With Australia heading toward a referendum next year on a constitutionally enshrined indigenous ‘voice’ to parliament, the need for a book on the perils of ‘locking in rights’ is never more urgent or apparent. Professor James Allan’s tome, The Age of Foolishness, fulfils this need. As Allan himself writes, it goes against the current legal orthodoxy, ‘opposed to the preponderant views and positions of those not just in legal academia but also of those in the wider lawyerly caste’.

The Age of Foolishness is a compilation of Allan’s academic papers published in books and law journals covering his main areas of interest, namely: legal and moral philosophy, constitutional law and bills of rights. The book is divided into four parts.

Part I, ‘Setting the Stage’, analyses competing views surrounding the notion of democracy. On the one hand, it is a procedure for making decisions by ‘letting the numbers count’. Obviously it cannot guarantee good outcomes, but, as Allan points out, in a democracy, smart, nice, well-informed people will disagree. Be they plumbers, teachers or high officials, each one gets an equal say. On the other hand, there is an idea that democracy is about the quality of the decisions made, in other words, injecting moral judgements where the decisions must pass some ‘purity test’ based on abstract declarations of ‘rights’, which does not allow for disagreement.

Therein lies the problem, since, even if a majority of citizens prevails and gets the numbers in an elected legislature, an unelected coterie of judges, lawyers and bureaucrats, who in all likelihood will hold a different world-view to the majority, will invoke the ‘purity test’ to trump an elected legislature and have their way. As Allan notes, questions such as abortion, euthanasia and who can marry are highly contentious. Thus, it would be preferable to count everyone as equal and vote for their elected representatives so these issues can be decided by them, rather than, as Allan puts it, a 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.

It is also for this reason that Allan is opposed to bills of rights, which will end up having the effect, as has happened in the US and Canada, of transferring the decision-making from voters to judges on moral questions where there is no consensus or political agreement across the community. In the US, a grand total of nine judges gets to decide, by a bare majority, on these issues for a country of 320 million people.

Part II, ‘Doubting Orthodoxy’s Understanding of, and Commitment to, Democracy’, is an elaboration of the Churchillian view of democracy as the ‘least bad option’. Allan states that ‘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’. They believe 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’, since they characterise a proportion of the voters as ‘deplorable’ and ‘unworthy of consideration’. This ignores the core virtue of democracy whereby we can ‘throw the bums out’ as an incentive to politicians. If they want to keep their jobs and all the perks that go with them, they must aim for more than half of the votes. It may be, as Allan argues, ‘an imperfect alignment’, but a much better alternative in accountability terms, than trusting judges, or anyone else, who can’t be removed from office anywhere as easily, least of all by the voters.

Part III, ‘Constitutionalism in the Democratic World’, explores the conflict over constitutional interpretation 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 in line with changes in society. Allan opts for the former (constitutionalism), since the latter allows for ‘politics by other means’. Allan counters the argument of proponents of detailed written constitutions (including bills of rights) that they just want ‘to lock things in’ by demonstrating it is impossible to know how a written constitution will be interpreted down the road.

In this regard, Allan cites the interpretation of the Australian Constitution by the High Court, where an ‘implied’ freedom of political communication was discovered some ninety years after the Constitution was enacted, despite the fact that the Australian drafters explicitly rejected a US-style bill of rights (including a First Amendment-type free speech right), and ‘despite two failed constitutional amendment referenda where all the citizens of Australia also rejected a bill of rights, the latter taking place only four years before the top judges did this “discovering” of this implied speech freedom.’

While Allan describes himself as ‘one of the biggest supporters of free speech going in the common law legal academic world’, he states, tellingly, that what one’s values are and what a text honestly means is a distinction judges often fail to make.

In Part IV, ‘And Lastly on to Constitutional Interpretation’, Allan argues for a ‘federalist’ approach to constitutional interpretation, whereby judges act as impartial or disinterested umpires ruling on constitutionally prescribed heads-of-power disputes between two democratically elected decision-makers. Allan explains, ‘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.’ This type of interpretation is really concerned with what the text actually says, rather than a ‘living constitutionalism’ approach where lip-service is paid to interpretation, ‘but in fact the judges are simply a third legislative house, injecting their first order substantive views into the mix. It is tricameralism if you will’.

The Age of Foolishness meticulously pulls apart the current fashionable narrative against the conservative view of the worth of democracy as a form of social decision-making. It makes for instructive reading and its publication is timely.