Is Veganism Compatible with being Pro-Choice?

Is Veganism Compatible with being Pro-Choice?

Last month I attended a protest in Dublin against slaughterhouses, where the impassioned cry rang out: ‘HUMANE MEAT IS A LIE. NO ANIMAL WANTS TO DIE’. I am guessing the vast majority of that crowd was pro-Choice, as I am myself. But I wonder is there a contradiction if we urge people to stop killing other animals, but remain silent on the plight of a foetus on which (or whom?) an abortion is informed? Like it or not we are dealing with a sentient being, albeit one that is dependent on its mother.

I am proceeding with care here, conscious that as a man I will never have to make a decision as to whether another human being is allowed to grow inside my body. Nonetheless, I feel bound to tease out this ethical question.

An obvious response might be that this is a matter of bodily integrity, and that anyone should have a choice as to what they do with their own body. But isn’t that the same argument the meat eaters uses when he says: ‘It’s fine you being Vegan but I don’t want to be told what I can or cannot eat.’

For the purpose of this argument let me set up an idealised scenario: a world where Vegan values are incorporated into the law, and where it becomes a crime, ultimately enforced by the violence of a state apparatus, for anyone knowingly to kill or otherwise harm another sentient being, apart from in cases of self-defence, or perhaps survival.

I reckon many, if not most, Vegans would be in favour of laws protecting other animals from human use, although I recognise there are Veg-anarchists out there too, who have a problem with the idea of any state using the violence necessary to uphold laws.

For those Vegans (including myself) broadly in favour of state laws, protecting other animals from human beings using them for meat and other purposes, I ask: what protection would you afford to a foetus growing inside a woman? After all, if you aren’t going to eat honey for the sake of the bee, wouldn’t you extend rights to an immature member of your own species?

But as I said, I remain pro-Choice. Ethical questions are never straightforward and any law we contemplate must operate in real life circumstances, not in
Utopian scenarios. I have found a caveat which keeps me pro-Choice.

Even some of those opposed to abortion on demand accept that where a woman is raped and becomes pregnant she should have a right to terminate the pregnancy.

It would seem intolerable for society to tell a woman that she is obliged to carry a foetus for nine months, and give birth, in those circumstances, as is the case in Ireland today. Thus, a woman’s right to bodily integrity would trump any countervailing right of a foetus.

But the problem for those who are conceding a right to abortion on those grounds is working out how a woman should go about proving rape in order to have a right to that abortion. Even for a woman, or girl, to acknowledge to herself, and her family, that she has been raped may, in some circumstances, be traumatic. How can you then ask her to sign blithely on a dotted line that she has been violated, or otherwise make a declaration to that effect?

Would a criminal investigation then proceed after a declaration of rape occurs? This could have the effect of leading women to make false allegation of rape in order to get an abortion, which might even cause men to be wrongfully prosecuted. It would be a complete legal minefield if this were to be the exception to the general rule that abortion should not be allowed on demand.

This is a violent world we live in. Rape is far from being an unusual crime. One in five Irish women have experienced sexual violence, and the #metoo phenomenon has exposed the extent to which women feel obliged to perform sexual acts in order to advance their careers, which is not far off being rape.

Put simply, in the world we live in today, abortion is a necessary evil and a form of self-defence for women against predatory men. The rape exception leads to an all-encompassing right.

A major problem with the abortion debate in Ireland is that the media set up binary positions that narrow the debate unsatisfactorily. This fails to acknowledge wider questions on sexuality, gender roles and reproduction.

Newspapers are commercial enterprises that dangle click bait that appeal to the narrow opinions on each side. The difficulties are compounded by an adversarial legal culture that sets protagonists against one another, and pollutes the body politic.

The debate should not descend into polarities. There are quite disturbing scenarios where abortion might be co-opted into the design of offspring, selected for good looks, athleticism or intelligence; an extension of how the cosmetic industry help us design our bodies, for a fee of course. The superficiality of debate is symptomatic of the Neoliberal zeitgeist of dissonance; neither side acknowledging the arguments of the opponents, thereby preventing a progressive synthesis from emerging.

