Catholicism and the Judiciary in Ireland, 1922-1960

AuthorMacdara Ó Drisceoil
PositionBA, LLB, Ph.D, Barrister-at-Law
Pages1-24
IRISH JUDICIAL STUDIES JOURNAL
[2020] Irish Judicial Studies Journal Vol 4(1)
1
CATHOLICISM AND THE JUDICIARY IN
IRELAND, 1922-1960
Abstract: This article examines evidence of judicial deference to Catholic norms during the period 1922-1960 based on a
textual examination of court decisions and archival evidence of contact between Catholic clerics and judges. This article
also examines legal judgments in the broader historical context of Church-State studies and, argues, that the continuity of
the old orthodox system of law would not be easily superseded by a legal structure which reflected the growing pervasiveness
of Catholic social teaching on politics and society.
Author: Dr. Macdara Ó Drisceoil, BA, LLB, Ph.D, Barrister-at-Law
Introduction
The second edition of John Kelly’s The Irish Constitution was published with Sir John Lavery’s
painting, The Blessing of the Colours
1
on the cover. The painting is set in a Church and depicts a
member of the Irish Free State army kneeling on one knee with his back arched over as he
kneels down facing the ground. He is deep in prayer, while he clutches a tricolour the tips of
which fall to the floor. The dominant figure in the painting is a Bishop standing confidently
above the solider with a crozier in his left hand and his right arm raised as he blesses the
soldier and the flag. To the Bishop’s left, an altar boy holds a Bible aloft. The message is clear:
the Irish nation kneels facing the Catholic Church in docile piety and devotion. The synthesis
between loyalty to the State and loyalty to the Catholic Church are viewed as interchangeable
in Lavery’s painting.
This article examines evidence of judicial deference to Catholic norms during the period 1922-
1960 by drawing on a textual examination of court decisions and archival evidence of contact
between Catholic clerics and judges. The period between independence and the Second
Vatican Council represents the apogee of the pervasive influence of Catholic norms in politics,
society and law in Ireland. Legal judgments are examined in the broader historical context of
Church-State studies while focusing on external influence and textual evidence of deference
and not conscious or unconscious reasoning. Catholicity refers to Catholic thought, Catholic
social teaching, clerical intervention in the legal process and evidence of judicial deference
towards the Catholic hierarchy. Catholic morality is examined as an influence on the
development of law and in broader society in the early years of the State and evidence of
judicial deference to Catholic norms is shown, in particular the judgments of the first Chief
Justice, Hugh Kennedy and the president of the High Court, George Gavan Duffy.
Different factors that might have influenced judges would be difficult if not impossible to
trace: self-censorship, a discreet phone call, a word whispered into someone’s ear, or the
conscious or unconscious influence of the climate at the time. Therefore, determining the
1
Hugh Lane Municipal Gallery, Dublin.
IRISH JUDICIAL STUDIES JOURNAL
[2020] Irish Judicial Studies Journal Vol 4(1)
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extent of the influence of the Catholic Church and Catholic norms on the judiciary is
problematic. The fact that judges do not have free moral choice also creates particular
difficulties in defining both motive and influence. The aim of this article is to explain the
extent to which judicial decisions on the Constitution are underpinned by Catholic thought. It
does not purport to examine the underlying issue of judicial motive. When referring to
influence it is intended to mean evidence of Catholicity based on a textual examination of
judicial decisions and from archival sources. At the outset it should be noted that in the vast
majority of judicial decisions there would be no evidence of Catholicity. The primary reason
for this is that the Church would simply not have been interested in the issues under question
and Catholic norms would have been of no assistance in the process of adjudication. The
Church’s reach can be limited by an eschatological view which is capable of reducing its
influence.
The influence of Catholicism on the Irish judiciary does not take place on a tabula rasa. This is
particularly clear from the fact that the entire corpus of laws pre-dating independence
continued in force following the enactment of the 1922 Constitution.
2
The development of an
entire legal structure based on English law and the deeply rooted cultural and linguistic
influence of colonialism would not be easily superseded by a new indigenous corpus of laws
underpinned by Catholic social teaching and cultural nationalism. As W.T. Cosgrave in a
circular to the Judiciary Committee set up to review the Irish legal system with Hugh Kennedy
at the helm, dated 29th January, 1923, stated:
The body of laws and the system of judicature so imposed upon this Nation
were English (not even British) in their seed, English in their growth, English
in their vitality…Thus it comes about that there is nothing more prized among
our newly won liberties than the liberty to construct a system of judiciary and
an administration of law and justice according to the dictates of our own needs
and after a pattern of our own designing.
3
Ó Dallaigh J in Melling v Ó Mathghamhna in rejecting pre-1922 standards as a guide in
interpreting the 1922 Constitution stated: The framers of the Constitution of Saorstát Éireann
had no particular reason to look with reverence or respect to the British statute roll in Ireland
as affording them an example of standards which they would wish to enshrine in their new
Constitution…’.
4
Similarly, Lavery J in Byrne v Minister for Finance referred to the Irish courts as
representing a new departure constituted under different ideas and that far from being
founded on British precedents or recognising British forms the Constitution of 1922
repudiated deliberately and consciously these institutions.
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2
Article 72 of the 1922 Constitution stated: ‘Subject to this Constitution and to the extent to which they are not inconsistent
therewith, the laws in force in the Irish Free State (Saorstát Eireann) at t he date of the coming into operation of this
Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by
enactment of the Oireachtas. The pre-1922 statute book has been revised dramatically by the Statute Law Revision Acts 2007-
12, which repeal obsolete acts of parliament.
3
Quoted in Joe Lee, Ireland 1922-1985 (Cambridge University Press 1989) 128.
4
[1962] IR 1, 46.
5
[1959] IR 1, 43.

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