A leading peer-reviewed legal journal.
Dublin University Law Journal (DULJ) Vol 39(2)
Editors: Dr Patricia Brazil, Dr David Fennelly, Dr Daithí Mac Síthigh | ISSN: 0332-3250 | Currency: Two Issues Per Year | Publication Date: May 2017 | Price Per Issue: €129 + VAT | Dedicated Website www.dulj.ie
The Dublin University Law Journal is published by Clarus Press on behalf of the School of Law, Trinity College, Dublin. It is a leading peer-reviewed legal journal, publishing authoritative, critical and scholarly analysis on a broad range of legal issues. It provides a forum for important legal academic debate on contemporary Irish law as well as developments from further afield in the common law world, in European and international law, and in legal theory. The journal publishes longer articles providing in-depth analysis of a wide range of legal issues, as well as shorter articles, comments and case-notes providing up-to-date analysis of recent developments and book reviews providing critical assessment of important legal publications. The Dublin University Law Journal thus provides accessible and balanced coverage of a wide spectrum of current and enduring issues in law and legal scholarship.
The Dublin University Law Journal will now publish twice annually.
Volume 39, issue 2, 2016 contains the following:
- Intending as a Defining Feature of Murder | Desmond M Clarke
- Designing Effective Parliamentary Inquiries: Lessons Learned from the Oireachtas Banking Inquiry | Fiona Donson and Darren O’Donovan
- 1916, 1921 and the ‘Destruction of the Legal Unity of the British Empire’ | Donal Coffey
- Irish Popular Sovereignty in Historical and Theoretical Perspective | Eoin Daly
- The 1916 Proclamation and Jury Trial in the Irish Free State |Conor Hanly
- The Irish Question and the Evolution of British Imperial Law, 1916–1922 | Thomas Mohr
- The Point System for Fishing Vessels – Dead in the Water? |Laurie O’Keeffe
- Enactments Concerning the Irish language, 1922–2016 | John Walsh
- Corporate and White-Collar Crime in Ireland: A New Architecture of Regulatory Enforcement
- Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty
- Drafting the Free State Constitution
Intending as a Defining Feature of Murder | Desmond M Clarke
The intention of an agent to kill or cause serous harm distinguishes murder
from manslaughter. Statute, case law and academic analysis have failed to produce
a robust understanding of what is meant by the relevant intention. There are deeply
divided ethical and conceptual theories buried behind intention in law; as such a clear
and acceptable definition of intention is likely to remain elusive. Homicide law ought
therefore be reimagined in order to reduce the definitional work currently expected of
Designing Effective Parliamentary Inquiries: Lessons Learned from the Oireachtas Banking Inquiry | Fiona Donson and Darren O’Donovan
Ireland’s Oireachtas inquiry mechanisms are generally regarded as having
been hamstrung by the decision of the Supreme Court in Ardagh v Maguire. This perception
of a ‘legal straightjacket’ has been heightened by the public’s reluctance to entrust
politicians with investigative powers, as embodied in the loss of the 30th amendment
vote. In this article, however, we argue that a marginalised or weak parliamentary inquiry
mechanism is not an inevitable consequence of the Ardagh decision. We analyse the
manner in which the Houses of the Oireachtas (Inquiries, Privileges and Procedures)
Act 2013 has produced a self-imposed restrictive inquiry structure oversensitive to possible
litigation. Reflecting on the operation of the Banking Inquiry, we trace how inquiry
design is unduly shaped by the ‘chilling effects’ of litigation rather than other variables.
We argue that the Banking Inquiry experience stands as an object lesson as to the importance
of developing clear terms of reference which match the qualities of parliamentary
investigation to an appropriate subject matter. Overall, this article highlights that, for the
Irish constitutional order, greater engagement is needed with the full range of variables
which shape the creation, operation and effectiveness of parliamentary review.
1916, 1921 and the ‘Destruction of the Legal Unity of the British Empire’ | Donal Coffey
In 1916, republican nationalists sought to cleave the United Kingdom in two.
In so doing, they raised fundamental questions regarding the legal edifice of the British
Empire. The legal history of the British Commonwealth of Nations from 1922 was influenced
to a large degree by the ideas of Michael Collins and Éamon de Valera. This article charts
how the ideas of 1916 percolated through the Commonwealth constitutional structure.
Irish Popular Sovereignty in Historical and Theoretical Perspective | Eoin Daly
In Irish constitutional law, popular sovereignty has been interpreted as guaranteeing
the people an unfettered power of constitutional amendment. This article argues
that the Irish jurisprudence of popular sovereignty appeals interchangeably to two rather
disparate and contradictory historical concepts of sovereignty – one which understands the
sovereign as a supreme political authority, and another as a more passive, abstract entity
that approximates to ‘constituent power’. Accordingly, it argues that the doctrine of unfettered
constitutional amendability relies on an account of sovereignty that is theoretically
and historically incoherent.
The 1916 Proclamation and Jury Trial in the Irish Free State | Conor Hanly
The 1916 Proclamation asserted the sovereignty of Ireland, and set out the primary
values that were supposed to motivate this sovereign state. With the creation of the
Irish Free State, the authorities in Dublin had the opportunity to build governmental and
legal structures according to those values. The new government chose to maintain the
pre-independence system of trial by jury, including its most objectionable features – an
exclusive reliance on property owners, and the executive power to order jurors to stand
by. Further, almost immediately the Free State government took the regressive step of
effectively removing women from trial juries. Thus, the Free State authorities not only
wasted the opportunity given to them, but also turned their backs on the values set out
in the Proclamation.
The Irish Question and the Evolution of British Imperial Law, 1916–1922 | Thomas Mohr
By the early 20th century Dominion status seemed ideally suited as
the answer to the perennial ‘Irish question’. It offered Ireland a generous measure
of autonomy, while maintaining the territorial integrity of the British Empire.
Nevertheless, the prospect of granting Dominion status to Ireland remained little
more than a fantasy on the eve of the outbreak of the First World War. This reality
was altered by two parallel historical developments. The first of these was the 1916
Easter Rising that killed any possibility of an effective home rule settlement for the
entire island of Ireland. The second was a rapid acceleration in the evolution of the
self-governing Dominions of the Empire towards greater autonomy in the constitutional
sphere. In the aftermath of the First World War these two developments
came together in the signing of the 1921 Treaty that permitted the Irish Free State to
emerge with the status of a self-governing Dominion, the same constitutional status
held by Canada, Australia, South Africa and New Zealand. This article will examine
the legal and constitutional developments that took place between 1914 and 1922
that removed the possibility of an ‘Irish Dominion’ from the realms of fantasy and
allowed it to play a vital role in the emergence of the self-governing Irish state. It also
examines the important role of Hessel Duncan Hall’s book The British Commonwealth
of Nations (1920) in influencing this process.
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