more people are detected and stigmatized, the less deterrence there may be. This conclusion is based on a search model in which the costs of searching for law-abiding partners increase with the rate of detection. The m...

This Paper explores the justifications for regulating modesty-related practices in liberal societies and uses two examples of modesty-related practices-- the practice of wearing the hijab and the practice of separating men and women in buses--in order to demonstrate that modesty-related practices often rest on different rationales. Some of these ra...