Catholicism and the Judiciary in Ireland, 1922-1960

• Author: Macdara Ó Drisceoil
• Position: BA, LLB, Ph.D, Barrister-at-Law
• Pages: 1-24

IRISH JUDICIAL STUDIES JOURNAL

[2020] Irish Judicial Studies Journal Vol 4(1)

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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the old orthodox system of law would not be easily superseded by a legal structure which reflected the growing pervasiveness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

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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

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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.

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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.

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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…’.

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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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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.

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Quoted in Joe Lee, Ireland 1922-1985 (Cambridge University Press 1989) 128.

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[1962] IR 1, 46.

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[1959] IR 1, 43.