This article explores Aquinas’ views on property in the context of the revival of interest in Tho... more This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
This paper analyses the relationship between constitutional property rights and climate change mi... more This paper analyses the relationship between constitutional property rights and climate change mitigation through the prism of retrofitting of buildings, assessing whether retrofitting obligations can be imposed on individual owners where property rights are protected as constitutional and/or human rights.
Forthcoming chapter in Boggenpoel et al (eds), Property Responses to a Global Pandemic (forthcomi... more Forthcoming chapter in Boggenpoel et al (eds), Property Responses to a Global Pandemic (forthcoming, Juta, 2021) analysing the Irish legislative response to the impact of COVID-19 crisis in the rental sector, with a particular focus on its constitutional dimensions and its implications for future reform.
Ireland has been to the forefront of the constitutional turn in deliberative democracy, with refe... more Ireland has been to the forefront of the constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics—attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the constitutional amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for constitutional amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in constitutional amendment. Recommendations were much more likely to lead to constitutional amendments if (a) they responded to real points of political disagreement where there was already some public interest in constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation for this record, we suggest, lies in the role that constitutional amendment processes play in the mediation of political disagreement. It is not merely the case that constitutional amendment procedures underwrite the stability of other constitutional processes; the impetus for constitutional amendment is generated through ordinary constitutional processes, with the support of a legislative majority required for constitutional change. This connects constitutional amendment with the other components of the constitutional framework for the mediation of disagreement: legislation and judicial decision-making. As such, assessments of impact must specify what role a deliberative mini-public played over and above general political attitudes.
Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper,... more Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper, we explore one aspect of this turn – the use of deliberative innovations to enhance constitutional amendment processes. Ireland has been cited as almost a paradigm case for such experimentation. We assess deliberative mini-publics’ potential as a tool for consensus democracy based on the experience and impact of the Irish Citizens’ Assembly that made recommendations for wholesale reform of Ireland’s abortion laws in 2018. We identify a ‘legislative-majority-plus’ model for constitutional amendment deployed in most jurisdictions with master-text constitutions and on that basis, characterise constitutional amendment as an aspect of consensual, rather than competitive, democracy. Based on this understanding of the function of constitutional amendment processes, we argue that the Citizens’ Assembly played a significant role in the process of public will formation. In particular, it (a) helped to generate political and public support for a particular form of liberalization—abortion on request within the first 12 weeks, and (b) made it easier for legislators to avoid the incentives of electoral politics and formulate an amendment proposal that attracted wide support despite intense opposition. However, we raise concerns about the normative legitimacy of that impact, based on deficiencies in the representativeness of the Assembly, arguing that in order to be a tool for will formation, rather than manipulation, in respect of constitutional amendment, deliberative mini-publics should be designed so as to enhance their representativeness.
Maria Cahill, Colm O’Cinneide, Seán Ó Conaill and Conor O’Mahony, Constitutional Change and Popular Sovereignty: Populism, Politics and the Law in Ireland, 2020
Populisms come in different forms, but all involve a political rhetoric that invokes the will of ... more Populisms come in different forms, but all involve a political rhetoric that invokes the will of a unitary people to combat perceived constraints, whether economic, legal, or technocratic. In this chapter, our focus is democratic backsliding aided by populist rhetoric. Some have suggested deliberative democracy as a means to combat this form of populism. Deliberative democracy encourages and facilitates both consultation and contestation, emphasising plurality of voices, the legitimacy of disagreement, and the imperative of reasoned persuasion. Its participatory and inclusive character has the potential to undermine the credibility of populists’ claims to speak for a unitary people. Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
This academic opinion analyses what barriers, if any, the protection for property rights containe... more This academic opinion analyses what barriers, if any, the protection for property rights contained in Articles 40.3.2 and 43 of the Constitution creates for legislative and/or administrative responses to the current housing crisis. It does not consider any particular responses, but rather explores the question in general terms. It argues that a wide range of restrictions are permissible within the parameters set by Irish constitutional property law. T
This paper analyses the relationship between constitutional property rights and climate change mi... more This paper analyses the relationship between constitutional property rights and climate change mitigation through the prism of retrofitting of buildings, assessing whether retrofitting obligations can be imposed on individual owners where property rights are protected as constitutional and/or human rights.
Review(s) of: Property in the Margins, by AJ van der Walt, Hart Publishing, 2009, 294 pp, Pbk 35,... more Review(s) of: Property in the Margins, by AJ van der Walt, Hart Publishing, 2009, 294 pp, Pbk 35, ISBN 9781841139630.
In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contri... more In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contribution to property theory – one that unifies divergent, and at time apparently dichotomous, strands of thought in property theory and revives rich dormant ideas. Dagan persuasively centres property's justification and design on the value of autonomy and on the basic need for reciprocal recognition of the individual right to self-determination. He does so without excluding the relevance and significance of other property values, both public and private. The theory deepens existing debates within property scholarship about values such as freedom and personhood, and provides a wide-reaching analysis of how autonomy functions as property's telos. That telos is used to justify structural pluralism in property law and to delimit owners’ rights. In this way, for Dagan, property's justification determines the nature and ambit of private authority over resources.
