Miscellany, Volume 116, Issue 1

T.C.D. Miscellany

Michaelmas Term, 2008 Volume 116 Issue 1

This publication is partially funded by a grant from the DU Publications Committee. The opinions expressed in this magazine do not necessarily reflect the opinions of the editor.

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Contents Editorial ...............................................................................2 Opening Statements Lady Law’s Guide to Legal Fun ........................................3 T.C.D. Anarchist Society’s vision of society .....................4 Putting barristers on trial ..................................................6 Looking closer at the Law Society.....................................7 Questions on College Funding ..........................................8 In praise of Sharia Law .....................................................10 Lost in translation: international laws ..............................12 In the Dock The Bible ...........................................................................13 The State ...........................................................................16 The Media .........................................................................19 Political Idealogy ..............................................................22 Closing Remarks French legality ..................................................................25 A Call for Justice ..............................................................26 A Review of Brehon Law .................................................28 Reassessing ‘A Clockwork Orange’ .................................30 Laudable Laws ..................................................................32

Editorial Team: Editor - Jean Acheson Assistant Editors - Conor James McKinney, Jean Morley Layout and Design - Jean Acheson, James O’Connor Front Cover Illustration - Elaine Jennings Illustrations - Elaine Jennings, Iwona Pomianowska Contributors - T.C.D. Anarchist Society, Ciarán Cleary, Daniel Costigan, Rachel Gallagher, David Gibney, Brendan Guildea, Andrew Hayden, Stephen Lydon, Darren Mooney, Christine Murray, Conor James McKinney, Tara O’Connor, Mícheál P. Ó hEoghain, Sarah Werner

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Editorial

Welcome to a new year at T.C.D. Miscellany! This humble publication has been appearing in college for over one hundred years, since 1895 to be exact. Have the years taken their toll on poor auld Miscellany?

Not one whit, in this editor’s opinion. The magazine continues to provide a strong platform for student opinion and college news. Its outlook is broader than ever, and in seeking to be a reflection of student concerns, experiences and insights, its scope extends far beyond our campus walls. Within these pages, the reader will encounter a diverse range of minds focusing on different details of life in general and college life in particular.

This year, T.C.D. Miscellany’s own mind has been dwelling on one particular detail on campus: the Campanile. Its four statues – Law, Science, Divinity and Medicine – have observed many generations of Trinity students come and go. Throughout this year, Miscellany will return the favour by taking a closer look at each of them in turn. This issue, our contributors are focusing on law.

Is it even an interesting topic to delve into? Why should you read on? Well, surely the rules we live by are always worth re-examining from time to time. The questions thrown up by just such an examination are rather interesting: is the Bible a credible source of wisdom? Is Irish legislation pro-student? Is the law legitimised by historical convention or by rationality?

Our contributors all have different viewpoints, and the topics they bring to your attention are worthy efforts indeed. What comes out of all these probings is a very thoughtful and humane perspective of ‘the law’, and an ambitious vision of how our society, within these walls and without, should develop. Beckett’s old quip about a Trinity student’s similarity to cream (both being rich and thick, don’t you know) can no longer be said to be true. It will become obvious as you read on that, in fact, the students here are wholly more engaged with the world than the conventional wisdom might imply.

Jean Acheson Editor T.C.D. Miscellany

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Lady Law

Lady Law’s Guide to Legal Fun on a Friday Night a) b) c) d) e) f) g) h) i) j) k) l) m) n) o) p) q) r) s) t) u) v) w) x) y) z)

Announce to friends that you’re planning to attend your 2pm lecture.

Wait for friends’ loud cries of disapproval and then graciously give in to their demands to frequent the Pavilion Bar instead.

However, do not actually go the Pav just yet.

Leave college by the Pearse Street entrance and make your way over to Centra for some snacks.

Return to college with a studied and well-practised air of nonchalance.

Scan the crowds to see if there’s anyone to avoid/attract.

Settle into a good spot for the evening – preferably one of the tables on the right if it’s dry, or immediately inside on the left if it’s wet.

Suddenly remember that you had a tutorial assignment deadline due in by 4pm.

Attempt to leave the Pav to explain yourself to your department’s secretary.

Wait for friends’ loud cries of disapproval and then graciously give in to their demands to stay put instead.

Greet the arrival of more of your college friends with shouts of delight.

Have time (and the odd friendly insult) fly.

Be startled by the bar staff asking you to leave.

Engage in some light to medium level banter with them, but don’t expect it to be reciprocated.

Go down the steps and congregate by the bushes.

Begin a heated debate about where to go next.

Decide on the Palace, just like last week.

Depending on your footwear and level of snacking, start walking in the general direction of Camden Street.

Arrive there and be shocked at the length of the queue.

Casually slip in near the front.

Attempt to move when once inside but be prepared for the journey to the dance-floor to take longer than a double-lecture.

Start dancing wherever you find yourself but be curtailed by the lack of physical space afforded you by others.

Show them who’s who by engaging in what you imagine are some slammin’ moves.

Emit a groan of disappointment when the DJ stops playing and the lights come on.

Avoid the cloakroom crush by skipping the queue again.

End the night with a sumptuous feast at any one of the city’s Charlies restaurants.

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Opening Statements

Justice For All? The T.C.D. Anarchist Society

shares

its

thoughts on law, crime and society.

I

n our current society there exists an obvious gap between morality and law. There are many things which are illegal, but we don’t consider morally wrong (such as smoking hash), and there are many things which are often legal but are most definitely morally wrong (such as war or blatant exploitation). In an anarchist society, one would imagine that ‘law’ and morality would be unified; something would be considered wrong and require correction because it hurt another, and not because it contravened any code that is separate and superior to human relationships.

Anarchists want to minimise the use of force in human relations. The basic anarchist thesis is that it is only legitimate in self-defence and

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must never be under the control of a minority. For that effectively grants power to the minority, who will, as everybody with power does, use it primarily for their own ends and with a view to controlling others. But it is possible to live without recourse to controlling elites and their organised coercion. Anarchists have confidence that people can run their own affairs, particularly in a libertarian socialist

“Anarchists want to minimise the use of force in human relations.”

society where society is structured to facilitate freedom and justice.

However, what about the here and now? Poorer urban working class communities today often find themselves caught between vicious anti-social crime driven by poverty, lack of hope and addiction, and a police force that sees its role as stopping such crime spreading outside the boundaries of those areas. Young people are particularly likely to be faced with the contradiction of police harassment either if they socialise outside their estates or if they hang around their own street corners.

Our current society is one obsessed by crime; from politicians’ posters attempting to gain votes through

Opening Statements scaremongering, to the media compulsively reporting the grisly details of murder trials, we are surrounded by a sense of panic over the state of modern society. The ruling class sees crime as a problem of lawlessness that can only be solved by the institution of more repression, tougher sentences, more police and more jails. Anarchists, too, are concerned about crime; but while the politicians and media think that crime is a problem of disorder, we argue that crime is part and parcel of the social order itself. As the old French proverb goes, “if you sow misery, you will reap anger.”

“The selfish form of individualism created by capitalism destroys the basic bonds of society.”

Anarchists believe that the primary cause of crime lies with the type of society in which people live and from which they get their values. It is hardly surprising that a culture that promotes individual profit will produce individuals who do not respect others, or themselves, and see other people as just the means to an end. To give one example, anarchists did not think it unusual or unexpected that crime exploded under the pro-free market capitalist regimes of Thatcher and Reagan.

Crime took thirty years to double in Britain (from 1 million reported incidents in 1950 to 2.2 million in 1979).

However, between 1979 and 1992 the crime rate more than doubled, exceeding the 5 million

mark in 1992. These 13 years were marked by a government firmly committed to the “free market” and “individual responsibility”. Margaret Thatcher summed up this attitude with her “there is no such thing as society” speech. The links between poverty and crime are equally clear in Ireland: according to Senator Ivana Bacik’s study of appearances in a Dublin District Court, 73.3% of District Court defendants are from the most economically deprived areas.

upon and unpunished. Recent revelations have indicated that fraud, embezzlement and large-scale theft are common among Ireland’s business and political elite.

White-collar crime is generally not prosecuted however, unless it happens to involve low levels of money (such as welfare fraud) rather than massive amounts such as embezzlement, bribery etc.

The selfish form of individualism created by capitalism destroys the basic bonds of society - namely human solidarity - and our division into order-givers and order-takers undermines the solidarity required to understand that we share a common humanity with others and so should respect others’ rights.