Justice emerges through observation and experience of the world around us. Instead of tablets of stone containing commandments for all time, we should find the language of justice inscribed on organic materials that alter with circumstances. These insights may be illuminated in the same silence that is necessary for poetic inspiration.

I remain pro-Choice and favour repeal of the 8th Amendment of the Irish Constitution.

Can Justice be Poetic?

The Irish nation is rightly proud of its poetic inheritance. At first glance this sacred tradition has nothing to do with the law, but I argue that by engagement with our great poets we may arrive at a deeper understanding of the broader idea of justice.

The lawyers and politicians who hand down our laws have studied poetry in school of course, some perhaps in university. They may even have excelled in that study, but presumably their interest should cease when they become responsible adults.

The Romantic poet Percy Bysshe Shelley (1792-1822) makes the remarkable claim in his A Defence of Poetry (1812) that poets are the unacknowledged legislators of the world. He says that his kind engendered the social sympathies that are the inspiration for laws.

And poets actually seem to have literally sung some of the first laws into being. The legal scholar Edward J. Erbile writes: ‘Ancient law often took the form of poetry. Laws were expressed in incantatory rhythms. The oldest Greek and Latin words were also the eldest words for law. For example carmen or carminis in Latin means ‘song’ or ‘statute’.’

For the Ancients justice and poetry intermingled, the use of meter and rhyme helping people recall civic duties as a Catholic does his faith in reciting the Creed.

But apart from a mnemonic role is there a broader connection? Shelley contends that poetry is the highest form of imaginative expression which precedes philosophical enquiry. Nor does he restrict poetry to verse but points to the poetic imagination in other art forms. The great historians are poetic in their appreciation of human nature he says.

Shelley writes that for a man to be ‘greatly good’ he ‘must imagine intensely and comprehensively; he must put himself in the place of another and many others; the pains and pleasure of his species must be his own.’ Through his deep sensitivity the poet is therefore powerfully empathic; perhaps our lawmakers should also focus on these faculties.

As a true Romantic Shelley perhaps overstates the benign nature of poets. After all Hitler mesmerised audiences with mellifluous speeches and the Tory and Unionist politician Enoch Powell, a published poet, warned against multiculturalism using the colourful metaphor of ‘rivers of blood’.

Nonetheless poets are often visionaries. Shelley refers to a powerful intuition: ‘he not only beholds intensely the present as it is, and discovers those laws according to which present thing ought to be ordered, but he beholds the future in the present (not that they can foresee the future).’

That ability to “behold the future in the present” is apparent in Ireland’s greatest poet W.B. Yeats the winner of the Nobel Prize for literature in 1923. Writing in the aftermath of World War I he memorably predicted in The Second Coming how events would enfold in Europe culminating in the atrocities of World War II just twenty years later: ‘Things fall apart; the centre cannot hold.’ Here he’ll always be remembered for his immortal phrase: ‘A terrible beauty is born’.

Neither Shelley nor Yeats always embodied the lofty qualities that Shelley alludes to. Yeats’s fascist fellow-travelling and aristocratic hauteur is now rather embarrassing to his devotees, but interestingly as a Senator in the 1920s ‘that smiling public man’ was a trenchant critic of an increasingly Catholic State.

During a debate on the introduction of a law prohibiting divorce in the Seanad he presciently argued that: ‘If it ever comes that North and South unite, the North will not give up any liberty which she already possesses under her constitution. You will then have to grant to another people what you refuse to grant to those within your borders. If you show that this country, Southern Ireland, is going to be governed by Catholic ideas and by Catholic ideas alone, you will never get the North. You will create an impassable barrier between South and North … You will put a wedge into the midst of the nation.’

Yeats argued that the absence of divorce eroded the integrity of the institution of marriage itself: ‘This is a demand for happiness, which increases with education, and men and women who are held together against their will and reason soon cease to recognise any duty to one another.’

I suggest that perhaps the finest example of poetic imagination in Irish law was the discovery by Kenny J. of “Unenumerated Rights” under the Irish constitution in Ryan v Attorney General (1965).The right to bodily integrity was soon followed by the ‘discovery’ of other unexpressed rights by other judges. Kenny was, like the first poet-lawyers singing a new species of law into existence.

