THE FOLLOWING is an edited version of remarks by Michael McDowell SC on the appointment of himself, Paul Gallagher SC and Michael Collins SC as adjunct professors in UCD’s School of Business and Law
I THINK that there is sometimes an inherent tendency among lawyers, when gathered together, be they judges, practitioners or academics, to view the world and the society in which we live primarily as a legal construct. That society should be based upon “the rule of law” seems axiomatic. To lawyers it seems so very obvious that the alternative to law is anarchy, oppression and arbitrary cruelty and misfortune.
And in one sense that is all true. But in another sense there is a very strong case to be made against creating or evolving a society that is dominated by law . . .
My question today is whether modern lawyers and legal philosophers are, in general, so taken and excited by an outlook which sees rights and laws and justiciability of large swathes of human affairs that we are unconsciously tiptoeing towards the re-introduction of a society whose dominant characteristic is status and where the unregulated, the free, the economic elbow room in our society, is being slowly whittled down and enclosed like the commonages of old . . .
Are we in danger of over-legalising the areas of economic activity in our society? Have we made it difficult to employ or be employed? Have we made it more difficult or easier to educate our children and to have them educated? Are we, by a process of stealth, relentlessly reducing to the status of licensed and regulated greater swathes of what may not need to be regulated?
I pose these questions as a few instances of the considerations that might justify us collectively in pausing and analysing the drift of our political, economic and social development.
I also raise the issue as to the omnipresent and intellectually suffocating orthodoxy in public commentary at least on what are termed “human rights”.
There is, in my view, a lazy-minded predisposition among politicians and leaders of interest groups to articulate all of their demands as a quest for rights as if by transferring what used to be a policy choice into the category for resolution of conflicting rights strengthens their arguments.
The classical virtue of continence – the virtue of self control – seems lost in the white heat of lawyers discourse on the potential to extend the rule of law everywhere . . .
It seems to me to be axiomatic that living in a Republic, where an individual citizen can apply to an individual judge in the High Court to invalidate any action by the legislature or the executive by reference to constitutional principles, that such a powerful judiciary must be mindful that the judicial power is not slowly extended to the prejudice of the executive and legislative functions or our democracy.
On a personal basis, I have become increasingly convinced that the dynamic of our society depends hugely on a general appreciation right across that society that the rule of law, regulation and judicial review of legislative and executive action must be tempered by the virtue of continence if our society is to function economically and socially for the good of all.
In my view, there must be very substantial areas of human activity which are out of bounds as far as judicial interference is concerned. These include the function of legislators and also the function of those who exercise the executive power of the State.
By examining article 45 of the Constitution, the often neglected Directive Principles of Social Policy, it is possible to see that the explicit prohibition in that article on judicial review of the implementation of the principles laid out there was an express embodiment of the separation of powers in the Irish State.
Those Directive Principles of Social Policy were where, as regards their implementation, the exclusive reserve of the Oireachtas deals with a myriad of issues such as competition law, social welfare law, the provision of health services, the regulation of employment, the role of private enterprise, the abuse of monopoly, very topically, the availability and control of credit – all amount to areas which were declared “off limits” to the judicial power as regards their implementation.
It is interesting to remind ourselves that most of what was ring fenced in the present article 45 as off limits for judicial review was, in the early drafts of the Constitution, to be found in the same article as the private property rights in the Constitution which are now to be found in article 43.
It seems to me that lawyers – both judges, academics and practitioners – should revisit the doctrine of the separation of powers and reconsider it not as a constraint on an innovative and pioneering judiciary, but, rather, as an absolutely essential piece of our constitutional architecture which contributes to a vibrant and successful society.
Perhaps we could hope for a new era in which the constitutional function of elected public representatives to make choices on our behalf, to hold the executive to account through the system of parliamentary accountability provided for in the Constitution, as well as the function of considering and passing legislation would be adequately recognised.
It cannot be overemphasised that the role of an elected TD is not simply that of legislator. He or she is entrusted under our Constitution with the function of delivering accountability.
The government is answerable to Dáil Éireann. It is the central organ of choice and of accountability. Judicial activism is no substitute for according primacy, in our democracy, to democratic politics.
The powers of government must be subject to scrutiny by members of Dáil Éireann in the manner envisaged by the constitutional order . . .
Judicial activism is no substitute for according primacy, in our democracy, to democratic politics.
Lawyers must not lose sight of the entirety of the architecture of our democracy or be blinded by their immediate involvement in the judicial process to the needs of the other organs of the power of government. Law cannot become a substitute for politics and the legal system cannot become the primary means of achieving accountability in the exercise of the other powers of government.
In short, I am using this occasion to call for a rethink on the relationship between the study, practice and administration of law with the other and equally important and separate functions of a successful political, economic and social democracy.