Judge concerned about foreign jurisprudence
Supreme Court judge warns about relying on case law irrelevant to Ireland
Mr Justice Frank Clarke: “careful consideration”. Photograph: Brenda Fitzsimons
A Supreme Court judge recently expressed concern at some of the ways foreign jurisprudence is relied upon in argument before the Irish courts.
In an address at Griffith College Dublin, Mr Justice Frank Clarke said the widening scope of jurisdictions whose authority was cited as persuasive has led to “significant difficulty” because foreign courts were often influenced by specific legislative or constitutional measures which had no Irish parallel.
Mr Justice Clarke did stress the importance of being aware of authority from other jurisdictions: it makes sense for a small country to at least consider the views of the major courts in countries with comparable legal systems, he said.
Furthermore, upon gaining Independence in 1922, Ireland chose to maintain the existing legal system provided it was consistent with the Free State Constitution and, later, Bunreacht na hÉireann.
So it followed that the country would look to other common law jurisdictions – Britain in particular – for influence, Mr Justice Clarke said in his opening comments.
“However,” he added, “it does need to be strongly emphasised that careful consideration needs to be given to the issue of whether the foreign court concerned was answering the same question as the Irish court is now being asked to address.”
He added that he had “sometimes seen paragraphs plucked out of foreign authority and included in written submissions to the Irish courts [where] the foreign court was answering a very different question or was addressing issues of principle which were significantly influenced by its own legislation or constitutional provisions”.
This sort of large-scale citation of isolated paragraphs from foreign jurisprudence was a “real danger”, Mr Justice Clarke said. It was one that he predicted would continue to get worse because of the ease of access to international legal databases.
He said the general problem was of even greater significance in the constitutional field. As constitutional rights documents emerged in other common law jurisdictions such as Canada and New Zealand, case law from those countries started to be cited more frequently in Ireland.
“But that leads to the very real question as to whether such authority is always relevant,” he added.
He argued that constitutions often approached common questions in similar ways “but constitutions are by no means always the same”. In some cases, as in Ireland, the people had voted directly on the constitution, but elsewhere they came about by less direct means, such as through a qualified majority within parliaments.