Cassandra Voices

Tag: natural law

  • 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.

  • ‘Wild Law’ is the Path of Natural Justice

    Man-made climate change is as good as a fact, but the consequences are uncertain in any specific location. Indeed, the island of Ireland could actually be more hospitable to human habitation under certain scenarios: drier and hotter summers are predicted, albeit with an increased likelihood of storm events; higher atmospheric CO2-levels could also increase crop yields.[i] Our rising emissions could have greater impacts elsewhere.

    Mitigation strategies may also have adverse side effects. Witness the expansion of sitka spruce plantations across Ireland, which acidify soils and strangle biodiversity,[ii] in pursuit of an improved carbon balance sheet permitting increases in dairy production. There are also question marks around the impacts of wind farms, especially those sited on blanket peat[iii], requiring hundreds of tonnes of concrete in construction, and disrupting the flightpaths of birds. If this energy is devoted to a new generation of electrified autonomous vehicles, rather than communal transport, it will be in vain.

    Climate change opportunism includes the distortion of supermarket shelves being stacked with organic products wrapped in plastic and flown halfway around the world. It is most obvious in the greenwashing of the agricultural sector,[iv] which consistently argues that Irish livestock’s lower emissions profile justifies expansion – as beef and dairy would only be produced elsewhere with higher emissions. Thankfully, the ‘our coal smokes less than their coal’ argument is more easily dismissed as data from the United Nations Food and Agriculture Organisation (FAO), analysed by An Taisce, shows that Ireland is, in actual fact, the most carbon-intensive beef producer in Europe, and ranks third on emissions from its dairy sector.[v] Most importantly, however, narrowing the environmental agenda to climate change alone obscures the equally pressing consideration of the Sixth Extinction, the unarguable reality of which is apparent in Ireland.

    With this in mind, Is it possible that interested parties could assert rights, already implied by the Irish Constitution, to protect Irish nature itself? Could spiralling emissions then be reduced alongside meaningful biodiversity-gains? Such an argument would build on a foundation of Natural Law, a school of thought embedded in the language and historic interpretation of the Irish Constitution. It can be traced to Classical antiquity, as Sophocles’s Antigone puts it: ‘the unwritten and unfailing statutes of heaven’, beyond the temporary, and occasionally illegitimate, laws of any state.

    During the Middle Ages, especially through Thomas Aquinas, ‘pagan’ Classical arguments were adopted by the Roman Catholic Church. In more recent times these became associated with a toxic and myopic focus on human sexuality, especially women’s bodies. Natural Law still transmits, however, compelling arguments for a universal justice beyond, and above, positive law, informed by dialectic, rather than Christian Revelation as is widely assumed.

    The jurist and former President of the High Court, Declan Costello wrote: ‘It has more than once been judicially observed that it can clearly be inferred that the [Irish] Constitution rejects legal positivism as a basis for the protection of fundamental rights and suggests instead a theory of natural law from which those rights can be derived.’[vi] Thus, from the 1960s, Natural Law interpretations ascribed a host of ‘Unenumerated Rights’[vii] to all citizens, including rights to bodily integrity, work, marry, privacy in marital relations, and free movement within the State. These rights are not explicitly identified in the Irish Constitution but are considered intrinsic to the human condition, flowing in particular from a generalised protection of personal rights under Article 40.3. With the Sixth Extinction now upon us, there is an urgent need for Natural Law to be extended to imply an Unenumerated Rights of other species to exist, along with ourselves.

    For this to occur, however, the Court must overcome a contemporary moral relativism, and aversion to decisive ethical responses. No doubt truth is a shifting target, and any single account is insufficient, but faith in our capacity to settle ethical arguments at a given point in time needs to be restored. As Aristotle – whose influence on Aquinas’s Natural Law theory was immense – pointed out:

    The theorizing of truth is in one sense difficult, in another easy. This is shown by the fact that whereas no one person can obtain an adequate grasp of it, we cannot all fail in the attempt; each thinker makes some statement about the natural world and as an individual contributes little or nothing to the inquiry; but a combination of all conjectures results in something considerable.[viii]

    Post-modernists will argue otherwise, but an outlook of ambient confusion is an admission of failure. Holes can be picked in any argument, but the argument as a whole – “a combination of all conjectures” – may stand. One cannot propose anything meaningful without the conviction of arriving at “something considerable” –  an elusive truth. A capacity to determine justice requires we overcome a ponderous Post-Truth incoherence.

