It has always been a hallmark of this Law School–now in its 19th year –that it has been a celebration of place as well as a legal symposium, in all the senses of that word.
It has also been the practice to hold the school around the time of the festival of Bealtine–a very special time here in the Burren,a time of optimism. A time to look back at the promise of the spring and to look forward to the heights of summer.A time to celebrate the blue gentians, the mountain avens, and the edelweiss clinging to the karst in all their splendor.And so it is appropriate that, this year, the school has chosen to take stock with the Janus-like theme of “Commemorating The Past; Constituting the Future.”
In looking back we are mindful that we have just embarked on a series of centenary commemorations encompassing the signing of (i) the Ulster Covenant, (ii) the 1913 Lockout, (iii) the First World War, (iv) the 1916 Rising and (v) the events leading to partition and the establishment of the Free State.
But the school takes a broader perspective.
Tomorrow, Professor Donnchadh O’Corrain, a great friend of the Law School, will offer the Brehon perspective on past and future. We gather here this weekend not least because Caher MacNeachtáin close to this place was home to one of the great post-Norman law schools -that of the O’Davorens,justly celebrated for the preservation of old Irish law texts. The texts and manuscripts compiled by them or under their stewardship between 1564 and 1569 contain invaluable glosses on the law, but also give insights into the life of the school and the character of its leader.
Domnall O’Davoren, we are told, was quite a hard task master -one pupil complains of having so much work that there seemed to be two Thursdays in the week. But the overall impression which emerges from the sources is of a dedicated community of scholarship.
Over 440 years ago Edmund Campion, in his "History of Ireland" recounts the following:
I have scene them where they kept Schoole, ten in some one Chamber, groveling upon couches of straw, their Bookes at their noses, themselves lying flatte prostate, and so to chaunte out their lessons by peecemeale, being the most part lustie fellowes of twenty five yeares and upwards.
Other Lawyers they have, liable to certaine families which after the custome of the country determine and judge causes. These consider of wrongs offered and received among their neighbours, be it murder, or fellony, or trespasse, all is redeemed by composition, (except the grudge of parties seek revenge :) and the time they have to spare from spoyling and proyning, they lightly bestow in parling about such matters. The Breighoon (so theycall this kind of Lawyer) sitteth him downe on a banke, the Lords and Gentlemen at variance round about him, and then they proceede.
The question which immediately occurs to me, and to which other speakers are more qualified to address, is the extent to which these schools engaged in debate about the raging controversies of their times.
Did they try to assess through the prism of their erudition the prospects of survival for their way or life? Or ,are we looking –as some suggest –at some kind of 16th century Brehon Madrassa grounded in the certainty of its own rhythms impervious to the existential crisis engulfing the country from the East and rushing towards this place poised to engulf and destroy its world-order forever ?
Putting it in its historical context when Domnall O’Davoren embarked on his great task in the late 1560s the Crown of Ireland Act 1542 had granted Henry VIII, by his command, the new title "King of Ireland".
- Ireland had been renamed the Kingdom of Ireland.
- -The Irish Reformation had commenced.
- -The Tudor Plantations were in progress, particularly following the death of Queen Mary in 1558.
- And while the Brehon school nearby here and the O'Davorens at Tigh Breac toiled with their great task "…inland among stones" near "the ocean on one side… wild with foam and glitter" - locally here, just 10 years earlier, on the dissolution of the monasteries in 1554 our local Abbey of Corcomroe had been granted to Murragh O'Brien, Earl of Thomand, and after twenty years it would pass to Donal O'Brien, the last native prince.
It would be entirely wrong to ascribe to Domnall O’Davoren and his scholars the character of aUniversity as it has come to be understood, along the lines of the competing models of Newman or Von Humboldt; and yet the existence of an intellectual community in the latter years of the Brehon Law schools -at a time of crisis for the way of life which they studied, expounded and attempted to protect –must,hopefully, have prompted robust debate about the challenges which were presented by the gathering storm of the Nine Years War?
