Sir, - David Quinn (August 27th) joins issue with Mr Justice Brian Walsh's appreciation of the career of the late Justice William Brennan of the US Supreme Court (The Irish Times, August 20th) because it glossed over some serious blemishes in what could otherwise have been a distinguished curriculum vitae.
I would like to join issue with both the writer of the article and his critic, David Quinn, but for different reasons.
Mr Justice Walsh charitably draws a veil over the part played by Justice Brennan - a Catholic member of the Supreme Court - in producing the majority judgment in the infamous case of Roe v Wade in 1973, the outcome of which has been, in the words of Fr Schall SJ of Georgetown University, "that we, as a free and democratic people, have chosen for ourselves the greatest slaughter of our kind in human history".
While I agree in principle with David Quinn's contention that it is improper for the judiciary to take up the task of the legislature, I disagree with his suggestion that it was open to state legislatures to allow abortion if they thought fit to do so, and the implication that there was no course open to the judiciary but to give effect to any legislation so enacted.
In Evangelium Vitae Pope John Paul - echoing what had been stated many hundreds of years ago by St Thomas Aquinas - proclaimed that a law which offended against the natural law, whose source and origin is the law of God, did not have the true character of law and should not be obeyed but should be resisted.
We saw an example of this principle in action in the German courts within the past week, where a Communist leader was sentenced to a lengthy term of imprisonment for his part in implementing the law of the state in the so-called German Democratic Republic, under which 800 people were shot and killed by border guards while trying to escape from that oppressive regime. This decision to impose punishment for compliance with the law of the state could be justified only by an appeal to a higher law which must be respected by all laws of mankind if they are to have the true character of law.
The same principle would now be accepted in all civilised communities if an attempt were made to reintroduce practices such as slavery or torture, which once were commonplace in many parts of the world.
Yet we find our own Supreme Court still proclaiming - in relation to the Abortion Information Act - that the Constitution is the fundamental and supreme law of the State and that the courts at no stage recognised the provisions of the Natural Law as superior to the Constitution.
There was a moral obligation on the judges of Nazi Germany to refuse to implement the barbaric laws they were called upon to enforce, just as there was a moral obligation on the judges in the American states to refuse to implement the Fugitive Slave Act.
But who is to decide the content of the Natural Law? Not the judges "in reliance on their own training and experience", as suggested by Mr Justice Walsh in Mrs McGee's case. The futility of this course was recognised by Justice Antonio Scala of the US Supreme Court in his judgment in Cruzan's Case (1990) when he said that the limits imposed by the Natural law "are neither set forth in the Constitution nor known to the nine Justices of the Court, any better than they are known to nine people picked at random from the Kansas City telephone directory".
The teachers of the moral law are the great religions of the world and each community must turn to its own religious beliefs in search of the truth concerning the natural law. In the Republic of Ireland over 90 per cent of the population continue to profess allegiance to the Catholic Church and the authoritative teaching of that Church on the great moral issues is clearly expounded in the documentation emanating from the Pope and the Magisterium of the Church. - Yours, etc.,
Judge of the High Court (retd.), Kilternan, Co Dublin.