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GAZETTE
DECEMBER 1991
Administrative Law in
Ireland
Second Edition. By Gerard Hogan
and David Morgan. [London, Sweet
& Maxwell, .1991,
£39 . 20
paperback]
What is Administrative law?
Professor S.A. de Smith wrote in
1968 in relation to the term
"adminstrative law" that in place
of integrated coherence, our
nearest neighbours had " an
asymmetrical hotchpotch, de-
veloped pragmatically by legislation
and judicial decisions in particular
contexts, blending fitfully with
private law and magisterial law,
alternatively blurred and jagged in
its outlines, still partly secreted in
the interstices of medieval form of
action."
The authors refer to the con-
ventional definition of adminis-
trative law as the law regulating the
organisation, composition, function
and procedures
of
public
authorities (in the wider sense);
their impact on the citizen; and the
restraints to wh i ch they are
subject. However, there is still the
element of ho t chpo t ch
in
administrative law; the outlines of
the subject may be partly blurred
and jagged, but adminstrative law
has assumed an important role in
legal affairs in Ireland.
Justice Robert Jackson once
observed of the US Supreme Court,
"We are not final because we are
infallible, but we are infallible only
because we are final." Gerard
Hogan and David Morgan consider
over 200 Irish cases decided since
their first edition in 1986. But the
authors do not accept automati-
cally either the finality or the
infallibility of these or earlier
decisions. In their examination of
relevant cases, the authors express
concern for the general lack of
respect for precedent. They note
that the respect for precedent is
the vital vehicle to ensure certainty
and consistency and lack of judicial
subjectivity which are the essential
features of any legal system. The
authors go so far as to speak of a
breakdown in the system of
precedent.
In the context of any breakdown in
respect for precedent, your
reviewer in conscious of the words
of Cardozo, one of the great
American legal philosophers and
judges. He wrote in 1924 in
The
Growth of the Law
of the fecundity
of case law. He continued: "The
output of a multitude of minds
must be expected to contain its
proportion of vagaries... An
avalanche of decisions by tribunals
great and small is producing a
situation where a citation of
precedent is tending to count for
less, and appeal to an informing
principle is tending to count for
more. Crowded dockets make it
impossible for judges, however
able, to probe every case to its
foundation." Your reviewer agrees
with Cardozo that certainty can be
bought at too high a price, "that
there is danger in perpetual
quiescence as well as perpetual
motion, and that a compromise
must be found in a principle of
growth." One is reminded of the
words expressed in
Glanzer -v-
Shepard
233 N.Y. 236, 241; "Life
(a legal case) has relations not
capable of divisions into inflexible
compartments. The moulds expand
and shrink."
The law relating to instruments
of government, such as ministers,
departments and the civil service,
state-sponsored bodies and
local government, is set out in
Administrative Law in Ireland.
The
instruments of control, namely
tribunals and inquiries, the
Ombudsman (Chapters 6 and 7),
judicial review (in Chapters 8 to 11)
and the modification in ordinary
litigation where public authorities
are involved (in Chapters 12 - 14)
are described in some detail.
Gerard Hogan and David Morgan
have produced a treasury of
learning. In so far as is possible, the
authors have endeavoured to bring
certainty and order out of the
frequent wilderness of precedent.
"He who has not a copy of Azo's
books," stated the proverb of the
Middle Ages, "need not go to the
Courts of Justice." (Vinogradoff,
Common Sense in Law
p.202). The
authors have provided
an
inestimably important service for
judges, practitioners, public
servants, and students. He or she
who has not consulted Hogan and
Morgan's
Administrative Law in
Ireland
should be wary of going to
court on any issue touching upon
administrative law.
Eamonn G. Hall
Daniel O'Connell;
Political Pioneer,
Edited by Maurice R. O'Connell,
Institute of Public Administration
on behalf of DOCAL - Daniel
O'Connell Association Limited, vii
+ 147pp, paperback, IR£9.95.
As a barrister, Daniel O'Connell
was described by a contemporary,
Charles Phillips, a Commissioner of
the Court for the Relief of Insolvent
Debtors, as an admirable Nisi Prius
advocate, a shrewd, subtle,
successful cross-examiner, an
excellent detailer of facts, a skillful
dissector of evidence. His speech in
the case of
The King -v- Magee
is
a noble specimen of his talents and
intrepidity. This he published
afterwards as a pamphlet. Charles
Phillips often acted as Daniel
O'Connell's junior and stated that
in the management of a case,
Daniel O'Connell was both discreet
and dexterous. Toward the bench
415
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