Men of Straw? Change to the Rules of Locus Standi: An Unsuspected Side Effect of the McKenna and Hanafin Decisions
| Author | Oran Doyle |
| Position | Junior Sophister Law student, Trinity College, Dublin |
| Pages | 37-42 |
1998]
Men
of
Straw? Change
to
the
Rules
of
Locus
Standi
3'
MEN
OF
STRAW?
CHANGE
TO
THE RULES
OF
LOCUS
STANDI:
AN
UNSUSPECTED
SIDE
EFFECT
OF
THE
McKENNA
AND HA
NAFIN
DECISIONS
ORAN DOYLE*
Introduction
For
the
litigious
person,
the
crank,
the
obstructionist,
the
meddlesome,
the
perverse,
the
officious man
of
straw and many
others,
the
temptation
to
litigate the
constitutionality
of
a
law,
rather than
to
observe
it,
would prove
irresistible
on
occasion.'
The
rules
of
locus
standi
in
constitutional
adjudication
attempt
to
filter out
those spurious
actions
where the
plaintiff
has
no
real
interest
in
the
cause
of
action,
thus ensuring
that only genuine
litigants
are
heard.
Although
this might
appear
to
be
a
minor
issue,
it
has
an
important impact
both
at
a
theoretical
and at
a
practical
level.
There
are
two
basic
theoretical
approaches
to
the
question
of
standing,
although
most
jurisdictions
probably
fall
somewhere
between
the
two.
2
The
courts may
insist
that
a
litigant
be
able
to
demonstrate
that
she
has
suffered
actual
detriment
in
order
to
proceed
with
a
constitutional
action. Alternatively,
the
courts
may
take
the view
that
all
citizens
have
standing simply
by
virtue
of
their interest
in
seeing
the
Constitution
observed.
A
strict insistence
on
standing suggests
an
orthodox
social
contract
type
constitutional order.
However,
if
parties
without
strict
standing
can
take
constitutional
actions and
if
the
Constitution
is
thus
seen
to
lay
down
enforceable
norms
of
behaviour
for
the State
(as
opposed
to
simply
rights
for
citizens),
then
we
have
a
more
novel
constitutional
structure.
At
a
practical
level,
the
question
Junior Sophister
Law
student, Trinity
College,
Dublin.
Cahill
v.
Sutton
269,
284
per
Henchy
J.
2
East
Donegal
Co-operative
v.
Attorney
General
317, 338.
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