This article explores Aquinas’ views on property in the context of the revival of interest in Tho... more This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
This paper analyses the relationship between constitutional property rights and climate change mi... more This paper analyses the relationship between constitutional property rights and climate change mitigation through the prism of retrofitting of buildings, assessing whether retrofitting obligations can be imposed on individual owners where property rights are protected as constitutional and/or human rights.
Forthcoming chapter in Boggenpoel et al (eds), Property Responses to a Global Pandemic (forthcomi... more Forthcoming chapter in Boggenpoel et al (eds), Property Responses to a Global Pandemic (forthcoming, Juta, 2021) analysing the Irish legislative response to the impact of COVID-19 crisis in the rental sector, with a particular focus on its constitutional dimensions and its implications for future reform.
Ireland has been to the forefront of the constitutional turn in deliberative democracy, with refe... more Ireland has been to the forefront of the constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics—attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the constitutional amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for constitutional amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in constitutional amendment. Recommendations were much more likely to lead to constitutional amendments if (a) they responded to real points of political disagreement where there was already some public interest in constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation for this record, we suggest, lies in the role that constitutional amendment processes play in the mediation of political disagreement. It is not merely the case that constitutional amendment procedures underwrite the stability of other constitutional processes; the impetus for constitutional amendment is generated through ordinary constitutional processes, with the support of a legislative majority required for constitutional change. This connects constitutional amendment with the other components of the constitutional framework for the mediation of disagreement: legislation and judicial decision-making. As such, assessments of impact must specify what role a deliberative mini-public played over and above general political attitudes.
Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper,... more Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper, we explore one aspect of this turn – the use of deliberative innovations to enhance constitutional amendment processes. Ireland has been cited as almost a paradigm case for such experimentation. We assess deliberative mini-publics’ potential as a tool for consensus democracy based on the experience and impact of the Irish Citizens’ Assembly that made recommendations for wholesale reform of Ireland’s abortion laws in 2018. We identify a ‘legislative-majority-plus’ model for constitutional amendment deployed in most jurisdictions with master-text constitutions and on that basis, characterise constitutional amendment as an aspect of consensual, rather than competitive, democracy. Based on this understanding of the function of constitutional amendment processes, we argue that the Citizens’ Assembly played a significant role in the process of public will formation. In particular, it (a) helped to generate political and public support for a particular form of liberalization—abortion on request within the first 12 weeks, and (b) made it easier for legislators to avoid the incentives of electoral politics and formulate an amendment proposal that attracted wide support despite intense opposition. However, we raise concerns about the normative legitimacy of that impact, based on deficiencies in the representativeness of the Assembly, arguing that in order to be a tool for will formation, rather than manipulation, in respect of constitutional amendment, deliberative mini-publics should be designed so as to enhance their representativeness.
Maria Cahill, Colm O’Cinneide, Seán Ó Conaill and Conor O’Mahony, Constitutional Change and Popular Sovereignty: Populism, Politics and the Law in Ireland, 2020
Populisms come in different forms, but all involve a political rhetoric that invokes the will of ... more Populisms come in different forms, but all involve a political rhetoric that invokes the will of a unitary people to combat perceived constraints, whether economic, legal, or technocratic. In this chapter, our focus is democratic backsliding aided by populist rhetoric. Some have suggested deliberative democracy as a means to combat this form of populism. Deliberative democracy encourages and facilitates both consultation and contestation, emphasising plurality of voices, the legitimacy of disagreement, and the imperative of reasoned persuasion. Its participatory and inclusive character has the potential to undermine the credibility of populists’ claims to speak for a unitary people. Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
This academic opinion analyses what barriers, if any, the protection for property rights containe... more This academic opinion analyses what barriers, if any, the protection for property rights contained in Articles 40.3.2 and 43 of the Constitution creates for legislative and/or administrative responses to the current housing crisis. It does not consider any particular responses, but rather explores the question in general terms. It argues that a wide range of restrictions are permissible within the parameters set by Irish constitutional property law. T
This paper analyses the relationship between constitutional property rights and climate change mi... more This paper analyses the relationship between constitutional property rights and climate change mitigation through the prism of retrofitting of buildings, assessing whether retrofitting obligations can be imposed on individual owners where property rights are protected as constitutional and/or human rights.
Review(s) of: Property in the Margins, by AJ van der Walt, Hart Publishing, 2009, 294 pp, Pbk 35,... more Review(s) of: Property in the Margins, by AJ van der Walt, Hart Publishing, 2009, 294 pp, Pbk 35, ISBN 9781841139630.