In the past few years, as this country faced an unprecedented economic crisis, but also a crisis of confidence in its own institutions, this School and others like it attempted to address the institutional failures which at the minimum allowed, and in many cases facilitated, the causes of the Country’s difficulties. Are we, I wonder, echoing some of the debates which took place hereover four centuries ago?
But we cannot speculate too much.
“Imagination,”warns Dr. George U. MacNamara in his great study of the O’Davorens, “if not kept well in hand, may sometimes prove a sorry handmaid both to the historian and the archaeologist. After all, what they are in search of are hard facts, not fancies, assumptions, and hasty generalizations.
While there is an essential truth in Dr. MacNamara’s words, in so far as the power of a place to evoke powerful feelings, however, the work is the important thing, and as a local Fermoyle man rooted in this place, the late John O’Donohue, remarked ;
“Time minds possibility and makes sure that nothing is lost or forgotten. That which seems to pass away on the surface of time is in fact transfigured and housed in the tabernacle of memory. As befitting someone whose interpretation of Hegel was so central to his intellectual development, John was especially concerned with history and his thoughts are worth calling to mind tonight as we begin our own commemoration:
History is an amazing presence –it is a place where vanished time gathers. While we are in the flow of time, it is difficult to glean its significance, and it is only in looking back that we can recognise the hidden dimensions at work within a particular era or epoch.
So, in this important exercise to be undertaken over the weekend we must guard against the dual dangers of imagining the past or worse still remembering the future.
The Great Recession
With that warning in mind, my own remarks will concentrate chiefly on how our commemorationof the past and looking towards the future must acknowledge the vulnerabilitiesin our legal and administrative systems which have become apparent in recent years; and how we must try, at least, legislatively and administratively, to work towards producing an institutional and administrativemechanisms anddesign which can accommodate threats and crises from unknown sources into the very fabric of our pubic life.
In short, we must strive to inculcate a systemic resilience into our law, our governmental organization, and perhaps our Constitution.
The concept of systemic resilience is one which derives mostly from the field of engineering and the crisis management and emergency response fields, and draws heavily on the experience of municipalities and countries in recovering from natural disaster.
Systemic resilience is defined simply as the capacity of a system to absorb or cushion against loss or shock and importantly to rebalance and recover its position following any trauma or disaster. Systemic resilience deals with both the inherent characteristics of systems -their ability to absorb losses under normal circumstances using their resource buffers or their inbuilt safety valves -but also, in times of special emergencies, the adaptive characteristics of systems -a measure of how crisis situations can result in extraordinary or ingenious responses to the difficulties presented to return to the normal state as quickly as possible.
Talking of systemic resilience is meaningless without an agreed measure of what constitutes “normality”or “equilibrium”in a system. In this regard, economic resilience is readily measured in terms of previous levels of output, employment or demographics.
The European Union has attempted to meet this challenge in REGULATION (EU) No 1176/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 November 2011on the prevention and correction of macroeconomic imbalances.
The Regulation,which is part of domestic law since 11th December equilibrium analysis of water service disruptions, Journal of Regional Science 45 (2005), 75–112.
2011,mandates the Commission to prepare an annual report containing a qualitative economic and financial assessment based on a scoreboard with a set of indicators, the values of which are compared to a series of indicative thresholds.
These indicators are detailed in Article 4 of the regulation, and include
-internal imbalances which can arise from public and private in debtedness; -financial and asset market developments, including housing;
-the evolution of private sector credit flow;
-and the evolution of unemployment; as well as external imbalances, including those that can arise from movements in the non-price competitiveness of the economy.
I refer to these economic indicators at length, although I understand it is almost too much to bear on a Friday evening,because it demonstrates a commitment on the part of the Union to establish a policy response framework which has been informed by the Euro Zone crisisand the Great Recession.
The measurement of economic resilience inherent in the Member States’ economies is central to this, as is the early warning system in the form of the Commission’s annual report and the early correction mechanisms detailed in the other regulations comprising the so-called “six-pack.”