Of course, we have to be clear that the term ‘crime’ itself is not politically neutral. In a society divided between a working class, which has little power, and a ruling class that concentrates economic and political power in its own hands, it should be no surprise that “crime” itself is defined in a way that reflects the interests of those in charge. It is illegal, therefore, to shoplift a loaf of bread but it is completely legal for a property developer to make hundreds of millions from speculation (and by doing so put the possibility of owning a house outside the reach of many and condemn others to a life in debt to a bank). Similarly, bosses who force their employees to work in unsafe conditions in order to increase their profits are not charged with murder when a worker dies at work or as a result of their job.

This is also why a whole other category of crime, namely white-collar crime, goes relatively unremarked

And what of those who combat crime?

Undoubtedly, the Gardai sometimes do a good job - putting drunk drivers off the road is one example.

Sometimes they do a bad one - like the Donegal frame-ups. And sometimes they do a deadly one - like the unexplained deaths of Brian Rossiter and Terence Wheelock in Garda stations. Whatever your experience of them is, it is clear that their main and most important function is not upholding some impartial “law and order”, but upholding the power and privilege of the millionaires.

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Opening Statements

The Professional Jokers and Liars Brendan Guildea questions the worth of the barrister profession.

B

arristers should not exist. When one encounters a problem requiring legal resolution one will employ a solicitor, who employs a barrister, who argues the case in court. The following has often been said with regard to holiday agents, but it is probably more appropriate here: “Why not cut out the middle man?”

Why can’t people just pay solicitors to do all the work?

The inefficiency of our current system is laughable.

And when you consider the amount of money barristers are paid to sit around or talk in court, it is embarrassing to think how apathetic (pathetic more like) we, as Irish people, have been and continue to be about this profession.

Indeed, masochistic ignorance has been the order of the day for the last hundred years, as we sit by and allow our wallets to be emptied by the wig and gown wearing remnants of an elitist British aristocracy.

“Oh, but barristers possess a specialist legal knowledge,” they’ll say and, “nowadays solicitors have a right of audience (…. with the qualification) in the lower courts at least.” Let me attempt to convince you otherwise.

One afternoon last June, having wandered into the Four Courts, I witnessed a case concerning a

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contract that had been made in Northern Ireland. The plaintiff, from Northern Ireland, was represented by only a solicitor; the defendant (a Dublin-based company) had employed a Senior Counsel. The plaintiff’s solicitor was trying to use a particular statute, with which the judge was unfamiliar. Actually, the judge did not know if the statute was

applicable in this case. Ignoring the solicitor’s positive claim that it did, the judge turned to the defendant’s counsel and asked, “Does this statute apply?” Five minutes of what I can only describe as babbling ensued.

Then the Senior Counsel summarised his position: “I don’t know, Judge.”

Meanwhile the solicitor was turning blue in the face from saying it did apply. The case was left undecided that day because the judge thought it prudent to seek advice elsewhere.

Would you say from the above that

barristers (as opposed to solicitors) possess a ‘specialist’ legal knowledge?

And how much weight did the judge give to the solicitor’s opinion? If judges generally respect the opinion of barristers more, does that mean you need to hire a barrister to win a case?

A student of law for three years can only draw the conclusion from the above scenario that the barrister was extremely competent…. at ensuring the trial went on longer. The great joke here, of course, is that the barrister’s lack of knowledge meant he would be able to bill his client for more courtroom hours.

However, since nobody reading this article will care enough to actually do anything, writing even this much has been a total waste of my time. I think I’ll cut my losses and defer indefinitely the disclosure of the benefits of a fused system, like America’s, where one lawyer can (and does) do it all.

I just thought this would be a good opportunity to clear my conscience before exposure to the real world eroded my sense of prudence, justice and charity. And that shouldn’t take long, for I will be soon counted among them – the professional jokers and liars.

Opening Statements

A closer look at the Dublin University Law Society

by Rachel Gallagher, P.R.O.

T

his academic year 2008/2009 sees Trinity’s Law Society celebrating its 75th anniversary. The Dublin University Law Society was founded

with the purpose of encouraging the study of all branches of the law by students of all faculties. To this day, that remains one of the primary aims of the society and this is given expression through debates, mock trials, moot court competitions and, most recently, through the establishment of the Trinity College Law Review.

This p e e r- r e v i e w e d law journal, which publishes the work of Trinity law students, is recognised as the premier student legal publication in the country.

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Among the past auditors of the Society is former President of Ireland and UN Commissioner for Human

Rights, Mary Robinson. Included among the past members of the Society are a number of judges including the current president of the Society and Ireland’s first female Supreme Court Judge, the Honourable Mrs. Susan Denham.

As well as organising educational activities, the Law Society also organises a broad range of social activities including numerous parties in top Dublin venues, formal events such as the Law Ball (the largest and most prestigious society ball) and the Swing Ball. The annual Law Day raises much needed funds in aid of a targeted worthy cause; in the past Law Day has helped Aware, the Irish Cancer Society and the Dublin Simon Community. Recognised as one of the largest societies on campus, there is something for everybody and masses of events to get involved in - and with it being the Law Soc’s 75th year, it’s going to be a big one!

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Opening Statements

Money, money, money Christine Murray discusses funding in our universities.

Y

ou would have to have been hiding under a rock to evade the knowledge that the Irish economy is under a great deal of strain. Likewise to remain ignorant of the fact that Minister for Education Batt O’Keefe is looking to reintroduce fees for third level. The universities don’t seem to have a direct problem with this in theory.

They seem to be

instead concerned with the fact that it is unlikely that the government will pump any additional funds into the sector.

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When Trinity recently received its highest ever ranking in the Times Higher Education-QS League Table (49th), this was

celebrated but qualified by the Provost that the achievement was

all the more remarkable due to the inferior amount of funding that the college receives in comparison with most of the other institutions on the list. The chief executive of the Higher Education Authority, Tom Boland, admitted in a recent interview that the Irish government by international standards “spend[s] below average on higher education.” The fact that one Irish university managed to get a high rank despite this does not do much to bolster claims that third level institutions across the board should receive more funding.

Furthermore, with Ireland’s borrowing levels exceeding EU limits and a hairshirt Budget in place this year, it doesn’t seem likely that thirdlevel institutions have much money coming their way in the immediate future. This is now, after all the speculation, officially a recessionary climate.

Opening Statements

None of this takes away from the fact that many universities and colleges are under huge financial pressure.

The money needs to be collected

“If independent thought is curtailed in any way, surely the core ethos of third level institutions will have been thrown away.”

from somewhere, and Trinity has introduced some schemes to this effect in recent times. The board set up to review the merit and costs involved in the Scholarship examinations is one example of this. The changing of our academic term structure due to come into effect next year can have no other purpose than to attract the American students who often spend one semester in a different institution. This is a lucrative market due to the large fees applicable to American students, but up until now Trinity could not take these visiting students as the term structure did not line up neatly enough with the semester systems in use in most of the United States’ colleges.

An increasingly popular way of lining a college’s rapidly diminishing coffers is through corporate sponsorship.

This is when an outside business funds a particular course or provides a scholarship for students, usually in postgraduate studies. The courses tend to reflect the interests of the company itself, for example the Smurfit School of Business. This seems like a win-win situation: the college gets money, and the company reaps the rewards of having their name attached to a particular programme.

ethical to allow companies to have such involvement with third level institutions. One extreme example of this is the involvement of Trinity’s Economics department with the Coca-Cola Corporation. The student body has voted to ban all CocaCola products from being sold in Student Union shops, making the move all the more controversial.

The problem is that universities used to be centres of relatively independent free thought. Corporate involvement cannot but create a bias in students studying in a sponsored programme.

Theses cannot be written that criticise, even obliquely, the company or the practices of that company. It could

be argued that, historically, patronage filled the same niche, but if independent thought is curtailed in any way, surely the core ethos of third level institutions will have been thrown away. What we will have in its stead is knowledge as a capitalised entity: a commodity.

And this process is not a transient one.

The colleges that have resorted to these methods of funding have shown the government that they have viable alternative paths through which to get money, and thus the government has less incentive to increase our third level funding. It looks like once again Ireland will follow the United States’ rule that everything, even academic integrity, is for sale.

“I believe it is absolutely critical for Ireland, especially in this knowledge driven age, to have more universities in the front rank. From an economic perspective it is important to note that we have been ranked in the top 43 universities by the employer survey. This sends a clear message regarding the relevance of our education and training programmes at undergraduate and postgraduate level to the global workplace. It is our hope and intention to maintain and further improve on that position.

