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Ireland's political and cultural magazine
2 2 October 2016
here is much talk nowadays about the
practical difficulties of multicultural
-
ism (and of the rejection of tolerance
by radicals promoting violence). With
a shrinking world on our doorstep,
integration of peoples of different cultures is
preferable to ghettoisation and apartheid. Radi-
calisation is the byproduct of alienation which
thrives where the legal system appears to be, or
is, complex.
Integration - the antidote to radicalisation -
will not be achieved by shouting louder or
asserting the superiority of our societal norms.
Instead, the key to the dialogue, without diluting
our homegrown standards, is identifying and
highlighting the identical behavioural norms
which underpin the laws of all cultures.
But there will be no dialogue where it counts
- on social media - unless the millenials have a
better grasp of these shared human values. That
generation has apparently forgotten, or perhaps
never even heard, the old but timeless slogans
with which our forebears rallied the cause of
liberty.
All the tenets of the Western model of society
are now reproduced in its laws. Strip out the
small print and it is clear that the basic similari-
ties between legal cultures outweigh the
differences. It is not a competition. We have no
need to talk of imposing conformity if the grund-
norms of human society are the same the world
over. The minutiae of the law may be opaque, but
the measure of what is or is not lawful does not
really need counsel's learned opinion.
Ask any person in the street what the law is on
any particular matter and you will almost always
get an uncertain response. But this does not
mean that there is any real disconnect between
the law and the person; it is just that most people
have an instinctive awareness of the general
principles, if not of the minutiae, of the law.
Take one example: the formalities of contract.
In 1988 Judge Costello decided, after days of evi
-
dence and legal argument, that Fyffes' offer to
sell their Irish Distillers shares to Pernod Ricard
was binding because, with no contract in writing,
after Pernod Ricard came back into the room and
announced that they were prepared to accept the
offer at 450 pence per share, "there was a spon-
taneous shaking of hands and Mr Flavin said 'we
are partners now' ". An essay in semiotics per-
haps but most importantly and obviously a
universal standard, unambiguous.
The body of legal principle which is called the
Common Law is composed of instinctive judg-
ments, judgments on the basis of conscience,
custom from "time immemorial" and (per Sir John
Davies) "so framed and fitted to the nature and
disposition of this people as we may properly say
it is connatural to the nation”.
We are familiar with the perspective of ‘the
man on the Clapham omnibus’, with the duty of
care for one's ‘neighbour’, with the measure of
‘reasonableness’. We don’t need to refer back to
the Ten Commandments, scripture, religion,
Roman law, the Statutes of Edward 1, the Napo-
leonic Code, the Treaty of Rome or any other
Declaration or Convention.
Dress them up however you want, these are
the layman's yardsticks for good and bad
behaviour.
The context needs to be the dignity of man. If
primary school children are now being taught
coding, surely secondary students should get an
education in the principles of Common Law?
They can
be told it is
about good
and bad and how
to achieve them.
The Human Rights agenda is
often cited as the checklist for admission to
(Western) civilisation. Doing so heightens the
differences in emphasis and overlooks common
denominators.
Before the 1949 UN Declaration on Human
Rights the preparatory commission (chaired by
Eleanor Roosevelt) asked a group of philoso-
phers from Western, Confucian, Hindu and
Muslim cultures (Jacques ‘Natural Law’ Marit-
ain, Harold Laski, Teilhard de Chardin, Mahatma
Gandhi, Humayun Kubir and others) whether
there were common principles to which all
nations and cultures could subscribe, and in
due course they reported that - somewhat to
their surprise - there were a few common stand-
ards of decency (emphasis added) that were
widely shared though not always formulated in
the language of "rights". Maritain wrote that
"we agree about the rights, but on condition no
one asks us why!".
I believe ‘decency’ is an extremely employable
word for the integration dialogue. It belongs to
no religion nor is it to be found as a legal term of
art in any legal order. It has an unambiguously
human resonance. It is a behavioural yardstick
impossible to define precisely but also impos
-
sible to misunderstand. Decency is a world
brand. It is a Big Mac. For Norms.
You can subscribe to the ‘decency’ standard
for human behaviour without subscribing to
democracy as the gold standard by which sys-
tems of government must be rated.
Democracy, in practice, is by no means a ‘no-
brainer’! The 1789 French Assembly declaration
speaks of law as "the expression of the general
will of the people" and of the right of every citi
-
zen "to participate personally, or through his
representative, in its foundation".
Whether by accident or design, we seem now
to have government consisting of citizens,
Law, human rights, tolerance and decency
must be taught in schools
Decency
Integration - the antidote
to radicalisation - will not
be achieved by shouting
louder but by highlighting
the identical behavioural
norms which underpin the
laws of all cultures
October 2016 2 3
without real involvement, just get-
ting whatever public services
politicians and bureaucrats
offer them; with politicians off-
loading difficult decisions to
statutory agencies or regula-
tors; or engineering with
bureaucrats to avoid scrutiny
of, and accountability for, the
administrative mistakes of
the past.
