Judges versus People

James Allan, Garrick Professor of Law at the University of Queensland, has degrees from Queen’s University, the London School of Economics and the University of Hong Kong. His main areas of interest are legal and moral philosophy, constitutional law and bills of rights. He has published widely in these areas.

Allan describes himself as a conservative legal philosopher with libertarian instincts. He sees himself as a legal academic who puts a high value on free speech, individual enterprise, small government and democratic decision-making. He is also firmly opposed to affirmative action and detests “cancel culture”. These views rest primarily on what he describes as “Humean” foundations about human nature and the world in which we live. Hence, his jurisprudential work is concentrated on legal contributions to political objectives that flow from the form and process of law, rather than its specific contents. Here he confesses to uphold heterodox views when it comes to understanding how members of the judicial elite should interpret constitutions and the worth of human rights legislation.

This review appears in September’s Quadrant.
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The Age of Foolishness is a review of academic papers published in books and law journals that touch constitutional-related topics. They are reviewed and brought together in this book which, in the author’s words, amounts to a “doubter’s guide to constitutionalism”. It is certainly a book that doubts much of the present orthodoxy as regards constitutionalism in a modern democracy. Allan is determined to prevent a “lawyerly caste” assuming the role of arbiter with regards to values manifested in the law. This is achieved by minimising moral input at the point-of-application—to reduce the scope for judges’ subjective (and worse still, arbitrary) moral judgments. According to Allan, the proper task of judges is to manifest the will of the elected Parliament via the implementation of its rule-formulated decisions.

Part I, “Setting the Stage”, looks at competing efforts to ground the notion of rights and to give it a solid foundation. Allan opposes the idea of rights instruments that require a judicial decision on questions of morality. According to him, the judicial enforcement of abstract declarations of rights is inconsistent with the ability of ordinary citizens to influence decisions via the democratic process. After all, so the argument goes, even if a citizen finds the support of a large number of other citizens, thus managing to prevail in the democratic deliberative process, their law may still be challenged and struck down because their view of what a right might be does not accord with the views of the judges. In Allan’s opinion, abstract rights legislation basically transfers the decision-making from voters to judges on moral questions where there is no moral consensus or political agreement across the community.

The point here is to explain how the enforcement of abstract rights laws confers on an unelected judicial elite the power to veto law retrospectively on the basis of judgments of political morality. This involves a power that is more traditionally associated with the legislature, except that the unpredictability inherent in this exercise is exacerbated by its retrospective nature. Because rights laws are framed by way of broad principles of morality, instead of objectively formulated ones, they must cater for a vast range of situations to which they ought to be applied. These abstract provisions are open to interpretation, so it falls on the judicial elite to interpret these provisions so as to apply them to specific situations.

Typically, however, members of the superior court do not agree among themselves on the meaning and application of these abstract laws, and the decision ultimately falls to a simple majority of the bench. Controversy arises because, although virtually everyone would agree that some abstract declarations contain very good principles, there is far less agreement over how these principles should be applied in more practical terms. Because the application of abstract rights requires moral judgment, when unelected judges make decisions which are unpopular or controversial, they affront the principle of democratic majoritarian rule.

Allan is particularly critical of a lawyerly caste that “has too little love of democracy and too great love for social policy-making by unelected judges” and elites unaccountable to the voters. He proposes instead a procedural view of the Rule of Law where there is some room for disagreement about the rights and wrongs of enacted law. Allan favours a procedural approach to the rule of law that makes allowance for people naturally disagreeing about moral outcomes. Here too, he adds, there is a basic divide between procedural and substantive conceptions of the rule of law. On his view, “there will remain plenty of room for reasonable disagreement about the rights and wrongs of enacted laws”. However, according to him, “the procedural understanding does not try to cram all possible good things into, or under the rubric of, this notion of the Rule of Law”.

The realisation of the rule of law requires clear, stable and general rules of law. Characterised in this way, this ideal of legality cannot be developed if unelected judges use their position to satisfy political or moral views. Institutional support to the rule of law requires a non-partisan application of the law, which stands in opposition to extempore judicial rulings. For this reason, Allan contends that a bill of rights is not essential for the realisation of the rule of law, and quite to the contrary. In fact, such abstract declaration could compromise its realisation in the sense that the application of these vague provisions might become indistinguishable from the moral and political tendencies of individual judges. This may result in considerable usurpation of legislative functions by an unelected judiciary.

