Mr. Justice Brian Walsh, the Natural Law, and Irish Catholicism

Dr. David Kenny is Associate Professor of Law and Fellow at Trinity College Dublin

Ask any lawyer, judge, law student, or legal academic in Ireland to draw up a list of Ireland’s great judges, and one name is guaranteed to appear: Mr. Justice Brian Walsh. Sitting on the Irish Supreme Court in the heyday of its activist period in the 1960s, 1970s, and 1980s, Walsh’s fingerprints are on many of the Court’s most important and innovative constitutional judgments [1]. A pioneer of unenumerated (or implied) constitutional rights—recognizing, amongst other things, a trailblazing right to privacy—Walsh’s innovative jurisprudence was transformational in Irish constitutional law.

A friend and correspondent of famed U.S. Supreme Court Justice William Brennan [2], Walsh—alongside colleagues like Seamus Henchy and Cearbhall Ó Dálaigh—developed Irish constitutional jurisprudence in a manner not dissimilar to the Warren Court in its heyday. His influence echoes still, even after more cautious courts in the 1990s and 2000s resiled from some of the more innovative elements of this period of constitutional expansion. Perhaps, as leading academic and current Supreme Court Judge Gerard Hogan has argued, Walsh’s constitutional vision, even if a good reading of the text, was simply too radical for judges largely wedded to the common law tradition [3].

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Taking Judges’ Religion Seriously: Some Reflections Based on U.S. and Italian Cases

Adelaide Madera is an Associate Professor of Canon Law and Law and Religion, Department of Law, University of Messina

In a 1952 landmark decision, delivering the opinion of the U.S. Supreme Court, Justice Douglas asserted: “We are a religious people whose institutions presuppose a Supreme Being.” This and other cases, where a U.S. judge refers to religious arguments while shaping a judicial decision, raise a question about the relationship between religion and the judiciary.

It goes without saying that in a democratic and pluralist state judges are not allowed to rely on their religious tenets to “resolve legal disputes.” However, some commentators argue the “inevitability of subjectivity,” namely, the unavoidability of judges who are not able (even unintentionally) to leave their religious, moral, political views at the threshold of the courtroom. Psychological literature also demonstrates the connection between “religiosity (the quality of being religious) and personal values” which affect subconscious processes underlying judicial reasoning. Besides, some scholars refer to various reasons why religious values may be of some help in judicial decision-making, specifically in deciding “ethically difficult cases,” such as the death penalty, where, as Guido Calabresi shows, judges may face the “tragic choice” between  one’s conscience and the rule of law.

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The Recognition of the Rohingya Genocide: An International Criminal Law Perspective

Michelle Coleman is a Lecturer in Law at Swansea University

On September 17, 2021, Rehman Chishti and Knox Thames wrote a blog post for the New Atlanticist calling for the US and UK governments to label the crimes committed by Myanmar’s military against the Rohingya Muslims a “genocide.” Specifically, they call for this label to be used by the United States and United Kingdom during the United Nations General Conference. They argue that identifying this situation as a genocide would remind the world that there is an ongoing conflict with atrocities being committed, create pressure that would discourage the new Myanmar government from continuing these atrocities, and encourage the US and UK to refer to matter to the International Criminal Court or use universal jurisdiction to prosecute those involved.

These are admirable goals. The Rohingya Muslims have suffered varying degrees of persecution since the 1970s. The situation escalated in 2017 however when Rohingya militants attacked 30 police posts. Myanmar’s army responded to those attacks by destroying at least 288 villages, killing thousands, and driving 700,000 Rohingya out of the country. The violence against the Rohingya people continues to this day.

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