The Vantage of Law: Its Role in Thinking About Law, Judging and Bills of Rights.

• Author: Webber, Gregoire C.N.
• Position: Book review

THE VANTAGE OF LAW: ITS ROLE IN THINKING ABOUT LAW, JUDGING AND BILLS OF RIGHTS. By James Allan. (1) Farnham (Surrey), Ashgate. 2011. Pp. vii + 202. $124.95.

INTRODUCTION

Law establishes reasons for action. Even when the lawmaker does not reproduce moral rules in legal form but instead creates new, truly positive laws, legal rules establish reasons for action, reasons which ground duties to legislate responsibly and to acknowledge and maintain, comply with, and apply positive law. These questions and their investigation have long been examined by classical natural law theorists, but it is to H.L.A. Hart that is owed the reception of law's relationship to reasons into contemporary jurisprudence. Situating reasons for action at the heart of jurisprudential inquiry is one of the many permanent acquisitions of legal philosophy articulated in The Concept of Law. (3)

True to his insistence on a non-evaluative methodology for the study of law, Hart's exploration of the relationship of law to reasons for action stands at some distance to those reasons. For the most part, The Concept of Law reports how persons and officials act if they take law as establishing reasons for action, but does not press why persons would do so or what those reasons are. We are told that to understand the role and place of legal rules, we must attend to the "internal aspect" of rules, understood from the "internal point of view" of participants within the community of persons whose rules they are. From that viewpoint, a rule serves as a "guide" and as a "reason and justification" for acting in accordance with it (and for frustrating those who do not). (4) Hart says little about those reasons and his sometime insistence that "acceptance" is what arbitrates between the internal and non-internal (external) points of view seems too weak to communicate the reason-giving quality of law. Notwithstanding this, Hart's focus on the relationship between the internal point of view and law's reasons for action charts a path to one's obligation to follow law and to how obligation relates--through reasons for action--to the authority of law. In other words, the reason-giving aspect of law sets jurisprudential investigation on a course from law-makers (who evaluate and act on reasons to create this new law) to law-appliers and law-enforcers (who maintain the law by understanding and acting in accordance with it and the reasons established by it).

Since the publication of The Concept of Law, studies in the philosophy of law have sought better to understand the internal point of view and its significance for our legal understanding. Many questions surfaced following Hart's important account, questions that continue to animate jurisprudential inquiry, including: Does law provide the same reasons for action to officials and subjects? Within the class of officials, do legislator, judge, and police officer all share the same internal point of view? Does a legal rule only provide a reason for action to the subject who agrees with its merits? If there are different internal points of view, is there reason to attend more to one than to another for our understanding of law? (5)

For these reasons and others, James Allah's The Vantage of Law: Its Role in Thinking about Law, Judging and Bills of Rights is an invitation to situate questions about vantage (synonymously: point of law, viewpoint) explicitly at the forefront of debates animating the philosophy of law. Allan examines how, by attending to different points of views we might better understand certain questions respecting the relationship of morality to law, adjudication, and the role and place of bills of rights, suggesting that these debates have a different significance and salience depending on one's vantage point. The book begins with a disclaimer that the author's aim is not "to construct an all-elucidating, philosophically sophisticated theory of law" (p. 1). That is true and, perhaps as a result, the invitation of the book to attend to different viewpoints is underexplored. That said, Allan's study is a welcome invitation to reflect on some of the questions re-introduced to contemporary jurisprudence by Hart in 1961.

1. SOME POINTS OF VIEW

   The title of the book--The Vantage of Law--"intentionally alludes to H.L.A. Hart's The Concept of Law" (p. 1). Allan is taken by how Hart's study of law "shunned adopting the appeal court judge's vantage or perspective--one which is so often the implicit vantage or viewpoint in legal writing today" (p. 2). Instead, we are told that "up to chapter nine of The Concept of Law Hart wrote from the vantage of the outside observer" (p. 2). (6) Like Hart's The Concept of Law, Allan's The Vantage of Law is "concerned with vantages" (p. 3), and Allan adopts different vantages in his journeys into the understanding of law, judging, and bills of rights. His orienting ambition is to examine the relationship between vantage and understanding: "What effect does one's vantage or perspective or standpoint have on how one understands, say, the desirability of a bill of rights or the best way for judges to decide cases or whether law is--and whether it should be--separate from morality?" (p. 4). The question is important and some jurisprudential and much constitutional-theoretical debate has been burdened by insufficient attention to its importance. (7)

