The Gazette 1990

GAZETTE

JULY/AUGUST

1990

BOOK

REVIEWS

T H E I R I SH L EGAL S Y S T EM

[By R. Byrne & J.R McCutcheon.

Bu t t e rwo r th (Ireland) Limited.

374pp + xxxix. Price: IRE25.00]

This is the second edition of this

cases and materials book, which

has already proved its value to Irish

students of commerce and law.

It covers a wider range of topics

than its predecessor.

The first edition concentrated on

an overview of the organisation and

structure of the Irish legal system,

w i t h chap t e rs on precedent,

legislation, and cons t i t u t i onal

judicial review. This edition deals in

a more extensive fashion with the

legal profession, court systems and

procedures, access, remedies,

tribunals and adjudicative bodies,

and the impact of EC and inter-

national law.

This edition also appears to

attempt a greater degree of com-

parison between emerging trends

in Irish law by contrast with de-

velopments in English and, to a

lesser degree, other jurisdictions.

Independent of this project, the

t wo au t ho rs have published

extensively on a variety of topics of

Irish law, and their familiarity with

judicial and legislative develop-

ments, acquired in other scholarly

ven t u r es, con t r i bu t es to the

authority of this book.

The first eleven chapters set the

legal scene by describing the

outline of Irish law. The last three

chapters deal wi th precedent,

interpretation of legislation and the

Constitution and Constitutional

rights. These each comprise (1) a

concenxratedly-written introduction

to the subject, (2) comprehensive

and erudite pointers to further

reading (could these be inserted in

a more systematic way in the third

edition - "further reading" at the

end of each section with a ten or

twenty word synopsis of what the

student should take from the article

in question?) and (3) selected

extracts from what the authors

consider important, up-to-date

cases.

Are the cases selected appropri-

ate and useful? Yes they are. Is the

commentary helpful and accurate?

Again, yes. Do the cases and the

commentary combine together,

enabling the reader to make

informed judgments about the

judicial process? In general, yes, but

I think that in places there are gaps

between the commentary and the

cases, gaps so wide that the reader

is left on his own to work out the

connections between the com-

mentary and the cases.

Consider the t r ea tment of

McGee, Norris

and

Murphy.

Behind

the issues in these cases, the

authors diagnose on p. 27 a

conflict between the utilitarian and

natural law principles in Consti-

t u t i onal i n t e r p r e t a t i on. They

mention this again later, posing a

number of stimulating questions for

the discerning student to ask in

considering the extracts. Case-law

germane to the judicial resolution of

the claims of interventionism and

personal liberty is quoted exten-

sively.

The effect of this spread bet-

ween commentary and case-law is

peculiar. It stresses the short-

comings of the Irish decisions, their

arbitrary and

ad hoc

bases. It does

not demonstrate how each case

achieves a sophisticated judicial

reconciliation of these particular

opposing claims. One wonders

whether all the judges have posed

such intelligent questions to

themselves as the authors of this

textbook recommend to the reader.

Whether more could have been

achieved by re-arranging the

commentary and the judgments, or

by the inclusion of more extensive

comment, or by taking judgments

from other jurisdictions which deal

in a more sophisticated judicial

manner with these problems, or by

a combination of all three is a vexed

question. Suffice to say, the reader

sees shortcomings without being

guided to better solutions. The

comment that " t he Murphy case

illustrated that . . . [the principles

of natural law] . . . may lurk in a

corner wa i t i ng to sp r i ng" is

insufficient elucidation of this

particular aspect of judicial

Constitutional interpretation.

A slightly different example of

the way in which the cases and

commentary do not match is

evident in the discussion of the

contemporary Irish judicial attitude

to the role of equity, noted briefly

on p. 12. It cannot be said that this

authorial perception informs the

selection of cases to be found later

on, yet surely this issue is of

practical importance in the forma-

tion of a view of Irish judicial

method.

Mi sp r i n t s, omi ss i ons

f r om

indices, and other shortcomings in

the physical production of books

are too often facilely ascribed to

hapless writers rather than to those

responsible for the commercial pro-

duction of the fruits of authorship.

In each of these respects, this text

deserved better from its publishers

than it got. The book has more than

its fair share of quite spectacular

(and in one case, obscene)

typographical errors, omissions etc.

This is not an insuperable impedi-

ment to the usefulness of the work.

The work is however the most

up-to-date, useful introduction to

the major features of the Irish legal

system, and no student beginning

law should be without it.

DR. DAV ID T O M K I N

MO D E RN LAW OF P E R S ON AL

PROPER TY IN E N G L A ND

A N D I R E L AND

[By A.P. Bell. Butterworth (Ireland)

Ltd. & Bu t t e r wo r th & Co.

(Publishers) Ltd. ixiv + 546 +

12pp. Price IRE49.50]

This book aims to examine in the

context of English and Irish law

wh a t i n t e r es ts may exist in

personal property.

It is in three parts. The first is

devoted to an analysis of property

and property rights and a definition

of personal property. The second

part deals with interests in personal

property, and is subdivided into an

analysis of possession, legal

ownership, bailment, possessory

security, equitable ownership, non-

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