BOOK: Carolin et al on the Constitution of Ireland

I'm very pleased to note the publication of Eoin Carolin (ed), The Constitution of Ireland: Perspectives and Prospects (2012). It

brings together a range of Irish and international commentators to examine some of the most significant current issues in Irish constitutional law.

Based on a selection of the papers originally presented at a conference to mark the 75th anniversary of the enactment of the current Constitution of Ireland, the collection touches on many of the challenges facing Ireland today. These include: the possibilities for political and constitutional reform; the state of Ireland’s democratic structures; national sovereignty in an era of international organisations; the role and conduct of referenda; questions of national identity and values; the meaning of modern Irish republicanism; and the place of religion in Irish society and government. The contributors describe how the Constitution has influenced developments in Ireland since 1937 and consider how it might continue to do so in the future. At a time when Ireland’s political and constitutional structures are under review, The Constitution of Ireland: Perspectives and Prospects provides expert insight into these important questions.

The contents include:

Introduction: The Hon Mrs Justice Susan Denham, Chief Justice - Some thoughts on the Constitution of Ireland at 75;

Part I Constitutional Values:

• Philip Pettit - The Republican Constitution;
• Mark Tushnet - National Identity as a Constitutional Issue: The Case of the Preamble to the Irish Constitution of 1937;
• Ronan McCrea - Rhetoric, Choices and the Constitution;
• Amihai Radzyner - The Irish Influence on the Israeli Constitution Proposal, 1948;
• Eoin Daly - Public Philosophy and Constitutional Interpretation after Natural Law: Republican Horizons;
• Declan O’Keeffe - God, the Natural Law and the 1937 Constitution;
• Maria Cahill - Judicial Conceptions of Sovereignty;

Part II Democracy, Politics and the Constitution:

• Conor O’Mahony - Constitutional Amendment and Judicial Restraint: How Restrained Should an Irish Court Be?;
• Paul Gallagher - The Limits of Constitutionalism;
• David Kenny - The Separation of Powers and Remedies: The Legislative Power and Remedies for Unconstitutional Legislation in Comparative Perspective;
• Jim O’Callaghan - Seanad Éireann – An Opportunity for Real Political Reform;
• Bláthna Ruane - The Doherty Case and Issues Regarding the Provision of Information and Funding for Constitutional Referenda;
• Gaetano Marzulli - Direct Democracy by Judges? The Irish Constitution and the Approach of the Courts to the Referendum as a Model in Comparative Perspective;
• Marie-Luce Paris - Popular Sovereignty and the Use of the Referendum – Comparative Perspectives with Reference to France;

General Principles and Comparative Law

Abstract:
This article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Furthermore, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.

Ellis, Jaye, General Principles and Comparative Law (2011). European Journal of International Law, Vol. 22, No. 4, 2011.

Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective

Abstract:
The act of translation encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist and translation theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Šarčević 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity.

In the field of comparative law, these "translation" errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.

Boyne, Shawn Marie, Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective (January 9, 2013).