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PB April 2023 April 2023 35
outcome. It is dicult to say what the diktat of
this in this instance is.
In the case of the nursing homes the answer
may depend on whether the person with the legal
entitlement has fewer resources than the average
citizen.
Given that the State’s money is everyone’s
money, should entitlements to the public purse
be determined in accordance with some form
of equality or should they be determined by the
eects of particular events?
In some ways arguing between the public
purse and the legal entitlements of an individual
is like a general argument whether
a distribution should be settled by
what is fair or by a contract that’s
been entered into.
If a rich person is wronged, is
justice served, by requiring a poor
person to transfer some of their
limited resources to the rich person?
Answering this is the biggest
challenge for leftists for it will always
be unethical to advance inequality
(though of course if the wrong has
increased inequality it will be right to
reverse it).
Certainly, it was not foolish for
Micheál Martin to factor in the
needs of the young and of future
generations against a background
where the middle-aged and elderly
in this society have done extraordinarily well
historically – in ways that past generations have
not matched and future generations are unlikely
to match (we may note the diculty President
Emmanuel Macron is having in France persuading
a cynical public that he is propelled by political
empathy for Youth on the pensions issue).
Inconveniently, factoring in that likely inequality
of outcome and those needs would mean being
as robust as Varadkar the ideologue, who has also
emphasised the needs of the current generation
and his compliant Attorney General have been.
In the end in this instance perhaps the unfairest
thing is that those with the money to litigate
convincingly got the best results, not those most
adversely aected by the State’s failures.
And it is important not to encourage the State
to get used to slyly manoeuvring, undermining
transparency and public trust.
Overall, if we had a clearer view of the role of
government and an agreed view of justice we
would have more guidance.
Rights-based or fairness/equality-based, it
ultimately depends on your view of justice.
But for those of us on our high horses over
rights, it is worth noting that it is normal to say
that favouring utility over rights is more likely to
be the leftist solution.
of UCC’s Law School, gave the Irish Times a
lawyer’s perspective: “the State pursues the
same strategy in lots of areas. People are denied
legal entitlements until they litigate. The eect
is that people who can face the cost and stress
of litigation get their legal dues, while those that
can’t, don’t”.
In other words, if you’re not prepared to
vindicate your rights at law, you don’t necessarily
get those rights.
Your sense of what is just depends on whether
you think resources should be distributed in a
utilitarian way to further the greatest good for
the greatest number or according to rights, in
which case clearly breaches of the principle of
equality before the law (as opposed to equality
of outcome) require redress. It is the dierence
between results and principle.
Village’s animating value is equality of
The ownership and control of the material
resources of the community must be so
distributed amongst private individuals and
the various classes as best to subserve the
common good
T
he public discourse recently
cast its derision on the secret
civil service policy to deprive
citizens of their leal
entitlements to the refund of
fees chared by private nursin homes.
The policy was to refuse to pay those
entitled unless the citizen litigated to
the point of being forced to provide
‘discovery’ of documents or all the way
to the steps of a court. When deigning to
deal at all, it brandished non-disclosure
agreements, and reluctantly handed
over the citizens’ entitlements.
An Taoiseach, Leo Varadkar, described
the strategy as “a sound policy approach
and a legitimate legal strategy”. Tánaiste Micheál
Martin thoughtfully said that governments
sometimes have to make “unpalatable decisions
on how to spend public finances, including in
respect of legal cases they face. Calls have to
be made as well in respect of the needs of the
current generation and the future, in terms of the
allocation of resources”.
“There will”, he said, “be good times and there
will be bad times in terms of public finances
and economies are cyclical. And there’s a very
fundamental issue in terms of how one allocates
those resources”. He said that in the past two-
and-a-half years of the current government, it
has committed “about six billion in retrospective
payments” to three or four areas”. That resonated
with many.
Seasoned observers of the State’s legal
mechanisms, like Professor Conor O’Mahony
Justice depends
on your worldview
Utilitarianism may send you in a different direction
from rights theories: a case-study in nursing homes
By Suzie Mélange
OPINION
