In recent weeks much ink has been dispensed and many moving tributes have been made to the late great Adrian Hardiman. 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 philosophy, 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 history 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 intelligence 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 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 dazzling 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 Falstaffian rhetorician but that was utterly wrong and a great disservice to the man who ultimately 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 erudition and mosaic together many different fields of knowledge. He was relentlessly curious. Those who trivialised his intellectual abilities were often themselves either narrow technocratic lawyers or people of the conservative orthodox Catholic social right who vehemently disagreed with aspects of his libertarian views. Many disapproved also of his edgy and exotic libertarian lifestyle and used it as a pretext to intellectually criticise him. Hardiman was no fuddy duddy, no mother superior, no blueshirt, no moral conservative. As I discovered 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 intellectual 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 practising in Dublin. He was bemused I had secured the brief and gave me a card from Louis Copeland 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 col- leagues and friends who were the victim of his public declamations would attest. In a lecture 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 kindred spirits as the suppression of speech and the sanitisation of our discourse is under constant 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 whiskeys, 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. 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 dictated 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 electoral 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 mismanagement 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 practice he developed a healthy and profound distrust of the scrupulousness, competence and bona fides of the Garda, prejudices I completely 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 promotion 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 expertise coupled with what he termed “nanny state” arrogance was insufferable to him. His judgment in the Northwestern Health Board pillories the shocking standards of social workers and their semi baked expertise as an affront to democracy.
The nadir of his judicial philosophy is the TD and Sinnott cases which failed to allow expansive 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 Portmarnock 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 Hardiman is no fan of the Equality Authority. He criticises it again and again in quite colourful terms describing one of the Authority’s submissions as ‘utterly reductive’ and castigating it for not ‘leaving the members (of Portmarnock) alone to work out their own salvation’. His judgment in the end relies on the contrivance that Portmarnock members have a right to create a “male” golf club. Unfortunately the judgment betrays a complacency rooted in the clubbability of the ascendant male upper classes.
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 tribunals was “nothing less than grotesque”. While the instinct to protect individuals from oppression 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 historical 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 deferential 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 on his keen sense of history and understanding of the passage of time. He really was a visceral historian, having studied it as an undergraduate, with a defined historical sensibility. It seems to me history is not the correct discipline to apply to politics or law. Rationality, philosophy or political science make better guides.
Hardiman believed that for a court to declare economic or social rights is to intervene in the legislative and executive processes. However, the different conception of democracy 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 concomitants of its right-to-life clause.
Given our overwhelming housing 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 uncontrolled spiralling in property and rental prices, the non recognition of the right to housing, for one instance, 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 of civil liberties the record is imbalanced in that he did not see the role of the court to expand the protection of the little man with adequate housing, health care and a minimum standard of living. His failure in this respect contrasted with his decent private persona. It derived from a generational 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 champion of civil and political rights (though not for women) but history will not be kind to his hostility to social and economic rights.