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GAZETTE
JULY/AUGUS
T 1982
BOOK REVIEW
George Gavan Duffy 1882-1951, A Legal
Biography, by G. M. Golding. Irish Academic
Press, 1982 (xvi, 224p.) £15.00.
To write the life-story of a modern judge is a
daunting task. Because of the nature of his office a
judge is remote from the people and relatively remote
from the legal profession. He must not merely be
independent; he must be seen to be so. And the
manner of his life is such that a biographer is
deprived of those dramatic or eccentric touches
which enliven a story and make it racy of the soil.
Respectability is not a rich subject matter for
biography unless it is accompanied by genius or
sanctity.
Sir Jonah Barrington acquired popularity only after
he had been removed from the 18th century Irish
Bench for financial impropriety and thereby found
the time to write his delightful social memoirs which
won for him posthumous fame and a plaque on his
house in Harcourt Street, Dublin. Likewise Cicero is
more honoured for his philosophical essays than for
his speeches at the Bar or his public activities.
If Plowden, Coke and Davies have acquired a
noteworthy place in legal literature it is largely
because they initiated or developed the important
craft of law reporting at a time when the common law
was taking shape. And it is precisely within the
domain of the law reports that a good and learned
judge finds a permanent place for his legal opinions as
he endlessly pursues the elusive goddess of Justice
down the arches of the years and through the dark
undergrowth of modern commercial and industrial
life. The man himself may be dead and forgotten but
his judgments remain embalmed in their leather and
buckram tombs and consulted by students and
lawyers in their search for judicial precedent and the
application of
stare decisis.
Why then has Mr. Golding disturbed the peace
and rest of an Irish judge by writing his biography?
In the first place he
was
different. A son of Sir
Charles Gavan Duffy, the future judge was born in
Cheshire and educated in Nice and in England. His
defencc of Roger Casement cost him his partnership
in a firm of London solicitors and, after practising for
a brief period under his own name, he moved his
home permanently to Ireland and began to read for
the Bar. He became a member of the team which
negotiated the Anglo-Irish Treaty in 1921 and
became Minister for Foreign Affairs for a period and,
ultimately, President of the High Court.
Mr. Golding outlines the events of the early years
and the period of his parliamentary life up to 1923
with ample notes and references. The chapter with
most general interest for the legal profession,
however, is likely to be that dealing with his years as a
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barrister before he was appointed a judge of the High
Court in 1937. It has been stated by an experienced
colleague that Gavan Duffy's most clearly distinctive
feature as a lawyer was his passionate devotion to the
advancement of human rights and the rights of
private citizens as against the executive authority. A
major essay which he published on the need for law
reform confirms this statement and distinguishes
him as a liberal and far-seeing judge.
In the essay he advocated the abolition of
primogeniture and the Royal prerogative. He called
for a reform of the law relating to charities and
adoption and the modernisation of company law and
arbitration. With keen foresight he also advocated
generally the legal-right principle in favour of a
testator's surviving spouse and, in the law of tort, he
sought the abolition of the action for seduction and
the clarification of the concept of concurrent
wrongdoers. Most important of all he would abolish
the 'last opportunity' rule, apply the rules of
contributory negligence and legislate for the survival
of certain causes of action on the death of a claimant.
Years later when most of these reforms have been
implemented one realises how profound was his
appreciation of the need for reform.
Mr. Golding humbly asserts that his book is
merely a modest judicial biography and that many
helpful guidelines were taken from earlier
biographical studies of judges. In particular he
acknowledges his debt to Mr. Vincent Delany who
had summarised the legacy of Chief Baron Palles in
relation to his contribution to the law. With the mass
of material available in the form of his judgments the
author considers that it would be presumptuous to
have even attempted to utilise them all in
endeavouring to analyse Mr. Justice Gavan Duffy's
legal method, philosophy or style. However these
judgments are considered at length in relation to the
common law of Ireland, emergency legislation,
judicial review and the Constitution and, finally, his
work as a Chancery Judge. All the celebrated cases
are discussed at length and several critical and even
controversial views are expressed. The author
considers that
Cook
-v-
Carroll
and
Schlegel
-v-
Corcoran and Gross
were regrettable judgments but
he is generous in his comment in relation to the latter
case. In the final analysis he considers that the judge
should be remembered as a Catholic gentleman in the
liberal continental tradition and for his great
contribution to the development of the Constitution.
Mr. Golding is a solicitor and is a lecturer in
Business law at University College, Dublin. One is
filled with admiration for the pains which he
obviously took during the period of research and for
the ability which he has shown in writing this book.
He had many interviews with judges and lawyers
during the course of his task and several of his
statements are the result of personal communication
with them. With thirty three pages of notes,
supported by the relevant authorities, and six pages