Cassandra Voices

Tag: John Finnis

  • In God We Trust Inc.

    Ryszard Kapuściński in Imperium (1993) warned of three plagues, or contagions threatening the world: nationalism, racism and fundamentalism. He further identified one shared trait or a common denominator in ‘an aggressive all powerful total irrationality,’ arguing that ‘[a]nyone stricken with one of these plagues is beyond reason. In his head burns a sacred pyre that awaits its sacrificial victims.’

    The lunatics have now well and truly taken over the asylum worldwide. We are now witnessing a new unholy war being led by evangelical Christians against Islam, just as earlier crusades emanated from Europe in the Middle Ages. And like those earlier wars, the acquisition of plunder is clearly a motivating factor.

    Noticeably, the clearly sociopathic Pete Hegseth talks of the Iran war as God’s War, and the soldiery are briefed accordingly. Trump uses similar language, but holy wars often occlude terrestrial agendas. Add the dimension of rampant technology, wherein war is conducted remotely in video game sequences and one reaches a level of savagery reminiscent of the 1940s. Meanwhile AI plunders our libraries and distorts our reality with propagandist bombast.

    Hegseth’s macabre ceremonies in the White House have included Doug Wilson, the founder of the Communion of Reformed Evangelical Churches. He has stated that homosexuality should be a crime and that women shouldn’t be allowed to vote. As editor of The Princeton Tory, Hegseth also suggested that homosexuality was immoral.

    In March 2026, soon after the start of the U.S./Israeli attack – branded with the biblical denotation Operation Epic Fury – it has been reported that military leaders told their service members that the war was ‘part of God’s divine plan,’ and that President Donald Trump had been anointed by Jesus. One commander quoted the Book of Revelation, and said the war will bring the second coming of Jesus Christ. The whole exercise has a distinct air of Stanley Kubrick’s Dr Strangelove (1959).

    The legendary punk band, The Dead Kennedys album In God We Trust Inc (1982) curiously presages our times, but none of what is being done in God’s name is properly Kennedyesque, or indeed genuinely Christian. It appears to be an extension of what Eisenhower warned of the existential threat of the Military Industrial Complex. Wars. As IG Farben and Bleichroder knew, wars are a great source of revenue.

    The leading Catholic legal philosopher John Finnis is also a believer in God’s law. Marriage is for him exclusively between a man and a woman and purely for procreation. He considers homosexual congress and sex outside marriage as intrinsically shameful, immoral and harmful. In Natural Law and Natural Rights (1980) he compares abortion to carpet bombing civilians. Sadly, murdering the civilian population of Iran does not appear to bother the zealots in the White House to the same extent as interfering with women’s reproductive rights.

    Jonathan Sacks, the leading contemporary Jewish philosopher in the U.K. railed against extremism. In Morality (2020) he outlined positive religious values, including a focus on dignity, associative levels of responsibility, community and a sense of public service and the common good. Is all of this now lost on the Likud faction in Israel?

    Christian jihadism, historically, also includes the horrendous conquest of South America by Spanish Conquistadors. In modern times the Blairite justification, couched at one level in Christian terms, for the war on Iraq was also used to mask narrow self-interest in securing oil. The war in Iran, now engulfing the entire Middle East, also has significant acquisitive elements, but is more obviously an attack on what is perceived in racial terms as a satanic culture.

    Shortly before his death Sacks equated altruistic evil with the neoconservative group, who held themselves to be good and their opponents to be evil. This leads to the arrogant imperialist assumptions that ‘we’ are inflicting punishment for ‘their’ own good, and that killing multitudes will pave the way to democracy.

    Both the late Christopher Hitchens, and indeed Richard Dawkins, have written extensively about the new forms of religious extremes we are witnessing, with the finger of blame primarily pointed at Islam. Islamic extremism does provide graphic examples of brutal beheadings, mass executions, stoning to death for adultery, planes hitting the Twin Towers, as well as the murder of journalists. There is also evident in Britain a lack of integration, and a secessionism unconducive to any kind of harmonious multiculturalism. Recourse to genocide, however, seems to be the preserve of evangelical Christians and Zionists.

