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GAZETTE
DECEMBER 1988
Book Review
ANNUAL REVIEW OF IRISH
LAW 1987. By Raymond Byrne
and William Binchy, (Dublin:
The Round Hall Press, 1988,
xliv and 365 pp, £55).
A remarkable development over
the last decade has been the fruit-
fulness of our legal writers: tex-
tbooks on various branches of our
law are enlightening and indeed
enlivening subjects hitherto the
preserve of foreign academics.
That great judicial pa t h f i nde r,
Judge Cardozo, remarked in
The
Growth of the Law
(1924) that
" mo r e and more so, we are look-
ing to the scholar in his study, to
the jurist rather than to the judge
or l awye r, for inspiration and
g u i d a n c e ". Those s e n t i me n ts
could not have been applied to this
jurisdiction until the last 10 years.
Legal wr i t i ng may well often be
confined to the scholar in his study,
but the Irish legal scholar of today
may well be an academic, a jurist,
a judge, a practising lawyer or com-
bine many of these roles in the one
person. Writers need publishers;
the Round Hall Press, Bu t t e rwo r th
(Ireland) Ltd., Sweet and Maxwell,
the Jurist Publishing Company,
Mercier Press, Gill and Macmillan,
the Law Reporting Council and the
Law Society all deserve praise for
encouraging Irish legal writers and
finding niches in the Irish and inter-
national legal marketplaces.
The literary and legal fashion of
our times is the cumulative supple-
men t. Lawyers need to k now the
latest outputs from the springs of
the legal process — the legislative
and judicial organs of government.
Raymond Byrne, a barrister and
lecturer in the Dublin Business
School at the National Institute for
Higher Education and William Bin-
chy, a Research Counsellor w i th
the Law Reform Commission, w i th
remarkable industry and style have
produced a comprehensive review
and analysis of decisions of the
courts, legislative developments,
and the legal literature including
proposals for reform f r om the Law
Reform Commission during 1987.
The areas under review have been
divided into 26 chapters. Amo ng
the topics considered in the Review
are Administrative Law w i th a
g e n e r o us s e c t i on on J ud i c i al
Review; Commercial Law, includ-
ing consideration of the
Restrictive
Practices (Amendment)
Act 1987
which represents a major change in
domestic competition and fair trade
law; Company Law; and Conflicts
of Law including consideration of
marriage-related issues. The major
topics in our fast developing cons-
titutional jurisprudence in 1987 in-
cluding the issuing of District Court
summonses, liberty of expression,
international relations, privacy and
property rights are all covered
under the heading of Constitutional
law. Criminal law receives exten-
s i ve c o n s i d e r a t i o n; Equ i t ab le
Remedies, European Communities,
Family law, Labour law, Land law,
Telecommunications and Torts are
also considered in some detail. The
readers are helpfully referred to the
various t e x t b o o ks and to the
periodical legal literature for further
reference.
Reading the 1987 Review, your
reviewer became increasingly con-
scious of how prolific Irish case law
is. Mr. Justice Brian Walsh in his
f o r ewo rd notes that about three
hundred judgments of the Supreme
Court and High Court are now
reserved each year and appear in
wr i t t en f o rm. The authors of this
Review classify the volume of
judicial decisions and legislation as
" a f l o o d ". The authors modestly
remark in their preface that it has
become very difficult for legal prac-
titioners and students to keep up
w i t h every legal development. We
are in a state of perpetual flux.
Some lawyers may feel tempted to
echo the wo r ds of one legal com-
men t a t o r: " N o t h i ng is stable.
Nothing absolute. All is fluid and
changeab l e ". Let us never forget
c ommon sense. Rhadamanthus in
his character sketches of Irish
judges in
Our Judges
(1890) paints
a delightful picture of the Right
Hon. Michael Baron Morris, Lord
Chief Justice of Ireland, whose
judgments may have lacked legal
content but abounded in c ommon
sense. Rhadamanthus tells us that
Lord Chief Justice Morris ignored
law reports when he could, yield-
ed to t hem only when he was forc-
ed to do so and t hen " w i t h a
manifest scorn for the judges
whose judgments are recorded, for
the reporters who perpetuated
t hem, and for the industrious ad-
vocate who unearthed t hem and
quoted t hem to the p o i n t ". The
v i ews of Lord Chief Justice Morris
are not being extolled by your
reviewer but w i th the proliferation
of decisions from our courts of
record, many of t hem unreported,
the respect for precedent may
dwindle and lawyers and judges
may rightly be forced merely to
have resort to general principles.
The opinion of the judges em-
balmed in the law reports and the
wo r ds of the parliamentary draft-
smen when cemented in legislation
are increasingly a t t r ac t i ng the
scrutiny of legal wr i t e r s. The
judges and the parliamentary draft-
smen must, on occasion, consider
that a class of professional detec-
tive — the legal writer — is on their
t r acks, ever ready to expose
mistakes. However, Walsh J. in his
f o r ewo rd to this Review notes that
contrary to popular belief, judges
do not resent criticisms of their opi-
nions. In f ac t, Walsh J. almost en-
courages the authors in future
ed i t i ons " t o w i e ld a c r i t i cal
bludgeon or a rapier". Implicit
criticisms of judges' opinions are
expressed in this Review, but they
are polite criticisms. Your reviewer
can sympathise w i t h a judge who
overlooks a material judgment; too
much is o f t en expected of a single
judge who must prepare an opinion
w i t h o u t t he aid of r e s ea r ch
assistants or computerised legal
databases.
In a relatively short time-frame,
Raymond Byrne and William Binchy
have examined an avalanche of
judicial opinions and legislative
enactments, have succeeded in
separating the gold f r om the alloy
in the coinage of the law in 1987
and have admirably distilled the
notable features of that law within
t he c on f i nes of their Annual
Review. Legislators, judges, prac-
titioners of all hues and students
will benefit f r om reading this
Review. The Round Hall Press, the
p u b l i s h e r s, e x p e ct t he 1 9 87
Review to be the first of a series:
a new Irish institution has been in-
augurated.
Eamonn G. Hall
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