Review: Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly

Joelle Grogan, University of Oxford

Of Courts and Constitutions, K Bradley, N Travers, and A Whelan (Hart Publishing 2014)

Of Courts and Constitutions is a collection of essays written to honour the retirement of the Hon Mr Justice Nial Fennelly, Judge of the Supreme Court of Ireland, and former Advocate General of the European Court of Justice. Over his long and distinguished career on the bench, he has had a marked influence on the development of the law in both Irish and European law. It is clear from the contributions and dedications within the volume, that he is held in high regard in both academic and legal circles throughout Ireland and across Europe.

Thematically, the volume considers the relationship between Union law and national law. The title ‘Of Courts and Constitutions’ is apt more for directing the reader as to the great diversity of the contributions, than clarifying the nature of the work. The topics of the essays are highly varied, ranging from the interpretation by the European Court of procedural law and precedent, to the Financial Crisis and the rule of law, to concepts of national identity, and the treatment of child citizens. Helpfully for the enquiring reader, the volume is divided into four sections, broadly concerning (1) the structure and functioning of the European Court; (2) issues of EU Law; (3) aspects of Irish law; and (4) transversal issues of national and European law.

One contributor rather self-consciously notes that a Liber Amicorum is often an occasion for contributors to find a place for work gathering dust on the shelf, rather than an occasion for producing an original piece written for purpose. Dedications at the beginning of the work, though evidently sincere, can sometimes have a jarring effect on the narrative of the piece, underlining a disjuncture between the aim of the contribution and the relevance to the work of the eminent judge. Despite this, there are many interesting contributions in the volume, and the standard of the contributions is overall of a very high quality.

Some of the essays stand out for their particular excellence, for example Catherine Donnelly’s topical discussion of transparency in EU public law; and Diarmuid Rossa Phelan’s analysis of the allegiance of judges to their state and to the EU, which should be read with Wolfgang Heusel’s excellent examination of national constitutional identity. For those jurists (understandably) confused by the Kadi Saga, Professor Sir David Edward, former Judge of the European Court of Justice, provides excellent insight and commentary on the series of cases which shed light (or cast shadows) on due process and judicial review in the EU courts.

The diversity of the contributions makes it difficult to identify a target audience for the whole volume: perhaps an EU lawyer with an interest in Irish affairs, or an Irish lawyer? (To say an Irish lawyer with an interest in European affairs should now be a tautology.) Alternatively, adopting the insight of fellow Irishman James Joyce, perhaps it is better to consider that ‘in the particular is contained the universal’.

The issues in national law which arise due to the nature of EU law —concerns of sovereignty, loss of national identity, and the incompatibility and invalidity of national norms— are concerns which are shared across EU Member States. Insights given by a state which shares the common law system of the UK, but the constitutional law based on a written text of continental Europe can be both interesting and highly relevant. Considering also the ongoing accusations of democratic deficit in the EU, Ireland’s example of referring all treaty reforms and changes to a national referendum (resulting in the singular ‘referenda fatigue’ of the Irish electorate) is an interesting case study.

The difficulty with this volume is not the lack of engaging and high quality contributions – but rather finding a unifying theme to the work, or a directly relevant essay. However, it is evident that the Hon Mr Nial Fennelly has given an outstanding contribution to the development of Irish and European law, and even on his retirement, he has inspired a further contribution to the area in an interesting, often insightful, volume of contributions on Irish and European law.

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