Unenumerated Rights have been vital to the development of Human Rights law in Ireland but unfortunately the idealism of the 1960s has given way to a more mechanistic and less imaginative approach to justice.

Poets may not live up to their own ideals but there seems no group better equipped at understanding the human condition and distilling moral principles from that essence.
(Unpublished, 2016)

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.

Black Point: a year in the King’s Inns

Black Point: a year in the King’s Inns

(adapted for Village Magazine, September 2012)

‘I am sure you’ll all soon be living in Regency houses after successful careers at the bar’, were some of the saccharine words that greeted our first day at the King’s Inns as the Under-Treasurer welcomed us to our new lives as fledgling barristers.

Before long we had been ushered into groups, and what followed was the excruciation of a ‘describe yourself in sixty seconds’ discussion with a partner who would then give a presentation on the essence of who you were.

The first week came straight out of the ‘Getting to know one another in Business School’ manual as students were subjected to such questions as ‘who would be your ideal dinner party guest?’ Fortunately, the nauseating artificiality of these exchanges did not deter the formation of normal relations, and even friendships, as individuals bonded through that vital human ingredient that has always been the bane of totalitarian regimes; satire.

The student body consisted of one hundred and ninety students, sub-divided into twelve groups of sixteen, and the ‘group’ formed the basic social unit of which a student became part. The ultimately chimerical threat of failure haunted any student who did not abide by the mandatory ninety per cent attendance, ensuring low absenteeism.

The Dean, a lady of unfailingly sour countenance, justified this compulsion by analogy with the medical profession. It would, apparently, be unfair on future clients for discrete areas of the law to be unknown to practitioners if they had missed out on classes. But this ignored the fact that students often turned up in a condition where learning was out of the question; either because they promptly fell asleep, or had rip-roaring hangovers, or were in the grip of a cabin-fever induced dementia. I know because I attended in all three states. Moreover, a medical student’s knowledge is tested by examination (as was the King’s Inns student – intensively) not by attendance. With the best will in the world, a person of low intellect may not remember what was said in class while the smart student may consult a textbook.

The real reason for the mandatory attendance seemed to stem from the need for the full compliment of any group to be available for the ‘Ring-Ring a Rosy’ business school games and group work.

The ‘War on Absenteeism’ led to one of the defining moments of the year; an attempt to introduce a biometric roll-call. Students were to be asked for a finger print sample to confirm their presence in class. Progressively, the distinction between student and ordinary criminal was blurred as the authorities sought to prevent the dastardly students from creating androids in their own image or enlisting suitable doppelgangers. Fortunately, the scheme was abandoned as even the unusually docile students of the King’s Inns began to rumble with discontent.

Compulsory attendance extended to dining, by far the most archaic aspect of the King’s Inn’s education; a vestige of a time when there was no formal education and students were treated to the wisdom of their elders while they ate. Students still dine in capes which give the festivities the appearance of a wizard convention. They then gather at tables to await the entry of the Benchers, members of the judiciary and grizzled barristers. The students bow before these luminaries in a show of feudal deference.

The food, which had apparently improved immeasurably, was of the distinctly canteen variety, limp and unimaginative; melt in your mouth carrots and mystery meat. The old rational of the benefit of interaction between students and practitioners is lost as, except on rare occasions, practising barristers are kept well away from the hoi poloi and given superior food as a mark of their elevated status.

The modern hybrid is a glorified piss-up where students are provided with wine that would make a salad wince. The only educational aspect of these evenings is derived from learning how to cope with quantities of cheap plonk, the euphemistically named Chilean Punta Negra (black point). Twice a year, so-called ‘grand’ night takes place where each student is given a whole bottle as opposed to the customary half. The consumption of so much cheap booz at an early hour has predictable results with many students roaring drunk by nine o’clock. On both grand nights students suffered broken bones (two broken ankles on the last occasion) there were also stories of prominent members of the judiciary being harangued by students who had fallen under the spell of the wicked brew. For anyone with a weakness for alcohol, dining provided an atmosphere not exactly conducive to sobriety.

