Political Constitutionalism under a Culture of Legalism: Case Studies from Ireland

Conor Casey,Eoin Daly

doi:10.1017/s1574019621000183

Abstract

Political constitutionalism understood in terms of autonomy of political judgement rather than allocation of powers – Irish case studies as example – Judicial doctrines recognise political discretion concerning rights – However, legalism or legal constitutionalism arises within the sphere of political judgement itself – Legal constitutionalism restricts political autonomy epistemically as well as institutionally

Highlights

Political constitutionalism understood in terms of autonomy of political judgement rather than allocation of powers – Irish case studies as example – Judicial doctrines recognise political discretion concerning rights – legalism or legal constitutionalism arises within the sphere of political judgement itself – Legal constitutionalism restricts political autonomy epistemically as well as institutionally
While political constitutionalism can be conceptualised and justified in terms of the relative autonomy of political judgement against juristic constraint, we argue this autonomy can be constrained by the formal institutional powers assigned to constitutional courts and others, and by constitutional cultures that see aspects of political judgement formatted within a culture or habitus of ‘legalism’ – that is to say, a tendency, in particular, to eschew any understanding of political judgement as being exercised prudentially or contingently, in the absence of pre-existing legal norms; and which resists the notion of political actors legitimately making independent interpretations of constitutional norms
We attempt to link this to a wider ‘culture of legalism’ that may prevail even within a constitutional framework that acknowledges a wide formal breadth of political autonomy. We suggest that this aspect of political and legal constitutionalism should be taken more seriously partly because, we argue, the appeal of political constitutionalism lies largely in its connection with political freedom understood as the autonomy of political judgement

Summary

Property rights

Between 2011 and 2020, the Fine Gael-Labour coalition government and Fine Gael minority governments faced a deepening homelessness crisis. Both governments received considerable critique for their alleged lack of robust action. Hogan and Keyes, for example, argued that the Government’s highly precautionary approach to housing issues relied heavily on legal advice that seemed at odds with a ‘wide body of precedent that emphasises the power of the Oireachtas to abridge property rights where the common good so requires’. This, they argued, seemed to leave ‘politicians and their advisors open to the charge that they are interpreting the Constitution and its case law as they would like it to be, rather than as it is’.37. It was later reported that instead of immediately acceding to the Attorney General’s advice, Minister Zappone had first engaged in several rounds of correspondence defending the constitutionality of her proposals for automatic right to information, citing the contrary advice of constitutional lawyers the Minister had liaised with ‘who offered : : : another way to interpret the Constitution’ that emphasised the Oireachtas’ extensive discretion over sensitive moral/social issues. the Attorney General declined to change his view and the Minister did not pursue her preferred policy as initially proposed but reached a compromise which diluted it substantially in such a way that complied with the Attorney General’s position

Remote sittings of parliament

Extensive judicial deference

Executive sometimes takes advantage of legalistic discourse

Relevance to legal and political constitutionalism

The autonomy of political judgement