Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

Political advertising from Ireland to Switzerland

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| advertising, ECHR, Freedom of Expression

IBI logoSection 41(3) (also here) of the Broadcasting Act, 2009 provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:

The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.

There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.

The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online.

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Are we there yet? Formal recognition of a Press Council is one step closer

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| Press Council

Press Council and Ombudsman logoSection 44 (also here) of the Defamation Act, 2009 (also here) provides that the Minister for Justice may by recognise a body as the “Press Council” , and Schedule 2 (also here) to the Act sets out the minimum requirements such a body must meet to be so recognised. The Irish media established a Press Council of Ireland and the Office of the Press Ombudsman with effect from 1 January 2009. Last month, the Minister announced that this would be recognised as the Press Council for the purposes of the Act. To achieve that end, on Tuesday of this week, both the Dáil and the Seanad approved the draft Defamation Act 2009 (Press Council) Order 2010. The full recognition of the Press Council is now simply the stroke of a Ministerial pen away from being achieved.

According to the Irish Times, the Chairman of the Press Council, Prof Tom Mitchell, said the move would greatly benefit the operations of the Press Council, the Office of the Press Ombudsman and the press generally:

This development will strengthen the council’s capacity to work effectively and will allow the press industry to participate fully without fear of legal risk. Formal recognition of the council should serve to encourage more newspapers and publications to become member publications of the council, leading to wider adherence to its code of practice.

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The frontiers of the ‘political’ in Rawls’s political liberalism

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| Conferences, Lectures, Papers and Workshops, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the final paper is being delivered by Eoin Daly (UCC) on Non-domination as a primary good: re-thinking the frontiers of the ‘political’ in Rawls’s political liberalism. His main focus is the work of John Rawls, but he also engages with the criticisms of Rawls in John Maynor “Without Regret: the Comprehensive Nature of Non-domination” (2002) 22 Politics 51 and Phillip Pettit Republicanism: A Theory of Freedom and Government (Clarendon Press, Oxford, 1997); and, along the way, there are references to Bentham, Berlin, Hegel and Rousseau. In the end, he presents and defends a radical view of Rawls’s conception of liberty.

How far is state power precluded from certain social realms; conversely, how interventionist can the state be in protecting and supporting liberty? John Rawls seeks to provide answers to this question in A Theory of Justice and in Political Liberalism. On the one hand, principles of “neutrality” supposedly ground the legitimacy of the politically-liberal state. On the other hand, can the emancipatory goals of the republican state, in the guise of the politics of liberty as non-domination, be interpreted as spilling over into a realm of “comprehensive” values? Daly argues that the underlying idea of “justice as fairness” in Rawls work does not necessarily preclude the republican goal of non-domination.…

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Economic Rights in the Drafting of the Irish Free State Constitution

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| Conferences, Lectures, Papers and Workshops, Irish Law, Irish Society, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the fifth paper is being delivered by Thomas Patrick Murray (UCD) on The Politics of Property and Principle: Economic Rights in the Drafting of the Irish Free State Constitution. It is a fascinating use of archival material to underpin a theoretical discussion of the deliberations of the committee drafting the IFS constitution concerning the possibilities of constitutional engineering to create economic constraints and guarantees. In particular, he compares various drafts of various committee members on various issues, and locates their perspectives in their life experiences, religious convictions, and political beliefs. His conclusion is that an initial radical draft of socio-economic rights fell foul of external vested interests and the belief-systems of the majority of the committee.

Murray shows that it is clear from the archives and memoirs that, at the outset, the drafting committee paid significant attention to the economic foundations of the emerging Free State. Although economic freedom was to be secured in the first instance through formal democratic mechanisms, the framers also canvassed a number of binding economic provisions for inclusion. In particular, their focus was upon the principle of economic sovereignty, concerning land (especially farm land) and other natural resources (especially for energy generation) and the right to free elementary education.…

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True Morality and the ‘No Necessary Connection’ Thesis

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| Conferences, Lectures, Papers and Workshops, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the fourth paper is being delivered by my colleague (and recently-elected Fellow) Dr Oran Doyle (TCD) on True Morality and the No Necessary Connection Thesis.