Retribution for a lack of decorum could be swift. On one night the Chief Justice took exception to the insufficiency of the students’ bowing and the ‘privilege’ of going to the toilet was withdrawn. It should be emphasised that in the Honourable Society of the King’s Inns going to the toilet at dining is a privilege sought by way of permission from the Bench. In most walks of life, such a decree would give rise to a riot but owing to a general omerta and deference to authority no such response could be expected from the sheepish students of the King’s Inns, eager themselves to ascend to the cherished heights of the profession.

Probably the most nauseating moment of the year came after the triumph of the King’s Inns Hurling team in a competition involving about three other colleges with miniscule student numbers (while the King’s Inns team also contained practising barristers). The team were feted like astronauts. Members of the judiciary became weak kneed at the sight of these fine young men who had, apparently, single-handedly changed the prevailing perception of the institution (in the deluded estimation of the President of the High Court). These brave young men were now firmly established in the pantheon of Gaelic heroes. No longer would the institution be associated with West-Brit cricketers or pansy debaters.

The denouement came at one of the final dining nights in a rally where Nuremburg met Croke Park. The team, heroes to a man, were presented with awards with each member accorded a stirring accolade. The whole ceremony seemed to go on for hours. Leaving the hall was prohibited, so vast quantities of the Punta Negra were consumed as most people, bemused by the spectacle, sought some escape from the tedium. But the hum of speeches continued as each substitute who had turned up at every training session to bash the head off some malnourished gombeen from Newcastle West Post-Leaving Cert Institute, was accorded his due. Unsurprisingly, before long most of us had reached ‘black point’.

(http://www.villagemagazine.ie/index.php/2012/09/tired-jargon-and-ritual-subvert-our-legal-system/)

Poverty at the heart of the ‘oldest profession’.

(Published in the Law Society Gazette April, 2016)

The Criminal Law (Sexual Offences) Bill 2015 had a second reading before the Oireachtas on January 28th this year. Alongside more stringent measures against trafficking and underage participation in prostitution and pornography the Bill proposes that the purchase of a sexual service should be a crime with a maximum penalty of one year in prison. I argue that this measure is not appropriate in the present context of income inequality and poverty. Instead I propose a more compassionate approach towards the sex worker in particular.

It may come as a surprise that in Ireland prostitution is not illegal although most activities around it are. The Criminal Law (Sexual Offences) Act of 1993 prohibits soliciting or importuning another person in a street or public place for the sole purpose of prostitution. This applies equally to prostitute and client. It also prohibits living off the earnings of another person, and keeping a brothel or other premises for the purpose of prostitution. Furthermore the Criminal Law (Human Trafficking) Act 2008 criminalises the trafficking of persons for sexual exploitation.

It seems very likely that the Criminal Law (Sexual Offences) Bill 2015 will enjoy overwhelming support in the Oireachtas considering the endorsement of the two former government parties Fine Gael and Labour as well as the support that Sinn Fein and Fianna Fail gave to a private member’s bill the Criminal Justice (Sexual Services) (Amendment) Bill introduced by Thomas Pringle in 2013 which purported to create a similar offence. Interesting, two members of the United Left Alliance Clare Daley and Mick Wallace opposed that bill on grounds of efficacy and with the argument that it unfairly infringed an individual’s right to make a living and increased stigmatisation.

Both bills are based on the so-called Swedish model whose parliament passed a Kvinnofrid (Violence Against Women Act) in 1999 that for the first time criminalised the purchase, but not the sale of sexual services, treating the sex worker as the victim of an inherently violent act. This legislative course has been followed in a number of other jurisdictions including Norway and recently Northern Ireland.

Support for the measure, unusually, might align traditional conservatives and many feminists. Both would agree with Plato’s conviction that: ‘The excess of liberty in states or individuals seems to pass into an excess of slavery’. Freedom to sell sexual services is seen as a form of bondage damaging to the sex worker, or prostitute, and the wider society.

The terminology itself causes difficulties as it has been argued that the term sex worker legitimates this form of employment. However it is employed in international literature on the subject and is preferred for that reason. The term prostitution is retained however in relation to the profession itself.

Advocates of alternative approaches might refer to the ideas on liberty espoused by John Stuart Mill who wrote that: ‘Mankind are great gainers by suffering each to live as seems good to themselves, than compelling each to live as seems good to the rest’. It is thus argued that the right of an individual who has reached maturity before the law to sell freely a sexual services should not be impeded by the criminalisation of his clients.