In Part II, “Doubting Ortho­doxy’s Understanding of, and Commitment to, Democracy”, Allan reveals his commitment to democratic deliberation against what he describes as the “orthodox constitutional position of much of the lawyerly caste”. He favours democratic decision-making as the “least bad option”. He thinks elected representatives should decide on moral issues, and points out the long-term benefits of counting everyone as equal and voting for their representatives so they can decide on rights-related issues. Of course, he also acknowledges that parliamentary decisions are sometimes bad and immoral, just as the odd judicial decision under a bill of rights may also be bad and immoral. Ultimately, he is sceptical of allowing an infinitude of social issues that people argue about, and care deeply about, to be decided by a “committee of ex-lawyers”.

Allan reminds us that amongst members of the legal profession there is very little appreciation for democracy and, instead, “much love for unelected judges resolving a good many, for some most, social policy issues”. In countries such as Australia, Canada, the United States and the United Kingdom, a substantial proportion of the “lawyerly caste” has very little faith in the ability of ordinary citizens to form “proper” opinions about public policy in a manner that is acceptable to the ruling classes. These elitists are especially attracted to judicial enforcement of abstract declarations of right partly because it shifts power to members of their own social class, or those whose educational attainments, social habits and political morals are thought by them more likely to be “better”.

According to Allan, “there is a tendency amongst many judges, lawyers, and legal academics to downplay the merits of majoritarian democracy in favour of what they would see as law and the legal resolution of social policy disagreements”. This “lawyerly caste” apparently believes that “democracy is not up to the job in today’s world and would be outperformed by a more elitist, more aristocratic, more expert driven system”. Some of these elites may even characterise a proportion of the voters as “deplorable” and “unworthy of consideration”.

Part III, “Constitutionalism in the Democratic World”, turns to Allan’s doubts about aspects of “constitutional orthodoxy”. He expresses his preference for originalism and against the “living constitution” method of constitutional interpretation. The great divide in constitutional interpretation is between “original meaning” (whether derived from the framers’ intent or not) and “living constitution”, which assumes the existence of a body of law that grows and changes from time to time. While originalists like Allan recognise the need to know the constitutional drafters’ intent and context, advocates of a “living constitution” see written constitutions as non-fixed documents that can be evolved over time according to the whims of the judicial elite.

Allan explains that “opting for constitutionalism is opting for rigidity and comparative certainty over flexibility; for security over potential rights-infringing short-term considerations of collective welfare at the expense of the liberties of individuals and minorities”. This observation leads him to discuss whether constitutionalism requires a constitutionally entrenched bill of rights. He argues that written constitutions do not have to include these abstract declarations and that superior court decisions are “brutally majoritarian” in that five votes beat four no matter the quality of the reasoning.

In Part IV, “And Lastly on to Constitutional Interpretation”, Allan comments that the core attraction to constitutionalism revolves around achieving predictability. To make sure that “locked-in outcomes” take place, written rules must convey fixed meanings. Constitutionalism collapses if decision-making becomes no more than “judicial politics”. It is hard to ignore the irony of a decision-making process that merely reduces the size of the franchise to the number of judges on the superior court bench.

Allan then addresses the effectiveness of human rights declarations in curbing governmental power. Governments that ignore the rule of law are prepared to use naked power even to override basic human rights. The impressive rights legislation of unhappy countries such as Cuba, Sudan and Venezuela have provided little barrier against gross human-rights violations. However, as Allan points out:

many assume that nine judges could stop Mugabe—that the brutal Mugabe legislature will stop because a half-dozen ex-lawyer judges tells it to (remember, top courts are the most procedurally majoritarian institutions going so it would only have to be a fair majority of those judges) … If a legislature really has run wild in some horrific way then no handful of judges will stop it. They will be replaced or killed.

Allan also explains that opting for written constitutions is an option for more certainty and security over future flexibility and free scope for action. In this context, he explains the substantial difference between rights-related judicial review and federalism-related judicial review. According to him, “rights-related constitutional judicial review deals directly with what are often the most important and controversial issues of personal and political morality, something that cannot remotely as frequently be claimed as regards non-rights related, federalism constitutional review”.

