The complex legacy of Judge Adrian Hardiman

(Unpublished April 2016)

This year saw the premature passing of Supreme Court Justice Adrian Hardiman who devoted his rhetorical gifts to crafting judgments sure to inform our laws for years to come. He combined an acute attention to detail with wistful literary flourishes suggesting gifts in a more artistic domain. It is perhaps unsurprising that he devoted spare time to scholarship on James Joyce.

It is apparent that he was animated by strong philosophical convictions; a liberal in the Continental sense, he revealed a conviction that citizens’ lives should, as far as possible, be unfettered by state interference.

This might be discerned in two ways: first, resistance to the idea that the Court should vindicate so-called socio-economic rights under the Constitution as this would violate the principle of the Separation of Powers; and secondly, especially in evidential matters, a conviction that strict rules should be applied to the behaviour of what he termed the force publique.

But unfortunately few beyond the legal professions will engage with his oeuvre. It is a general failing that judgments of the superior courts, including Hardiman’s, fall prey to what Max Weber described as ‘lawyer’s law’.

Hardiman’s critique of the excesses of the Force Publique ‘the wider legally empowered class’ was nothing short of a crusade. In his dissenting judgment in DPP v JC (2015), which reversed strict rules regarding the admissibility of unconstitutionally obtained evidence laid down in DPP v Kenny (1990), he expressed himself ‘horrified that it is proposed in the current case to make “inadvertence” a lawful excuse for State infringements of individuals’ constitutional rights.’

He decried the state’s appeal describing it in colloquial terms as asking the court to ‘first move the goalposts and then to order the match already won and lost, to replayed with new rules, written by one side and imposed on the other.’ He opined characteristically that ‘Joseph Heller’s “Catch 22” is the only authority I can think of to support the paradox which the state has advanced.’

He also drew attention to Tribunals enquiring into the conduct of An Garda Siochana which revealed illegal phone tapping, noting that ‘not one guard of any rank has been prosecuted for this’. He set store in the comments of Leo Varadkar that the Department of Justice was ‘not fit for purpose’; and those of Conor Brady the former head of GSOC that ‘you could not get into Fortress Garda’.

As a former student of history Hardiman was keenly aware that even if the current government upheld norms of constitutional justice it was crucial for the Court to make allowance for a government bent on subverting fundamental rights.

But while progressives might have cheered his approach in DPP v JC his repudiation in Sinnott v Department of Education (2001) of socio-economic rights under the Constitution was a source of disappointment.

Almost by definition judicial discretion is informed by a judge’s political or moral outlook. Adrian Hardiman as a founding member of the Progressive Democrats was associated with the classic liberal idea of reigning in the state in terms of expenditure and taxation.

In Sinnott the Supreme Court were asked inter alia to adjudicate on the legality of mandatory orders made in the High Court by Judge Peter Kelly.

Following a High Court decision of Justice Declan Costello in O’Reilly v Limerick UDC Hardiman distinguished between commutative and distributive justice, the former bearing on relations between individuals such as found in contract and tort with the latter involving the distribution of the resources of the state. In contrast to commutative justice which he considered central to the court’s function, he held, in obiter, that the exercise of the court’s jurisdiction over distributive justice was repugnant to the Separation of Powers.

Despite Justice Costello showing a willingness for distributive justice in the subsequent case of O’Brien v Wicklow District Council (1994) Hardiman nonetheless brought to bear his arguments in O’Reilly and sought to elevate them to a constitutional principle. He said that the apportionment of resources ‘would lead the Courts into the taking of decisions in areas in which they have no special qualification or experience’; and were a judge to engage in ‘designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.’ Revealing he also alluded to generalised ‘human rights to earn a livelihood and hold property.’

But other constitutions including those of South Africa and India make provision for socio-economic rights. It would surely be remiss for a Court to deny jurisdiction on the grounds of incompetence on distributive justice – detailed financial resolutions are, after all, already executed in the family and commercial arenas – if constitutional alteration enjoined judicial oversight.

Moreover even in the present constitutional framework the paramount right to life under Article 40.3 should require the Court to make mandatory orders in circumstances that might easily arise: the judiciary would surely be forced to intercede on behalf of citizens whose level of material welfare jeopardised their lives; where the legislature fails to vindicate a right to life the Court must surely assume responsibility.

It might also be argued that the executive branch has not always shown competence in managing the resources of the state! In inferring a constitutional principle debarring adjudication on distributive justice Judge Hardiman may have left an ideological hostage.

There is another criticism that may be levelled against the late Judge which is really directed at the voluminous judgments of the superior courts that generally use arcane legal prose inaccessible to the non-legal public. This could even offend Article 34 which ordains that justice should be administered in public.

The sociologist Max Weber provided a compelling critique of the tendency for verbal gymnastics in the Common Law system of which Ireland is part. He said that with this ‘lawyer’s law … reasoning is tied to the word, the word which is turned around and around, interpreted, and stretched in order to adapt it to varying needs, and, to an extent that one has to go beyond, recourse is had to “analogies” or technical fictions’.

One might recall Pascal’s dictum apologizing for the length of a letter: ‘If I’d had more time it would have been shorter’. It would surely be appropriate if judges were obliged to provide more terse judgments for public appraisal. Though hardly the worst offender, Hardiman’s love of language did generate long judgments which could inhibit engagement from the wider public.

We might contrast the Common Law inheritance of Ireland with that which has traditionally obtained in France where law is seen as part of a general education. The eminent jurist Rene David wrote of this awareness of law as being an element normal del la culture generale. Indeed it has been said that the original French civil code owes its clarity to how the draftsman always had to ask himself whether his words would withstand the criticisms of a highly intelligent layman in the shape of Napoleon Bonaparte, unfamiliar with legal jargon.

Hardiman was one of the leading jurists of our times in Ireland, it is to be regretted that the level of legal knowledge of most citizens in the state along with a failure to reign in arcane language and textual accumulations in judgments is such that discussion of his ideas is unlikely to occur beyond the legal community.

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