Where a constitutional provision is blatantly at variance with practical common sense, or contemporary values, one of the ways in which the gap may be bridged is by some convention or, at worst, ad-hoc arrangement. It is the second alternative which, whether wittingly or not, seems to have occurred to defuse the so-called crisis over the two judges.

Unhelpfully, all that the Constitution says on this matter is that judges hold office until retiring age, unless removed by Oireachtas resolutions ending their tenure, for stated misbehaviour or incapacity.

This is rather an unexpected provision. For it flies in the face of the separation of powers, that is, the notion that each organ of State has its own particular function, in respect of which it is independent of the other organs.

Where did this curious provision come from? It came down to us from the 17th century. Originally, the judges held office "at the King's pleasure". On more than one occasion, when a judge's decision displeased the king, the judge was simply dismissed.

When the British constitution was being reformed in the late 17th century, it was plain that the authority for removing judges should no longer be left with the king. And in those days it would have been impractical to vest it in the judges themselves, who were too few and scattered to be able to operate a discipline system. Accordingly parliament seemed the only possibility.

In 1922 this model was followed by the new Irish State, without much thought being given to the matter.

As recent events have shown, by today this has become a hugely unworkable arrangement. Politicians know themselves to be much less popular than the judges. They were anxious not to have to sit in judgment on the two judges whose conduct is presently in the spotlight.

Thus, last week the Government was giving out extraordinary vibes which suggested that it did not have access to a copy of the Constitution; to the effect that it was for the judges themselves to clean out their own Augean stables.

In fact, in an ad-hoc way, the community of judges and barristers rose splendidly to the occasion. Any sensible reading of the events of the past few days must be to the effect that the Chief Justice's report was crucial. It was thorough, convincing and decisive. Indeed, the media sources which on Thursday were emitting insistent rumours that the report would be anodyne owe the Chief Justice an apology.

In fact, the report was clear and strong enough to recall Hamlet's remarks: "Use every man according to his desert, and who shall escape whipping?"

To write in this way about senior colleagues showed great courage, and the Chief Justice may yet be attacked, subterraneously, by allies of the judges, arguing that he went beyond his constitutional remit. (Courage and leadership were also shown by the President of the High Court and the chairman of the Bar Council, who called meetings, for this week, of their respective members to discuss the events and probably to bring peer pressure to bear in favour of resignation.)

For one should not underestimate the potency of peer pressure exerted within the tightly-knit community formed by the judiciary and the Bar, a group of fewer than 1,000 people who value their reputations with each other. The result of these meetings would probably have been to make it clear to the two judges that they would receive no support from their colleagues if they tried to play the independence of the judiciary card against the Oireachtas.

Given this prospect, it became clear that the cause was hopeless.

One other consequence of the Chief Justice's report was that the technical question of the interpretation of the precise wording of the Constitution, "stated misbehaviour", did not have to be resolved. This would certainly have caused difficulty.

For, in the case of Mr Justice O'Flaherty, a respectable argument might have been made that his behaviour did not go far enough to satisfy this standard. And the issue would have been particularly difficult to decide because of the almost total absence of relevant precedents from any jurisdiction.

Dr Conor Cruise O'Brien has written about the dangerous intersection at which politics and literature meet. But probably the more dangerous crossroads is where politics meets law. Consider some recent difficulties of this type.

One example came to public attention in the case of Brennan v Minister for Justice. Here the High Court held that it was an abuse of the Minister's power of pardon when, in 1993, the Minister accepted more than 2,000 petitions to commute or remit court fines. As a result this extraordinary practice has been at least reduced.

Better known is the issue of political involvement in the selection of judges, which was highlighted in 1994 by the appointment of Mr Harry Whelehan as president of the High Court and led eventually to the fall of the Fianna Fail-Labour government.

This episode resulted in the establishment of the Judicial Appointments Advisory Board. This is imperfect, goodness knows, as Dr Garret FitzGerald indicated here on Saturday, because the board must nominate seven (yes, seven), candidates from whom the government chooses the appointee. But it was a gesture in the right direction.

What the present episode demonstrates is the inefficiency of a system for removing judges which depends upon politicians. To put it in simple terms, the responsibility of the Chief Justice and other lawyers saved the day.

But from a strict constitutional point of view they need not - perhaps should not - have been involved at all. From a more sensible point of view, they have a particular interest (both senses of the word) in and knowledge of the proper administration of justice. Their involvement was both appropriate and natural.

The Constitution ought to be amended to bring it into line with working reality because, next time, an ad-hoc arrangement might not work so well.

We know that desperate diseases require desperate remedies. But our judicial system is not in a desperate condition. If the appointments and discipline system can be put right, there is no need to risk the perils endemic in a more comprehensive and intrusive scheme of public scrutiny of the type which has recently been suggested by some commentators under the compelling banner of "accountability".

For such a scheme would mean that the courts would have to justify their subtle professional arrangements to a lay public which, reasonably, would not be prepared to pay enough attention to follow them adequately.

The copious tears - crocodile and otherwise - shed over Mr Justice O'Flaherty's resignation may nauseate some readers. Nevertheless, the compliments paid him on his overall performance were true. He was a genial and accessible gentleman (and paid an incredible price for it); a wise and fair judge; and the only serving Irish judge to publish a book.

The book is Justice, Liberty and the Courts (Round Hall, Sweet and Maxwell, 1998). Today it may be appropriate to close with a quotation from this book:

"I think the judges have an obligation to explain themselves to the public. Without necessarily advocating that judges provide unlimited access to journalists, it does strike me as important that we should make our judgments available as rapidly as possible to those who are reporting them.

"We must not lament the fact that a judgment has been misrepresented in the media, where the judgment turns on arcane points of law and runs to many pages, if it does not attempt to explain in summary form at some stage what it is all about."

David Gwynn Morgan is Professor of Law at UCC