Harel e Vermeule

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Alon Harel (Hebrew University of Jerusalem - Faculty of Law) has posted
The Vices of Epistemic Institutionalism (Jerusalem Review of Legal
Studies, Vol. 2, p. 5-15, 2010) on SSRN. Here is the abstract:
This is Alon Harel's contribution to the symposium on Adrian Vermeule’s
book “Law and the Limits of Reason.”
And from the paper:
Adrian Vermeule provides a thorough and a comprehensive proposal
concerning the optimal allocation of constitutional interpretative
powers. His starting point is what I shall label in this comment
“epistemic institutionalism.” Epistemic institutionalism is defined
here as the view that the design of legal institutions and the
allocation of powers among these institutions ought to be guided
(primarily or exclusively) by epistemic considerations. The institution
which ought to be empowered to make decisions concerning the
Constitution is the institution which is most likely to decide rightly
or correctly, namely to render decisions which are, as a rule, superior
to those rendered by other institutions. Note that epistemic
institutionalism conflicts with a different and equally compelling
theoretical principle which guides another school of constitutional
theorists, namely the view that the optimal allocation of power among
different institutions as well as the optimal composition and design of
these institutions ought to be dictated by the concern for legitimacy,
and the concern for legitimacy is independent (or, at least, partially
independent) of epistemic considerations. The recent popular (and, if I
may add, populist) accusations against courts in Israel and the efforts
to curb their powers concerning constitutional issues are founded on
legitimacy-based concerns not epistemic ones. They are based on the
alleged “democratic deficit” of the judicial branch and not on its
incompetence in identifying what the right decisions are.