Judges and the political organs of State (original) (raw)
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Irish constitutional law and discourse has tended to suggest an underlying tension between freedom and democracy. Freedom is understood as a pre-political ideal, represented by the image of human beings in the state of nature. There they are unencumbered by interferences with their natural rights. Democracy is understood in majoritarian terms, often thought of as ideally realised through majoritarian decision-making by popular referendum. In this chapter, we argue that this framework is theoretically misconceived and that it has had problematic consequences in practical terms. It translates into a quasi-absolute conception of rights and thus fails to adequately account for the fact that rights come into conflict with one another and with legitimate public goals. It has facilitated a constitutional culture in which rights are seen as distinctively legal and thus as the domain of judges rather than of legislators (or of judges and legislators). We suggest the possibility of an alternative theoretical framework: a republican framework that understands freedom and democracy as interdependent, rather than contradictory, ideals. We make no strong claim that the Irish Constitution is an essentially “republican” one. Rather, we argue that existing themes and provisions can be read in light of republican ideas and that such readings can help address practical shortcomings in the broader (existing) constitutional framework. The chapter is in two parts. Part I elaborates and critiques the accounts of rights, freedom and popular sovereignty that are identifiable in the jurisprudence. Part II introduces the republican approach, elaborating its very different (and more plausible, more coherent) understandings of rights, freedom and popular sovereignty. It draws some conclusions – mainly practical in nature – for Irish constitutional law and practice.
Introduction to Judges, politics and the Irish Constitution
Based on a republican theory of democracy as equally shared popular control drawn from Philip Pettit’s recent work, this article argues in favour of the ‘new commonwealth model of constitutionalism’ practiced in Canada, the UK and elsewhere. It claims that the emphasis that the new commonwealth model places on political agents in the rights-related dimensions of the legislative process corresponds with the republican account of rights as political claims but also that the constricted role played by judges under the model answers to a number of important republican concerns around contestation and the dispersal of power. In particular the article argues that the role of judges under the model can be understood as contributing to the gradual emergence of norms that are ‘commonly avowable’ or shareable, and to the refining of those norms over time, such that it enhances the control exercised by citizens over government. In this way the role of judges under the model – in contrast to that under outright legal constitutionalism – can be understood as enhancing democracy, where democracy is understood in this republican way. Dr Tom Hickey, School of Law and Government, Dublin City University, Glasnevin, Dublin 9, Ireland. Email: tom.hickey@dcu.ie
Reappraising judicial supremacy in the Irish constitutional tradition
Working paper
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.
Judicial review under the Irish Constitution: More American than Commonwealth
The Irish legal system emerged from the British system. Yet the Irish constitution diverges from the Commonwealth model and more closely resembles the American constitution in both substance and application. This means that while the Irish parliamentary system is very much based on the Westminster model, the legal system, while remaining within the Common Law family, has important distinctions. One of the key areas of divergence from the Commonwealth model is in judicial review. This has important ramifications for the recognition and elaboration of human rights under the constitution. This article explores some of the historical reasons for the shift from the Commonwealth model and the nature and consequence of some of those differences. It also contrasts certain aspects of the Irish judicial review process with those pertaining in the United States; in particular it highlights some anti-democratic tendencies in the Irish system. Published Version Peer reviewed
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.
The use of foreign law in Irish constitutional adjudication
Giuseppe Ferrari ed., Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional Systems (Brill, 2019), 2019
forthcoming in Giuseppe Ferrari (ed), The Use of Foreign Law by Constitutional Courts (Brill Publishers, 2019) Irish Supreme Court – the exclusionary rule – Justices Brian Walsh and William Brennan – Quinn’s Supermarkets – retrospective application of declarations of unconstitutionality – Defrenne v. Sabena – A v. Governor of Arbour Hill – Justice Gerard Hogan – suspended declarations of invalidity – proportionality and the application of R v. Oakes – the ‘right to die’ in Ireland and Canada – ‘comparative localist’ analysis in constitutional adjudication – foreign law and ‘theoretical authority’