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GAZETTE
MARCH 1983
These differences in methods of legal education . . .
produce, or contribute to, the instinctive inclination
of lawyers to argue "from principle" or "from
precedent.. ."The need for lawyers in . . .(Ireland)
to adjust to the style of continental legislative texts
and — even more difficult — judgments, is very
great."
He also wrote:
"The reason why I consider the legislative style to be
a more formidable obstacle than the judicial style is
that this difference in styles reflects differences in
interpretation, and the differences in interpretation
reflect differences in judicial attitudes towards the
purposes and functions of legislation . . . "
He went on later:
"The doctrinal distinction between "public" and
"private" law . . . is . . . apt to create a real obstacle
(because) it reflects a difference in the role of the
courts . . . the use of private law concepts for the
analysis of public law relationships... has until
very recently been a characteristic of English
law . . . This is by far the most important contrast
between the "common law" and the "civil law".
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The Community lawyer needs a knowledge of civil law,
of administrative law and of private international law as
well as Community law. If he has not got this knowledge,
he is at a disadvantage in comparison with lawyers who
have.
This is not as bad as it may seem. "Bíonn gach tosnú lag" —
The principles of economics are similar in all countries:
the underlying principles of economic law are surprisingly
similar. Because so much of the pleading before the Court
is in writing, the lawyer has time to look up points raised by
the other parties. There is a convention (not always
observed) that cases from other jurisdictions are not cited
without warning to one's adversary.
An increasing number of rules of Irish law are already
derived from Community law. This proportion is
increasing, and will continue to increase.
An increasing proportion of Irish lawyers have studied
civil law, private international law, administrative law
and, of course, Community law.
Irish judges, when the occasion arose, have dealt with
questions of Community law very readily and incisively.
Just as there is no Community Bar, there are no
"European" law schools in the way that there are
"national" law schools in the United States. Community
law is, and can be, studied in ordinary universities.
But it demands a greater effort than it has received so far
here. It demands the kind of imagination and breadth of
vision which the new Constitution demanded in 1937 —
and received only later. But, with Community law, Irish
lawyers cannot afford to wait. A conservative approach to
the Irish Constitution could not cause Irish lawyers to lose
business to foreign lawyers. A conservative approach by
Irish lawyers to Community law will certainly do so. Irish
lawyers were able largely to avoid questions of private
international law for many years: they are not in a position
to avoid questions of Community law now.
For example, as a result of the Convention on
Jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters, new rules will be introduced giving
courts of other Member States jurisdiction over Irish
companies, and judgments against' Irish companies
obtained anywhere in the Community will be immediately
and automatically enforceable in Ireland. This is probably
the most important single legal change, from a practical
standpoint, resulting from the Community. Indeed, it is so
important that I seriously considered devoting the whole
of this lecture to it. •
Footnotes
1. Chubb, The Constitution and Constitutional Change in Ireland
(1978) 80 says the reception of Community law into Irish law has
been "dragged out" by transitional arrangements, derogations and
"simple inertia" and on p. 85 he says "the impact of Community law
upon Irish law and the actions of the Irish government is considerable
though, as yet, largely unrecognised". He quotes the 55th Report of
the Joint Committee on the Secondary Legislation of the European
Communities, p. 9. At p. 88 Chubb says "most Irish lawyers are still
in the process of becoming familiar with a large body of new law. So
far, most are not accustomed to look at it or invoke it: it is only a
matter of time before they do." See also Senator Robinson, How
EEC Law affects you, Society of Young Solicitors, 1982.
2. Irish patent agents, who find themselves in an analogous situation as a
result of the European Patent Convention, were quick to see the
possible undesirable consequences for themselves.
3. Kahn-Freund, Common Law and Civil Law Imaginary and Real
Obstacles to Assimilation, in Capeletti (ed.) New Perspectives for a
Common Law of Europe (1978) 137 at p. 138,149,150,151,152,
153-154, 156, 158, 160. Tunc, a French Lawyer looks at British
pany Law, 45 Modem Law Rev. (1982) 1, at pp. 7-8: Scarman,
English Law — The New Dimension (1974) pp. 25-26.
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