In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contri... more In A Liberal Theory of Property (2021), Hanoch Dagan makes an important, thought-provoking contribution to property theory – one that unifies divergent, and at time apparently dichotomous, strands of thought in property theory and revives rich dormant ideas. Dagan persuasively centres property's justification and design on the value of autonomy and on the basic need for reciprocal recognition of the individual right to self-determination. He does so without excluding the relevance and significance of other property values, both public and private. The theory deepens existing debates within property scholarship about values such as freedom and personhood, and provides a wide-reaching analysis of how autonomy functions as property's telos. That telos is used to justify structural pluralism in property law and to delimit owners’ rights. In this way, for Dagan, property's justification determines the nature and ambit of private authority over resources.
The COVID-19 crisis has prompted reflection and at times radical legislative action in a range of... more The COVID-19 crisis has prompted reflection and at times radical legislative action in a range of jurisdictions to help individuals to retain possession of their homes despite the economic challenges created by the crisis. Long-term lock-downs in the interests of public health have created the need to minimise the movement of people and have resulted in significant loss of income, prompting legislatures to enact reforms to avoid evictions that had previously been perceived as ‘off the table’ due to their impact on property rights. The legal and political parameters for balancing the rights of landlords and tenants appear to have been re-drawn (at least temporarily) by the public health crisis. This draft chapter analyses the Irish legislative response to the impact of COVID-19 on tenants in light of these themes, with a particular focus on the interaction between legislation and constitutional constraints in this context, and on the impact of the COVID-19 crisis on political understandings of those constraints.
This article explores Aquinas’ views on property in the context of the revival of interest in Tho... more This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
Populisms come in different forms, but all involve a political rhetoric that invokes the will of ... more Populisms come in different forms, but all involve a political rhetoric that invokes the will of a unitary people to combat perceived constraints, whether economic, legal, or technocratic. In this chapter, our focus is democratic backsliding aided by populist rhetoric. Some have suggested deliberative democracy as a means to combat this form of populism. Deliberative democracy encourages and facilitates both consultation and contestation, emphasizing plurality of voices, the legitimacy of disagreement, and the imperative of reasoned persuasion. Its participatory and inclusive character has the potential to undermine the credibility of populists’ claims to speak for a unitary people. Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fueled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy — citizen participation, integration with representative democracy, deliberation, balanced information, expertise — have all been criticized in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarized along political, ethnic, or religious lines.
Deliberative democracy innovations in constitutional amendment processes – Ireland’s experimentat... more Deliberative democracy innovations in constitutional amendment processes – Ireland’s experimentation with deliberative mini-publics on constitutional issues – Factors influencing the political take-up of recommendations – The significance of the support of the legislative majority –Deliberative mini-publics as an accountability mechanism.
Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper,... more Constitutionalism is in the midst of both a participatory and a deliberative turn. In this paper, we explore one aspect of this turn – the use of deliberative innovations to enhance constitutional amendment processes. Ireland has been cited as almost a paradigm case for such experimentation. We assess deliberative mini-publics’ potential as a tool for consensus democracy based on the experience and impact of the Irish Citizens’ Assembly that made recommendations for wholesale reform of Ireland’s abortion laws in 2018. We identify a ‘legislative-majority-plus’ model for constitutional amendment deployed in most jurisdictions with master-text constitutions and on that basis, characterise constitutional amendment as an aspect of consensual, rather than competitive, democracy. Based on this understanding of the function of constitutional amendment processes, we argue that the Citizens’ Assembly played a significant role in the process of public will formation. In particular, it (a) help...
Ireland has been to the forefront of the constitutional turn in deliberative democracy, with refe... more Ireland has been to the forefront of the constitutional turn in deliberative democracy, with referendums on same-sex marriage and abortion—held following deliberative mini-publics — attracting global attention. Little more than cursory reference has been made, however, to the recommendations of Ireland’s deliberative mini-publics that did not gain traction in the constitutional amendment process. To address this blind-spot, we present the first comprehensive account of the political take-up of recommendations for constitutional amendment made by Ireland’s deliberative mini-publics. We show that of 28 discrete recommendations, only three resulted in constitutional amendment. Recommendations were much more likely to lead to constitutional amendments if (a) they responded to real points of political disagreement where there was already some public interest in constitutional change, and (b) they did not contradict deep-seated commitments of legislative majorities. The best explanation f...
The decision of the Supreme Court in the conjoined appeals in Mayor and Burgesses of the London B... more The decision of the Supreme Court in the conjoined appeals in Mayor and Burgesses of the London Borough of Hounslow v Powell, Leeds City Council v Hall, and Birmingham City Council v Frisby represents the culmination of a line of judgments demonstrating a slowly evolving acceptance, by the House of Lords and now the Supreme Court, of the European Court of Human Rights' position on applications brought by public authorities to recover possession of their properties from tenants occupying pursuant to various statutory regimes. The European Court of Human Rights has held that the protection of private and family life in Article 8 of the European Convention on Human Rights (ECHR) demands that defendants in possession applications have the opportunity to argue that a possession order would be disproportionate. Further, in any such proportionality challenge, factual issues raised relating to personal circumstances of defendants should be considered by the relevant court.
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Papers and Chapters by Rachael Walsh
Drafts by Rachael Walsh
Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
Papers by Rachael Walsh
Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.