Publications by Robert Noonan
Dublin University Law Journal, 2019
This article re-evaluates the operation of the declaration of unconstitutionality in the Irish co... more This article re-evaluates the operation of the declaration of unconstitutionality in the Irish courts. The jurisprudence on this topic has evolved in a way that is complicated and that is often seen as inconsistent. The case of Murphy v Attorney General set down a standard that, at least apparently, was subsequently tacitly abandoned by the Irish courts in A v Governor of Arbour Hill Prison and Damache v Director of Public Prosecutions. This article argues that the use of legal validity as the cornerstone concept in considering the effects of unconstitutional law is at the root of this supposed inconsistency. Although legal validity is relevant to unconstitutionality, it operates in conjunction with logically separate properties of legal norms such as existence and applicability. The differences between these properties are often poorly understood and contribute to conceptual confusion in this area. This article points out how these properties might be extricated from one another and how, by understanding parts of the holding in Murphy as being directed to applicability rather than validity, the courts' jurisprudence can be made more coherent.
(2017) 57 Ir Jur 119, 2017
Stare decisis, or the bindingness of precedent, is a prevalent feature of common law systems. It ... more Stare decisis, or the bindingness of precedent, is a prevalent feature of common law systems. It is also a feature of common law systems that judges occasionally create legal norms by their adjudications. This latter claim rejects an older view of law (the Blackstone view) which denied this function. However, there are aspects of stare decisis—particularly tests for the overruling of precedent—which seem to cohere with the Blackstone view. This article assesses this tension and suggests that the Blackstone view should be rejected and analyses the impact of this view on recent Irish constitutional case law with a particular focus on the reasoning in DPP v JC.
(2014) 13 COLR 71, Mar 7, 2014
This paper examines free speech theory from the particular frame of reference of the Irish Consti... more This paper examines free speech theory from the particular frame of reference of the Irish Constitution. In particular it discusses the dualistic justification and enshrinement of free speech in Ireland which contributes to an inconsistent philosophical understanding of the right in our courts. Traditional approaches to free speech theory - deontological and teleological theories - are canvassed briefly and their relative strengths and weaknesses are noted. Particularly, it is argued that the panoply of potential rights-subjects, each possessed of different properties, in the context of free speech has tended not to procure a closer examination of the concept of the subject; rather, it has prompted the development of different justificatory theories. The paper then canvasses the Irish jurisprudence on free speech, as guaranteed under both Article 40.6.1°(i) and Article 40.3.1, and the differences between the theoretical approaches informing both provisions. While statements have been made to the effect that the actual difference between the two is actually nil in practice, this paper rejects that view and maintains that the current case law paints a confusing and unsatisfactory picture of our constitutional stance on free speech. Building on the foregoing analysis, the paper goes on to propose a different approach to free speech theory – grounded in Niklas Luhmann's sociological theory of autopoiesis – which, it is suggested, is more consonant with more general theory of the Irish legal order and is also more amenable to justifying, at least analytically, the free speech of both natural and legal persons. While the normative utility of this type of free speech theory may be open to question, this essay explores a descriptive and conceptual framework for free speech that would hopefully provide groundwork for further substantial normative theory. It has also been suggested elsewhere that the Irish legal order is best understood as being autopoietic in terms of parsing its legal validity; this paper attempts to take an application of this theory to a more doctrinal area of the Irish legal system. In this way, the paper is both a standalone contribution to the literature on freedom of speech in Ireland but also it is a potential stepping stone for more wide-ranging postmodern theories on the Irish legal system.
(2013) 31 ILT 286, Nov 2013
This paper explores the application of Kelsen's Pure Theory of Law in the context of the Irish Co... more This paper explores the application of Kelsen's Pure Theory of Law in the context of the Irish Constitution and evaluates how that theory rationalises the change between the 1922 Constitution and 1937 Constitution in Ireland. It concludes that the Kelsenian analysis is inadequate and canvasses two alternative theories which demonstrate greater theoretical accuracy in describing the Irish legal system: Hartian legal positivism and the autopoietic theory of law.
Conference Presentations by Robert Noonan
Constitutional Law Update Conference, Jul 13, 2019
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Publications by Robert Noonan
Conference Presentations by Robert Noonan