“However, this is becoming increasingly difficult in a rapidly deteriorating funding climate. The fact that Trinity is ranked so highly relative to the resources available is a reflection of the very high calibre of our students, the excellence of our research and the strong culture amongst our academic, administrative and support staff to achieve and perform beyond the norm.

The challenge will be to sustain our top ranking position and the quality for which we are renowned with increasingly deficient levels of funding.”

- TCD Provost John Hegarty, October 2008

The question is whether or not it is

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Opening Statements

An Islamic solution to an Irish problem Conor James McKinney suggests we bring Mohammed to the (Irish) mountains.

R

eligion was one of the original sources of law, and in times past most of the enactments of the State were bound up in Christian notions of morality. Nowadays, the law has little to do with the teachings of the Church, even if it does still occasionally use general criteria of right and wrong as a reference point. This is probably for the best, given the declining role of the Church in Irish society and the obvious demerits of having a powerful non-governmental organisation having undue influence over our legislators.

It also may help allay the traditional suspicions of our Protestant brethren in the Six Counties as we strive towards reconciliation and a definitive solution to the Irish question.

However, it is doubtful whether the increasing secularisation of society is a better state of affairs. Our politicians lack a coherent vision as to what kind of social order they seek to create through their enactments. Corruption, incompetence and special interests dominate the political process. If the old Ireland was a backward, parochial, priest-ridden banana republic, at least we knew where we stood. Likewise, in Northern Ireland, Craig’s “Protestant State” wasn’t a barrel of laughs for

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the average Papist, but crises of identity were few and far between.

In short, a radical solution is required.

While a return to a conception of the state based on sectarian rivalry is clearly out of the question, it is clear that given the state of our society – broken homes, drug addiction, gangland murders and all the rest of it – some injection of religion into the equation certainly wouldn’t hurt. A body of law and court system guided

“If the old Ireland was a backward, parochial, priest-ridden banana republic, at least we knew where we stood.” by religious values would also have the considerable merits of consistency and certainty. After all, at present lawyers and judges are fixated with the notion of precedent, under which a bad decision cannot be overturned merely for being bad, so it wouldn’t be a major step into the unknown.

But if Christian ethical principles are out of the question for historical reasons, where can we turn for guidance? In order to stand neutral as between the various Christian sects, it makes sense to utilise the doctrines of another religion altogether. But where are we to find one which has a connection to our own Judeo-Christian value system, possesses as sophisticated a body of theology, and has been used successfully as the basis for the laws of other jurisdictions? An obvious candidate presents itself – Islam.

Sharia law, as practiced in many African and Asian countries, is derived from two sources: first, the Koran, the word of God as recited by his prophet Mohammed. Second, the Sunna, which is an account of the actions and sayings of the prophet so that others may profit by his example. The comprehensive and uncompromising vision to be gleaned from these works gives us a sound basis upon which to found true social order. The beauty of sharia as a system of law – and, indeed, a code for daily living – is that it proceeds from these texts. It’s all there, nice and specific – a stark contrast to our current constitution,

Opening Statements

which barely mentions God at all (surely this present economic crisis is a judgment on us?) and is as ambiguous a document as ever saw the light of day.

Besides which, it’s a matter of who you trust with your supreme law; surely there’s no contest between something horsed together by De Valera and bunch of civil servants, and the divine revelations to God’s anointed.

If the rights of non-Muslims under sharia are a little circumscribed, so much the better, as practically everyone will be in the same boat, and many of our current problems as a society can be traced back to people having too many rights in the first place. Human rights are a little like fine wine – one should be selective, rather than gorging oneself on the lot. The idea that, under a sharia system, Christians would have to give up their devotion to Jesus, Mary & co. is nonsense. Jesus

is a prominent figure in the Muslim faith – anyone wishing to continue worshipping him on the sly wouldn’t be breaking any rules. And what priest

“Human rights are a little like fine wine – one should be selective, rather than gorging oneself on the lot.” could object to a society based solely on religious values – surely a dream come true for any person of faith.

In criminal law, for example, sharia provides a refreshingly direct approach

when dealing with lawbreakers.

Stoning people to death has, ever since Monty Python’s seminal work Life of Brian, been accepted as a purely hilarious way to go. Losing a hand for theft holds no terrors given the advancement made in prosthetic technology. Once the first one goes, any further chastisement won’t even hurt, and it will be the cost of replacing the hand that provides the deterrent.

And in these times of belt-tightening and recession, the opportunity to ditch all those expensive fashion labels in favour of a simple burqa will be music to the ears of cash-strapped ladies.

Our lawyers and judges may, it is true, have to learn classical Arabic so as to get a better grasp of the texts in the original, but as legal professionals are currently required to learn Irish – a language for which they have little need in modern life anyway - it’s not much of a change. They will also, inshallah, learn the virtue of simplicity, as the new sacred texts are impatient of subtleties and equivocation.

Our existing statutes and court decisions can then be tested for compatibility with the teachings of the Prophet. It is unlikely that much of our archaic and chaotic corpus of law will survive the cull.

Many more advantages of the proposed change could be added to the above, including the cultural enrichment of our insular society and the diplomatic coup with Middle Eastern states.

The Irish have always led the world in matters of social reform, as when we became the first state to bring in a public smoking ban. Careful implementation of this proposal will make us, once again, a shining beacon unto the nations of the earth.

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Opening Statements

The Odd Arm of the Law Laws You’ll be Glad Aren’t Enacted at Home:

1.

2.

3.

4.

5.

A fine of $25 can be levied for flirting in NY. This old law specifically prohibits men from turning around on any city street and looking “at a woman in that way.” A second conviction for a crime of this magnitude calls for the violating male to be forced to wear a “pair of horse-blinders” wherever and whenever he goes outside for a stroll.

It is illegal to take more than three sips of beer at a time while standing in Texas.

In Thailand, it is illegal to leave your house if you are not wearing underwear.

Under French law, between the hours of 8am and 8pm, 70% of the music on the radio must be by French composers.

Those wishing to use a television must apply for a license – oh no, wait….

......Laws You Wish Were Enacted: 1.

2.

3.

4.

5.

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Sunshine is guaranteed to the masses in California.

It is illegal in Australia to roam the streets wearing black clothes, felt shoes and black shoe polish on your face - for these items are the tools of a cat burglar.

‘The city’ is classified as a no-pee zone in Canada.

Texan law requires criminals to give their victims 24 hours notice, either orally or in writing, and to explain the nature of the crime to be committed.

In Singapore, oral sex is illegal unless it is used as a form of foreplay.

In the Dock: The Bible

I now pronounce you man and... husband

Andrew Hayden uncovers some biblical contradictions on, amongst other things, homosexuality and the institution of marriage.

I

n the state of Virginia it was once illegal to tickle women. Until as recently as 2006 Jewish people in Ireland were forbidden to possess armour, a law originating from the Assize of Arms in 1181. These archaic laws, some of which still can be found in modern legal statutes now serve to offer amusement and interesting trivia.

Whilst some can simply be dismissed as urban legends and testing the limits of a person’s scepticism – the ‘law’ in

Alaska making it illegal for a person to look at a moose from the window of an aeroplane must surely be the work of somebody with great imagination rather than the work of an Orwellian state monitoring its citizens every move – some of these laws seemingly too bizarre to be true were very much real.

Aspects of biblical law today can be seen as equally alien and outlandish to inhabitants of the 21st century already sceptical about the actual existence of

some of these curious medieval by-laws which can be simply urban legend. Do not wear clothes made of two kinds of material (Leviticus 19:19). Do not take a widow’s garment as security for a loan (Deuteronomy 24:17) An unruly son who does not obey his parents should be taken before the leaders of the town and to stand trial - these parents, according to Deuteronomy 21:19, are to say “‘Our son is stubborn and rebellious and refuses to obey us; he wastes money and is a drunkard’”.

The net result of this exchange is that

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In the Dock: The Bible the men of the city are to stone the unruly son to death.

extant between a man and woman as embodied by Adam and Eve.

Imagine a scenario where every unruly teenager and drunkard was taken into town to be stoned to death: there’d be a mass execution to conclude Freshers’ Week; any attempt to get into the city centre would be horrendous with the amount of bodies lying about; and a lot of stone would have to be sourced. The hiring of “men of the city” to carry out this essential duty

However, when it is considered in its context amongst the laws set out in Leviticus, the assertion must be seen as antiquated and borne of its time, as indeed it is by many Christians today.

