Law, Religion, and Decolonization

This series aims to explore the roles of colonialism and decolonization in the interaction of law and religion.

Religion and religious institutions can be employed by the state to support its imperial expansion and facilitate the loyalty and cultural homogenization of colonized territories and populations. Historically, these processes are often combined with proselytizing the imperial religion. They can, however, also preserve some religious freedom or autonomy for the domestic population, as Stanislav Panin discusses regarding Russia’s colonization of Siberia and the role of the Russian Orthodox Church in that colonization.

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Religion and Law in Ireland’s Post-colonial Nation-Building

David Kenny is a professor of law and a fellow at Trinity College Dublin.

Peter McCarthy is a PhD candidate at the School of Law, Trinity College Dublin.

It is well known that Roman Catholicism played a central role in Ireland’s colonial and independence eras. Various formal legal disabilities on and discriminations against Roman Catholics under the Penal Laws were seen as a major source of British colonial oppression in Ireland. These laws were in force for a long time, and their longevity and impact distinguish the experience of Irish Catholics from many of their European co-religionists [1]. The divisions between Catholic Ireland and Protestant Great Britain were entrenched by reference to religious belief and status, and religious liberation was therefore a major part of movements opposing British rule in Ireland. Catholicism became the “central characteristic of Irish nationalism” [2] and the primary way by which to distinguish the colonizer from the colonized. The population of the Irish state was, at the time of its independence in 1922, more than 90% Roman Catholic, while Catholics were a small minority of the population of the United Kingdom.

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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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