Revolt or Revolution - a Hartean analysis
| Pages | 292-296 |
REVOLT
OR
REVOLUTION:
A
HARTEAN
ANALYSIS
Irish "constitutional
law
is
at
breaking
point".' Phelan
has
speculated
that
the
Irish
legal
order faces
an
impending
choice between revolt
or
revolution,
a
dilemma
derived
from
the theoretical
inconsistencies
of
the
manner
of
entry
into
Irish
law
of
EC
legal
principles. Domestic
judges
find
themselves
subject
to a
direct
duty
to
enforce
European
principles
whilst
at
the
same
time
operating under the auspices
of
a
constitutional
framework which
purports
to oblige
them
to
uphold
its
values
at
all
times.
Of
course Article
29.4.50
was
inserted
in
1973
so
as
to
enable
EC
law to take
precedence
over conflicting
constitutional
precepts,
but
difficulties
will inevitably arise
with
a
document
which
is
both
subject
to
EC
law
and
(in
domestic
terms
at
least)
the
legal
authority
for
that
subjection.
After
all,
in
such
a
situation,
Article
29.4.5'
-
which
it
must
be
remembered
is
enabling only,
remains an
Irish constitutional
provision,
subject
to
the
authoritative
interpretation
of
the Supreme
Court.
This
residual power
of
construction
has
been
clearly recognised
in
Irish
constitutional
caselaw.
Crotty
v.
An
Taoiseach,
2
for
example,
confined
the
Article
29.4.50
immunity
to measures
'necessitated
by'
membership,
a
qualification
on
which
the
Supreme
Court
remains
the
ultimate
arbiter.
Equally
Walsh
J.
in
SPUC
v.
Grogan
3 expressly reserved
to
the
Irish
courts
the
right
to
"decide
finally",
"in
the
light
of
our
own
constitutional
provisions",
the
precise
nature
of
the
relationship
between
Article
29.4.5'
and the
Eight Amendment
to the
Constitution.
Thus
there exists
a
theoretical
gap
between
the supremacy
claimed
by EC
law
in
cases
such as
Internationale Handelsgesellschaft
4
and
Simmenthal,
5
and
the
distinctively
domestic
view
of
the foundations
of
the
ECJ's
authority
-
a
divide
which
Phelan
feels will
only
be
bridged
by
either
a
revolution
in
the domestic
legal
order,
or
a
revolt
against
the
ECJ's
asserted superiority.
Two
Competing
Internal
Perspectives
The
apparently mutually exclusive nature
of
these versions
of
EC
law's
supremacy,
coupled
with
the
impossibility
for
us,
as
outsiders,
of
accessing
and
understanding
the
internal
mindset
of
the
judiciary
(on
whom
resolution
of
this dispute
ultimately
depends) makes
prediction
of
1
Phelan,
Revolt
or
Revolution:
The
Constitutional
Boundaries
of
the
European
Community
(Round
Hall,
Sweet
&
Maxwell,
1997),
at
10.
2
[1987]
IR
713;
400.
753,
at
768-9.
'Internationale
Handelsgesellschaft
mbH
v.
Einfuhr-und
Vorratsstelle
fur
Getreide
und
Futtermittel
(Case
1125;
255.
'Italian
Minister
for
Finance
v.
Simmenthal
SpA.
[
1978]
ECR
629.
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