A brush with the law

The Constitution: 'Kelly on the Constitution" has long been a Bible for lawyers and politicians alike, and the publication of…

The Constitution: 'Kelly on the Constitution" has long been a Bible for lawyers and politicians alike, and the publication of its fourth edition, edited for the second time by Gerard Hogan and Gerard Whyte, is an event that resonates outside the dusty corridors of the Four Courts.

The first edition was edited by Prof John Kelly, Fine Gael TD, Government minister and leading academic lawyer, and was published in 1980. Irish constitutional law was still young.

As the author of the foreward to the third edition, R.V.F. Heuston, wrote: "Before the outburst of judicial creativity in the 1960s, there really was no constitutional law in Ireland. John Kelly was almost the first person to identify and analyse the main problems."

This was in a PhD thesis supervised by Prof Heuston in 1956, and was the origin of the major work of analysing and commenting on the Constitution, article by article, along with the case-law on it, that came to make up the first edition of this book.

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Gerard Whyte proof-read the second edition, which appeared in 1984, and so began his association with the work. Although John Kelly was in many ways a quintessential UCD figure, he asked Gerard Whyte and Gerard Hogan, both of the law department in Trinity College, to help him with a supplement to the second edition.

They had agreed to produce a third edition together when Kelly died suddenly of a heart attack in 1990. He was aged 60.

Kelly had done all his own publishing, preparing the manuscript, and sending it to the Leinster Leader for printing. He took on the marketing as well. So the third edition was in limbo when he died.

However, Whyte and Hogan agreed with his widow, Delphine, that they would continue with the work, and the third edition was published in 1994.

Law in a common law state such as Ireland is an evolving entity, and constitutional law in particular develops as the courts interpret and reinterpret the Constitution.

As the preface to this fourth edition points out, constitutional law both mirrors and influences changes in society.

Changes that are now part of the social landscape, like the legalisation of contraception, the right to marital privacy, the right to bodily integrity, the definition of the right to life of a pregnant woman being defined as inclusive of the right to be protected from the risk of suicide, all have their origins in the higher courts interpreting the Constitution.

The organic nature of the Irish Constitution is well understood by the Irish public, which has shown time and again its willingness to invoke the Constitution to challenge decisions of the Government. Ireland's position in the EU, the use of Shannon airport by US troops during the Iraq war, the rights of those with disabilities or of marginalised children, have all been explored in the courts by citizens invoking the Constitution.

This has continued since the publication of the third edition of "Kelly", and the new edition takes in all those new cases. It also seeks to define trends in constitutional interpretation, and to suggest directions the courts may take in the future.

For example, the editors suggest that now, in the light of far-reaching changes in the family, "a significant Amendment to Article 41 may be called for", and ask whether there should be more consideration of social and economic rights in the Constitution.

They do not shirk from criticising the excessive conservatism of the present Supreme Court, and point to the "ascendancy of classical liberal democracy over more communitarian values".

They examine how the Constitution relates to the European Convention on Human Rights, now arguable in the Irish courts, and point out the superior sanction offered by constitutional, as opposed to convention, challenges to legislation.

A successful constitutional challenge effectively strikes down a law, while a challenge under the convention leads only to a "declaration of incompatibility", on which the Oireachtas can then act as it sees fit.

Those interested in legal principles can share the editors' thoughts on the problems of using the idea of natural law as the basis of fundamental rights, while those who want a handbook on using the Irish Constitution need go no further.

Although the new edition is both learned and thought-provoking, it is written very clearly and in a very accessible form, with marginal notes providing a summary in a few phrases of the essential points made on each page. This makes it very easy to use.

This edition, like its predecessors, will be an essential buy for lawyers and students of law. But, also like its predecessors, it will equally be invaluable for politicians, journalists, potential constitutional challengers and pub lawyers everywhere.

• Carol Coulter is Legal Affairs Correspondent of The Irish Times