In Ireland it is estimated that around one thousand individuals (overwhelmingly women) are available or made available for sexual services each day. Most services are advertised online. Gone are the days when an entire street in Dublin was identified with prostitution. Monto or Montgomery Street now called Foley Street, was immortalised in the Nightown-Circe chapter of James Joyce’s Ulysses and in the ribald folk song Take her up to Monto. In the 1920s most of the brothels there were shut down.

Since introducing the legislation the number of sex workers in Sweden has declined significantly, but opponents, particularly sex worker advocacy groups, say that the law has increased the stigmatisation of a sex worker, with occasionally grave repercussions.

There is also a strong suspicion that draconian laws drive the trade underground as sex workers ensure their clients avoid prosecution. One sex worker and campaigner Laura Lee has even taken a legal challenge to Northern Ireland’s legislation to the European Court of Human Rights. She claims it has created problems as clients now refuse to use an online screening process thereby putting sex workers in danger. Apart from the threat of increased violence against sex workers this could have implications for the spread of STDs.

However other countries have experienced serious problems after liberalisation. A 2012 paper in the journal World Development found: ‘Countries with legalised prostitution have a statistically significant larger reported incidence of human trafficking inflows.’ Since full legislation in 2000 (including pimping and brothel keeping) in the Netherlands, prices for sex have fallen and sex workers ‘emotional well-being is now lower than in 2001 on all measured aspects, and the use of sedatives has increased,’ according to a 2007 evaluation by a Dutch justice ministry.

Michelle Goldberg who wrote an incisive article for The Guardian (August 8th, 2014) on the subject makes the good point that: ‘Deciding which model works better is as much an ideological as an empirical question, ultimately depending on whether one believe that prostitution can ever be simply a job like any other.’

But even if we accept that prostitution is inherently violent and exploitative what if the effect of the legislation will be to drive a reduced level of trade further underground? Similarly, we may regard drug use as a social ill but has criminalisation not allowed criminal networks to thrive off illegality?

Moreover we should be aware of the damaging effects of criminalisation in terms of recidivism. Imprisoning more people is surely a course to be avoided where possible. There is no provision in the legislation for educating, rather than shaming, individuals as to the exploitative relationship involved or curing what may be compulsive behaviour.

It might be more appropriate to view prostitution as a response to poverty and inequality. Certainly history bears this out. In Naples 1944 the British Intelligence Officer Norman Lewis discovers an intelligence report indicating that 42,000 out of a ‘nubile’ female population of 150,000 had turned to prostitution due to the extreme poverty experienced in the city after the Allied invasion. All this in a traditional Catholic society.

There are now huge disparities of wealth and poverty in Europe especially with the presence of migrant populations many of whom do not have employment visas. Individuals may not be forced into prostitution but their circumstances may leave them little option. Further criminalisation could make some of them less safe.

Moreover, it is apparent that prostitution is increasingly migrating into the ever expanding transnational pornographic industry estimated to be worth approximately $100 billion. In the absence of a more generalised shift in attitudes towards exploitation, is a potential user of a sex worker not likely to migrate into this sphere where there may be even greater scope for slavery including underage participation?

As an alternative, an approach that falls short of legalisation but which included some form of official registration would reduce the level of trafficking and underage participation. If an individual choses to transact with an unregistered sex worker then he might be prosecuted for purchase. Prohibitions against brothel-keeping, pimping and other exploitative relationships would remain. Police resources could be devoted to tackling the worst excesses of the trade and protecting sex workers.

The state might also assist sex workers who wish to end their participation with specialist programmes that could include counselling services.

On its face legislation which criminalises the purchaser of a sexual service may seem an attractive policy but it may have dangerous side effects for those who feel compelled, or sometimes choose, to work in the trade. Besides outright slavery, it is poverty and inequality that drives participation alongside a failure to address through education the exploitative relations that permeate our societies. This legislation will do nothing to alter these factors and potential users are likely to gravitate to the internet for satisfaction.

