The MultiText Project in History is an innovative educational project, undertaken by the History Department, University College Cork, to provide resources for students of Modern Irish History at all levels. The following arresting image is available on their website:

MultiText’s source for the image is the Weekly Freeman for 25 February 1882, and they comment that “the unequal nature of the landlord/tenant relationship was a major cause of the land war” (a period of civil unrest in rural Ireland in the latter half of the nineteenth century, ultimately defused by a series of Land Acts between 1870 and 1903).

The image shows an unhappy tenant seated at a table, unwillingly signing a lease. Under the table can be seen a notice to increase rent and a notice to quit. At the top are two inset images, one of John Bull, the other of a destitute family heading for the workhouse. The tenant is surrounded by three grim-looking men. One has a bill for outstanding rent in his pocket, and he is brandishing an eviction decree. Another brandishes a cudgel of some sort. The third is stabbing his finger at the lease.

The caption along the bottom reads: Freedom of Contract – In Ireland.

The Bible tells Christians that ‘Man does not live on bread alone, but on every word that comes from the mouth of God’ (Matthew 4:4). The aphorism is echoed in the title and plot of Vladimir Dudintsev’s anti-Stalist novel Not by Bread Alone. Now it is the main title of a recent book about the importance of higher education in developing modern societies built upon the fundamental values of democracy, human rights and the rule of law: Sjur Bergan Not by bread alone (Council of Europe higher education series No 17; 2011). Public debate often assumes that the only purpose of higher education is to prepare gradutes for employment, and this view feeds back into third-level entry requirements and second-level curricula. Hence, we see an increasing focus on “training” (rather than educating) graduates in science, technology, engineering, and mathematics (with attendant risks to the arts, humanities, and social sciences). This third-level policy brings a concommitant focus at second-level on bonus CAO points for maths generating calls for bonus points for science and a compulsory leaving certificate science course (perhaps to the detriment of the study of foreign languages; and quite how this stands with the Minster for Education’s stated aim of moving away from the CAO points culture is unclear).

To be sure, preparing graduates for employment is indeed an important purpose of higher education; but, as this book emphasises, it is not the only one. As the editor put it in an earlier publication, as man does not live by bread alone, human existence is about more than work, and higher educuation should be directed to every facet of human existence, and in particular to sustaining the values of the kind of society in which we desire to live. This argument is at the heart of Not by bread alone; from the abstract:

Not by bread alone gathers essays on higher education … [which] spell out a view of higher education as a key factor in developing modern societies built on the fundamental Council of Europe values of democracy, human rights and the rule of law. …

To fulfil its role, higher education needs to prepare for citizenship as well as for employment, for personal development as well as for the development of a broad knowledge base. … We also need to take a close look at how the public responsibility for higher education and research can best be exercised in a society with many actors, all of which have their own legitimate agendas. In this situation, public authorities have an overall responsibility for coherent education policies.

Contents include essays on

• Higher education governance and democratic participation: the university and democratic culture
• Democracy: institutions, laws, culture and the role of higher education
• Higher education between market and values
• Safeguarding ethics and values in higher education: a shared responsibility
• Higher education as a “public good and public responsibility”: what does it mean?
• Public responsibility and institutional autonomy: where is the balance?
• Academic freedom and institutional autonomy: impact on international students
• Institutional autonomy between myth and responsibility
• Reflections on ranking in Europe.

This books therefore stands as an important corrective to the rather instrumentalist views sweeping european higher education at present.

The ever-informative ECHR blog brings news of an interesting article on the margin of appreciation jurisprudence of the European Convention on Human Rights (which has been examined on this blog here and here). It is the doctrine by which the ECHR affords Members States some initial latitude to assess the impact of a restriction upon a Convention right; the Court takes the view that national authorities are usually better placed to determine the particular circumstances of an individual case; and it often shows greater forebearance where important national interests and diverse social and moral convictions are at stake. But it is a doctrine developed by the Court itself rather than one rooted in the text of the Convention, and it is a deeply contentious issue. The article traces the debates surrounding the doctrine, and locates them in a current complex social, cultural and religous controversy.

From the introduction and the conclusion:

Raffaella Nigro “The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil” (2010) 11 (4) Human Rights Review 531-564

In its judicial activity, the European Court of Human Rights increasingly resorts to the margin of appreciation doctrine as a means of granting States the discretionary power to adopt, both positive steps to comply with the European Convention on Human Rights and steps which, although interfering with some of the rights and freedoms sanctioned by it, are considered to be justifiable because they are necessary to preserve public order and/or to protect the rights and freedoms of others in a democratic society. However, the margin of appreciation doctrine does not appear in the text of the European Convention or in its drafting history. This is the reason why, on several occasions, legal scholarship has examined the legal basis of such doctrine and questioned the consequences of the use the European Court makes of it within the protection of the human rights system. Manifold theories have thus been put forward justifying the Court’s recourse to the discretionary power of States. As we shall illustrate, these theories offer only a partial, yet insufficiently clear, explanation of the margin of appreciation doctrine. This is apparent in the European Court’ case-law on the Islamic veil — lastly in the recent admissibility decisions of 30 June 2009 in Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France — in which the power granted to some State authorities to ban the headscarf, seems to have been used by the Strasbourg judges to set general principles, in a manner and for purposes that are incompatible with the discretionary powers of States. Before analysing the margin of appreciation doctrine in the European Court’s jurisprudence on the Islamic veil, we should briefly analyse the most significant judgments through which the Court has set the enforcement criteria of the margin of appreciation; and the main theories in legal academic literature, in order to better understand how the approach followed in the case-law on the Islamic veil draws away from both the previous jurisprudence of the Court and the scholars’ contributions and comments on the subject. … Read the rest of this entry »

I posed the question in title in an earlier post on this blog. In an article published in the current issue of the International Journal of Constitutional Law, Liav Orgad provides one possible answer. Here is the abstract:

Liav Orgad “The preamble in constitutional interpretation” (2011) 8 (4) I•CON 714-738

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design. The article also explores the theory of preambles and their functions. It examines the legal status of the U.S. preamble and shows how the U.S. preamble remains the most neglected section in American constitutional theory. The article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.