Yet for conservative Christians, this passage is the root of their claims that homosexuality and gay marriage are both contrary to biblical teachings.

“Leviticus 18:22: You shall not lie with a male as one lies with a female; it is an abomination.” is itself fraught with danger as there appears to be a discrimination against both foreign nationals and citizens who aren’t native to Dublin, which itself is breaking laws regarding equal opportunities for all in employment.

Weighing everything up, it’s probably best to stick with the current status quo.

The number of these types of laws throughout the early books of the Old Testament, in particular Leviticus and Deuteronomy are plentiful and the vast majority are held with little credence today, with the sole exception being the laws forbidding incestuous relations. However, amidst these dense books of archaic law is one of the Bible’s best known verses, Leviticus 18:22: “You shall not lie with a male as one lies with a female; it is an abomination.” This assertive statement is the foundation of the Christian teaching that homosexuality is fundamentally unlawful and that sexual relations are solely to be

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the company offered in which a couple can get flights to Las Vegas, accommodation for three nights and get married by Elvis Presley himself – that is if you suspend disbelief and ignore the cheap wig for a few minutes.

The legalisation of gay marriage is something fundamentally hampered by this religious argument by conservative Christians who claim that its legalisation will lead to a number of negative consequences.

The most salient of these is that it will undermine the institution o f marriage itself.

There

The ease at which one can get married in Las Vegas is why it is synonymous with marriages in popular culture. All that is necessary to acquire a wedding licence in the city is $55.00 and photo identification. In Ireland an intention to marry is required by the General Register Office with three months’ notice; in Las Vegas a marriage licence can be acquired easily, often taking no more than three minutes.

An alternative and equally popular marriage ceremony in Las Vegas is the drive-thru wedding, which is as simple as it sounds - the happy couple don’t even have to unfasten their seatbelts.

are a number o f problems with this viewpoint. To argue that the marriage of two men or two women who love each other belittles t h e institution of marriage and its tradition is baffling when you consider some of the available alternatives to the traditional church wedding confetti, organ player, white dress and all. Recently attempting to find a cheap last minute package holiday in the windows of a travel agent, my attention was captured by a package

Furthermore, marriage itself can’t be held as something that isn’t undermined on a daily basis and in far more mundane circumstances.

Divorce rates a m o n g s t married couples in Europe are higher than ever before – the divorce rate in Ireland is 16%, seemingly low when it’s considered that the E.U. average is 43%. However, it must be considered that this low rate is partially due to the relative difficulty in acquiring a divorce here in comparison to other European states. Indeed this high incidence of marital strife has often led to some of it being used as forms of entertainment: the lie detector tests of Ricki Lake and Maury Povich; the farcical pantomime of The Jerry Springer Show; and the schadenfreude inherent in the immensely popular ‘Wife Swap’.

In the Dock: The Bible

“To base an objection of gay marriage on an archaic biblical law amidst others that even the most conservative of Christians today could not lend credence to is fairly insubstantial.”

However, perhaps the most powerful condemnation of the sanctity of holy matrimony comes from the Bible itself.

Deuteronomy 22:13-30 tells of laws concerning sexual purity and offers one of the most contentious laws in the book when it offers the hypothetical situation that a man is caught raping a girl who is not engaged (Deuteronomy 22:28) The appropriate punishment for the man is that he is to pay the girl’s father the bride-price of fifty pieces of silver and she is to become his wife, the reason for this being that the man forced her to have intercourse with him. Further to this punishment, the man can never divorce her as long as he lives (Deuteronomy 22:29).

It seems difficult to convincingly justify marriage as a sacred and holy institution undermined by modern, liberal attitudes when, in this case

“Marriage itself can’t be held as something that isn’t undermined on a daily basis.” outlined, marriage is served as a punishment to the male attacker, whilst his victim is apparently

saved from “sexual impurity” by being placed in wedlock with him.

To base an objection of gay marriage on an archaic biblical law amidst others that even the most conservative of Christians today could not lend credence to is fairly insubstantial.

Considering the modern debasement of the institution in various ways and means, it seems infeasible to think that, by allowing two people, no

matter what their gender or sexuality, who love each other to have their relationship granted legal status would serve to undermine what is already a maligned institution. If the Jewish

community in Ireland are now able to don their hairshirts and breastplates, John Doe and Joe Bloggs should be allowed that drivethru wedding they’ve dreamed of since they were little boys.

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15

In the Dock: The State

The State of Students: the impact of the State on Irish students’ lives.

Tara O’Connor takes a look back, a glance around, and a gaze into the future.

T

ake a dawdle up Dawson Street and around the corner to Kildare Street; you’ll find the epicentre of decisionmaking in our State is quite literally a stone’s throw away from the Trinity College campus. In fact, revered eighteenth century architect Richard Cassels designed his Palladian masterpiece, Leinster House, in the likeness of his first architectural foray, the Printing House in Trinity College, built some eleven years earlier.

One would be forgiven for thinking, however, that apart from this historical footnote and their prophetic proximity to one another, the workings of the Oireachtas and the lives of college

16

students in TCD and Ireland are entirely divorced from one another - that the great building is merely something to crane your neck at while chewing on your pen in the fourth floor of the library!

Yet, this could not be further from the truth. On further investigation, it can be seen that the work being done in

Leinster House and, most pertinently, the legislation enacted by the Oireachtas and utilised by State bodies, has wide-ranging impacts on the lives of students all over Ireland, in the past, present and future.

Past Times The impacts of legislative decisions made by our State nearly fifty years ago still resonate for Irish

In the Dock: The State students today. The most tangible of these relate to the provisions of our Constitution and inserts in our Statue Book relating to State funding of education.

The vast majority of students today, myself included, owe a debt of gratitude to one man - the late Fianna Fail TD Donogh O’Malley or “the School Man” as he became affectionately known. It was his dynamism in the mid-Sixties which shaped the education system as we know it today. Free primary school education was, a n d still is,

colleges nowadays having attended local non-fee paying secondary schools.

Furthermore, the students of the thirteen Institutes of Technology in Ireland owe their college experience to the same man. Then known as Regional Technical Colleges (RTCs), and now called Institutes of Technology, O’Malley established these tertiary learning centres in areas where there was no third level college nearby. The best example of this successful policy is Limerick, now a university, where O’Malley is credited with taking the steps to ensure the university came into existence.

Niamh Breathnach in the mid 1990s. Today, barring some fees payable to the university for services and examinations, Irish students enjoy free third level education.

Paradoxically, making college education in Ireland free has increased the value placed on a third level qualification by Irish citizens. A third level qualification is deemed as an integral rite of passage for every citizen, which has made Ireland a hot-bed for highly skilled graduates.

Thus, the decisions made nearly five decades ago are still having a tangible positive effect on the present body of students in Ireland.

Living in the Present

provided for under Article 42 of Bunreacht Na hEireann. However, shortly after he was appointed as Minister for Education in 1965, O’Malley announced, in a maverick move, that from 1969 entry to all schools up to Intermediate level would be free also.

The concept of elitism in education was rendered redundant. The decision was an overwhelming success, with the majority of students who populate our

In recent years (and months) the State has enacted various pieces of legislation aimed at improving the overall health and well-being of Irish citizens, including the student population.

Legislation such as the Public Health (Tobacco) Act, 2002 as well as the Intoxicating Liquor Act 2008 has influenced the ways in which we, as students, socialise.

The era of political ingenuity that was the Sixties also saw access to third level education extended to a greater body of potential students. The legislative innovation of the late Sixties laid the foundations for the modern day “Free Fees Initiative” when Irish third level fees were controversially abolished

by Labour Education Minister

For the past four years students have been able to breathe easy in Ireland.

Most students have now grown accustomed to the changes ushered in by the 2002 Public Health Act. The relative inconvenience to smokers of having to smoke off-premises has been categorically outweighed by the

17

In the Dock: The State

overall benefits of a smoke-free setting for patrons and employees. And with many students taking part-time work in bars, clubs and restaurants, the net effect of the legislation has been to create a healthier work and social environment for students.

“The vast majority of students today, myself included, owe a debt of gratitude to one man - the late Fianna Fail TD, Donogh O’Malley.”