HLA Hart, in his seminal article “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593 (1958), famously asserted that there was no necessary connection between law and morality (the No Necessary Connection Thesis: NNC). Discussion of this point has been marred by much confusion, which can be traced to the ambiguous fashion in which Hart referred to “morality” in this article. At its most basic, the word carries two meanings which are best understood by contrasting “moral” with its two antonyms, “immoral” and “amoral”. “Immoral” means something that is contrary to true morality; on the other hand, “amoral” means something that has nothing to do with morality. Conversely, therefore, the word “moral” has two meanings: it can refer to true morality and it can also connote any other assertion about morality. Doyle’s view is that a clearer view on the merits of NNC can be obtained if we limit it to apply simply to true morality and not to asserted morality. Hence, in his view, no legal positivist should be concerned to defend and no natural lawyer should be concerned to rebut NNC if it relates to any assertion about morality.…

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Legal theory in historical and comparative perspective

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| Conferences, Lectures, Papers and Workshops, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the third paper is being delivered Dr Seán Patrick Donlan (UL | Comparative Law Blog | ESCLH | ISCL | Juris Diversitas) on “The drunkenness of things being various”: legal theory in historical and comparative perspective.

The title quote is from “Snow” by Louis McNeice, and the key word is “various”. His background is a jurist from a mixed jurisdiction working with the comparative method, and his text is was replete with variety, in his sources, in his language, and in his theoretical perspective. Donlon began with the assertion that anglophone legal theory frequently lacks historical and comparative perspective, and his paper represents one strand of theory providing that perspective. He explores the historical ‘hybridity’ (rather than ‘pluralism’) and ‘diffusion’ of Western law, that is, the mixtures and movements of law and non-state norms. His argument is that the historical and comparative fact of hybridity – the diverse instantiation of law historically and, more often, comparatively – forces a major re-evaluation of the goals of legal theory. He began with a tour de theatre of comparative legal history and comparative modern legal systems, and moved to an analysis of the theoretical and normative underpinnings of this diversity.…

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The Role of Rights in Furthering Democratic Decision-Making

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| Conferences, Lectures, Papers and Workshops, Irish Law, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the second paper was delivered by Dr Darren O’Donovan (UCC) who spoke on The Role of Rights in Furthering Democratic Decision-Making: The Fruitful Conflict between Deliberative Democrats and Critical Race Theorists. Many threads were interwoven into a fascinating cloth. Against the background of the protection of the rights of the travelling community, UK and ECHR case-law concerning the banning of veils and burqas in schools, and special needs education, he strove for participation as a principle for the implementation of rights and and the re-invigoration of a human rights culture. These practical considerations grounded an analysis of two competing perspectives, deliberative democracy as represented by Juregen Habermas and John Rawls, and critical race theory as represented by Iris Marion Young and Melissa Williams. His basic position is that law should be based on a realistic understanding of human behaviour, and that the consequential limits of the law should be properly appreciated. From the abstract:

In deliberative theory, the aim of law, and human rights in particular, is to remove coercion and inequality from democratic decision-making, so that the only influence is the force of the better argument. Much of the work of both deliberative democrats and their critics falls upon the possibility of this ideal consensus.

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The Security State and Constitutional Justice

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| Conferences, Lectures, Papers and Workshops, Irish Law, Irish Society, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium on Jurisprudence and Legal Theory at University College Cork, the first paper was delivered by Dr Shane Kilcommins (UCC), who spoke about The Security State and Constitutional Justice: the dangers of ignoring a ‘rights-based conception of the Rule of Law’ that ensures that ‘the majority cannot travel as fast or as far as it would like’. His paper traced the present history of penology from Michel Foucault to David Garland. Garland’s work sees the present as a time of the decline of the rehabilitative ideal, the (re)emergence of punitive sanctions and expressive justice, focus on the perspective of the victim, protection by (rather than from) the state, and the (re)emergence of the prison. In many ways, Irish criminologists can point to a similar development in Ireland: the ‘tooling up’ of the executive power of the state thanks to a hyperactive legislature wanting to be seen to be tough on crime.

Kilcommins’ key point however, is that we must not overstate this development, we must not be misled by the uniqueness of the present. He cites Michel Foucault: “we should have the modesty to say to ourselves that the time we live in is not the unique or fundamental or irruptive point in history where everything is completed and begun again”.…

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