The Irish Constitution: Explained by Darrell FiggisFiggis, Darrell
History
The Irish Constitution: Explained by Darrell Figgis
Figgis, Darrell
Ireland -- Politics and government -- 1922-1949
In the second place, it defeats the ends of justice because it is an
appeal to a court where the local circumstances are not familiar, and
where it may even happen (as it will certainly happen in the case of
Ireland) that the very axioms of the law may not be rightly apprehended.
For a central court of appeal of this kind supposes uniform circumstances
and uniform law. Now the circumstances manifestly are not uniform. Yet
neither is the law likely to be uniform. The example of S. Africa may be
taken. In S. Africa the law in force is Roman-Dutch law, not the English
Common Law. It has therefore proved that the Judicial Committee has been
required to handle an instrument with which it is unfamiliar. The same
will apply in Ireland, where it has already proved, notoriously, that the
principles of the law known familiarly as "Brehon law" have worked in
opposition to the black-letter precedents of English law.
In addition to this, however, it is to be remembered that the lawyers
composing the Judicial Committee are obviously unfamiliar with the
principles underlying the structure of our Constitution, since they are
quite unlike the principles with which they themselves have to deal. One
need not argue which are the better. It is enough that they are unlike. A
mechanic cannot be supposed to deliver impartial justice between two
farmers in a matter of farming economy. The famous case of the Loch Neagh
fisheries is enough to prove that only those who are familiar, not only
with Irish circumstances, but with Irish history, can expect to deliver
justice in Irish matters.
Moreover, there is a further consideration, which the plain facts of the
case require should be firmly stated--and which the experience of other
nations of the Commonwealth emphasises. It is that under the chief of the
two heads under which such appeals to the Judicial Committee would fall
the very intention to do impartial and indifferent justice could not
presumed in advance. For all such appeals involve two classes of cases.
The first deals with appeals from interpretation of the ordinary law. The
second deals with appeals from interpretations of the Fundamental Law of
the Constitution. Now appeals from an interpretation of the ordinary law
heard in some country where the principles of that law are unfamiliar
would, as has been indicated, involve injustices enough; but they would
concern only the individual or some corporate enterprise. The injustice
would exist; but it would be limited; and lawyers of another country might
be supposed to wish to search for justice, even if the trading enterprise
had its seat in their own nation and the individual were Irish. But a
Constitution is the very charter of a nation's freedom.
Public-domain text, read in full here on John Shaqi.
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