A more recent legislative development to have a direct effect on students’ social lives in Ireland was the Intoxicating Liquor Act 2008. The majority of its provisions were enacted on 30th July this year. The trading hours of clubs, pubs and off licenses have been curtailed, and the Act makes significant changes to the sale of alcohol for consumption off the premises. Off sales of alcohol can now only be made between 12.30pm and 10.00pm on Sundays (and Saint Patrick’s Day) and between 10.30am and 10.00pm on other days. However, it remains to be seen whether the Act encourages a more modest approach to alcohol consumption. In the medium term, it would be expected that social disorder offences and arrests made by the Gardai will decrease.

However, it is the long term impacts of both Acts that is the most crucial.

The over-arching aim of the legislation may seem aspirational, but the current generation of college students has the potential to be the healthiest that Ireland has ever produced.

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Back to the Future An ominous cloud hangs on the horizon for the thousands of potential and current Irish students in third level education. Speaking earlier this summer, Minister for Education Batt O’Keefe suggested that college fees be reintroduced and a scheme of student loans (akin to the system operated in the United Kingdom) be established. This summer has seen placards raised by many hundreds of students in remonstration of this incongruous proposal.

The net impact of the reintroduction of fees would undo the hard and

on tuition fees each year would only serve to cheapen our education system.

Education should be funded by tax revenue. The majority of taxpayers

“A third level qualification is deemed as an integral rite of passage for every citizen.” have gone to college themselves and university has been their stepping stone to employment. I very much doubt that they would deny any young person the chance of achieving their dream, just as they themselves did in college.

Going Forward It is clear that in the past, in the present, and in the future, the impact of the State’s action and inertia in the area of education is felt throughout the national student body.

sometimes maverick work of many brave politicians and campaigners over the past fifty years. Ireland in 2008 has a wealth of young graduate talent for a reason – that is, equality in education.

Each and every citizen has a chance of achieving a third level education because the State has provided a level playing field where value is put on academic achievements, rather than economic capability. Placing the focus of entering college on how to pay a loan or how many thousands one spends

The difference now is that students have a voice. Through Students’ Unions and the media, students can highlight the negative impacts that the State’s decisions are having on them as well as encouraging the constructive steps taken to make our time in college as positive as possible. With the local and European elections occurring in June 2009, the Government would be well advised to pay attention to the thoughts and, most importantly, the voting power of the collective body of students in Ireland.

Then, maybe, we as students could have the same impact on the grand designs of the State as the humble Printing House did on Leinster House all those years ago.

In the Dock: The Media

A legal interpretation of the media Stephen Lydon examines the position of the media in influencing politics and the legislative process.

The Lisbon treaty highlighted these issues: the No side argued that every European country should have referenda, while the Yes side stated that the issue was a matter for informed legal representatives. Where government election is concerned is it not then equally plausible to require that a population possesses a certain amount of knowledge about that for which they are voting? Or should we simply accept that wars are decided on the basis of arbitrary favours and friendships with no basis in rationality or appeals to higher knowledge?

Though legal or moral systems, like constitutions or the church, are usually the first places we look when it comes to defining the limits of our freedom, it is in fact the press which plays the far more important role in dictating the direction of a democratic society so far as referenda are concerned. The population decides according to summarizations and interpretations, as well as downright misinformation.

I

n an age where wars are justified on the basis of “freedom for all�, it is becoming increasingly necessary to ask fundamental questions about the democratic status of Western society.

It is valid to claim that everyone has a right to vote; it is, however, equally valid to claim that important decisions should not be made by those not informed enough to make them.

Of course it is the very nature of written law to be open to interpretation; otherwise we would have no use for courts, barristers, or law students. The difficulty lies in the

19

In the Dock: The Media fact that a democratic society operates by information conveyed to it by the media. Unless one is acquainted directly with actual constitutional sources of law or morality, one is always one step removed from the source of law that directs society. If a population votes according to newspaper summaries, who is to guarantee that the media do not possess a vested interest in which way their readership vote?

No stance with regard to published articles in papers under the umbrella of ‘News International’, including The Sun and News of the World.

requires greater elaboration than is possible here; it is enough for the time being merely to raise these more than adequate grounds for suspicion.

Murdoch is of the so-called oldschool editorial style in that he takes a “personal interest” in the editorial line of his papers, which according to the report also have a “predominately working class readership.” It is true

This is not the only problem. Due to the instability of the market place, many private newspapers have suffered increased business costs, and have as a result scaled back reporters for foreign affairs. They in turn resort to outsourcing reporters from the British and American press, often directly transferring their European news wholesale from paper to paper.

Thus Ireland inherits the political opinions of those abroad with a vested interest in the vote, distancing the population once again from objective

“The difficulty lies in the fact that a democratic society operates by information conveyed to it by the media.”

Media mogul, Rupert Murdoch, takes a “personal interest” in his papers’ editorials.

A recently published report by the European Commission attempted to discern the reasons for Ireland’s decisive ‘No’ vote in the Lisbon treaty. It concluded by asserting that the Irish media landscape has become dominated by private sector news distributors, while national broadcaster RTE suffered a decline. Catering to demand, these outlets were in general more focused on entertainment rather than news; many also had editorial lines dictated by editors based in the UK. Rupert Murdoch took a

20

that newspapers often state their political views explicitly, though Murdoch’s reasons for a No vote undoubtedly differ from the reasons of his audience: they receive their opinions precisely from this source, and this source is shaped by what sells.

The dangerous ambiguity here lies in how great a role the profit motive played in Murdoch’s reasoning: did he care about the vote at all, or did he merely see a market to feed his caricatures of political figures? This

information, or at least information from a local and trusted source.

This removes the need for papers to have their interest at heart at all: the truth is frequently unpleasant, and consequently hard to market. Libertas was a big media campaigner and receives huge American investment, although it was able to claim otherwise due to rather sketchy genealogical logic.

And so the question is this: a monumental decision has been taken in relation to Europe’s economic and social future, a decision which will undoubtedly determine our role in a globalised world on the verge of an environmental crisis. Who exactly made this decision? According to this report, privatised news vendors offer

In the Dock: The Media information in a skewed and tainted form: it is summarised, simplified drastically and made more appealing.

The editorial lines often cater to the most base prejudices or fears of their target audience. They cater to perceived demand; they caricature and trivialise European and domestic politics. Instead of providing fuel for thought, they conform to their idea of common views, which in turn are conformed to, and thus become a spiral of mirrors, every time growing ever more distant from legitimate sources of law and information.

spending, permanent military presence in Iraq and an aggressive stance with regard to Iran, whereas

“Modern western society is a democracy only in the most superficial sense of the word.”

Modern western society is a

democracy only in the most superficial sense of the word.

The will of the people should constitute the state, and the state is often defined as that which possesses a monopoly of legitimate violence. This is manifested most strikingly in the case of war: while declarations of war are nowadays seldom taken by the populace at large, military matters often constitute a cornerstone of electoral agenda.

Democrats favour a markedly less aggressive policy. The purity of democracy thus has a direct connection to brutal loss of human life. This is not to say more or less - the connection merely exists, but we need to have the choice to make ethical or unethical decisions, and we must have information without market bias, especially given the connection of the war to those very market resources.

Republicans favour large military

Baudrillard once famously stated that

the “Gulf War did not take place,” and for the very reason that the war was conducted through media sources instead of traditional methods. He of course did not mean to claim that it did not happen, rather that its larger significance lay in its being precisely a media event, conducted in the interest of potentially malevolent parties.

Law can never entirely escape interpretation, as the media can never achieve total objectivity. But interpretation and its ensuing debate must be carried out in the open. Newspapers have a right to be politically oriented, but they also have an

obligation to be honest, informed and informative, rather than perpetuating spirals of ignorance in the name of profit and an unspoken agenda. That is if we are to have any expectation of living in a “democratic” society.

There must be regulation of private media sources, lest the rich continue to feed to the uneducated political opinions according to the profit motive, political opinions which work against their favour and may lead to war and unnecessary loss of human life. If war must happen, we must choose for it to happen, and suffer the judgement of history on fair terms.

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In the Dock: Political Idealogy

Left vs. Right vs. Neither

To what extent should political idealogy colour lawmaking?

Ciarán Cleary looks closer.

A

s with all democracies, Ireland’s laws are created by elected politicians. Most are members of political parties, although many are independents. Either way, they all have goals they would like to achieve during their stint in office. For many years, the goals were defined by the agenda of the two sides in the Civil War of 1922-23, Fianna Fáil and Cumann na nGaedhael (subsequently Fine Gael). As memories of this war fade into obscurity, politicians are redefining themselves and much of this is on the lines of the left-right divide.

