James Allan argues that judicial orthodoxy deprives citizens of the certainty of written law.
Disputes over the interpretation of the written text are one of the Achilles’ heels of constitutional law. In some countries, such as Canada, the situation has reached a point where judges interpreting the written constitution can debate about every single word and punctuation mark. Law professor James Allan claims that although written constitutions are very popular around the world, they may not deliver what they promise to citizens.
The internationally renowned lawyer and professor at the University of Queensland, James Allan was one of the speakers at the Danube Institute’s Constitutional Law and its Challenges conference held this past January in Budapest. He was joined by Professor István Stumpf, Hungarian lawyer and former constitutional justice.
The issues raised in their presentations are indirectly linked to exciting and topical debates on such matters as human rights, the rule of law and the law that judges make, the so-called juristocracy.
‘I am a long-standing opponent of bills of rights…’
Allan owes his international fame to the fact that, even as a law professor, he was brave enough to challenge mainstream constitutional thinking on a number of issues. This was the case, for example, a year ago, with a landmark Australian Constitutional Court decision in Love v. Commonwealth Australia (a case in which the court ruled on the status of Aboriginal Australians living in Australia since they were children). The gist of Allan’s criticism of the decision is that it is based on such vague concepts as “otherness,” “deeper truths,” “different considerations for persons of Aboriginal descent,” etc. These concepts are part of a legal terminology created by the court and cannot be linked to the actions of the Australian legislature. In essence, Allan points out that this type of judicial activism has a very fraught relationship with the question of the separation of powers.
Allan is also a strong critic of bill of rights-type legislation. The English (1689) and American (1789) Bill of Rights played a major role in the development of modern constitutional thought. The essence of these bills was that, in the struggle between the ruler and the citizens, they succeeded in forcing the authorities to recognise certain universal civil (or human) rights, which were declared in writing. Allan, however, is critical of the modern developments in constitutional law in relation to human rights: ‘I am a long standing opponent of bills of rights, be they constitutionalised or statutory. I have developed something of a side-line interest and niche market writing about their sins, omissions, flaws, failings, tendency to promote puffed-up, sanctimonious moralisers in the judiciary and academia, and most tellingly their raw illegitimacy in democratic terms,’ wrote Allan earlier.
‘They fought for every word and every comma…’
Allan, a Canadian-Australian, spoke at the Danube Institute conference on the interconnected problems of written constitutions and legal interpretation. These are highly relevant aspects of constitutional law thinking and are closely related to issues such as democracy and parliamentarianism. They are also linked— indirectly—to cases such as the legal debates in the US and Europe on euthanasia and abortion, where the final say is usually had by the few members of a court, rather than by written law (passed by a legislature).
Today, in the 21st century, most legal systems already have some level of written constitution. There are very few exceptions: in theory, countries without written constitutions include Israel, the United Kingdom and New Zealand. But the situation is not as simple as that, because Israel, for example, also has a very active judiciary and Israel has adopted some fundamental written legal norms (1992, Human Dignity and Liberty). Britain’s position changed with its entry into the European Union, because European law also means written legal norms. Despite Brexit, the situation remains complex as the UK adopted the Human Rights Act in 1998, which is a list of fundamental rights and freedoms. But overall, it can be said that England has a thousand-year history without a written constitution. And it has been a successful thousand years.
Allan argues that people do not think they are in a contractual relationship with the monarch (or political ruler) at all
Constitutional thinking, but more importantly, thinking about human rights, is generally believed to be linked to natural law and, through Hobbes, Locke and Rousseau, to social contract theories. However, Allan argues that what is more real is what David Hume argued, namely that people do not think they are in a contractual relationship with the monarch (or political ruler) at all. The source of power is not the social contract, and, Allan explained, human history is really a history of violence. Therefore, it is not the moral orthodoxy of jurists that should be at the heart of power systems, but reason. That is why democracy is so important, because it is based on simple logic: if the people are not satisfied with the ruler, they can replace him.
Allan is both an advocate of the democratic system and a critic of judicial activism representing moral orthodoxy. Written constitutions presuppose an active role of the constitutional justices in the decision-making process. In case of a dispute, written law will ultimately be judged by the interpretation of the constitutional justices. The problem with this is that it is always someone else— and not “me”—who discovers the intended meaning of the legal text. (We might add: and also the relative weighting of each of the rights— for example human rights— in the case at hand. Which is more important, the right to life of the foetus or the right of a woman to self-determination over her own body?) But what is the basis for the judge’s decision, what are the limits to the judge’s interpretation? Is it ‘How written text are interpreted?’ – asks Allan. ‘And this question matters too, because if there is too much scope for people who are interpreting the text to get any answer they want what’s the point of what you write down? ’
The answer is: there are only moral and at most political considerations. Disputes between judges over the interpretation of legal texts can go as far as for example in Canada, where they fought for every word and every comma. In the democratic world, written constitutions are extremely popular. The reason for this is probably that to citizens written rights give the impression of certainty and security. But this is a false legal certainty. ‘The problem is that in the political-legal system there is always a group of some people who are only constrained by morality and politics. And that is no different in the case of the top courts,’ Allan said.
According to Allan, it is no coincidence that the great thinker James Madison objected to the Bill of Rights. Interpretation without boundaries calls certainty into question. Moreover, in legal systems like New Zealand’s, there is the great benefit of flexibility. While in a system of checks and balances like the one in the United States it is very difficult to pass a budget, in New Zealand the elected political leadership is free to act. The barrier for them is the next election.
Allan is a critic of written constitutions and, in this sense, an advocate of a renewal of legal thinking in the democratic world. More of his ideas will be elaborated on in his forthcoming book on the subject.
 James Allan, ‘‘Otherness’and Identity Politics in Constitutional Law,’ blog-iacl-aidc.org, 2021, https://blog-iacl-aidc.org/cili/2021/1/26/otherness-and-identity-politics-in-constitutional-law, accessed 29. Jan. 2022.
 James Allan, ‘Bills of Rights as Centralising Instruments,’ Adelaide Law Review, 27 1, 2007, p. 183.