Hardiman: brilliant libertarian with some deep-rooted prejudices

1 8 April 2016

n recent weeks much ink has been dis-

pensed and many moving tributes have

been made to the late great Adrian Hardi-

man. The obituaries and commentary have

been universally laudatory both personally

and professionally. Certainly he was a great and

unique human being. An unquenchable light

has been dimmed and a degree of joy and

colour sadly taken from the world. He was also

a man of the utmost personal integrity, which

is not to say that his principles were always

right.

As someone who got to know him very well

over the last few years in particular and as

someone who had several public and indeed

private disagreements with aspects of his phi-

losophy, I believe I am in a reasonably good

position to provide a more nuanced assessment

of his curate’s egg ideology: sometimes very

right indeed sometimes perverse and utterly

wrong.

It must be stressed at the outset that to be in

his company was a privilege. He was not a

narrow technical lawyer or indeed very much I

think interested in the discipline of law save as

a mechanism for doing what he thought was

right and was more comfortable discussing his-

tory or literature, particularly Joyce. In this

respect we were kindred spirits and we would

frequently talk about the loss of learning from

our culture, the absence of a historical intelli-

gence among the younger generation and the

increasingly technocratic, proceduralist and

mechanical lawyering caste and how it often

does great damage, acting without moral

purpose. He was a learned paper-giver and

intellectual; fascinated by Americana, he was a

jurist in the tradition of the great American

Judge, Oliver Wendell Holmes.

He was a tremendous raconteur: a storyteller

and a weaver of tales in the traditional Irish

sense and a man of the utmost sociability with

a pronounced ability to talk to almost anybody

about almost anything. His intellect was daz-

zling and he was inordinately proud particular

in public debate of showing it off to full effect.

Sometimes this made him a target for unfair

criticism.

I had often heard captious criticism that he

was merely the orator grand or a caricature Fal-

stafﬁan rhetorician but that was utterly wrong

and a great disservice to the man who ulti-

mately was a superb scholar. His eagerly

awaited work on Joyce should tame many

cynics. Moreover, quite unlike his other judicial

colleagues his judgments brim with wit and eru-

dition and mosaic together many different

ﬁelds of knowledge. He was relentlessly curi-

ous. Those who trivialised his intellectual

abilities were often themselves either narrow

technocratic lawyers or people of the conserva-

tive orthodox Catholic social right who

vehemently disagreed with aspects of his lib-

ertarian views. Many disapproved also of his

edgy and exotic libertarian lifestyle and used it

as a pretext to intellectually criticise him. Hardi-

man was no fuddy duddy, no mother superior,

no blueshirt, no moral conservative. As I discov-

ered to my own advantage he was not a man

inclined to judge people at face value, and gave

many a second chance. He never took intellec-

tual disagreement for personal rebuke.

He was also a man of heightened perception

and intuition and very free and helpful in advice

he provided. After we completed a directions

hearing in the Gilligan litigation with respect to

the Proceeds of Crime Act 1996 he came up to

me. It was our ﬁrst substantive professional

encounter as I had only recently started practis-

ing in Dublin. He was bemused I had secured

the brief and gave me a card from Louis Cope-

land tailors noting that although I was fortunate

to secure this brief with the “awful polyester

suit” (it was no such thing) I was wearing, I

would in all likelihood secure no others.

He could of course be far too candid as

The absence of an

historical intelligence

among the younger

generation and the

increasingly technocratic,

proceduralist and

mechanical amoral

lawyers

Hardiman: brilliant

libertarian with some

deep-rooted prejudices

Champion of civil and political rights but

enemy of social and economic rights

by David Langwallner

POLITICS

April 2016 1 9

colleagues and friends who were the victim of

his public declamations would attest. In a lec-

ture he gave to my class to The Kings Inns on

his judgment upholding Portmarnock golf

club’s discrimination against women members

he regaled the assembled multitude with a

digression on whether a lesbian rugby team

would be compelled to accept him as a member.