To the human mind, it seems logical that laws should be shoved into mutually exclusive groups because we are partial to dichotomies. We like to carve up solutions to problems into opposing factions and neatly package them into the two boxes without taking account of any middle ground.

We prefer when things are black or white, good or evil, male or female, and whether someone won or lost.

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While it may aid our comprehension of matters, this ham-fisted approach roughly airbrushes over the subtle complexities of reality. In the case of government, when left- or rightwing views are taken too far, the consequences are invariably tragic.

To begin with, the left consists of diverse organisations with various raisons d’être, but most of them involve socialism in one way or another. It

“We prefer when things are black or white.” includes communists, anarchists, syndicalists, radicals and, of course, socialists. Anarchism stands out from the rest because it campaigns for all central governments to be dissolved, an aim which can only be adequately described as silly. Fortunately, the only

time anarchism was anything more than an inconvenient sideshow was during the Spanish Civil War, when it helped fight the Nationalists but also had a hand in some terrible atrocities, mostly ones involving religious organisations.

Considering that communism is just a fully-enforced version of socialism, a communist country should be a model left-wing enclave: flawless and brimming with contented citizens.

Under communism, all enterprises are put under the control of the government, which then redistributes all the profits. Sometimes, it is easy to become jaded and disillusioned with the excesses of capitalism and the suffocating dominance of untamed greed, visible in all its selfish and inglorious simplicity.

The prospect of an uncompetitive utopia can be music to the ears of those who are tired of being treated like the vacuous, two-dimensional, infinitely stupid clones that marketing executives expect us to be.

In the Dock: Political Idealogy However, despite frequent claims to the contrary, communism has never been and will never be a viable

“A blind belief in any principle without questioning its validity will only lead the way to trouble.” alternative to capitalism. Communism is nothing more than an economic faith where everyone is led to believe that the state functions perfectly, by means of misleading propaganda.

In this cut-throat atmosphere of suspicion, treachery and violence, corruption flourishes unchecked.

Anyone who dares to speak out is promptly dispatched to a hardlabour camp as punishment for their transgressions. Everyone lives in a cruel environment surrounded by relentless backstabbing, all the while having to pay lip service to the lofty aspirations of Marx, Engels, Lenin and other visionaries.

Whereas far-leftists are mired in a deep, dark pit of hypocrisy and double standards, those on the right are at least less opaque in elucidating their true intentions. Right-wing politics has a strong emphasis on privatisation of industry, keeping a lid on crime and promotion of international free trade, all of which are sensible policies. On the other hand, there are two aspects of the right that can acquire a more sinister appearance when taken to extremes: the amalgamation of religion and state and nationalism.

Religion is a sensitive topic and it is not the purpose of this article to get bogged down in this area. Nonetheless, there can be no doubt that religion is a major factor in politics and cannot be

discounted. The problem is not religion itself; everyone is more than welcome to believe in whatever they want to as long as it interferes with no-one else.

Difficulties arise when politicians try to pass laws that are justified solely on the grounds of their religious faith. Instances of this happening include debates on laws regarding divorce, abortion and euthanasia.

By comparison, these debates are mere pinpricks when compared to the veritable butchery of bygone times

deep-seated resentment of Catholic clergy among the poorer sections of society goes some way towards explaining the sheer venom with which clergy were pursued in Republican Spain from 1936-39.

Moving on, nationalism is basically about being proud of your country and/or identity. There is nothing wrong with this per se but things take an unpleasant turn when this loose sense of pride is twisted into an unyielding hatred of other nations

The Communist Party. A fun time was had by all.

in Europe over minor differences in religion. A prime example is the Spanish Inquisition of 1478 onwards.

Even calling it an inquisition is a bit optimistic, for what was a statesponsored murderous witch-hunt.

Initially, it was a system designed to root out conversos who were still practicing Judaism in secret, but it was soon directed at Muslims, Protestants and even under-observant Catholics. One long-term effect was the prominent, almost unchallenged position of the Catholic Church in Spain for centuries. The resulting

“Difficulties arise when politicians try to pass laws that are justified solely on the grounds of their religious faith.” and cultures. All too often, the dominant cultural group demonises smaller groups using divisive rhetoric. Balanced reasoning in these

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In the Dock: Political Idealogy

Fascism: one of history’s more infamous right-wing movements.

diatribes becomes notable only by its absence. The archetypal example of this is the harsh manner in which Jews, Slavs and Gypsies were dealt with in Nazi occupied lands during the mid 20th century.

At the present time, there are no Irish parties imitating the underhand tactics of the BNP in Britain or the FN in France. On the downside, since Ireland has a significant

“A blind belief in any principle without questioning its validity will only lead the way to trouble.” proportion of immigrants in its population, nationalism could become an issue now that economic growth

24

is shuddering to a standstill. As sure as night follows day, some people will try to pin the blame on the newcomers to this country, instead of on the real causes of high energy costs and the collapse of the property market. These people will accuse immigrants of misappropriation of social welfare payments and will ignore the fact that the majority of immigrants are good, decent members of society who wish to live and work in peace just like the rest of us.

Of late, Fianna Fail and Fine Gael are characterised as centre-right, when that is not entirely correct.

They are parties with pragmatic policies and it should remain that way. The reason they are labelled thus is because the Labour party, the Greens, the Socialist party and Sinn Fein call themselves left-wing, so it seems natural to some that there should be right-wing organisations to act as a counterbalance.

In truth, there is no such thing as left-wing or right-wing laws at all. The division is really only an illusion, a product of our desire to simplify decisions. There are only laws that make sense and those that don’t. A blind belief in any principle

“There are only laws that make sense and those that don’t.” without questioning its validity will only lead the way to trouble.

It is clear that a whole new set of challenges lie ahead for Ireland, distinct from those of the early 1920s.

These problems, ranging from biofuels to corporation tax to healthcare privatisation, are quite tricky and require competence and flexibility.

What is not needed is rigid adherence to the antiquated, semi-obsolete ideology of leftism and rightism.

Closing Remarks

Legal correctness : a French point of view Sarah Werner, a native of France, looks at how the law should be determined.

W

hat comes to your mind whenever the Law is mentioned? ‘THE Law’. Precisely.

Something stable, a supreme authority. Why not an allegory – like Lady Justice? However, globalisation has triggered off a real culture clash, making us realise that the vision of ‘the Law’ may be completely different in some other part of the world.

Probably like some among you, I come from a land of immigration, which perfectly illustrates this modern phenomenon. The direct consequence of the French colonialist past is the last wave of immigration, coming from East Asia and above all Africa.

As a result, strong French secular republican principles get confronted by drastically different mentalities.

Islamic practices, for instance, may in some cases create tensions between the individuals and the State. Last April in Lille (Northern France), a marriage between two Muslims was officially cancelled because the groom had discovered that his bride was not a virgin. The marriage was based on a lie, the judge claimed. This legal decision, which of course caused an enormous scandal, raises a number of questions.

Given that laws can differ so much according to what cultural sphere one belongs to, some laws must necessarily be illegitimate. How can legality be compatible with legitimacy? Should the law follow a more conservative direction by sticking to the country’s old values or should it attempt to accommodate the values of immigrant

populations from other continents?

Let us not forget the particularity of the French situation. On the one hand, the French are generally proud of their hard-earned fundamental principles, notably calling their country the land of Human Rights; on the other hand, they are mainly anti-imperialist due to some sort of post-colonialism guilt feeling. For that reason the interest in the French heritage frequently gives way to cultural relativism, especially among the young.

The problem with cultural confrontations is that we are too easily torn between two extremes: radical conservatism or radical tolerance.

If conservatism prevents us from opening up to other ways of thinking, and most of us would spontaneously praise tolerance, tolerance at all costs can paradoxically be dangerous. This so-called tolerance which – if you allow me – I would rather call cowardice, would lead us to accept anything – like excision or forced marriage – just to show how good and tolerant we are.

In that case, how can the Law evolve in a direction which remains legitimate?

The answer is rationality.

In a democracy the legislator’s objective is

to enable the country to work with rules which are fair to everyone but still open to revision if needs be. Thus (and this may sound rather French), religion should not interfere with law-making as religion is generally seen as indisputable, because it is said to be sacred – what a dangerous word, explaining things without actually explaining them!

In the same way, arbitrary traditions or social tendencies inspired by a shameful past should not justify any legal decision: do I really need to quote Kant for that? Some may claim that the Declaration of Human Rights is just an imperialist Western idea being imposed on other cultures; I call it universal because it is based on rational, legitimate ideas.

