The Gazette 1990

GAZETTE

nua

february

1990

It is not easy to reconcile judicial

review with democracy. If the

legislature has voted for a par-

ticular tax, for example, can it be

right for judges who are not elected

or directly accountable to the peo-

ple to invalidate these decisions?

Mr. Justice Walsh responded to

that criticism:

"We said that judicial power is

a co-ordinate of government;

therefore it has its own function

in the government of the State.

The Constitution sets out that

the organs of government are

the judiciary, the executive and

the legislature. We are not sub-

ordinates of any other depart-

ment of State. Therefore the

fact that our decisions may ap-

pear to affect the government of

the country is to be expected,

because we are part of the

government of the country".

Literary Legacy

Few judges leave a literary legacy

to posterity apart from their

judgments. Mr. Justice Walsh is

one of those judges whose extra-

judicial writings will survive. The

Forewords which he has written to

many leading Irish textbooks con-

tain prominent insights into the

juristic process. It is appropriate to

quote the following extract from

Mr. Justice Walsh's Foreword to

O'Reilly and Redmond's

Cases and

Materials on the Irish Constitution:

"There may yet be a field for

a fascinating study of how

judges choose among the possi-

ble solutions to any matter

which comes before them in the

field of constitutional law. Are

their choices influenced by per-

sonal values and experiences ac-

quired either before or after

coming to the Bench and by

their relationships with judicial

colleagues or other public of-

ficials? It may well be that

judicial decisions are to some ex-

tent affected by the socio-

economic background of the

judge himself and by the en-

vironment in which he lives. It

would be unreal to believe that

a judge can be kept in a vacuum,

isolated from all the current of

public opinion and the cultural

and moral values of the people

among whom he resides every

day. It is well to recall the views

of Mr. Justice Oliver Wendell

Holmes who said: 'The life of

the law has not been logic; it has

been experience. The felt

necessities of the time, the pre-

valent and political theories, in-

tuitions of public policy, avow-

ed or unconscious, even the pre-

judices which judges share with

their fellowmen, have had a

good deal more to do than

syllogism in determining the rule

by which men shall be

governed".

The extra-judicial writings of

Brian Walsh could usefully be col-

lected together and published

under the title -

The Evolving

Constitution.

Profound Influence on Irish Life

It would be false of the writer to

pretend that he agreed with the

law expounded by Mr. Justice

Walsh in all his judgments.

However, the judge must decide a

case in accordance with the

declaration which he made upon

appointment. The judge promises

and declares that he will to the best

of his knowledge and power exer-

cise the office of judge without fear

or favour, affection or ill-will

towards any man and that he will

uphold the Constitution and the

laws.

The words of Horace are

appropriate here:

"A good and faithful judge

prefers what is right to what is

expedient".

Mr. Justice Walsh has exercised

a profound influence on Irish life. It

is too early to say who the twenti-

eth century "Michaelangelo" of

Irish law will be - but Brian Walsh

must be among one of the

contenders.

NOTES

1. Louis Jaffe,

English and American

Judges

as Lawmakers,

Clarendon,

Oxford, 1969.

2. B. Walsh, "The Constitution and

Constitutional Rights" in F. Litton (ed)

The Constitution of Ireland 1937-1987,

I PA, 1988, p 86.

3. B. Cardozo,

The Growth of the Law

(1924) p. 144.

4. [1972] IR 241.

5. [19741 IR 284.

6. G. Sturgess and Philip Clubb,

Judging

the World,

Butterworths, 1988, p. 420.

7. Ibid., p. 423.

8. Incorporated Law Society of Ireland,

1980, p. xii. See also,

inter alia,

the

Forewords written by Mr. Justice Brian

Walsh to Bryan McMahon and William

Binchy's

Irish Law of Torts,

Professional

Books, 1981, Bryan McMahon and

Willian Binchy's

A Casebook on the

Irish Law of Torts,

Professional Books,

1983, William Binchy's

A Casebook on

Irish Family Law,

Professional Books,

1984, Peter Charleton's

Controlled

Drugs and the Criminal Law,

An Clo

Liuir, 1986, William Binchy's

Irish

Conflicts of Law,

Butterworth (Ireland)

Ltd, 1988, and J ames

C a s e y 's

Constitutional

Law in Ireland,

London,

Sweet & Maxwell, 1987.

9. Article 34.5.

10. Horace,

Carmina,

c. 13 B.C.

INTERNATIONAL LAW

ASSOCIATION

( I R I SH BRANCH)

A G M

21 April, 1990

Venue to be announced

Speaker:

Sir Gordon Slynn,

Judge of the European

Court of Justice, and

Chairman of the

International

Law Association

Topic:

Advocacy before the

Court of Jus t i ce

Further details from Denis

Driscoll, Law Faculty, UCG.

Tel.: (091) 24411.

Irish Stenographers

Limited

(Director:

Sheila Kavanagh)

Qualified Experienced Stenographers.

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