The Gazette 1990

j A nua R y / february

1990

GAZETTE

It is not easy to reconcile judicial review with democracy. If the legislature has voted for a par- ticular tax, for example, can it be right for judges who are not elected or directly accountable to the peo- ple to invalidate these decisions? Mr. Justice Walsh responded to that criticism: "We said that judicial power is a co-ordinate of government; therefore it has its own function in the government of the State. The Constitution sets out that the organs of government are the judiciary, the executive and the legislature. We are not sub- ordinates of any other depart- ment of State. Therefore the fact that our decisions may ap- pear to affect the government of the country is to be expected, because we are part of the government of the country". 7 Literary Legacy Few judges leave a literary legacy to posterity apart from their judgments. Mr. Justice Walsh is one of those judges whose extra- judicial writings will survive. The Forewords which he has written to many leading Irish textbooks con- tain prominent insights into the juristic process. It is appropriate to quote the following extract from Mr. Justice Walsh's Foreword to O'Reilly and Redmond's Cases and Materials on the Irish Constitution: "There may yet be a field for a fascinating study of how judges choose among the possi- ble solutions to any matter which comes before them in the field of constitutional law. Are their choices influenced by per- sonal values and experiences ac- quired either before or after coming to the Bench and by their relationships with judicial colleagues or other public of- ficials? It may well be that judicial decisions are to some ex- tent affected by the socio- economic background of the judge himself and by the en- vironment in which he lives. It would be unreal to believe that a judge can be kept in a vacuum, isolated from all the current of public opinion and the cultural and moral values of the people among whom he resides every day. It is well to recall the views of Mr. Justice Oliver Wendell Holmes who said: 'The life of

the law has not been logic; it has been experience. The felt necessities of the time, the pre- valent and political theories, in- tuitions of public policy, avow- ed or unconscious, even the pre- judices which judges share with their fellowmen, have had a good deal more to do than syllogism in determining the rule by which men shall be governed". 8 The extra-judicial writings of Brian Walsh could usefully be col- lected together and published under the title - The Evolving Constitution. Profound Influence on Irish Life It would be false of the writer to pretend that he agreed with the law expounded by Mr. Justice Walsh in all his judgments. However, the judge must decide a case in accordance with the declaration which he made upon appointment. The judge promises and declares that he will to the best of his knowledge and power exer- cise the office of judge without fear or favour, affection or ill-will towards any man and that he will uphold the Constitution and the laws. 9 The words of Horace are appropriate here: "A good and faithful judge prefers what is right to what is expedient". 10 Mr. Justice Walsh has exercised a profound influence on Irish life. It is too early to say who the twenti- eth century "Michaelangelo" of Irish law will be - but Brian Walsh must be among one of the contenders. NOTES 1. Louis Jaffe, English and American Judges as Lawmakers, Clarendon, Oxford, 1969. 2. B. Walsh, "The Constitution and Constitutional Rights" in F. Litton (ed) The Constitution of Ireland 1937-1987, I PA, 1988, p 86. 3. B. Cardozo, The Growth of the Law (1924) p. 144. 6. G. Sturgess and Philip Clubb, Judging the World, Butterworths, 1988, p. 420. 7. Ibid., p. 423. 8. Incorporated Law Society of Ireland, 1980, p. xii. See also, inter alia, the Forewords written by Mr. Justice Brian Walsh to Bryan McMahon and William Binchy's Irish Law of Torts, Professional Books, 1981, Bryan McMahon and Willian Binchy's A Casebook on the Irish Law of Torts, Professional Books, 1983, William Binchy's A Casebook on Irish Family Law, Professional Books, 4. [1972] IR 241. 5. [19741 IR 284.

1984, Peter Charleton's Controlled Drugs and the Criminal Law, An Clo Liuir, 1986, William Binchy's Irish Conflicts of Law, Butterworth (Ireland) Ltd, 1988, and J ames C a s e y 's Constitutional Law in Ireland, London, Sweet & Maxwell, 1987. 9. Article 34.5. 10. Horace, Carmina, c. 13 B.C. INTERNATIONAL LAW ASSOCIATION ( I R I SH BRANCH) A G M 21 April, 1990 Speaker: Sir Gordon Slynn, Judge of the European Court of Justice, and Chairman of the International Law Association Topic: Advocacy before the Court of Jus t i ce Further details from Denis Driscoll, Law Faculty, UCG. Tel.: (091) 24411. Venue to be announced

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