The marriage mentioned above should not have been cancelled for many reasons: a judge should not take a Muslim tradition into account in a secular state; and cancelling it because the bride was not a virgin is blatantly discriminating against women. Some eventually claimed the outcome would be beneficial for the bride – it may be so. Nevertheless, where is the rationality of judgement there? Good and legitimate belong to two different domains respectively: morality and rationality. Using morality as a basis for law-making or interpretation is the best way to open the door to populism, and we know what this leads to. Now what would be Ireland’s choice?

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Closing Remarks

Justice: an act of faith or merely just an act?

Daniel Costigan explores the issues.

I mean there is no justice. The rich win; the poor are powerless.

We become tired of hearing people lie. And after a time we become dead, a little dead. We think of ourselves as victims -- and we become victims. We become weak; we doubt ourselves; we doubt our beliefs; we doubt our institutions; and we doubt the law.

fathers on the basis that their children were the products of either an “act of rape” or “casual commerce”.

I

Injustice should be a call to metaphorical arms. Injustice should get one flared up and indignant. There can be change. There are instances, rare though they may be, when an act of great courage and vision occurs.

These instances must be recognised in spite of the culture of cynicism. This culture cannot be allowed to excuse apathy. Wrongdoing or adversity is reason to double your efforts not to give up. If law were an unruly child then I, along with other idealists, am its parent. I can see the potential in his or her hideous drawings attached to the fridge in the kitchen of society.

People’s ordeals are shamelessly woven into an impersonal fabric of legal thought. The lives, the facts of the case and the final outcome are But today you are the law. You are the law, not some book, not not overly important and are largely the lawyers, not a marble statue, or the trappings of the court. ignored by the student of law. This is, See, those are just symbols of our desire to be just. They are, apparently, the heartless world of the devil’s advocate and the ambulance in fact, a prayer, I mean a fervent and a frightened prayer. chaser. It is supposedly devoid of morals and full of avaricious wigged - The Verdict (1982). men in league against the lay person. don’t study law because I get excited about the nuanced meaning of words. I don’t do it for the thrill of saying “article forty point three point one forward slash two” and I don’t do it because I enjoy remembering Latin phrases like volenti non fit injuria or audi alteram partem. All of these things are undoubtedly attractions but there is something more to law than these niche delights.

There is also Justice. Not a justice that appeals to a sectional interest but a justice whose chamber is the conscience.

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It is easy to decry the many instances of injustice in our midst; it is even easier to grow disheartened and apathetic through these discoveries.

In law, principles are often traded for expedient policy or patent prejudice.

The law is replete with wrongs, inconsistencies and incoherent assertions: take David Norris’ unsuccessful challenge to statutes criminalising consensual sodomy that failed on grounds that were little more than homophobic nonsense; look at the denial of rights to unmarried

Closing Remarks

There was a time when the Oireachtas was unwilling to pass legislation permitting the use of contraceptives.

So unpopular was Mary Robinson’s campaign among fellow politicians that when she introduced the first bill proposing to liberalise the law on contraception into the senate, no other member would agree to ‘second’ the initiative. It could not even be discussed.

Outdated social mores were allowed to prevent people from using contraceptives.

This was one of those great acts of courage and vision .The court was unwilling to tolerate such a spectacle of governmental oppression of the individual anymore.

The court decided to recognise a right to privacy not enumerated in the Constitution and from then on families were allowed to use contraception. In a landmark decision the court bravely decided that it was going to stand up for the individual.

The court decided to do what was right. There comes a time when you have to see that moral dilemmas are not confined to Hollywood films.

Sometimes the court has to stick it to the Oireachtas. Protecting individuals and their rights is sometimes too important to be left solely to the horse-trading world of politics.

Even in the face of a world full of

littleness, corruption and cynicism, sometimes the courts are actually

who wish to do good, there are those who do bad and there are those who are indifferent.

It may be that things are fated to always be the same in a horribly cruel and unjust world but that is not the world we should be willing to settle for. There is still room for the heroism and conviction of a Sidney Lumet film like The Verdict, Serpico or 12 Angry Men.

willing to “second -guess” the legislature. Sometimes the court is unwilling to let the Constitution be treated as mere headlines to the Oireachtas. Great things do happen.

Great things worth toiling for.

Law students may have relatively few hours of lectures a week, feel the need to use big words and gesticulate in wild excitement when explaining the merits of a Holmes or Brandeis dissent. We have our foibles, but to make broad generalisations about the entire realm of law is to carry on the very same ignorance that we wish to condemn in the law. Law is representative of people generally. There are those

The beauty of a film such as The Verdict is that it brings great dramatic tension to bear on the activities of a lawyer who is simply trying to earn a living. At the start of the film he is minded to take the easy route in a health compensation case. But as he connects with the deeper morality of the issues involved he changes his tack and argues the case in court at great personal risk.

It’s easy to imagine that such dramatic moments are confined to Hollywood films, but there is a need for us to think in such terms about the law and its potential for positive change in society. Dramatic words are not solely the preserve of scriptwriters, for it was Robert F Kennedy who said that “[i]t is when expectation replaces submission, when despair is touched with the awareness of possibility, that the forces of human desire and the passion for justice are unloosed.”

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Closing Remarks

Out with the old and in with the new?

Mícheál P. Ó hEoghain reflects on Ireland’s legal history.

A

nti-Irish medieval propaganda and a certain laziness on the part of the public has left us with the enduring image of the barbaric Gael. The richness and subtlety of the culture of the Gaelic order dispels this fabrication. In the case of Brehon law, it is often surprising quite how enlightened it was.

A range of terms have survived describing various forms and degrees of disability and mental illness, and the law not only set out to protect society from violently insane individuals, but also protected them from exploitation and abuse. Newspaper letter columns were the outlet recently for a debate on whether sex with a drunken woman characterised rape. Gaelic law was unambiguous on the matter: there were two forms of rape, each of which was equally severe: forcor (ie. forcible rape) and sleth (eg. taking advantage of a drunken woman).

Undoubtedly, Brehon law enshrined principles and customs we would oppose (in particular, the law tracts describe a society that was overwhelmingly hierarchical and aristocratic, with rights dependant on one’s hereditary status and

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with the ‘corporate’ family as the basic legal unit), but it nonetheless displays a subtlety and humanity which should not be ignored.

Despite claims that Irish law was sexually egalitarian, it was in fact patriarchal. However, the scholar Dáibhí Ó Cróinín has observed that

“The law was not binding: it represented guidelines for arbitration.” married women automatically had more property rights in Gaelic law than they do today, and that while women were marginalised in Gaelic legal procedure, women only obtained the unrestricted right to sit on a jury in the Republic in 1976. Parallels with our modern litigious culture might explain why even liability for the equivalent of playground injuries was regulated in Brehon law!

Many conservative critics of Ireland’s new-found liberality will be

disappointed to discover that it has a far more venerable pedigree than they imagine. One of the major reasons the pope sanctioned the Norman conquest of Ireland was precisely because the Gaelic order was so sexually “immoral”. Polygyny (ie. the possession of more than one wife at the same time) was perfectly acceptable.

Divorce was not an alien concept either: women had fourteen grounds to divorce their husband, including physical abuse and impotence.

Indeed, even the right of a pregnant women with unusual food cravings to seize such food seems to have been guaranteed.

However, the concept of legitimate and illegitimate children was alien to Irish law. The sluggish response of the government in acknowledging the legitimacy of same-sex and cohabiting heterosexual couples might kindly be reminded of the novelty of the conservative definition of the family they so trenchantly protect.

The most striking element of Brehon law, however, is that it represents an indigenous conception of law itself. The law was not binding: it

Closing Remarks

represented guidelines for arbitration.

The litany of scandalous cases thrown out of court over technicalities today would not have an equivalent in Brehon law: the law was articulated in the hope of attaining justice, rather than as a monolithic and inflexible corpus to which jurists must adhere.

Gaelic kings and lords had no role in composing legislation, except emergency edicts in time of crisis. The law was a public instrument: customary law could be amended democratically at the assembly, comparable perhaps to the process of law-making in the modern-day Oireachtas.

for practically every offence. Only in extreme cases, commonly in default of payment, would corporal pubishment

More startling to the English mind was the utter repugnance of the Gaelic jurist before the concept of the death penalty. In contrast to English law, which imposed the death penalty frequently, Irish law imposed fines

be imposed on an individual. Even murder and rape were punished with a fine appropriate to the honour-price or social standing of the individual.

