The Constitution and judicial power: theoretical perspectives , in Eoin Carolan ed, Judicial power in Ireland (Institute of Public Administration, 2018) (original) (raw)
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Reappraising judicial supremacy in the Irish constitutional tradition
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Perhaps the most distinctive feature of Irish constitutional culture is the strength of elite consensus that exists concerning the legitimacy and the merits of strong-form judicial review (i.e. judicial review of legislation on constitutional grounds). In this light, this chapter will consider whether or not, and how some of the well-known theoretical arguments against strong-form judicial review are borne out in certain aspects of the Irish experience. It argues that while there is a comparatively strong consensus in Ireland as to the benefits of strong-form judicial review in rights terms, these benefits have been broadly overstated and its political costs generally ignored. In particular, it will argue that the main effect of strong-form judicial review under the 1937 Constitution has been to stultify political discourse about rights during the legislative process.
The political system is one known for its rigidity, its local bosses, its stern discipline, and its use of the spoils system of rewards for services rendered. It rejects individuals of high integrity and ability in favour of pliant henchmen. A charge could be laid that party has replaced Parliament as the central institution in the political life of the country, and that the Prime Minister and Cabinet, combining the dual roles of leaders of the majority party and government ministers, have come to control the State.
Popular sovereignty in Irish constitutional law
Dublin University Law Journal, 2018
Referendums – the Oireachtas – Crotty v An Taoiseach – Pringle v Government of Ireland – Lisbon Treaty Decision – Justice Donal O’Donnell – Justice Adrian Hardiman – Carl Schmitt – Eoin Daly – republican theory This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a " people " sharing a thick, value-laden identity that renders that " people " antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty.
This short chapter will discuss in some detail the conceptions of sovereignty that have been articulated in the Irish courts in the key decisions that have shaped our understanding of sovereignty over the seventy-five year history of the Irish Constitution. It turns out to be a fascinating area of study, since it becomes clear very quickly that, just as there are evolutions in the definitions of sovereignty that have been advanced in theory – the normative conception of sovereignty, the abstract conception of sovereignty and the speech act conception of sovereignty – so too the definitions of sovereignty that have been espoused in the Irish courts during this period have not always been entirely overlapping, and in their differences and tensions they reveal something of the richness, but also the complexity, of the subject. My purpose is to try to harvest, through this examination, the answers provided by the courts to the questions of (1) whether or not sovereignty contains essential ingredients such that the absence of those ingredients would be contra-indicators for sovereignty and (2) if there are – and if so what are – the tolerable limitations on sovereignty. This chapter focuses particularly on the Supreme Court judgments in the cases of Byrne v. Ireland, Webb v. Ireland and Crotty v. Ireland.
L Cahillane, J Gallen, T Hickey (eds), Judges, Politics and the Irish Constitution (Manchester University Press, forthcoming 2016), 2016
This chapter identifies and critiques two strands of 'legal constitutionalism' in the Irish constitutional tradition: a classical 'minimal state' strand and a contemporary Rawlsian/Dworkinian strand. It argues against both on the basis that, in different ways, they fail to account for the political and contestable nature of rights. The chapter argues for a model of constitutionalism that accounts for the principled contribution that judicial review can make to public deliberation and outcomes, but that similarly accounts for its potential weaknesses.
Judicial Review in Ireland and the Relationship between the Irish Constitution and Natural Law
Nottingham Law Journal, 2006
This paper focuses on the various references to natural law within the Irish Constitution and the use of natural law theory as an interpretative tool within Irish constitutional jurisprudence. In Part I, the background to the drafting of the Irish Constitution will be discussed, followed by an account of the various canons of constitutional review and modes of constitutional interpretation. In Part II, the conflicting constitutional jurisprudence on the relationship between the Constitution and natural law will be dissected.
Natural Law and Popular Sovereignty: The Irish Legal Order
The Irish legal order gets its legitimacy from a combination of the constitutional doctrines of popular sovereignty and natural law. The point of this paper is to present the Irish constitutional perspective on Irish constitutional natural law and Irish constitutional popular sovereignty.
Constitutional challenges have to be grounded in reality, focusing on actual or apprehended application of laws rather than words alone. This is achieved by two sets of procedural rules in constitutional law: standing rules, deciding who can take constitutional challenges to laws and what arguments they can make; and remedial rules, deciding what the consequence of a finding of unconstitutionality will be. This article argues that though Irish courts have successfully focused constitutional challenges on the application of law with standing rules, they have not done so in respect of remedies, which are far too sweeping, and stretch far beyond the particular unconstitutional applications that create constitutional problems. It suggests that constitutional challenges in Ireland should be radically overhauled, replacing the primary constitutional remedy of outright invalidity of laws with the invalidity of applicationsas-applied constitutional challenges. These challenges, which are the core remedial tool of US constitutional law, are totally unknown to Irish law. The article suggests, however, that they are fully compatible with the text and structure of the Irish Constitution, and would bring about several positive changes in Irish constitutional law.