(https://www.lawsociety.ie/Documents/Gazette/Gazette%202016/April-16-Gazette.pdf)

Unmasking the shroud of Legalese

(Unpublished, 2010)

For the past two summers I have taught law in Oxford to Americans of High School age. The students’ enthusiasm and dedication in allowing their summer months to be spent in academic study is impressive and also indicative of the competitiveness of the application process for prestigious American universities.

What is most interesting from a teaching perspective is the degree of prior knowledge that students display. Most seem to have taken classes in what they call ‘government’ which develops a relatively sophisticated knowledge of their Constitution and Bill of Rights. In fact, knowledge of the basics of their law is something that I have encountered among most educated Americans.

Likewise, in France law is generally seen as part of a general education; Rene David wrote of this awareness of law as being an ‘element presque normal de la culture generale’. It has been said that the original French civil code owes its clarity to the fact that its draftsman always had to ask himself whether his words would withstand the criticisms of a highly intelligent layman like Napoleon, unfamiliar with the legal jargon.

Alas, the general body of citizens do not display the same legal erudition in this republic. The law and legal judgments are invariably rendered to the public in distilled form by journalist interpreters. Most students of history will be able to say that a Constitution was promulgated in 1937 and was informed by Catholic values, but the type of government that it creates and the rights that it enshrines are shrouded in what has come to be known as ‘legalese’; the obscure language of the legal professional.

Why is this the case? Why should legal jargon be inaccessible to the general public? In part, this is down to deficiencies in our secondary education system. Recently Civil, Social and Political Education (C.S.P.E.) was introduced as a mandatory subject for Junior Certificate students, but the syllabus merely piously enjoins students to understand that ‘laws and rules serve important services in any community or society, including the peaceful resolution of conflicts, the protection of life and property etc.’ There is no serious attempt to demystify the sources of law in this country. C.S.P.E. then ceases to be available to Leaving Certificate students. Unlike knowledge of religion, which is taught weekly to most students, a cursory knowledge of law is, seemingly, not considered an important aspect of a citizen’s education.

Arguably much of the difficulty lies in the Constitution itself. Article 50.1 states ‘subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.’ In plain language, this meant that judges would continue to apply the common law that had applied since the Act of Union. Behind the veneer of legal independence there was no clean slate.

Therefore, this state continued as a common law jurisdiction. So, for example, notwithstanding Article 40.6.1 which guarantees ‘the right of the citizens to freely express their convictions and opinions’, the courts continued to apply the common law rules of defamation with its obscure distinction between libel and slander.

Max Weber, the renowned German sociologist, provided a compelling critique of the verbal gymnastics emanating from common law lawyers: ‘The extensive participation in the process of juridically experienced and trained experts, who to an ever increasing degree devoted themselves “professionally” to the task of “counsel” or judge, has placed the stamp of “lawyers’ law” upon the type of law thus created’. This creates a situation where ‘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’.

While statute law ameliorates this situation to an extent, the technique of lawyers honed in the professional schools of our common law system often descends into over-complication and even casuistry, and much of our law, particularly on the civil side, is still governed by judge made common law.

This “lawyers’ law” is impenetrable to ordinary citizens. A letter from a solicitor creates consternation as the ordinary citizen feels ill-equipped to understand the obscure workings of laws that might as well be written in another language. This situation serves the law firms and barristers very well. In fact, textual obscurity is for some (particularly those engaged in the law of real property) a defence mechanism against professional obsolescence. In a post Catholic society the interpretation of the divine by the priesthood has been replaced by the legal oracle.

Of course a society needs experts in law, but the present system promotes legal mumbo jumbo, and too often opinions are addressed to a narrow professional audience. The deeper the pocket, the further the lengths that can be gone to stymie the ascertainment of truth and the determination of justice. One has only to observe the legal subterfuge used to undermine the workings of tribunals.

What can be done to bring about reform of a system that leaves the general population confused? Firstly, it is necessary that law as a subject be brought into the mainstream; that it should be a part of a secondary education, and at third level that it be taught alongside other humanities subjects as an abstract discipline that includes a comparative dimensions rather than solely as part of a vocational education. Second, it is necessary that judgments and legislation be drafted in a style comprehensible to an educated lay audience. A general understanding of the law among the citizenry is necessary in this republic otherwise we remain a subject people and the lawyers will keep coining it.