Apart from the late Christopher Hitchens he

was the most politically incorrect person I have

ever met and in this respect also we were kin-

dred spirits as the suppression of speech and

the sanitisation of our discourse is under con-

stant threat from the thought police.

In private he was softly spoken and solicitous

of the welfare of anyone whose company he

shared. After he had curtailed and limited a

somewhat dull talk I gave at a Presumption of

Innocence conference in DIT by guillotining it

mercilessly he very solicitously and politely

approached my UK Innocence colleague

Michael Naughton and me and entreated us to

join him.

“I know a quiet little place (he was increas-

ingly fond of quiet places perhaps due to the

enormous scrutiny upon him)”, he whispered.

When we adjourned he remembered that I drink

red wine and my colleague a Guinness drinker

before promptly ordering three straight whis-

keys, for himself!

The initial and overarching starting point of

his judicial philosophy is that Adrian Hardiman

was an arch libertarian and a neoliberal before

that term was properly invented, a variant on

the Eighteenth Century Whig. In this he was

consistent.

First, he was an economic liberal and free-

marketer who believed in limited governmental

intervention in the market. This attitude dic-

tated his perspective on social and economic

rights with which he fundamentally disagreed

Coupled with a faith in the political process,

perhaps drawn from his dalliances with elec-

toral politics, it fostered his belief that courts

have no business deriving social and economic

rights or intervening in government decisions

on resource allocation. As I will make clearer

this perspective is utterly short-sighted and

contributes untold damage to our social fabric.

Hardiman laboured with undue deference to the

theatre of political debate. It was honed during

his student debating days but the clubby and

optimistic earnestness of the L and H society

bespoke little of the characteristic mismanage-

ment and parochialism of our political class.

The deference was a significant error of

judgment.

The upside of libertarianism (a tangential

egalitarianism) mandated that if someone was

victimised by the machinery of state then both

as a barrister and as a judge, most typically in

criminal justice matters, Hardiman rushed to

their defence. In this respect due to his detailed

understanding and experience of criminal prac-

tice he developed a healthy and profound

distrust of the scrupulousness, competence

and bona ﬁdes of the Garda, prejudices I com-

pletely share, based also on experience in

dealing with them. He and I often discussed this

issue and I think agreed that innocence was

irrelevant to many gardaí, who considered

themselves above the law, saw nothing wrong

in ﬁtting someone up and damaging a life

accordingly and who were ‘result’ and promo-

tion focused, driven by group think, utterly

unregulated and at times a danger to our

democracy. His greatest contribution to our law

was his beautifully written, precise, erudite and

correct dissent in the JC case. He attempted

unsuccessfully to persuade his colleagues that

given their level of criminality documented in

detail in Part IV of his opinion, which rewards

reading, the police could simply not be trusted.

In addition to his contempt for, and distrust

of, the police he also had a healthy distrust of

the HSE and social workers. Half-baked exper-

tise coupled with what he termed “nanny-state”

arrogance was insufferable to him. His judg-

ment in the Northwestern Health Board case

expresses his distrust of this and he often pil-

loried the shocking standards of social workers

and their illusory expertise as an affront to

Apart from Christopher

Hitchens he was the

most politically incorrect

person I have ever met

Adrian Hardiman helping the Anti-Amendment side in the 1983 Pro-Life Referendum campaign

2 0 April 2016

democracy.

The nadir of his judicial philosophy is the TD

and Sinnott cases which failed to allow expan-

sive interpretation of the constitution to deal

with social and economic rights such as food,

shelter, healthcare and a minimum standard of

living.

But his decision for the majority in the Port-

marnock case was an essay in

anti-egalitarianism and anti-feminism. To say

the least Hardiman did not believe in positive

discrimination in favour of those, including

women, who have been the victims of history.