Indeed, if the Brexit vote is
anything to go by, 52% of UK
voters think their "democracy"
in the EU is closer to the totalitar
-
ian end of the spectrum
(government by unelected Manda
-
rins) than to the self-governing end (for
example, by referendum, issue by issue,
on the Swiss model). Truly, democracy is a
work in progress! Perhaps indeed it has stalled
in the teeth of overwhelming global forces. It is
only supranational government that can counter
the forces of globalisation.
Nor is it necessary for all engaged in multicul
-
tural dialogue to sign up to the rights-based
model.
Even in the West there is concern about
whether rights should be central to progress. For
some, the radically individualistic paradigm
being read into Human Rights texts obscures the
generosity of spirit which should be the starting
point of interpretation and development. In 1989
Pope John Paul 2 criticised the UN declaration
for omitting a recital of "the anthropological and
ethical foundations of the rights which it pro-
claims". His concern is that without knowing the
source, the scope and direction of human rights
jurisprudence might be wide of the mark. And
then there is the debate about the desirability of
economic and social as opposed to political and
civil rights.
Civil and political rights are central to the Irish
Constitution (1937). Of course certain rights are
enumerated and the courts, as in many other
countries, have (starting with Kenny J's decision
in the fluoridation case, Ryan v the AG 1965 and
its discovered right to “bodily integrity”), estab-
lished that others are unenumerated, waiting to
be inferred by the courts. Writing extra-judicially
in 1992 Supreme Court judge Niall McCarthy
wrote of a "penumbra of unenumerated rights
derived from man's rational being and from time
to time discerned by the court....the catalogue
remains open”.
In 1996, the Irish Constitution Review Group
(chairman TK Whitaker), perhaps alarmed by the
sound of a floodgate opening, recommended
that "further recognition of fundamental rights
by the courts would be (confined to) those nec
-
essarily implicit in the rights expressly
limited”.
So-called "equal rights" provisions are, even
in the adventurous UN Convention on Human
Rights, limited to the right not to be discrimi-
nated against on any of the grounds specified in
Article 14. They are problematic at best. British-
German political sociologist Ralf Dahrendorf
pinpointed in a 1975 Reith Lecture,
"the danger of becoming prison-
ers of our own good purpose",
and of "the new bondage
brought about by a notion
of justice as equality".
He wrote that "a
defence operation may
be necessary to safe
-
guard the beneficial
effects of citizenship
against the dangers of its
perversion by perfection”. In
short, the unthinking enforce-
ment of equality as a human right
may be destructive of the newly-won lib-
erty of the individual.
In the Irish Constitution, "equality" is not a
standalone right. it is not a mission statement.
It is only a guarantee that the law will not dis-
criminate between individuals or classes "by
reason of their human attributes or other ethnic
or racial, social or religious background" (per
Judge Walsh). The text of article 40.1 refers to
equality "before the law". Professor John Kelly
in the first edition of his great book, 'The Irish
Constitution' (1980), gave the chapter the title
“Equality before the Law”, but the editors of
later editions have omitted the qualifying words
and so altered the narrative for later
generations.
More definitively, the (seven judge) Supreme
Court's equality analysis in the Fleming case in
2013 was straightforward:
"If a law makes a distinction on its face
between citizens it may be necessary, depend-
ing on its context, to inquire into its justification..
classification by reference to age or disablility
or gender (or on any other basis) may be justified
by democratic legitimate purpose... or may be
suspect". The Court also stated that "it is often
the case that neutral laws will affect individuals
in different ways: in the absence of impact on a
fundamental right that does not normally give
rise to any unconstitutionality". In other words
only fundamental rights are protected by the
equality guarantee. You may not be dis
-
criminated against by laws which
affect your fundamental (as
opposed to other) rights.
Judge Dónal Barrington
once described equality
before the law as "prob-
ably the most difficult
and elusive concept
contained in the Consti-
tution". We could debate
the merits of a broader
interpretation of equal
rights another time, but at
present let's not complicate
things. Maritain suggested that
multiculture philosophers not be asked
why they were able to agree across all
cultures.
They agreed about decency.
Take that agreement and build.
Instead of dialogue with preconditions like
democracy and equality, we should instead high-
light the common ground of decency.
Concomitantly, behaviour which is not ‘decent’
cannot be tolerated: there can be no politically-
correct tolerance when radicalised zealots adopt
terror as a modus operandi.
It will be argued that this analysis is over-sim-
plistic: that it is naive. But we must deal with
radicalisation by recognising the essential
superficiality of the radicals' view of the world
and its issues. We cannot cure radicalisation
with doses of sophistication. We must instead
stick to big-picture themes which invite univer-
sal recognition: decency of behaviour is a norm
of all societies. We need to see it taught in
schools and broadcast on the internet. Indeed
from the rooftops.
Edmund Honohan, Master of Ireland’s High
Court, is writing in a personal capacity
The unthinking
enforcement of equality
as a human right may be
destructive of the newly-
won liberty of
the individual
