Prof Adrienne Stone (pictured left), Director of Centre for Comparative Constitutional Studies in the Melbourne Law School has just made a very interesting article available on SSRN. It is The Comparative Constitutional Law of Freedom of Expression, forthcming as a chapter is in Rosalind Dixon and Tom Ginsburg (eds) Research Handbook in Comparative Constitutional Law (Edward Elgar, forthcoming, 2011). Stone argues:

Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents. … Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems … – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law. In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right.

… some scholars … question whether … the comparing free speech principles across constitutional systems is practical or useful for courts interpreting or applying constitutional principles of freedom of expression … The complexity of (and disagreement about) underlying philosophical commitments, the opacity of judicial decision making, and cultural specificity of any particular body of law, … [are] formidable problems for the comparativists, … and the] case for comparativism may be weaker in relation to constitutional principles have developed their own rich set of resources and a distinctive conception of freedom of expression. This latter description fits the First Amendment most neatly … [B]ut, outside of such contexts, the case for comparativism is much stronger. It is not surprising, then, that constitutional comparativism in freedom of expression cases as well as in other areas [is] certainly very widespread. … Successful comparativism within the field of freedom of expression, as elsewhere, requires a rather deep and critical engagement with foreign law that encompasses critical legal and philosophical literature on freedom of expression as well as case law. There is thus an increasing need for a research ‘infrastructure’ of informed, critical and widely comparative studies of freedom of expression that can support this comparative task.

I entirely agree with that last sentence. But that is the last sentence of the paper, suggesting that Stone is skeptical about the present existence of such an infrastructure. She does not need to be. In my view, there is a basic pattern of analysis when a right protected by a document of fundamental status (such as a Constitution or the European Convention of Human Rights) is potentially infringed or restricted by a statutory provision. It consists of four enquiries.

First, consider the restriction. Without a provision that infringes upon a constitutional right, there would be no need for this analysis.

Second, consider what rights the restriction might infringe. If speech rights are involved, then, in Ireland, that will be the right to express freely convictions and opinions Article 40.6.1.i of the Constitution, the (unenumerated) right to communicate in Article 40.3.1, or the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas, in Article 10(1) of the European Convention on Human Rights.

Third, since no right is an absolute, consider whether there are good reasons for the restrictions. The text of Article 40.6.1.i provides at least six: public order, morality, the authority of the State, blasphemy, sedition and indency; Article 40.3.1 protects rights only “in so far as practicable”; and the rights in both sections have been made subject by the judiciary to the exigencies of the common good. Article 10(2) has an extensive list of reasons for restrictions necessary “for the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Any restriction must therefore pursue one of the iterated good reasons or “legitimate aims”, and that aim must be a serious one – there must be a “pressing social need” on the facts to trigger the trigger the relevant good reason legitimate aim. If there is no such good reason, legitimate aim, or pressing social need, then the restriction upon the relevant speech right will be unconstitutional or incompatible with the Convention.

Fourth, it is not enough that the State can simply point to one of the recognised good reasons justifying restrictions; it must also demonstrate that the restriction does not go too far. In other words, the restriction must survive a standard of scrutiny or review. In Ireland, the Supreme Court has established that a restriction upon a constitutional right must be proportionate to the reason underlying it, a standard which is informed by the approach of the European Convention on Human Rights.

As a matter of principle then, a four-part analytical structure can be identified: if there is a restriction upon the right to freedom of expression, the State must have a good reason to justify the restriction which can withstand scrutiny or review. These four Rs of constitutional review can easily provide the foundation or context of the research infrastructure of informed, critical and widely comparative studies of freedom of expression quite-rightly envisaged in Stone’s excellent article.

At 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. In his view, confinement of state power to the realm of the “political” (as Rawls defines it) does not translate into an assiduously non-interventionist, even “neutral” state, where “political” justice is excluded from “non-political” social spheres.

