Eoin Daly - The Political Theory of the Irish Constitution: Republicanism and the Basic Law
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Recent years have witnessed a revived interest in civic republicanism in Ireland, in tandem with a growing consciousness of republican ideas across the English-speaking world. Yet while republicanism is posited as a catch-all public philosophy and as a framework for political reform in Ireland and elsewhere, its content remains highly ambiguous and contested. Its implications for constitutional structure and constitutional theory are the subject of wide debate in both legal and political thought.In this book, Eoin Daly and Tom Hickey consider republican themes in the Irish constitutional tradition. While the Irish Constitution has been understood as oscillating between a liberal concern for individual freedoms against the state and a communitarian concern for promoting a shared identity, the authors argue that many of its central features and devices can be interpreted in a distinctively republican light - and specifically, as providing a framework for participation in self-government. They consider how institutions and concepts such as popular sovereignty, constitutional rights, parliamentary government and judicial review might be re-interpreted in light of the republican themes of civic virtue and freedom as non-domination.Thus The political theory of the Irish Constitution considers the application of civic republican ideas in a particular national setting. It will be of interest to students and researchers in Irish politics, political theory and constitutional law, and to all those interested in political reform and public philosophy in Ireland.
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The political theory of the Irish Constitution
The political theory of the Irish Constitution
Republicanism and the basic law
Eoin Daly and Tom Hickey
Manchester University Press
Copyright Eoin Daly and Tom Hickey 2015
The rights of Eoin Daly and Tom Hickey to be identified as the authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988.
Published by Manchester University Press
Altrincham Street, Manchester M1 7JA
www.manchesteruniversitypress.co.uk
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data applied for
ISBN 978 0 7190 9528 3 hardback
First published 2015
The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Typeset by Out of House Publishing
Contents
By Philip Pettit
Part I
Part II
Part III
We both thank Tony Mason and Manchester University Press for their support throughout the production and writing process. We also thank Philip Pettit for his foreword.
Eoin Daly
While working on this book I have been fortunate to share the company and insights of colleagues in three very different university departments. I thank my friends at the National University of Ireland, Galway, University College Dublin, Dublin City University and elsewhere: especially (and in no particular order), John ODowd, Donncha OConnell, Mairead Enright, Sinad Ring, Niamh Howlin, Noel McGrath, Conor OMahony, Joe McGrath, Diarmuid Griffin, Colm OCinnide, Desmond Clarke, Siobhn Mullally, Liam Thornton, Colin Scott, Gavin Barrett, Iseult Honohan, Rory OConnell, Imelda Maher, Olivia Smith and Kevin Costello. As Heads of Law at UCD and NUI Galway, Colin Scott and Donncha OConnell were particularly encouraging and supportive in facilitating my work on the manuscript. Further back, I will always remember the friendships I enjoyed with my fellow Ph.D. students in Cork. My friend and co-author, Tom, is a great exemplar of passion and sincerity. Above all I thank my wife and colleague, Eilionir Flynn for the example she sets for me in her no-nonsense enthusiasm and drive and my parents, Tom Daly and Ann Sheehan, for all their support.
Tom Hickey
I begin with a word for my friends in the School of Law at NUI Galway. Having spent three years there as an undergraduate, more than three as a Ph.D. candidate and almost three years as an academic, I like to think Ive been influenced by its great public law tradition. I also thank my new friends in the School of Law and Government at Dublin City University, in particular Head of School, Professor Gary Murphy. The blend of law and government makes for a wonderful scholarly dynamic in which I feel very much at home. (A word for the students at Dublin City University, too, especially the many who so vigorously grapple with the deeper questions). I thank Philip Pettit for his friendship and support at a critical juncture in my academic life. Ill always remember where I was when I first read the pages of Republicanism: the excitement I felt at finding a semblance of the intellectual direction that I had been seeking for many years. And I thank my co-author and friend Eoin, who has led this project along with many a conversation with me on the ideas in these chapters. I thank my wonderful mother, Maria, and Emers parents, Terry and Mary. I remember my father, Paddy. I dedicate this book to him, and also to his granddaughter Sadhbh, born just the day after the final pre-review draft was submitted. Most of all, and as always, I thank Emer.
The core idea in the long republican tradition is that the affairs of law and government are res publica: public business. They are not the property of an hereditary dynasty, a wealthy elite, a political party, a professional bureaucracy or a majority church. Whether legislative, executive or judicial in character, they often have to be put in the hands of particular officials, committees and assemblies. But the idea is that in discharging their offices, those individuals and bodies have to be constrained, in full transparency, to operate on the peoples terms. They have to be forced to satisfy the standards and expectations of the community endorsed in election or appointment to office on pain of exposure and challenge, sanction and dismissal.
At the core of this core idea is the commitment to organising law and government around a popularly accepted constitution that satisfies two broad constraints. First, it recognises the sovereignty of the collective people: their right to control what happens in public life under provisions for which the constitution itself makes room. And second, it establishes a framework of law and policy that protects people in their individual identity, giving each a domain in which they can enjoy a personal form of sovereignty. This framework has to define the liberties that are fundamental to human life; to provide those who lack them with the resources required for enjoying those basic liberties; and to shield each member of the community from private interference or intimidation in their exercise.
Eoin Daly and Tom Hickey argue that, scoring well on these two fronts, the Irish Constitution has a fundamentally republican character. It emphasises popular sovereignty and democratic control in insisting that all powers of government derive from the people. And at the same time it highlights the rights that have to be secured for individuals if they are to enjoy personal sovereignty in the exercise of their basic liberties. The Constitution was drafted and adopted in a force field of special interest, partisan pressure and ecclesiastical influence. But the authors show that despite this, it emerged from that process, and from later processes of interpretation and amendment, with a republican identity intact.
This in itself is an achievement worth noting and celebrating, but it is merely a first step in the argument that the writers pursue in this book. For their main aim is to show that if we read the Constitution in light of its republican character, then we can find a basis within the document for a wide-ranging, indigenous philosophy of law and government. This philosophy makes sense of our institutions in general, they argue, while calling for the reinterpretation or reform of some in particular. It offers an account of the sort of country and people we are, providing guidance on where we must go in order to remain faithful to that identity.
Thus this book provides sure and stirring guidance on the ways in which we can use the republican understanding to determine the role of legislature and executive envisaged in the Constitution, to construe the relationship between courts and people that is encoded there, and to provide a basis for the interpretation of the document as a whole. More than that, it goes beyond the written Constitution to the republican system of norms that it encodes, exploring the implications of these norms in two crucial, troubled areas. One relates to the education that we should be providing for our children and the other to the relationship that we should establish between Church and State.
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