    Osama bin Laden (L) sits with his adviser and purported successor Ayman al-Zawahiri (Foto: HO/Scanpix 2011)

    Islamic Rage

    Much of the Islamic rage can be traced to neo-imperialism in the Middle East. The current phase began in earnest with the invasion of Iraq, and has culminated in this attack on Iran.

    Christopher Hitchens’ worst intellectual error, inexcusable in my view, was to support the Bush-Blair invasion of Iraq. He was, indirectly, supporting, though he might not have seen it, an even worse form of religious fundamentalism directed against another.

    In works such as Culture and Imperialism (1994) and Orientalism (1978) the Palestinian author Edward Said author asserted that ‘Patriotism, chauvinism, ethnic, religious and racial hatreds can lead to mass destructiveness.’ He cites our own Conor Cruise O’Brien to the effect that imagined communities of identity are hijacked by the petty dictators of state nationalism, like Benjamin Netanyahu.

    In Marxist terms, religious fundamentalism can be traced to growing disparities of wealth and structural inequality, as well as a lack of opportunities to gain a rounded education. We have seen an all-too-great an emphasis on technical or scientific education for economic advancement, as opposed to a broad liberal education that inculcates critical thinking.

    In these straitened times extremism speaks of a need to belong to a cause, leading to belief in something ethereal, no matter how ludicrous. Belief in an afterlife defines people’s existences and justifies even self-immolation.

    As the wheels come off the neoliberal economic system and the societal bonds wither, extremist Christian nationalism and the demonisation of the other has stepped into the void to provide solace.

    Passion Conferences, a music and evangelism festival at Georgia Dome in Atlanta, Georgia, United States, in 2013.

    U.S. Evangelism

    In the United States, we are witnessing an unholy synergy between Evangelical Christians and racism. Far-right demagogues have articulated a view that ‘our’ country is being overrun by immigrants and that the dominant ethnic group must ‘take back control’ from a phantom intellectual Marxism espoused by liberal elites, Harvard or straight socialism. All of these apparently emanate from the decadence of a mixed race cosmopolis. The fire is spreading to Europe, U.K and Ireland too.

    Thus, we find a global descent into the extremist and racist abyss, where those we disagree with are scapegoated and targeted. This is a product of a dualistic mode of thinking, which Sacks identifies with a need to define God in relation to the Satan residing in others. This leads to the demonisation of those we disagree with, evident also in social media vilification.

    What the Christian far-right in the United States and elsewhere offer is the establishment of the Kingdom of Heaven on earth, which involves isolation of the righteous few in gated communities, segregating the rich chosen people from the disaster they inflict on others.

    The now tarnished Noam Chomsky once claimed that the Republican Party is the ‘most dangerous organization in world history.’ Chomsky also claimed in a BBC Newsnight interview that nearly 40% of the American public believe that the Second Coming will occur by 2050. So, Pete Hegseth may be preaching to the converted.

    Brazilian President Lula with Pope Francis 21.06.2023 
    Foto: Ricardo Stuckert/PR

    Religion as Agent for Good?

    Alternatively, in The Godless Gospel (2020) Julian Baggini calls for forms of religion shorn of hatred so we may realise our best intentions and develop empathy and compassion. He envisages a commitment to personal humility and an obligation and commitment to the truth, causing as little harm as possible. There are clearly good values that Christianity may teach to those of a secular persuasion presently lacking in moral clarity.

    Above all, the atheist and perhaps the leading intellect left on the planet Jurgen Habermas recognises how religion engenders social integration, and can be a basis for communicative action, his core concept. As far back as 1978 he argued, from a secular perspective, for the necessity of religious ideas to humanise society. These would be religious ideas where we learn to communicate reasonably without resort to falsetto Jihadism.

