The Gazette 1980

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GAZETTE JUNE 1980
that is in force (lex lata) and the law which it is desired to
establish (lex ferenda) is not always clearly drawn.
Prof. Schwarzenberger has been criticised for what has
been described as an unduly conservative and restrictive
approach to the development of new rules of international
law. Such criticism is based on a misapprehension. He
and Prof. Brown are not opposed to the emergence of new
rules in any sphere, and discuss the pros and cons of new
developments where appropriate, e.g. the new emerging
law of the sea (Chapter 5) and the de jure and de facto
revision of the Charter of the U.N. (Chapter 10).
Incidentally, as regards the law of the sea and the Rockall
issue, Irish readers will note with interest the "illus-
trative" official U.K. Naval Chart on the Maritime
Frontiers of the U.K. which is reproduced on page 102.
Where the authors differ from others is their repeated
insistence on the necessity for evidence that a new rule
has been established, and their reminders that a clear
distinction exists between the problem of the "the
technical improvement of international law as a legal
system to make it commensurate with the needs of
contemporary world society" and the problem of "an
international order on which international law may safely
rest" (p. 312).
Proposals for sweeping reforms in the international
legal system, however desirable in principle, are likely to
remain Utopian if unrelated to the type of international
order on which they must rest.
Users of this Manual will obtain a general introduction
to the theory of international law, a necessarily brief state-
ment of the established rules, a remarkably wide and
comprehensive reference book for further investiga-
tions into a chosen topic and a thought provoking
discussion of many of the problems of a world dominated
by the Super Powers.
J. F. O'Connor
The Irish Constitution by J. M. Kelly. Jurist Publishing
Co. Ltd., University College Belfield, Dublin 4 1980
xxxii, 605 pp. £22.80 (paperback), £28.30 (hard-
back) including V.A.T. and postage.
If the Irish lawyer has not been overwhelmed by the
quantity of books on Irish law in recent years, he can
have no complaint about the quality. To John Wylie's
classic books on land law we can now add this major
work from John Kelly on the Irish constitution. Professor
Kelly has done for his sibject what Professor Wylie did
for his. He has provided us with a systematic treatment in
Print of the sources of constitutional law in this state and
he has equally for the first time given an exposition of the
vast range of principles and rulings developed in
constitutional litigation and practice over the years.
That it takes 600 pages to achieve this, and the citation
over 500 cases is a measure not only of the author's
achievement but the size of the gap this book now fills. It
,s a serious rebuke to us all as lawyers, whether academic,
or practising, that we have had to wait this long for the
hrst comprehensive commentary on our basic law. Before
this, the constitutional jurisprudence of the state, a
subject that affects all citizens and invades every area of
legal practice, was scattered through the decision of the
courts reported and unreported or available only in the
heads of practitioners. But our low productivity as writers
about law is a theme for another day. With the
appearance of John Kelly's book we can celebrate
another field covered and expect confidently that it will
prove an equal success to the Wylie volumes. It certainly
deserves to do so.
This book takes the form of annotations on each article
of Bunreacht na hEireann and since that document
follows so closely the provisions of the 1922 Constitution
the work embraces all that remains important about that
constitution as well. It is not, no more than Wylie, a book
to be read at one sitting. But for the practitioner it will
prove invaluable as a reference book and because of its
organisation, easy to use as such. For those with time for
curiousity, much will be learned by browsing (for the
author the following: the name of the State is not the
Republic of Ireland, that is its description, the name is Éire,
or in the English language, Ireland, — Art. 4). For the
student the book will be indispensable, and remembering
that the Constitution has a lot to say about the Oireachtas
and its procedures we may yet see Kelly being read into
Hansard as assuredly we will see it cited in the Four
Courts.
Aside from the fact of judicial review of legislation it
has been in the specifications of fundamental rights that
the Irish constitution has differed most from the British
constitutional model, which in other respects it mirrors
quite closely. At least half of this book is given over to the
analysis of the case law on Article 40-44 concerning
fundamental rights more especially since Ryan v. Attorney
General (1965) I.R. The practitioner and the general
public will find in the book, set out in crystal clear style,
the impact of the enormous number of 'state-side'
applications since that decision, cases he may otherwise
only recall as a stream of headlines in the newspapers.
These cases have resulted in some fields in the rewriting of
areas of common law for example criminal procedure,
and Professor Kelly's book is the only place where the
current law is to be found.
With one reservation, the book is easy to read and well
constructed. The text of the constitution is set out article
by article in bold type, each article followed by the detailed
commentary. The commentary is helpfully broken up by
marginal notes that aid the reader to find the exact point
he may be searching for. The reservation concerns the
failure to use quotation marks for the very frequent
citations from decisions. These are set in on the page, so
that they can be distinguished from the author's
commentary, but it is easy to confuse citation and
comment, and quotation marks would have helped. The
organisation of the statute index is crude; U.K. and
Northern Ireland Acts being distinguished by prefixes.
There are conventions established for citations and they
should have been followed.
But these are minor matters. Professor Kelly's
enormous industry and scholarship in preparing this book
deserves our acclaim and buying it is one way of
demonstrating that.
K. Boyle.
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