It is quite clear from his judgment that Hardi-

man was no fan of the Equality Authority. He

criticised it again and again in quite colourful

terms describing one of the Authority’s submis

sions as "utterly reductive" and castigating it

for not "leaving the members (of Portmarnock)

alone to work out their own salvation". His judg-

ment in the end relies on the contrivance that

Portmarnock members had a right to create a

“male” golf club. Unfortunately the judgment

betrays a complacency rooted in the clubbabil-

ity of the ascendant male upper classes.

In 2010 in JMSE he eviscerated systemic

abuse of the rights of those being investigated

by the Flood Tribunal [see page 16, this maga-

zine]. In July 2011, Hardiman let loose at the

Tribunals, describing how “appalled” he was by

their length and cost. In Hardiman’s view, the

expense to individuals of participation in tribu-

nals was “nothing less than grotesque”. While

the instinct to protect individuals from oppres-

sion is admirable it was notable that he

appeared inﬂamed on behalf of a class that has

done great disservice to this State.

Like his late US colleague Antonin Scalia

Hardiman believed in originalism or the histori-

cal interpretation of the constitution - giving

effect to the framers’ or ratiﬁers’ intent. The

problem with his is that it does not develop the

constitution organically as a living instrument

that adapts to changing times and is overly def

erential to the views of long-dead people in

vastly different political, social and economic

circumstances. It imports the not necessarily

relevant dead-hand of history and assumes we

can reconstruct the original intent or that the

framers and ratiﬁers would wish us to be bound

by their intent.

In my view this is dangerous, and political

nonsense, but as I got to know him well I knew

that he predicated it on his keen sense of his-

tory and understanding of the passage of time.

He was really a historian viscerally, having

studied it as an undergraduate, with a deﬁned

historical sensibility. It seems to me history is

not the correct discipline to apply to decision-

making in politics or law. Rationality, philosophy

or political science make better guides.

Hardiman believed that for a court to declare

or "ﬁnd" economic or social rights is to inter-

vene in the legislative and executive

processes.

However, the different conception of democ-

racy proffered by Ronald Dworkin, characterised

as representative or participatory democracy,

demands that a court take the responsibility to

vindicate the rights of the individual when they

are entrusted with that power. Moreover, other

jurisdictions have declared social and economic

rights. For example India read them in as con-

comitants of its right-to-life clause.

It is arguable given our overwhelming hous-

ing crisis, homelessness, mass evictions, the

uncontrolled and unregulated activities of the

vulture funds, the dishonest practices of the

banks, the lack of a housing plan, the uncon-

trolled spiralling in property and rental prices,

that the non-recognition of the right to housing

threatens the fabric of our society.

When the obituaries acclaimed him as a

defender of the little man (which he could be)

and as a fearless bulwark against infraction of

civil liberties the record is imbalanced in that

he did not see the role of the court as expand-

ing the protection of the little man with

adequate housing, healthcare or a minimum

standard of living.

His failure in this respect contrasted with his

decent private persona. It derived from a gen-

erational belief system that embraced an

unregulated free market and a kind of ‘I’m all

right jack’ attitude which may have taken root

in the ethereal debating halls of UCD where

clever boys could sort out the world’s evils in

the abstract and then go for a sherry.

Freedom, including freedom of speech, does

not guarantee enough in a society of inequality

and of pervasive social and economic

injustice.

Ultimately Adrian was a progressive cham-

pion of civil and political rights (though not

always for women) but history will not be kind

to his hostility to social and economic rights.

History is not the correct

discipline to apply to

legal decision-making.

Rationality, philosophy

or political science make

better guides

The life of Adrian Hardiman

Born in 1951

Grew up in Coolock.

1972-3

President of the

Student Representative

Council at UCD, and

auditor of the L&H

debating society

1974

Called to the Bar

1989

Became Senior Counsel

2000

Appointed to the

Supreme Court

2016

Died suddenly

1985

Unsuccessful candidate

for Fianna Fáil in the local

elections in Dún Laoghaire.

Founder member of PDs

POLITICS