For Daly, under Rawls’s theory, “political” justice may require the state to endow its citizens with a range of capacities and powers that guarantees them the conditions necessary to enable them to pursue and revise their conceptions of the good. In particular, virtues, habits and attitudes may be constitutive of, rather than merely instrumental to liberty. Hence, “political” justice may consistently warrant radical changes across much of citizens’ lives, endowing them with certain resources and capacities, as long as it remains open to the “final ends” towards which these capacities might be directed. As a consequence, Daly argues that Rawls’s theory not only accommodates the premise of non-domination, it also extends beyond it, requiring the development of certain faculties and powers in citizens – not merely as instrumental to non-domination – but such as are necessary to enable them to realise their capacity to have and pursue a conception of the good. From his conclusion:

The anti-perfectionism of Rawlsian liberalism lies not, therefore, in its rejection that liberty may consist in the attainment of self-mastery or self-realisation per se, but in its rejection that liberty consists in the realisation or attainment of any particular set of ends. It is particularly concerned, however – and this is where it extends quite far beyond neo-republicanism in its radical ambition – that we master (“adequately develop”) as well as attain the capacity to pursue and realise indeterminate “final” ends which it itself does not specify. Rawlsian liberalism does not translate as a non-interventionist liberalism that precludes the inculcation of republican virtues, capacities and resources; and these goods in fact enjoy a less obviously instrumental role in this radical project of liberty than they do in neo-republicanism itself.

At 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.

Murray the demonstrates that the committee’s sphere of action was quite bounded and indeed subject to influence from outside interests. The main interest of the provisional government was in maintaining social and political order and avoiding controversy. Countervailing economic interests featured too, especially the opposition of the farming lobby to any re-distribution of land. Moreover, the Catholic Church was unhappy with the socio-economic rights proposals, especially the provisions relating to education. The committee therefore kept the constitutional text to the bare minimum to ensure its success; controversial provisions were carefully curtailed; and established interests were assuaged. Murray concluded on this point, then, that, faced with the need to establish the legitimacy of the state, any innovation that might threaten established property-holders or any moral principle that might deny a hierarchical role for the Church was deemed ‘controversial’ and accordingly postponed.

But Muarry goes further. He argues that the members were not only constrained by various social boundaries, they were also necessarily constrained by their own boundaries of thought. In other words, various features of the prevailing discourse facilitated the diminution of the committee’s initial economic provisions. Most members of the committee were in thrall to the assertive Catholic-Nationalist ethos of early twentieth-century Dublin, and this prevailing ‘Irish Ireland’ discourse imposed significant limitations on the possibilities of embedding socio-economic rights in the constitution. Although those few members of the committee from outside of this political culture appear to have been more open to the lived experience of poverty and were more amenable to the substantive promotion of economic rights, their views did not prevail against the established discourse. Murray concluded on this point, then, that the pursuit of ‘Irish Ireland’ amounted to something very like an official othodoxy. Conversely, egalitarian discourses, envisioning a society based on principles of rational-legal equality and interdependent citizenship, came to be suppressed. Consequently, the committee’s initial economic rights proposals greatly watered down; prevailing ‘Irish Ireland’ discuorse meant this was not seen as wrong.

At 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. Moreover, on a close reading of Hart, Doyle argues that that NNC as conceived by Hart is concerned to deny necessary connections between law and true morality, not between law and asserted morality:

… although Hart’s various formulations of (NNC) may just about be ambiguous as between true morality and asserted morality, in every context in which he assesses challenges to NNC, his focus is unremittingly on true morality, not asserted morality.

Doyle then looks to the various critiques of NNC, especially Leslie Green and John Gardner. He says that Green, in “Positivism and the Inseparability of Law and Morals” 83 NYU L Rev 1035 (2008), conflates the distinction between true and asserted morality and ascribes this inaccurate conflation to Hart. Gardner, in “Legal Positivism: 5½ Myths” 46 American Journal of Jurisprudence 199 (2001) restates NNC as asserting

In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources).

Doyle acknowledges that this is probably a better representation of the position held by Hart in his article than is way Hart himself stated NNC, but he points out that Gardner’s reference to “merits” nevertheless ensures that the focus is true morality, as well as other meritorious standards, which is consistent with Hart’s general approach.

He concluded by conceding that, for the purposes of the paper, he assumes that there is a “true morality” but makes no argument as to what its content might be, and he further assumes that it is useful to the concept of true morality in an analytical scheme without necessarily specifying its content.

Against this background, the problems with the analysis of Hart are twofold. First, an ambiguity in our vocabulary about morality has led to a mistaken interpretation and appraisal Hart’s thesis. Second, this ambiguity exacerbated by the tendency for legal positivists committed to NNC to assert that it does not matter – for present purposes – what true morality it is. It is an approach which, Doyle argues, considerably blurs the distinction between true morality and asserted morality and perhaps explains how easy it is in this context to slide between different meanings of the word “morality” without realising it. Nevertheless, Doyle asserted that there are such different meanings, and that it is better to understand NNC as a thesis about true morality.