    A contemporary philosopher Alasdair MacIntyre sees in the dialectic process, ‘the movement from thesis to thesis as a movement towards a kind of logos which will disclose how things are, not relative to some point of view, but as such’. Contemporary environmental challenges require new logical departures, disclosing “how things are”, “as such.”  Natural Law theory should encompass an Earth Jurisprudence. Then our laws may confront the reality of an oversized human population radically out of balance with its environment, with Ireland presenting a difficult case.

    Currently, however, environmental laws are generally seen as a body of rules foisted on the populace, often in exchange for a subsidy, rather than practices adopted for the commonweal. Accordingly, Coyle and Morrow claim such regulations are seen ‘as a technical instrument of social goals and policies, rather than a body of principles aiming at the articulation of a concept of justice and the good life.’[ix] This can partly be attributed to the prior failure of Natural Law theorists to identify inherent rights in other species.

    In contrast, the sanctity of human property rights have been vigorously upheld. Early modern theorists, drawing more on Christian revelation than reason, assumed rights of virtually unrestrained possession, along with dominion over all wild creatures therein. The seventeenth century Dutch jurist Hugo Grotius described this as ‘a grant which was renewed on the restoration of the world after the deluge’. To deprive any owner of this would, he said, be ‘an act of injustice.’[x] Importantly, however, up to that point there had been little necessity to assert the rights of wild animals, even in Europe, as humans were living in relative harmony with nature, or at least allowing other species to survive. According to Tim Flannery: ‘after the last muskox died in what is now Sweden about 9,000 years ago, the European mainland did not lose another species until the seventeenth century.’[xi]

    Since then the picture has changed dramatically across the world with sixty percent of wild animals wiped out since 1970 alone.[xii] Coyle and Morrow affirm: ‘The very agricultural practices which were held out as a moral necessity by the natural rights theorists can, it seems, create untold environmental damage.’ Given the scale of ecological damage that has ensued – associated with European colonisation of the globe – they argue that ‘the ethical assumptions of the seventeenth century conception of property cannot survive in such circumstances.’[xiii] The accumulating impacts on our planet of over seven billion human beings, living longer than ever, enjoins alternative approaches to land ownership. As Coyle and Morrow put it: ‘If human agriculture was ever in harmony with nature it certainly is not any longer and the sanctity of individual ownership must be restrained. Duties must join rights.’[xiv]

    Natural Law is an ongoing, truth-seeking dialectical process with the aim of disclosing, “how things are, not relative to some point of view, but as such.” If Natural Law is to have continued relevance it must adapt to current conditions. A re-imagining of Natural Law is evident in the field of Earth Jurisprudence, or Wild Law, a term coined by Cormac Cullinan to refer to human laws that are consistent with Earth Jurisprudence.[xv] According to one of its inspirators, Thomas Berry: ‘The Universe is not a collection of objects but a communion of subjects and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’[xvi] These rights ought, logically and morally, to be incorporated into Irish law.

    But how can these aspirations be given tangible legal form? In a seminal 1972 article ‘Should Trees Have Standing?’[xvii] Christopher D. Stone explores how Wild Law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus, a court appoints a trustee when a corporation displays incompetence. He writes:

    On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.

    He also draws an analogy with the law of patents and copyright:

    I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.

    Furthermore, he suggests this could lead to modifications in our representative democracies:

    I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.

    Stone envisages changes in our legal culture informing wider social norms, as, ‘a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.’

    Intriguingly, he also speculates, ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, proposing ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Similarly, Coyle and Morrow argue: ‘The problem is that meaningful change responding to environmental and social imperatives will require a true paradigm shift in how we regard our relationship with the world of which we form a part.’