    The former Pope Francis’s experiences in the barrios of Buenos Aires also appear to have shaped an empathy towards the wretched of the Earth. He preached tolerance and engagement, as well as social and economic justice. The present Pope has, encouragingly, in un-American fashion, condemned what is happening, however mutedly. Let us hope that he is untainted by the dark money of the Vatican and does not go the way of John Paul II.

    Christian socialism is a potentially vital force if it reflects the values of what Philip Pullman calls that great man Jesus, but not the values, as he equally presents, of that scoundrel Jesus Christ. This latter is a distortion of New Testament values, dedicated to the accumulation of capital, a lack of compassion and political manipulation.

    Neo-feudalism

    We appear to be witnessing Old Testament fury, but beyond the zealotry it seems that neoliberalism is morphing into neo-feudalism. The Book of Genesis sanctions man’s dominion over the Earth, which appears to be permitting a scorched earth approach, but this is a smoke screen. Institutional Evangelical Christianity is wedded to the exchange of goods, along with the exchange of gods. Drill Baby Drill.

    The last word I leave to Clarence Darrow, who represented a progressive America of another era in his closing speech in The Scopes Trial:

    Ignorance and fanaticism are ever busy and need feeding. Always it is feeding and gloating for more.——-, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

    Those who suffer from toxic nationalism, toxic religious mania and toxic racism are beyond reason and must be overcome.

    Feature Image: Some of Pete Hegseth’s tattoos, 2021

  • The Relevance of Jurisprudence to Law Part 2

    In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.

    This piece details what I believe is absent in the form of Legal Positivism that has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.

    A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.

    There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.

    The Nuremberg Trials.

    The Fundamental Question of Jurisprudence

    Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?

    For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.

    H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.

    Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’

    Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.

    Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.

    That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.

    In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.

    Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.

    To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.

    Adolf Eichmann

    Slow Train

    The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.

    Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.

    Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,

    Daniel Chandler in his recent book Free and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.

    Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.

    For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.

    In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.

    The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.

    Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.

    Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due process and privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.

    The Four Courts, Dublin.

    Long Dead Values

    Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if the hate speech bill passes.

    Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.

    Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.

    The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.

    It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.

    In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.

    Justitia in the Superior Courts Building in Budapest, Hungary.

    Are Rules Important?

    The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.

    Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.

    The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.

    Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.

    In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.

    The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.

    Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.

  • The Relevance of Jurisprudence to Law Part 1

    This article is a response to Supreme Court Justice Gerard Hogan’s Annual Hale Lecture in Trinity College, Dublin in November 2023 on the on the topic of: ‘Grundnormen in UK and Irish Constitutional Law,’ and I thank him for sending it to me.

    The grundnormen is a creation of the legendary Austrian jurist Hans Kelsen. He is viewed by many as the greatest figure in Jurisprudence of the 20th Century. For his own part, in the mould of Justices Niall McCarthy, Adrian Hardiman and Declan Costello, Gerard Hogan is, in my view, our only current top class Irish judge, and a man for whom I have great respect.

    However, Hogan’s paper, although a brilliant piece of work, is profoundly unsettling not as such in what it is right about, but in terms of what it is wrong about, largely by omission or occlusion, i.e. what it does not say.

    He frankly concedes that the UCD lectures he received in jurisprudence failed to equip him with an understanding of the relevance of John Rawles or even The Natural Lawyer, John Finnis, nor does he reference radical jurisprudence, or indeed the éminence grise of 20th century legal philosophy, Ronald Dworkin. Thus, Hogan emerges as an arch positivist – as of course was Kelsen – a literalist and strict constructionist. It is fair to describe him as a black letter lawyer.

    Kelsen was the purest and most consistent of the positivists in emphasising the precise distinction between law and the domains of politics and morality, with one significant aberration on which more later. It is called a pure theory of law, Kelsen argued, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.

    Hans Kelsen 1881-1973.

    Kelsen: The Pure Theory of Law

    It is perhaps unsurprising that one of Hogan’s instructors in jurisprudence while in UCD, Professor John Kelly, in a superb posthumous A Short History of Legal Theory (Oxford University Press,1992), expresses equally bafflement with post-positivism. It is merely an afterthought in that book. Well that is UCD.