At 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. He looked at metaphors provided by Watson (transplant), Örücü (blogged here) (transmigration), Monateri (contamination), Garziadei (reception) Teubner (irritant), and Twining (diffusion). From his conclusion:

The observation that both past and present laws are hybrids has profound implications. Most obviously, it undermines the conjoined ideas of legal nationalism, positivism, and monism spawned by nineteenth-century shifts in Western social and intellectual history. The ‘state’ has been historically, and in much of the world remains, only the most obvious and formalised creator of norms. It had, and increasing has, competitors. Both legal and social norms have composite origins and move in complex channels. The dissection of plural and dynamic traditions into discrete, closed legal families or systems is undermined. The Western past may tell us much about the global present. The historical and comparative fact of hybridity also forces a major re-evaluation of the goals of legal theory, though there is much to do to understand the mixtures and movements of our modern legalities. Such an understanding will prepare us for the new – and old – challenges ahead.

At 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. On the other hand, for many critical race theorists and feminists, the emphasis upon consensus fails to account adequately for the rupturing effect of racism and cultural marginalisation. Recently, however, some critical race theorists have adopted empirical approaches to identify the cognitive and affective biases which distort citizens’ ability to shift from an ‘I to we’ perspective in considering questions of justice. These developments provide a measured and co-ordinated account of the difficulties of including minority and excluded perspectives in an impartial public debate.

If human rights are to fulfil their function of integrating minorities and their interests at both national and local levels, an examination of the barriers to genuine consensus must be carried out. From the European Court of Human Rights to constitutional courts around the world, great emphasis has been placed upon statutory schemes involving elaborate consultation and renewed procedures which require decision-making to ‘consider’ or ‘weigh’ human rights. In this analysis, there are common themes: in the context of structural inequalities and entrenched relations of power, how much should be put up for debate? And how frequently does the implementation of human rights through consultation and participation collapse into empty process rather than improved democratic engagement?

Deliberative democracy has at its core a pragmatic circularity: the fundamental position that democracy and rights are co-original and co-dependent. This represents deliberative democracy’s greatest strength, in offering the possibility for revision in the light of actual contexts and exclusions. For lawyers, the picture which emerges is a need to continue to reflect on the role of law in furthering both rights, and mechanisms such as civil society engagement and consultation, in shaping an inclusive, democratic public sphere.

At 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”. Hence, in Kilcommins’ view, Ireland in the early 21st century doesn’t quite fit the Garland narrative; the position is much more nuanced and contradictory, with strong pulls in the opposite direction. For him, the Irish criminal justice is becoming more disaggregated and more contradictory. It is more principled but also more repressive, more instrumental but also more expressive. It continues to emphasise protection from the State, but increasingly also protection by the State. It embodies more authoritarianism but also more pluralism. It involves more monopolised criminal control but also more fragmentation and blurring of boundaries. In particular, for him, whilst legislation is more control-based along Garland lines, the courts are operating as a check on these developments:

The liberal ideology of legalism and constitutionalism has delivered, and continues to deliver, significant protections to those accused of crime that set some limits to the power of the State and the ‘tyranny of the majority’. Though discounted in crime control literature, it has a power and a reach that remains significant and real. Its embedded nature offers more than token resistance to newly emerging, more control orientated, orthodoxies. To dismiss it, or to afford it epiphenomenal status only (as ‘law in books’ or ‘paper rules’), is to neglect its capacity to check power and to offer sustained and dogged opposition to the creation of a ‘culture of control’ society.

Referring to Ronald Dworkin, he argued that the judiciary is by and large constrained by gravitational force of earlier decisions, so that the implementation of crime control legislation runs into a conflicting narrative of rights-based discourse. However, Kilcommins is realistic about the extent of this counter: it is not a complete response, and it is too easy to make complacent assumptions about the unity of law. Nevertheless, he concluded that we should still not close ourselves off from the continued appeal of constitutionalism, legalism, human rights, the internal logic of law, and judicial craft, all of which remain strongly imbricated in the cross-currents of the Irish criminal justice system.