    A transformation in our legal relationship with the natural world requires the participation of other fields. It was Percy Bysshe Shelley who famously described the poets as the ‘unacknowledged legislators of the world.’ The philosopher Timothy Morton makes the provocative claim that putting ‘something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy did for the figure of women.’[xviii] Perhaps W.B. Yeats’s identification of Irish nature with a ‘glimmering girl’, ‘with apple blossoms in her hair’ distracts from an ongoing exploitative relationship, linked to our colonial inheritance. Indeed, rather than celebrating a patriarch ‘Digging’ for turf, as in Seamus Heaney’s poem by that name did, new accounts might draw inspiration from an often-overlooked visionary poet of the early twentieth-century Irish Revival, Eva Gore-Booth. She gave up the wealth and privilege of her aristocratic background to devote herself to the poor. Gore-Booth also recognises the right of all creatures to exist on the land, notwithstanding human ownership in her 1906 poem ‘The Landlord’

    O the bracken waves and the foxgloves flame,
    And none of them ever has heard your name –
    Near and dear is the curlew’s cry,
    You are merely a stranger passing by.    [xix]

    Hearteningly, all around the world, from Ecuador to New Zealand, conceptions of Earth Jurisprudence, Wild Law or Pachamama are actually taking route. For example, Germany’s constitution makes protection of ‘the foundations of nature and animals’ a national imperative, applicable to government agencies, the legislature and the judiciary. The provision has been cited in over seven hundred cases. Moreover, echoing Christopher D. Stone, Oliver A. Houck points out this ‘does not include the more numerous acts of compliance that drew no litigation at all.’[xx]

    Meanwhile in Ireland species loss continues apace. Liam Lysaght recently records: ‘of the 3,000 species that have undergone a red list conservation assessment, one in every four species is threatened with extinction here.’[xxi] Of particular concern is the continued exploitation of peat bogs for fossil fuel extraction – where considerations of nature conservation align precisely with keeping fossil fuels, and embedded methane, in the ground – as well as the impacts of grazing ruminants.

    Unfortunately, existing environmental legislation, including the EU’s Habitats Directive, is failing to protect endangered species adequately, including the iconic curlew, which is now on the red list. This can partly be attributed to a lack of enforcement, but also, as we observed, such laws are currently considered an encumbrance on property owners, and not a scheme of protection for a common inheritance. So how do we spare what remains of Irish nature from the ravages of human exploitation?

    A constitutional amendment enshrining nature rights, similar to that operating in Germany, should be the long-term goal. But this will take time to bring to fruition, especially as mainstream media only falteringly highlights extinction threats, and none of the main political parties prioritise protection of biodiversity.

    I propose the alternative of a test case, applying Thomas Berry’s tripartite rights to a particular native species; proposing, for example, the curlew has a right to be, to habitat and to reproduce, alongside humans, based on a Natural Law interpretation of the Irish Constitution – as a previously Unenumerated Right. It seems crucial that such rights are ‘discovered’ sooner rather than later before further, irreversible, losses occur.

    The Court could certainly injunct particular activities to protect species under threat, or prohibit certain classes of herbicides or insecticides outright, or even declare particular lands under private ownership as protected habitats. This will require expert witness from recognised authorities to distinguish competing rights of native, invasive and naturalized species. Property owners should be compensated for any loss, but under the Irish Constitution all rights, including that to property, are subject to the common good, which is served by preventing extinctions.

    The allocation of reserves and prohibition on the use of certain chemicals would be a proportionate appropriation by the Judiciary of the powers of the Legislature and Executive branches, in circumstances where there has been a serious dereliction of duty. The Sixth Extinction is an emergency happening before our eyes with recognisable victims, unlike the unpredictable devastation that climate change is wreaking.

    Cattle and sheep farmers can find new roles as landscape guardians. Re-wilding may begin with marginal lands, where farming is already uneconomic, while better land currently under pasture can be converted to tillage in order to accelerate what a recent article in The Lancet has referred to as the ‘Great Food Transformation.’[xxii]

    Eventually, beyond legal prescriptions, habitat reclamation can endear the population to the landscape, and reform destructive behaviours. In developing our appreciation of the soft sounds and sweet aromas in nature we may consider reducing dependence on noisy, polluting motor cars. Greater biodiversity also offers scope for judicious harvesting of foodstuffs, building materials and fuel. The tragedy of the loss of other species is almost impossible to convey.