    Likewise, consider Adrian Hardiman’s apparent chastisement of John Rawls in his judgment in the seminal 1991 Sinnott case for viewing political philosophy as a branch of jurisprudence:

    [t]heorists of this view consider that they can provide a body of principles which can be interpreted and applied by courts, to the virtual exclusion or marginalisation of the political process…I[f] judges were to become involved in such an enterprise, 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.

    Also, the reference to Lord Denning’s subtle dismissal of jurisprudence at the outset of Hogan’s paper is at one level a revelation of the standard wisdom of practising lawyers that only positivistic jurisprudence is relevant to court cases.

    When the U.K. Supreme Court overturned Boris Johnson attempt to suspend parliamentary scrutiny by proroguing it, Lord Pannick KC, the advocate in the case, gave a most revealing and rare interview after the event. In a sense Hogan’s argument is about where they stretched matters too far. I disagree.

    The problem with Hogan/Kelsen, and positivism more broadly, is, fundamentally, the cleavage between law and morality and/or law and politics, which are treated as if they are separate domains and not relevant to the subject of jurisprudence.

    Hogan also purports not to understand the Natural Lawyer. When it comes to John Finnis I agree. Finnis argues unconvincingly that the law should reflect self-evident goods such as marriage involving sexual congress, which has as its aim the production of children. In short sex for the sake of sex, not for conception, is not good, because it does not conform to the common good of friendship, which is intrinsic to heterosexual congress within marriage, or the good of parenthood.

    Jeremy Bentham like many positivists regarded natural law as ‘nonsense upon stilts;’ or as the other positivist John Austin suggested: if you invoke in a court room that an act is contrary to natural law a judge will indicate the inconclusiveness of your reasoning by hanging you. Many are also sceptical, as they ought to be, of inserting the values of The Iona Institute into the Irish Constitution.

    But that does not answer the question of morality or politics as an aspect of jurisprudence by a process of legitimate legal interpretation. This is the interpretation of texts in the sense of the grand style judge, mentioned by Karl Llewellyn, who defers not just to literalism, but also to policy and principle.

    Thus, Hogan effectively dismisses John Rawls and Ronald Dworkin, Marx’s Grundrisse and the legal realist perspective on policy from legal interpretation. Hogan also falsely invokes Oliver Wendell Holmes as a positivist. He was in fact the founder of legal realism – the forerunner to Llewellyn – who said, ‘The prophecies of what the courts mean in fact are what I mean by the law.’

    It is, however, brave of Hogan to attempt to define the mystical grundnorm. In Ireland it can be interpreted as the Constitution, based on popular sovereignty, or parliamentary sovereignty in the UK. But at its most abstract level the grundnorm is that which is responsible for the historically first constitution, in Kelsen’s own words.

    So, why does that create problems? First, and not least, the concept of original intent and the intentions of the Founding Fathers, is intrinsic to US jurisprudence, especially through the likes of Amy Coney Barrett. This involves a deference to long dead people or long dead intentions in different historical circumstances, an approach which Ronald Dworkin has rightly criticised.

    Kelsen, like indeed Hogan, was in an extracurricular sense far from apolitical. He was a Jewish intellectual and supporter of Weimar Germany. However, he believed, as Hogan does, in the essential goodness of the state. Although, in fairness Hogan has sagely warned about the denudation of due process by the Irish judiciary. In my opinion Kelsen was, and Hogan is, over-wedded to the view that states have duties to allow rights, but only on its conditional fiat. I cannot accept that at face value for it assumes the state apparatus in its present incarnation protects rights, which in the case of Ireland it clearly not the case.

    It assumes the Irish state has a tinsel of legality. Yet with our corrupt police force, dysfunctional justice department, populist leadership, and compliant judges we are entering a period of anarchy I fear.

    The Nuremberg Trials.

