Hans Kelsen - What is the Irish Grundnorm? Case studies Flashcards
What is the earliest historical constitution of Ireland?
The Constitution of Saorstat Éireann 1922
What did the first constitution of Ireland mark?
The beginning of the Irish State, and the first constitution to have legal effect.
Was the constitutional document contentious?
Yes
Why was the 1922 constitution contentious?
It asserted independence but also contained provisions which allowed British use of ports, fuel storage, and signal stations. It also required swearing allegiance to the crown and created the partition of Northern Ireland
Was the 1922 document functional?
No, it soon required numerous amendments.
How was the 1922 constitution amended?
When Fianna Fáil became the largest political party the 1922 constitution was slowly dismantled and soon amendments could be made without British assent.
The oath requirement was removed and control of the judiciary was vested in the Irish State.
Was the aim to replace the 1922 Constitution?
No but the general state of the document meant that a new Constitution was required.
Does the 1937 constitution still exist today?
Yes
How does the 1922 constitution fit into Kelsen’s Grundnorm theory?
His view that the earliest constitution was the basic norm was criticised by Raz who noted that where a colonised country subsequently gains independence and adopts a new constitution, by Kelsen’s logic, this country’s basic norm would continue to be the colonising state.
What effect would Kelsen’s theory on the earliest possible constitution have on the Irish legal system?
Ireland would still be ascribed to the British legal system, as the British Grundnorm would have given rise to the Irish Constitution.
Does Kelsen address this flaw with early constitutions of colonised countries?
He does go some way towards addressing this in his ‘General Theory of Law and State’ where he submits that where some form of revolution takes place, a new basic norm can be ‘presupposed in its place’
So, which Constitution follows the Irish Grundnorm?
1937.
If the Irish constitution follows the Grundnorm, would morality and natural law feature in the legal system by Kelsen’s logic?
No.
What does the preamble to the Constitution say?
It acknowledges that any and all authority ‘comes from the most Holy Trinity’
Why does the preamble reference religion?
The Irish State has its foundations deeply rooted in Catholicism.
What might the religious influence in Irish law suggest?
There may be an argument to be made that the Constitution might subscribe to more natural law theories than Kelsen’s pure theory.
How was the question of the natural law influence determined?
By way of an Article 26 challenge.
What was the Article 26 challenge to/
The validity of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995.
Why was the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 referred to the Supreme Court by the president?
On the basis that it was inconsistent with natural law.
What would the effect of a finding that the Bill was inconsistent with natural law have on Kelsen’s theory?
If the Bill was inconsistent, it would follow that natural law is to be placed above Kelsen’s Grundnorm. Any laws that may be seen as inconsistent with natural law would be invalid.
What did the Supreme Court decide regarding the Bill?
Held that the law-making powers of the State derived, under God, from the people. As it is the people who vote in the legislature, and the people who may determine amendments to the Constitution, the will of the people was found to override the natural law. Accordingly, the 14th Amendment (which led to the Bill) was accepted by the people, and the Judiciary could not invalidate it based on a conflict with natural law.
What was the effect of the Supreme Court’s decision?
While the judiciary acknowledged the place of natural law, it cannot override the will of the people. The will of the people allows the Constitution to be a flexible document, and the people can decide on how it is changed based on changing moral and social conventions.
This power is set out in the Constitution, and no common law principles or precedent may override it, so it therefore reinforces the idea that the Constitution qualifies under the Grundnorm theory.
What was the position of the law on improperly obtained evidence up until DPP v JC?
Evidence obtained in a manner inconsistent with the fair trial provisions of the Constitution (Article 38) was to be excluded from trial.
What was decided in JC?
Inadvertent breaches of fundamental rights could be admitted into trial.
What happened in DPP v Quirke?
The accused sought a re-trial on the basis that his murder conviction was secured on the foot of computer evidence that was obtained without the correct warrant.
The Court held that the illegality of the warrant was due to a new law relating to digital privacy, and as the mistake was the result of honest inadvertence, the conviction was affirmed.
Do you think the precedent set in JC and affirmed in Quirke can qualify as a Grundnorm?
These exceptions to the exclusionary rule are only seen in cases involving highly immoral actions.
Kelsen regards laws as either valid or invalid and rejects the connection between law and morals.
However, morality underpinned these decisions.
Unlikely then that precedent subscribes to the Grundnorm.
Instead, precedent is another example conferred by the Constitution by way of the doctrine of separation of powers.
Judiciary cannot deem laws valid or invalid - so cannot conform to Kelsen’s theory
Overall, what do the case studies say about Kelsen’s theory?
1937 Constitution could qualify as Grundnorm.
To regard precedent or common law principles, the State would need to recognise judicial sovereignty.
Any such recognition would lead to an ineffective legal system.
