The premise of this book is that a shift of vantage will help elucidate various important issues of law related to judging, to bills of rights and to more abstract questions of legal philosophy. The work begins by focussing on the jurisprudential issue of whether it is desirable to keep separate the demands of law and of morality and uses the device of changing vantages to elucidate the many issues that fall under that aegis. This is followed by a consideration of how judges ought to do their job when interpreting and whether the rule of law ideal differs from rule by judges. The last part of the book focuses explicitly on bills of rights. Building on the earlier parts, the author uses his device of shifting vantages to provide insights into how these instruments affect democratic decision-making and from which perspectives they will look attractive and unattractive. Written in a clear, accessible and engaging style, the book demonstrates that vantage point is a key criterion affecting how one understands and evaluates, firstly, some of the theoretical debates in jurisprudence and then, secondly, what judges are doing and whether a bill of rights is desirable or not.
Table of Contents
Contents: Preface; Introduction; Separating law and morality - I; Separating law and morality - II; Judges and judging - I; Judges and judging - II; Bills of Rights - I; Bills of Rights - II; Concluding remarks and dialogue; Selected bibliography; Index.
James Allan is a native born Canadian who has practised law at a large firm in Toronto and at the bar in London. He has taught in Hong Kong, Sydney and New Zealand. His primary areas of research interest are legal philosophy, constitutional law and bills of rights scepticism. He has also written Sympathy and Antipathy: Essays Legal and Philosophical (Ashgate, 2002) and A Sceptical Theory of Morality and Law (Peter Lang, 1998). He has also had published many articles and book chapters.
’...Allan’s style of writing, which is avuncular, relatively informal, and undeniably pleasurable to read. The book feels like a conversation, not a lecture, and that is no small achievement for a monograph in legal theory.’ Law and Philosophy 'Jim Allan's new book situates his opposition to judicial activism and constitutionally entrenched rights in a broader theoretical context emphasizing the importance of one's perspective towards the law. He is a bold, vigorous, original and colourful writer, and readers will be entertained as well as informed.' Jeff Goldsworthy, Monash University, Australia 'This excellent book addresses a very marked lacuna in the current legal literature by making the fundamental philosophical questions of the proper uses of law accessible to all who are prepared to rationally evaluate the basis of their view of human rights. It is a very well argued statement of refined legal positivism which, worryingly, now usually features only as a straw man in legal teaching, scholarship and practice.' David Campbell, Durham University, UK 'This original and imaginatively well-written book addresses three interrelated topics. These are: the separation of law and morality; judges and judging; and bills of rights. These topics are viewed through the prism of jurisprudence and legal philosophy, with particular emphasis on how a shift of vantage can influence one’s views on all three issues. Approaching these jurisprudential and constitutional polemics in this nuanced way, the book will be an invaluable contribution and will add to the nascent literature on legal philosophy and constitutional law.' Northern Ireland Legal Quarterly