    Nuremberg Trials

    Curiously, Hogan does not mention Keisen’s famous moral detour, where he contorted positivism to justify the jurisdiction of the Nuremberg War Crimes Tribunal. Although Kelsen fundamentally disagreed with the legal basis for the assumption of authority and the way in which individual responsibility was not more differentiated, he defended the Nuremberg Trials. Contorting the principle of retroactivity, he argued the Nazis knew at the time what they were doing was immoral and not innocent. Thus, he created an exception to retroactivity, which is a cardinal violation of positivism, and indeed that amorphous notion, the Rule of Law; for which he has been heavily criticised by other positivists such as Joseph Raz.

    Hogan quotes another positivist, Jonathan Sumption at length in dissent at the prorogation of parliament case around the necessity to defer to parliament and the Rule of Law, or ‘the people’ as in Ireland. This should apply only if parliament is entitled to deference, which it is not in my view in Ireland, and only marginally so in the UK.

    Judicial review should protect against executive action or ouster clauses removing the jurisdiction of the courts, as in the UK. The Irish courts do not apply judicial review with rigour, and certainly not in a fashion similar to the mandatory orders in South African or India to enforce shelter, housing and health care rights. They also defer to the notional expertise of immigration tribunals and police decisions.

    Hogan has previously referenced the obliteration of due process in Ireland, and indeed the constitutional dispensation has provided scant support for those whose privacy rights have been violated.

    It is also notable that Hogan discusses the jurist, Carl Schmitt. Schmidt famously argued against emergency power clauses and secret laws, and yet our courts in camera last year approved of twenty-for-hour surveillance of the entire population, and we await the extension of the Special Criminal Courts. An unspecified emergency has been referred to by Minister Helen McEntee. Perhaps Hogan knows what this is.

    John Rawls 1921-2002.

    John Rawls

    In my view, the most important book of political philosophy since Karl Marx’s Grundrisse is John Rawls’ A Theory of Justice (Harvard University Press, 1971).

    The Rawlsian approach is to pose a question: where people are placed behind a veil of ignorance wherein they cannot know what their personal circumstances will be, how would they chose to order their society?

    He suggests that most people would choose the maximum number of liberties, as they would not enjoy living in a society where civil liberties are not adequately protected. Secondly, he argues that most would choose some measure of wealth edistribution in favour of the disadvantaged.

    If you were to be born a sub-Saharan Africa, or Ireland for that matter, you would surely want some measure of social protection. This principle is despised by neoliberals, and is central to the arguments in favour of housing rights, health care rights, food rights and a civilised society.

    Thirdly, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position.

    Rawls adds an additional idea, The Just Savings Principle, wherein we cannot denude the Earth for future generations. However, Amartya Sen, in The Idea of Justice (Harvard University Press, 2011) argues that Rawls fails to address the reality that the achievement of a Rawlsian society is resource dependent. Clearly, we need to build a just society based on our capacities and needs.

    Ireland is among the richest countries in Europe, yet successive governments have permitted rampant homelessness and moveable refugee shelters. Surely these ongoing violations require mandatory orders?

    Codicil

    As a codicil, Hogan references the Irish Constitution, and has written the definitive text on the subject, but at this stage all that wonderful analysis seems to amount to a Tristam Shandyesque cock-and-bull story. The problem is positivism: positivism in an age of draconian laws; positivism in a crypto-fascist age.

    Thus, when Hogan suggests popular sovereignty as a grundnorm, he should look squarely at the Gorgon’s Head and the rampant Populism that neoliberal policies have produced.

    Populism is not an acceptable juridical dispensation when all civility is lost, as in fact Sumption hitherto argued. The law becomes, as the jurist Eugen Ehrlich argued, in a criticism of Kelsen, a mask for brute force. We are right because we are powerful: macht geht vor recht as Bismarck put it.

    The fundamental questions are whether the gatekeepers, including the judges, are really aware of the social realities, and are they attempting to achieve a just and decent society. Gerard Hogan should bone up on Rawls, Dworkin, Legal Realism and even Marx’s Grundrisse, in my view a far more convincing abstract analysis of the role of law in society than Kelsen’s Grundnorm.