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GAZETTE
APRIL 1982
Fiat Justitia
by T. D. McLoughlin, Solicitor
When Chief Justice Burger of the United States
Supreme Court made a simple admission recently, as
follows:
"My criticism of Legal Education beginning when
I tried to teach law long, long ago, was that it was
good on principles and not good about people.
The law in its broadest sense is not an end in itself
- it is a tool - a means to an end. And that end is
justice as nearly as fallible humans can achieve it
- for people and their problems." (q.v. Law
Society Gazette, March 1978) -
it is more than probable that followers of the doyen of
American Supreme Court judges, Chief Justice Oliver
Wendell Holmes, raised a dubious eyebrow. The judge,
who only retired on reaching his ninetieth year,
established a reputation for by-passing the concept of
natural law, in its legal sense, rather than for observing
it. From a series of biographical articles that were
published after his death in 1935, the following is rele-
vant
"Two things about Justice Oliver Wendell Holmes
need reconciliation. He had a very bad philosophy
yet he ranks among the greatest men of his time.
His philosophy was agnostic, materialistic,
hopeless of the attainment of any ultimate truth,
meaning or standard of value. As a result, it is
fundamentally indistinguishable from the amoral
realism of these regimes of force and power that
are the scandal of the century . . .
This relation of Holmes to his age is well summarised
by Max Lerner who says. "The fact is that Holmes's
'bad man' standard,
his rejection of natural law, and his
definition of law as what the courts will in fact do
were
all congenial to the mood and quality of a pragmatic
American in whose practical business life the realm of
fact had elbowed out the norms of reality." (Harold R.
McKinnon in 36 American Bar Association's Journal,
April 1950). Looking across from west to east one can-
not help noting that in the late twenties members of the
Aquinas Society heard an address in The Middle Tem-
ple, London, given by a Dominican friar (published at
Blackfriars, Oxford, May 1929). It contained a pro-
found definition of natural law ascribed to St. Thomas
Aquinas and reads as follows:
"Law, being a rule and measure, can be in a per-
son in two ways; in one way as in him that rules
and measures; in another way as in that which is
ruled and measured . . . Wherefore since all things
subject to divine providence are ruled and
measured by the Eternal Law, it is evident that all
things partake somewhat of the Eternal Law in so
far as, namely, from its being imprinted on them
they derive their respective inclinations to their
acts and ends. Now among all others the rational
creature is subject to divine providence in the most
excellent way, insofar as it partakes of a share of
providence by being provident both for itself and
for others. Wherefore it has a share of the Eternal
Reason, whereby it has a natural inclination to its
proper act and end; and this participation of the
Eternal Law in the rational creature is called The
Natural Law."
(Summa Theologica. 1 a, II ac. Qu. 91 Art. 2)
A few years after this address was delivered, an
appeal from a refusal of a High Court Judge in London
to grant an application of
habeas corpus
came before
three judges.
The leading counsel in the matter was A.M. Sullivan,
K.C., who had been at one time a member of the Irish
Bar and had transferred to London to practise his voca-
tion there. From the report of the case, it can safely be
assumed that his submissions on behalf of the applicant
were inspired by the Middle Temple address in which
the definition of the Natural Law had been quoted. Mr.
Justice Scrutton and Mr. Justice Slasser granted the
appeal. Mr. Justice Green dissented.
(In re Carroll
[1931] 1 KB p, 317)!).
Returning to the American scene, an interesting
development took place about 1946 when, in the Law
School of Notre Dame University, Indiana, a Natural
Law Institute was established. In 1949 an address was
delivered to that Institute by Richard O'Sullivan K.C.,
Recorder of Derby, on The Natural Law and Common
Law. It is a model of juridical erudition. (Published in
The Law Review, University of Pitsburg, Summer
1950).
The late Mr. Justice George Gavan Duffy was one of
the first to apply natural law concepts, when he con-
tended that Irish citizens should be free to adopt laws
that were compatible with the notion of national
sovereignty and to reject those that did not.
"If, before the Treaty, a particular law was ad-
ministered in a way so repugnant to the common
sense of our citizens as to make the law look
ridiculous, it is not in the public interest that we
should repeat this mistake. Our new High Court
must mould its own
cursus curiae;
in so doing, I
hold that it is free, indeed bound, to decline to
treat any such absurdity in the machinery of ad-
ministration as having been imposed on it as part
of the law of the land; nothing is law here which is
inconsistent with derivation from the People."
(Exham
v.
Beamish
[1939]I.R. p.348)
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