The Gazette 1988

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

GAZETTE BINDERS Price £ 5 . 14 (incl. VAT) + 87p postage

3 43