We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway. In this guest post Dr. Hickey reflects on the work of Ronald Dworkin. Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.
The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.
Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations. Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.
And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!
You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations. Continue reading “The Rich Legacy of Ronald Dworkin: 1931-2013”
It is sometimes forgotten that every international institution is made up of people – lawyers, judges, assistants, policy makers. The European Court of Human Rights (ECtHR) is not an exception; it is built up of professional lawyers who go through extremely competitive selection procedures. The Court is careful in selecting its staff. The Court elected its new president (Dean Spielmann, Luxembourg) just three days ago. Judge Spielmann is one of the prominent members of the ECtHR bench. However, not all staff-related policies are decided as rationally and beneficially for human rights protection as this election of the President.
Continue reading “One of the Keys to the ECtHR Problems”
Several recent high-profile elections such as Nkosazana Dlamini Zuma as Chair of the African Union, Christine Lagarde as Managing Director of the IMF, Fatou Bensouda as Chief Prosecutor at the ICC as well as Margaret Chan at at the World Health Organisation, Irina Bokova at UNESCO and the candidacy of Ngozi Okonjo-Iweala at the World Bank, suggests progress has been made in the participation of women within some of world’s global organisations. Indeed, the appointment of such high-profile women to these leadership positions is to be welcomed however it should not mask the serious gender imbalances present in most, if not all, international organisations particularly with regard to the development of international law. The relatively recent election and appointment of women to such positions and their relative small numbers underlie the distances that still need to be travelled before even a modicum of equility is achieved. The Director General of the International Labour Organisation, the Director General of the WTO, the President of the World Bank, the United Nations Secretary General, the President of the General Assembly, the Director General of the Food and Agriculture Organisation, the Director-General the International Atomic Agency, the Executive Director of UNICEF, the Commonwealth Secretary General, the President of the Council of Europe, are not only all men but most of these offices have only ever been held by males. Continue reading “Women in International Institutions”
The Seychelles President James Michel has approved the appointment of Mrs. Mathilda Twomey as a Justice of the Court of Appeal, following the recommendation of the Constitutional Appointments Authority. The President stated in the official press release that “Mathilda Twomey will become the first female judge in the history of Seychelles. I congratulate Mrs Twomey on her achievement, and wish her well in her new post. I hope that other young women will look to her for inspiration for a career in the judiciary in the future. Her appointment is timely as we have recently celebrated one hundred years of Women’s Day; it is another victory for Seychelles”.
Mrs Twomey is currently a student on the LL.M in Public Law at NUI Galway. She is a Seychellois Barrister-at Law, who practiced law in Seychelles between 1987 and 1995 as a Senior State Counsel and Official Notary, as well as a Barrister/Attorney undertaking Criminal and Civil Litigation in courts and tribunals. Speaking to Human Rights in Ireland Mrs. Twomey stated that “I am grateful, very honoured and very humbled by the appointment and look forward to working in the Seychelles again. I am indebted to NUI Galway for all the support and the opportunity to read for the Masters this year.”
From 1992-93, Mathilda was a member of the Seychelles Constitutional Commission that drafted the Constitution of the Third Republic. Since 1995, Mrs. Twomey has been living and working in Ireland, working as a regional coordinator for Multiple Sclerosis Ireland, a non-governmental organisation working in advocacy, policy development and legal advice for people with disabilities. Mrs. Twomey has a Degree in French Law from the University of Paris Sud, France, as well a Bachelor’s Degree in English and French Law from the University of Kent.
The Free Legal Advice Centre (FLAC) have just issued a press release on a decision by Judge Paul Carney to allow a deaf man undertake jury service. The press release should be available from the FLAC website later today or tomorrow. Judge Carney ruled that a profoundly deaf man could sit on a trial jury with the aid of a sign language interpreter. Judge Carney stated that the objections to having a “13th person in the jury room” could be addressed by the interpreter taking an oath of confidentiality and through the jury foreperson ensuring that the interpreter was confined to their role as interpreter. This is an important decision that breaks down misconceptions of disability and facilitates the participation of persons with hearing impairments undertaking the important civic duty of jury service. Counsel for the DPP (Mary Ellen Ring SC) expressed concern about the confidentiality of jury discussions. Importantly counsel for the defendant successfully Continue reading “Hearing Impaired and Deaf Persons Can Sit on Irish Juries”
Elena Kagan appears before the Senate Judiciary Committee in the United States today, on the path to confirmation as an Associate Justice of the U.S. Supreme Court. It was announced last week, with far less ceremony and far less transparency, as is our custom, that Mr. Justice Liam McKechnie has been appointed to the Supreme Court, replacing Mr. Justice Hugh Geoghegan, who has retired. A former chairman of the Bar Council, Mr. Justice McKechnie adds a little diversity to the bench: he is a graduate of University College Cork. Some of his most important human rights judgments in the High Court have included Foy v. An t-Ard Chlaraitheoir (alteration to birth certificate of transwoman) and T v. O (rights of unmarried fathers). He was also the judge in Miss D (teenage girl’s right to travel to Britain for an abortion).