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 28th Annual Law and Religion Symposium “A Time to Heal: Peace among Cultures; Understanding between Religions”

Jane Wise is an Associate Director, International Center for Law and Religion Studies, J. Reuben Clark Law School, Brigham Young University

The 28th Annual Law and Religion Symposium, sponsored by the International Center for Law and Religion Studies and BYU Law School, was centered on “A Time to Heal: Peace among Cultures; Understanding between Religions.”

Leaders of The Church of Jesus Christ of Latter-day Saints began the 28th Annual Law and Religion Symposium Sunday, October 3, 2021, with a discussion about healing and equal privileges of belief among all people. From a pre-recording at the G20 Interfaith Summit in Bologna, Italy, held in September,  panelists included Elder Ronald A. Rasband of the Quorum of the Twelve Apostles, Sister Sharon Eubank, first counselor in the Relief Society general presidency and president of Latter-day Saint Charities, and Elder Jack N. Gerard, a General Authority Seventy. Brett G. Scharffs, a professor at BYU Law School and director of the International Center for Law and Religion Studies, moderated the discussion. This was the second time the symposium was hosted virtually because of the COVID-19 pandemic.

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