The aim of federalism-related review is to have an impartial or disinterested umpire ruling on constitutionally prescribed heads-of-power disputes. Judges are simply doing their jobs when they are choosing between which of two democratically elected legislatures can legislate on a particular subject-matter. In this context, writes Allan, “the unelected judges act as umpires, choosing between two democratically elected decision-makers. In this type of judicial review, then, the unelected judges cannot take anything off the table as far as what majoritarian politics can enact. They merely distribute specific legislative endeavours between two tables.” His basic claim, then, is that:

heads-of-powers judicial review is qualitatively different from rights-related judicial review. The former deals in deciding which of two democratic bodies will decide some issue. The latter deals in deciding whether any democratic body will be allowed to do so. Add to that qualitative difference the dearth of any plausible alternative that will neither be any more democratic than the judges or that will not involve handing the power to a legislature or elected body with an interest in the dispute (to say nothing of having virtually no chance of coming to pass).

I would add that the enhancement of democracy via federalism arises also from citizens receiving multiple points of access to democratic deliberation, and through greater choice provided. Of course, democracy may be centralised or decentralised, but the latter allows a closer approach to the democratic ideal of respecting the will of the majority. Because laws which are valid for the whole national territory may come into conflict with the will of a majority living on a partial territory, to enhance democracy it might be beneficial that some laws be valid only for specific parts of the national territory and be created only by the majority of voters living in these particular territories.

Accordingly, federalism may enhance democracy by bringing power closer to ordinary citizens, thus allowing them to have a greater say in local decisions that more directly affect them. With a bill of rights, however, the last-word power would rest not with the voters but with an unelected judicial elite.

Allan is correct to remind us that constitutionally entrenched bills of rights hand too much power to unelected judges. However, he goes even further in order to explain that this assumption would be valid even for statutory bills of rights which allow judges to depart from the legislative intent. And no other provision in a statutory bill of rights is more potent than the “reading down provisions”, which afford judges the power to claim a provision which says what no lawmakers ever thought it said or intended it to say but only what a majority of judges assert it should say. A reading-down provision is almost as potent as an invalidating power as “it gives scope to judges to create new affirmative regulations … [and] to redraft and rewrite legislation by … ignoring clear intention, trumping otherwise plain meaning, and not requiring the least ambiguity before doing so”:

Once engaged in that redrafting or refashioning task the legislation under consideration is not in any straightforward sense being interpreted. It is being rewritten. The most that can be said is that the reading down provision has itself been interpreted, and it has been interpreted as granting judges a licence to rewrite (short of some indeterminate point termed “vandalism”) all other legislation.

Allan observes that today’s constitutional orthodoxy amounts to a rejection of what is sometimes unkindly described as “ancestor worship”, the preference for taking into account the intention of “the long-dead constitutional makers”. Instead, he says the prevailing preference is for upholding the beliefs, sentiments, judgments and policy preferences of a handful of top judges. Allan prefers to be locked in by the preference of constitutional makers than by the druthers of today’s top judges. He reminds us that if we do not like what the constitution makers gave us, then we can amend it openly and in accordance with the amending formula.

Originalists like Allan believe that meaning is locked in at the time of enactment or promulgation. This meaning must be fixed and “not change with changing social values, or with the shifting view of the point-of-application interpreter, or due to newly perceived moral truths by judges or legal academics”. And here readers notice valuable legitimacy arguments in favour of originalism: “if we give authoritative lawmaking power to a certain group of people—if they are the legitimate lawmakers—then it is their intentions that [should] matter”.

Allan notes that judges are often perceived “as a sort of modern day aristocracy there to rein in the worst instincts of the elected branches”. For him, “there is too much whiff of elitism piled on aristocracy about such arrangements”. Sure, originalism presupposes being locked in by the intentions of long-dead lawmakers. But as Allan explains, “living constitutionalism” actually involves being locked in by the moral judgments of unelected judges. He concludes: “Non-originalist judges have effected a small [undemocratic] revolution by not being faithful to the intended meaning of the written constitution”.

This outstanding book is an outsider’s take on much of current constitutional orthodoxy in the common-law democratic world. It is written by a legal philosopher who is unafraid of expressing his defence of democracy and a method of constitutional interpretation that favours this democratic approach. It was a real pleasure to read this book, which I am pleased to recommend without reservation.

The Age of Foolishness: A Doubter’s Guide to Constitutionalism in a Modern Democracy
by James Allan
Academic Press, 2022, 213 pages, US$49.95

Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education in Perth