3 Questions plus 1: The Family

*Today was the last day of exams and I am left with a sour aftertaste. Had I ordered the exam to go, it would have included the questions on the sheet I got this morning. What I came to realise though is that, no matter how much you know or how well prepared you are, you cannot beat that clock. I only got to write 1/5 of what I intended to and not because I blanked (like I did with Torts, may that moment never come again), but because the time was only enough to write about the basics! I didn’t write about polygamous families in art 41 nor did I write about Damache in retrospectivity – which is really current. I didn’t write about McKeogh in privacy. I might need a hand transplant, one that writes faster..

In all fairness, this is what I meant to write, even the mere outline would have been nice – one with cohesive arguments that actually made sense!

 

 

 

In Art 41, the Constitution speaks of a “natural primary and fundamental group of society”, named the “Family”. This group is described as “the necessary basis of social order”, “indispensable to the welfare of the Nation and the State” and the “primary and natural educator of the child” (Art42). The description  per se appears rather heavy-weight, this “family”seems to be the glue that holds the society together, without it society would fall apart. It is no wonder, therefore, that the drafters of the Constitution made sure that its safeguarding would be as broad and as flexible as possible in a hopeful effort to give this group sufficient protection that would last through time, against all external forces, including the judiciary (Constitution Review group 1996). The Constitution guarantees to protect the “ineliable and imprescriptible rights” of the family that are “antecedent and superior to all postive law”.

‘By themselves’ though, ‘rights consist only of words. They cannot be eaten and they cannot afford a shield against hatred and ignorance’ (Mr Justice Edwin Cameron, Leslie Scarman Lectures 2012, Middle Temple Hall – London). So the question to the matter is: have the powers of the State managed to provide the “family” with sufficient protection based on the text of the Constitution? Was the drafter’s linguistic choice a wise one?

The Origins of the Irish Constitution

The wait for this book has been long and anxious. I will say contently that it has lived up to my expectations and it was well worth the wait.

Many look at this publication and wonder “hm, why would this be of interest to me?”.  It seems like a piece of work for a very targeted audience and yet every effort has been made for it to be available to the broader public. An academic might look down on this book and my neighbour will think I am crazy for suggesting it. So who is it for?

This is a book for everybody. As a law student it has helped me grasp Constitutional values more than any other book ever has. I understand now why referenda are so vital for this country, I understand the power of judicial review, I appreciate the fundamental rights expressed within. I feel as though I was put in a time machine and sent back to the 1930’s for coffee with DeValera, O’ Rahilly and Cosgrave. I understand the text because, now, I understand the people behind it.

As a parent I can explain to my children what our law is all about, I can show them the pictures and tell them a story about a man’s vision, I get to explain to them the principles of freedom, power and justice – and they are so very interested for they love DeValera’s little yellow notes. This book has helped me teach them a little history they wouldn’t be interested in otherwise (and maybe a little law).

As an individual this is one of my favourite books. Mr Justice Hogan’s fluent writing takes the reader through the pages effortlessly, but then for anyone accustomed to his writing this was highly expected. It reads like a novel more than an academic analysis or a documentary and is really enjoyable. It is a commendable effort with a lovely outcome; it contains an amazing volume of transcripts and information, certain to tickle any reader’s brain.

Half the people say Bunreacht na hÉireann is an organic document and the other half contend it is a law stuck in the past, in urgent need of reform. Should you read the “Origins of the Irish Constitution” you will be able to make up your own mind.

I suggest you do!

(The book is published and circulated by the Royal Irish Academy – you can buy it here).