    Many of us wish to see our laws go further: putting an end to the perverse subsidy regime that only benefits the Beef Barons; or dignifying all animals with a decent life, in the wild. For the moment, however, our best legal argument is to assert the rights of all resident Irish species, living in ecological balance, simply to exist. Reduced emissions will be a happy by-product of biodiversity-gain, raising environmental awareness to a point where destructive behaviours are recognised, and changed. In beginning to liberate the natural world from human dominion let us recall the small victories won in the battle against human slavery along the road to the great milestones. Wild Law can emerge incrementally in Ireland through our existing constitutional framework.

    [i] Stephen Flood, ‘Projected Economic Impacts of Climate Change on Irish Agriculture’, October, 2013, Stop Climate Chaos, https://www.stopclimatechaos.ie/download/pdf/projected_economic_impacts_of_climate_change_on_irish_agriculture_oct_2013.pdf, accessed 19/2/19.

    [ii] Mary Colwell, ‘A forestry boom is turning Ireland into an ecological dead zone’, October 10th, 2018, https://www.theguardian.com/commentisfree/2018/oct/10/trees-ireland-biodiversity-sitka-birds-extinction, accessed 19/2/19.

    [iii] Richard Lindsay and Olivia Bragg ‘WIND FARMS AND BLANKET PEAT. The Bog Slide of 16th October 2003 at Derrybrien, Co. Galway, Ireland’, November, 2005, School of Health & Biosciences University of East London. https://web.archive.org/web/20131218090914/http://www.uel.ac.uk/erg/documents/Derrybrien.pdf, accessed 28/2/19.

    [iv] Kevin O’Sullivan, ‘Environmental group calls Origin Green a ‘sham’’, October 4th, 2017, Irish Times, https://www.irishtimes.com/news/environment/environmental-group-calls-origin-green-a-sham-1.3244507, accessed 28/2/19.

    [v] Press Release ‘Bombshell for Irish Peace’, 12th of February, 2019, An Taisce, http://www.antaisce.org/articles/bombshell-for-irish-beef?fbclid=IwAR0uPTUu1TEoZToCGugOCIoS-nmsigAQNU0g_U3XrIZHNU3PKbF2_zO0YIU, accessed 19/2/19.

    [vi] Declan Costello, ‘Natural Law, the Constitution, and the Courts’, from Lynch and Meenan (eds.) Essays in Memory of Alexis FitzGerald, Dublin, The Incorporated Law Society of Ireland, 1987, p.109

    [vii] The original ‘Unenumerated Right’ to ‘Bodily Integrity’ was approved by the Supreme Court in Ryan v. A.G. [1965] IESC 1; [1965] IR 294 (3rd July, 1965)

    [viii] Aristotle, Metaphysics, Book 2, Part 1.

    [ix] Coyle and Morrow, The Philosophical Foundations of Environmental Law. Property, Rights and Nature, Oxford, Hart Publishing, 2004, p.211

    [x] Coyle and Morrow, p.15

    [xi] Flannery, 2018, p.251

    [xii] Damian Carrington, ‘Humanity has wiped out 60% of animal populations since 1970, report finds’, 30th of October, 2018, https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds, accessed 20/2/19.

    [xiii] Coyle and Morrow, p.206

    [xiv] Ibid, p.209

    [xv] ‘Discovering the meaning of Earth jurisprudence’, Legalbrief, August 27, 2002

    [xvi] Quoted in Mike Bell, ‘Thomas Berry and an Earth Jurisprudence’, http://rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm, accessed 20/2/19.

    [xvii] Christopher D. Stone, ‘Should Trees Have Standing–Toward Legal Rights for Natural Objects’, Southern California Law Review. 45 (1972): 450–87.

    [xviii] Timothy Morton, Ecology Without Nature: Rethinking Environmental Aesthetics, Cambridge, Harvard University Press, 2007, p.5.

    [xix] [xix] Eva Gore-Booth ‘The Land to a Landlord’, from Sonja Tierney (ed), Eva Gore-Booth: Collected Poems, Dublin, Arlen House, 2018, p.166

    [xx] Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Envtl. L.J. 1, 2017

    [xxi] Liam Lysaght, ‘The six steps needed to save Irish Biodiversity’, February 19th, 2019, Irish Times

    [xxii] Prof Walter Willett, MD et al, Food in the Anthropocene: the EAT–Lancet Commission on healthy diets from sustainable food systems, January, 2019. The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext?utm_campaign=tleat19&utm_source=HPfeature’, accessed 26/1/19.