Category: Law

What is the Preamble to a Constitution for?

preamble.jpgI 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).
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Canadian style

Canadian flag, via official websiteNo, this isn’t a post about the Canadian blog and magazine Precedent: The new rules of law and style. Instead – following on from my posts about OSCOLA (here), the infamous Bluebook (here), minimalist styles for online journals (here), and an emerging Kiwi style (here) – this is a rather belated comment on a post by Simon Fodden on Slaw:

University of Chicago Manual of Legal Citation Online

The newest version of the University of Chicago Manual of Legal Citation, known as the Maroonbook, is available online in PDF. This brief — 77 page — competitor to the Bluebook is not directly applicable to us here in Canada, of course, but may assist with material filed in the United States. And it serves to remind us that we, too, ought to have available to us a free, online manual.

We’ve mooted this on Slaw a number of times, and, if some irons I’ve got in the fire at the moment get hot in the next few weeks, I’ll have more to say on a possible Slaw project to create such a manual.

Of interest, perhaps, is the fact that the Maroonbook advises us to “[o]mit periods and apostrophes whenever possible.” Slawyer Gary P. Rodrigues addressed the pesky point in The full stop in legal citation – has its time finally come?

There are two interesting nuggets of information here. First, the second edition of legal version of the Chicago Manual of Style is now fully available online. And second, there may soon be a Slaw project to create a similar manual for Canada. Is this a development too far. There are already many many style-sheets out there (some are even Canadian) – do we really need another one? Properly house-styled answers on a post-card please …

Televising the Supreme Court

Image of UK Supreme Court building, via Alex Faundez on flickrNo, not the Irish Supreme Court, but the new UK Supreme Court. There’s quite a lot of coverage in the UK media and blawgopshere today about the new Court at the apex of UK’s judicial system, which opens for business today, on time and on budget, in a refurbished former criminal court, after a difficult gestation. David Pannick argues in the Times today that, however unhappy its origins, the opening of a new Supreme Court is an important commitment to the rule of law. Much of the media interest turns on the fact that the Court will be televised. For example, one of the pieces in the Times is headlined that TV coverage means justice really will be seen to be done:

The reform has taken a number of steps over 20 years: a Bar Council report chaired by Jonathan Caplan, QC, in 1989, the filming of parts of the Shipman inquiry and the Hutton inquiry and the 2004 pilot project in the Court of Appeal all moved the issue of cameras in court forward. … The footage will be filmed and recorded by the court and made available by a feed to broadcasters, … [and] can be used only for news, current affairs and educational and legal training programmes.

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Towards an All Black Book?

All Blacks' Silver Fern, via WikipediaBy way of update to my post on Legal Citation, I note that Geoff McLay on 15 Lambton Quay (the Faculty Blog for the Victoria University of Wellington Faculty of Law) writes:

The proposed uniform legal style guide for New Zealand

A group of academics, editors and publishers led by myself and Justice Chambers has been developing a uniform New Zealand legal style guide. We hope that the guide will adopted by all New Zealand publishers, law schools and courts. We have released a consultation version. Any comments would be gratefully received and may be sent to Geoff McLay. The project has been supported by the New Zealand Law Foundation.

Will there be lots of full stops? Given that the dominant US style is the Blue Book, perhaps we should call any New Zealand style guide the All Black Book?



Bonus link: Gary Slapper has an entertaining Summer Quiz in today’s Times.

So, does Irish law now recognise a journalist source privilege?

The Four Courts, by Darragh Sherwin, via Flickr.As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists. (more…)

Is Lady Chatterley’s Lover obscene?

Cover of first Penguin edition of 'Lady Chatterley's Lover' via the Bristol University siteNo, at least so far as the law is concerned. But after its initial publication in 1928, it was not until the 1960s that litigation in the US and the UK allowed it to become generally available. An op-ed by Fred Kaplan in the today’s New York Times, entitled The Day Obscenity Became Art, (with added links) tells us that

today is the 50th anniversary of the court ruling that overturned America’s obscenity laws, setting off an explosion of free speech — … The historic case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s Lover,” which had long been banned for its graphic sex scenes.

… Mr. Rosset hired a lawyer named Charles Rembar, … [who] presented “Lady Chatterley” as a novel of ideas that inveighed against sex without love, the mechanization of industrial life and morbid hypocrisy. … On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of “Lady Chatterley’s Lover” through the mail.

That case was Grove Press v Christenberry 175 F.Supp. 488 (S.D.N.Y., 1959); it was upheld on appeal (at 276 F.2d 433 (2nd Cir., 1960) (Justitia | OpenJurist); and Robert McHenry on Britannica blog has also entertainingly marked the anniversary.

Rembar wrote about his experiences defending this book and other controversial novels in The end of obscenity; the trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill (New York, Random House, 1968): Tropic of Cancer reached the Supreme Court in Grove Press v Gerstein 378 US 577 (1964), and Fanny Hill reached the same court in Memoirs v Massachusetts 383 US 413 (1966).

When these cases were decided, the leading US Supreme Court decision on obscenity was the relatively conservative Roth v US 354 US 476 (1957), and these cases were decided within its confines: the value of Grove Press v Christenberry was that it demonstrated that the Roth standard did not preclude First Amendment protection to obscene speech, at least where that speech embodied ideas of redeeming social importance. It laid the foundations for cases like Grove Press v Gerstein, Jacobellis v Ohio 378 US 184 (1964) and Memoirs v Massachusetts. These, in turn, led to the far more progressive stance taken by the Supreme Court in Miller v California 413 US 15 (1973), which held that a work is obscene and can be regulated by a State where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. The plaudits probably belong to all of these cases, and not merely to Grove Press v Christenberry, but it is still an important and entertaining case for all that.