An earlier version is available on SSRN. It’s a fascinating piece, as applicable to the preamble to the Irish Constitution as it is to those discussed by Orgad. As he notes, “courts have been invoking the Preamble in order to interpret the Irish Constitution and as a guiding tool to understand its spirit and values”. Indeed, there is a long tradition of making use of the preamble in the interpretation of the provisions of the Constitution, from McGee v AG [1973] IESC 2, [1974] IR 284 (19 December 1973) and Norris v AG [1983] IESC 3, [1984] IR 36 (22 April 1983) through McGimpsey v Ireland [1990] IESC 3, [1988] IR 567 (1 March 1990), AG v X [1992] IESC 1, [1992] 1 IR 1 (5 March 1992) and In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 [1995] IESC 9, [1995] 1 IR 1 (12 May 1995) to Laurentiu v Minister for Justice [1999] IESC 47, [1999] 4 IR 26 (20 May 1999) and A v The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 (10 July 2006). Read the rest of this entry »

Growing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post. In particular, they must be free to decide against other arms of government without fear of retaliation.

Executive retaliation can be overt: John Bradshaw presided over the trial of Charles I in 1649; he died in 1659; but Charles II had his body exhumed for posthumous execution in 1661. Less dramatically, but more insidiously, Stuart monarchs frequently sought to dismiss judges who took decisions of which they disapproved. US President Thomas Jefferson, alarmed at the growth of judicial review of executive action, sought to have Justice Samuel Chase removed from the Supreme Court in 1805, but the impeachment failed in the Senate, and the strong US commitment to judicial review and judicial independence were secured. Colombia, Zimbabwe and Pakistan provide more recent instances of intimidation of judges.

Executive retaliation can be far more covert. US President Franklin Delano Roosevelt, alarmed at the striking down of key legislative elements of the New Deal by the Supreme Court, sought to change the way the Court functioned, especially by adding more amenable judges, but the Bill failed in the Senate. More subtly still, a government can seek to control a recalcitrant Court by pulling the purse-strings: earlier this year, the President of the UK Supreme Court complained that existing funding arrangements for the Court do not adequately guarantee its independence.

As a consequence, Article 35.2 of the Constitution provides that “judges shall be independent in the exercise of their judicial functions”. Read the rest of this entry »

According to the Adages of Erasmus, ‘vestes virum facit‘, which is often rendered in English as ‘clothes maketh the man’. Two different stories in today’s Irish Times brought this adage to mind. In the first, a picture tells a thousand words:

The photo is by Gonzalo Fuentes via Reuters and Yahoo. It shows French deputy Nicolas Dupont-Aignan covering his face with a scarf in the colours of the French flag to protest at the denial of speaking time to independent deputies during a debate about Libya at l’Assemblée Nationale in Paris yesterday. It demonstrates that what deputies wear in parliament can be as important as what they say. Sometimes, the sartorial expression is obvious, as where a slogan on a t-shirt makes the point. Sometimes, it’s a little more subtle, but all the more effective, as the photo above of Dupont-Aignan demonstrates. And sometimes, even a deputy’s normal everyday wear makes the point: in Ireland, Mick Wallace TD habitually wears a casual pink shirt. Like some other independent TDs, he dresses casually to make a point against unnecessary conformity and stuffiness; and he dresses in pink as “a challenge to the sad macho element in Irish society”. Read the rest of this entry »

Yesterday morning, I chaired a public meeting of the Copyright Review Committee (#CRC11). The Committee was set up in May to identify solutions for any aspects of the current copyright legislation that create barriers to innovation, and in particular to consider whether a US-style ‘fair use’ doctrine to see if it would be appropriate in an Irish or EU context. Today, I read a provocative criticism of the event by photographer Dominic Lee:

© Copyright Act Review by Dominic Lee

… While this was a “Review”, it quickly became clear to me that the committee’s agenda is to attempt to introduce “Fair Use” to the Copyright Act 2000. However, the term “Don’t Want to Pay” is more appropriate in each and every aspect of those in favour of this change.

… Media publications would never dream of publishing a painting by Graham Knuttel or an extract from a Maeve Binchy book without asking their permission first but many of them have no problem riding rough-shot over Photographers work because they know there is a very slim chance that we could afford to sue for breach of Copyright. … Photographers make a living by selling photographs and deserve to be treated with the same respect as musicians, artists, and writers. There is great advertising value to be gained by using our images on the www but the Copyright Law must protect us from those who wish to make a living at our expense. Fair Use is not Fair Play.

From a more general perspective, David Brophy (Partner, FRKelly, Dublin) provided an immediate and excellent summary of the event on the 1709 Blog: Read the rest of this entry »

As I’ve said before on this blog, Being Five is one of my favourite fun blogs. Here’s a recent cartoon strip called Pensive:

Being Five is a comic strip about a kid named Georgie who blogs using voice recognition software (since he can’t read or write yet).

In the first panel, he says: “People are getting to know me by reading my blog! They’re realising that I’m a very deep, pensive, philosophical, insightful little fella!” (Just like I hope readers of this blog regard me).

In the second panel, Georgie is startled by a voice (presumably his mother’s, from downstairs) calling “Georgie, I baked cookies”.

In the third panel, Georgie repsonds manically: “COOKIES!” (At this point, I deny all similarities).