   The definite article in the book's title is misleading, for Allan does not seek to identify the vantage of law but rather seeks to examine different vantages for understanding law, none of which he situates as central or focal--as the vantage. Rather, the introductory chapter charts three "primary vantages," two "ancillary vantages," and four "even more peripheral or ancillary vantages" (pp. 5-6). Let us begin, as does Allan, with the category of primary vantages. Here the reader is introduced to the concerned citizen, identified as "the person who has a stake in the legal system in which he or she lives" (p. 5). Unfortunately, "stake" is an ambiguous term and Allan nowhere elaborates on its meaning, leaving this vantage to range, in the mind of the reader, from self-interest to the prospect of something more significant. We are told that the concerned citizen is "the average citizen": "neither morally perfect nor immorally wicked nor even amorally indifferent," of "limited (but by no means insignificant) altruism and sympathy," and someone "who in the vast preponderance of circumstances is law abiding" (p. 5).

   Without further accounting for this first viewpoint, Allan introduces his reader to the second primary vantage: the judge, who "normally" can be taken to be on "an appeal court, if not on the highest court of the jurisdiction" (p. 5). Significantly for Allan, "the judge's opinion on what should be the case can become what is the case" and this is in "marked contrast to the concerned citizen" (p. 5, emphasis added). Finally, the Holmesian Bad Man rounds off the list of "primary vantages." (8) He is "the amoral actor whose decisions, choices and motivations are unaffected by morality" and "indifferent to the claims of morality per se" (p. 5). With some qualification, Allan likens the bad man's vantage to that of "the average client-advising lawyer" (p. 6).

   We are introduced to the category of "ancillary vantages" with the visiting Martian, a somewhat imaginative label for "the descriptive sociologist, the outside observer," being a "non-citizen with no stake in what is being observed and described other than, perhaps, a desire for accuracy and clarity" (p. 6). Now, for reasons we will explore below, one should query whether this vantage should be awarded any pride of place in a book devoted to deepening our understanding of law. Why? Because unless Allan purports to be and to report what it is to be a judge, bad man, and an average citizen, his journey into these vantages will be undertaken from the vantage of a "descriptive sociologist" and "outside observer." This "vantage" is significant only for how it attends to how participants in the legal system relate to law. What is the viewpoint of the descriptive sociologist untethered from the viewpoints of participants? What does it describe or observe if not one or a combination of the participants' viewpoints and interactions? In this light, sitting uneasily alongside the visiting Martian in the category of "ancillary vantages" is one such participant viewpoint: the legislator or law maker, being the "person [who], as part of the group of all other legislators of some assembly, can turn policy options into law" (p. 6). Little more is said to introduce the reader to these two ancillary vantages before turning to the "even more peripheral or ancillary vantages" of the Omniscient Being, the Moral Philosopher, the Sanctimonious Man, and the Law Professor (p. 6).

   Given Allan's want to track Hart's methodology, there are important omissions in his discussion of viewpoints willingly pursued in the shadow of The Concept of Law. Among them: at no point does Allan mention, let alone engage with, the internal and external points of view so central to Hart's jurisprudential explanation of vantage. Indeed, Allan fails to highlight how, even if Hart "wrote from the vantage of the outside observer" (p. 2), it was an outsider's viewpoint insistent on how, to understand law and the normative vocabulary employed by legal participants, one must attend to the internal point of view. The only reference in Allan's study to Hart's internal point of view occurs late into chapter 1 and consists of the following short discussion:

   Recall that he [Hart] tells the reader that people (or rather some people) in a functioning legal system have an internal point of view, a critical reflective attitude, about the law and its rules; they feel obliged to carry out its prescriptions; there is, to put it differently, an internal aspect to legal (and indeed other social) rules that operates in the minds of...