“Humane and democratic values were often extinguished in favour of the heavyhanded justice of the conqueror.�

No-one would advocate such a

system for serious offences today, but it is interesting that increasingly the debate over imprisonment versus rehabilitation, over the very purpose of prisons, represents a shift away from the kind of crude justice that the Gaelic order found repugnant.

While it is always difficult to seek to draw lessons form the past, particularly given the obscure and fragmentary nature of our sources, it is worthwhile to reflect on Ireland’s legal history and to compare it to modern practice. Brehon law demonstrates a reality that is increasingly understood by sensitive study of colonised tribal civilisations around the world: that humane and democratic values were often extinguished in favour of the heavy-handed justice of the conqueror and that, ironically, the very same values re-emerge again to challenge us.

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Closing Remarks

A Clockwork Orange: two views on David Gibney suggests film classic has been interpretation of the

that our knowledge of a warped by its flawed original book.

T

he case of the novel A Clockwork Orange (1962), and its famous – or infamous – film interpretation suggests how important endings are to literary works.

The mention of it probably brings to mind, or conjures up images from, the notorious film produced by Stanley Kubrick and released in 1972, rather than Anthony Burgess’ original text.

It is unfortunate that the book’s reputation goes before it in the form of Kubrick’s essentially disloyal film, as it has soiled people’s conceptions of Burgess’ work. In the U.S. edition of the text, the pivotal final chapter, in which the protagonist, Alex, experiences

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the film was based on.

Thus, the novel has become valued more for the extreme and arguably gratuitous depictions of violence committed by the fifteen yearold Alex, than for the essentially redemptive message that emerges by the end. Burgess questions the limits of law and order, and suggests that not all violence can be neutralised by the state, and that while young people’s rebelliousness can be destructive, it is also part of growing up, of testing limits and boundaries. Alex must be able to choose to be good. Admittedly, though, Burgess went to the violent and punishable extremes of rape and murder in order to make his point.

This

was was the

his epiphany, removed. version that

Both novel and film follow the lives of Alex and his friends, living in a repressed and soulless dystopia, as they consume a curious mixture of milk and hallucinogenic drugs, before

Closing Remarks

recreant youth versus the law. proceeding to murder, rape, and rob terrified citizens. Alex’s brutality is combined with an unsettling penchant for classical music. In him, Burgess challenges us by placing such notionally civilised pursuits which champion human creativity alongside shocking excesses of human violence.

many people’s perception of it, to one of inexplicable violence and brutality.

The film portrays a level of violence which may have made Kubrick’s reputation, but which made no ethical argument. It led to some

Alex is eventually imprisoned, where he partakes in an experiment to recondition his violent behaviour.

Any feeling of anger or violent act makes him physically sick.

Yet Alex remains unchanged at heart.

At this point, novel and film diverge.

In the novel, Alex finally feels the prick of conscience, and he realises

“Burgess questions the limits of law and order, and suggests that not all violence can be neutralised by the state.” he must change. But Stanley Kubrick disliked the redemptive tone of this pivotal moment. A better conclusion, it seemed, was a cynical, tougher Alex, unwilling or unable to change.

But the omission of the final chapter from the film reduced the story, and

development on the road to maturity.

And it is in the twenty-fist chapter that Alex experiences his sudden epiphany. Pete, an old friend and

“The film portrays a level of violence which may have made Kubrick’s reputation, but which made no ethical argument.” partner in crime, introduces him to his wife, and Alex begins to dream of the comforts and security of married life. The law has not been the instigator of Alex’s change; Alex himself has.

He has found the will to establish law and order in his life within himself, and not from outside interventions.

commentators branding it “amoral”, and accusing it of desensitizing and inciting violence.

The survival of twenty other chapters from the novel can not justify the removal of one, and without it, Burgess’ original text was robbed of its structural integrity.

The chapters total twenty-one, suggesting the twenty-one years of human

Without the moral centre to be found in Burgess’ novel, Kubrick’s film risks glamorizing Alex’s crimes. Indeed, Burgess himself once described the novel as “a work too didactic to be artistic”, but without Alex’s conversion, the story is not only valueless, but artless. The rest of the text cannot compensate for the brief final chapter, and the significance of Burgess’ carefully woven story unravels at its philosophically most pivotal point. In the end, Alex can be redeemed, and so too can Burgess, whose text is more subtle than Kubrick’s better known adaptation.

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Closing Remarks

Laudable Laws Darren Mooney takes a lighter look at some laws of the universe.

I

t seems like everyone and their grandmother has a law named after them these days.

I blame Colonel John Stapp for the phenomena. You probably haven’t heard the name before, but he is generally acknowledged as the driving force behind the infamous Murphy’s Law. Known as “the fastest man on earth”, he worked with Major Edward Murphy studying the capacity of the human body to withstand acceleration. Noting the frequent failure of Murphy’s contraptions to work to specification, Colonel Stapp took to sarcastically circulating what had been known within the research group as Murphy’s Law.

for the mundane interruptions that tend to ruin otherwise fine days. It simply states that “if there’s more than one possible outcome of a job or task, and one of those outcomes will result in disaster or an undesirable consequence, then somebody will do it that way” or, for those seeking a bullet-point summary, that “anything that has a probability of happening greater than zero can and will happen - no exceptions”.

“Nothing is always absolutely so.”

He was particularly fond of doing so at press conferences, and the phrase took off from there – it’s no secret that the two men shared little love of each other. For his own part, the good Colonel is himself associated with the somewhat less well known and far more cynical Stapp’s Ironic Paradox (which states that “the universal aptitude for incompetence makes any human accomplishment an incredible miracle”).

I apologise: I am an unashamed nerd when it comes to these eponymous laws – rules of the universe condensed down into bite-size chunks for our consideration. Of course, I wish the interest was purely an idle curiosity, but I find myself consulting these rules quite frequently. Having the curious genetic defect of being born without common sense, I quite like the process of sticking someone’s name on a bit of fairly self-evident advice and labeling it a “law”.

Before we go on, it’s worth making the observation Murphy’s Law generally isn’t what people think it is – it is very frequently confused with Finagle’s Corollary to Murphy’s Law (“anything that can go wrong, will”) or the even more pessimistic O’Toole’s Corollary to Finagle’s Law (“the perversity of the universe tends towards a maximum”). In fact, Murphy’s Law is far less dramatic then those exasperated explanations

When I find myself facing student posters promising complimentary food at a particularly suspect event, I simply remind myself of Friedman’s Law (“there’s no such thing as a free lunch”). When I pick up a pen to criticize someone else’s grammar or spelling, I stop long enough to consider Muphry’s Law (“if you write anything criticising editing or proofreading, there will be a fault of some

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kind in what you have written”). When I find myself pondering some great mystery of the universe (such as how the figs find their way into the Figrolls or how to fill out a self-assessed tax return), I turn to Occam’s Razor (“all other things being equal, the simplest solution is the best”), with a reliable reversal in Holmes’ Law (“when we remove the impossible, whatever remains – however improbable – is the truth”).

While all of the above offer sound practical advice, I find myself more skeptical of the broader, more philosophical sound-bytes disguised as Sturgeon’s Law (“nothing is always absolutely so”) or Segal’s Law (“a man with a watch knows what time it is – a man with two watches is never sure”). Of course, if I really want to depress myself, I consider whether there is any way to refute Callaghan’s Principle (“you can’t argue with stupid”) or whether Hanlon’s Razor (“never attribute to malice that which can be adequately explained by stupidity”) is optimistic or pessimistic.

I guess my cynicism about such things all boils down to little more than petty jealousy. I really want to create my own eponymous law, but I have no idea what nugget (more likely a kernel, at best) of insight it would offer. It would undoubtedly suck, but – at the very least – I could always take solace in the justification offered

by Sturgeon’s Revelation (“90% of everything is crap”), and, perhaps, the application of Stigler’s Law (“no discovery is ever named after its original discoverer” – an observation originally made by sociologist Robert Merton).

T.C.D. Miscellany Many minds.

Different details.

Care to be one of the many minds involved in the production of T.C.D. Miscellany? Whether your strength lies in design, advertising, editing or writing, we’d love to hear from you.

The theme of our next issue will be Science. Submissions of 500-1000 words on topics relating to this theme will be accepted until JANUARY 1ST, 2009.

Submit your articles, or get in touch with the editorial team, at:

tcdmiscellany@gmail.com

“ Muphry’s Law: if you

write anything criticising editing or proofreading, there will be a fault of some kind in what you have written.”