Moreover, Lady Chatterley’s Lover had also been the basis for a contemporary challenge to the UK’s Obscene Publications Act, 1959. It is an infamous trial, from the prosecution’s notorious and patronising rhetorical demand of the jury whether it was something they would want their wives or servants to read, to the cast of literary worthies who testified to the novel’s worth, to the jury’s acquittal on 2 November 1960. The following day, Penguin sold its entire first print run of 200,000 copies, and sold 2 million copies in six weeks. The Times has a wonderful collection of archive material about the case, the full papers from the trial are now available at Bristol University Library; Penguin have recently re-issued their classic account of the trial; and the BBC have made a marvellous drama (BBC | imdb | Times) of two fictional jurors’ experience.

These were undoubtedly important developments, but I can’t help but fear that the days of such trials might come back again.

Legal Alchemy

Sachs book cover, via OUP siteAlbie Sachs is a remarkable man. His official bio begins

On turning six, during World War II, Albie Sachs received a card from his father expressing the wish that he would grow up to be a soldier in the fight for liberation.

He began that fight as a seventeen year old law student; as a lawyer, the bulk of his work involved defending people charged under apartheid’s racist and repressive security laws – many of them faced the death penalty. As a result he was harassed by the security police, detained in solitary confinement for two prolonged spells of detention, tortured by sleep deprivation, forced into exile in 1966, and in 1988 blown up by a car bomb which cost him his right arm and the sight of an eye. In exile, he worked as an academic in the UK and Mozambique, campaigned for human rights and an end to apartheid, and thought deeply and wrote widely about the role of law as a protector of human dignity in the modern world. He wrote many of the ANC’s constitutional documents, helped to negotiate South Africa’s transition to constitutional democracy and to draft its post-apartheid Constitution, and was one of the founding judges of the Constitutional Court in 1994. The Court’s first hearing, in S v Makwanyane (CCT3/94) [1995] ZACC 3 (6 June 1995) (also here), concerned the constitutionality of the death penalty, which it unanimously found to be unconstitutional. As his term on the Court nears its conclusion, he has written a beautiful memoir The Strange Alchemy of Life and Law (OUP, 2009); from the publisher’s website:

The book provides unique access to an insider’s perspective on modern South Africa, and a rare glimpse into the working of a judicial mind. By juxtaposing life experiences and extracts from judgments, Sachs enables the reader to see the complex and surprising ways in which legal culture transforms subjective experience into objectively reasoned decisions. With rare candour he tells of the difficulties he has when preparing a judgment, of how every judgment is a lie. Rejecting purely formal notions of the judicial role he shows how both reason and passion (concern for protecting human dignity) are required for law to work in the service of justice.

Two of his judgments will help to give the measure of the man as a judge. First, in Minister of Home Affairs v Fourie (CCT 60/04) [2005] ZACC 19 (1 December 2005) (also here) he held that the definition of marriage as between a man and a woman was inconsistent with the Constitution since it excluded same-sex couples, and the failure to provide them the means to enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage constituted an unjustifiable violation of their rights. And in S v M (CCT 53/06) [2007] ZACC 18 (26 September 2007) (also here) he reversed a prison sentence on a woman primarily because it would infringe the human rights of her three children. He tells the story of the former case in this extraordinary University of Chicago talk; he tells the story of the latter case in this fascinating Guardian interview; and there are wonderful pieces (part interview, part review of Alchemy, part meditation) about him in The Scotsman, The Independent (SA), and The Independent (UK). The Guardian interview says that, at the time he was writing the judgment in S v M (with added links):

Sachs did not know of any country that took the rights of offenders’ children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children’s commissioner, Kathleen Marshall.

The report, Not Seen, Not Heard, Not Guilty, argues that the rights of offenders’ children to family life under the UN Convention on the Rights of the Child are systematically ignored by the court system. The report found that almost two-thirds of prisoners in the Cornton Vale women’s prison in Stirling had children under 18, but there was no provision to take their rights into account during sentencing.

“This was astonishing,” Sachs told the audience. “In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking.”

That is as true of Ireland as it is of Scotland as it is of South Africa. The Irish Council for Civil Liberties (ICCL) has recently published an important paper on Protecting Children and Respecting the Rule of Law (pdf) written by Roisin Webb. It demonstrates one of the ways in which we can all benefit from the wisdom, justice and humanity of Albie Sachs.

Cowengate follow-on: a question, and more pictures at the exhibitions

Emerson, Lake and Palmer performing their 1971 album version of Pictures at an Exhibition

The Cowengate controversy certainly caught the imagination this week; and, by way of update to my earlier posts on the topic, I’ve collected some more links about the affair below. Perusing the coverage in print, broadcast, and online, a question has repeatedly occurred to me: for all that there was online outrage, how much of it was reflected in the print or broadcast media? My impression is that whilst online commentary reflected and often relied upon the print or broadcast media, there was (by and large) very little traffic the other way. Is this a fair assessment? Answers, please, in the comments below.

[The remainder of the post is another compendium of links relating to the Cowengate controversy]. (more…)