The Stability Treaty is, of course, an important aspect in the Euro Zone’s response. It will be discussed and debated at length tomorrow and rightly so, but you will understand if I confine myself to remarking on how the Treaty must be considered of a piece with the measures adopted on a Union-wide level in December last year.
The Union response to theGreat Recessioncrisis, analysed in the context of resilience, raises two questions
. Reactive Capability
The first is one which is common to any policy designed as a response to a past crisis. How can we be sure that we move beyond designing a response to the last crisis, while blithely facing the next one unawares?
In other words, as well as trying to fix the last problem, we must try and bring about a system which has both an inherent and adaptive capacity to respond with speed toall futurecrises which threaten the system’s functioning, or even its very existence.
This feature was singularly lacking in the Irish and European response to the banking and the sovereign debt crises of recent years. In practical terms, the four dimensions -technical, organisational, social and economic -of the key properties of resilience which determine the State’s capacity to respond quickly to a crisis were weak in the extreme. There was intellectual denial and a policy and institutional unpreparedness rooted in a failure to accept that the reality of the situation.
Often, public policy makers are at the mercy of the markets, and calm or panic are displayed as a response to the increase or decrease in the spreads over the 10-year bund.
How, then, can responsiverather than reactive capability be embedded into the public policy framework? Clearly, it cannot be a case of crisis prediction -the resilience must be designed to minimise any significant divergence from equilibrium from whatever source, even the most unlikely. To that end, we have to look at the legal or administrative constraints which prevent a suitably rapid response to address developing crisis situations.
This subject is, I think, one which is worthy of further study. It is closely linked to the concept of exceptionalism, which has been the cornerstone of the statutory response to the banking and public finance crises which have ravaged the State for the last five years.
"Exceptionalism" is defined as those situations in which the sovereign power acts decidedly outside the normative conventions of established law. There are, for example, in the Constitutional sphere, a number of competing perspectives on the extent to which such exceptionalism should be available as a policy response to a crisis situation. Ultimately, the question of embedding a crisis management flexibility into the Constitutional sphere will be one for the people. As noted by Mr. Justice Hardiman in Dellway Investments v. NAMA:
But it must be clear to even the strongest proponent of the need for the decisions of public authorities to be approached applying fair procedures, that it must, in rare and clearly defined circumstances, yield place to other imperatives. A property owner has a clear right to have his property respected by the State and safeguarded from trespass or seizure by others; but there may be imperatives arising from a state of war or armed rebellion, an accident, or an acute emergency created by fire, natural disaster or other sudden and extreme circumstances which justify transient trespass upon his property without his consent or without taking the time to see if he, as owner, wishes to urge any reason against it. Thus, the placing of a fireman's ladder in one's garden, to save imperilled life and property, does not require audi alteram partem if the garden's owner's is absent.
But it is the business of the law to identify such circumstances: otherwise the cry of "emergency" would be sufficient to set all rights aside at the whim of the Executive. Our Constitution makes specific provision for "war or armed rebellion". It is not for the Courts to extend those provisions to a situation which is not one of war or armed rebellion. That would require a decision of the people in a referendum, if they thought it necessary or prudent to confer such unreviewable powers on the State. The cry of "emergency" is an intoxicating one, producing an exhilarating freedom fromthe need to consider the rights of others and productive of a desire to repeat it again and again.
Legal and Administrative Resilience
The second question is equally important. If one of the essential features of imbuing systemic resilience is the ability to measure both the extent of the crisis and the effect of the policy responses, how can we measure legal or administrative resilience? The concepts which are involved here are different from the readily measurable indicators involved in assessing economic resilience. The resilience triangle, essentially a measure of how quickly a society can return to equilibrium after a shock, needs to be adapted to take account of a calculus of legal or administrative equilibrium which would demand careful scholarship to bring about.
And yet our judiciary, our lawyers and our policy makers are already adept at gauging the importance of the objective of a given provision with reference to pressing and substantial concerns in a democratic and free society, and also at measuring the extent to which specific provisions impair Constitutional rights.7 As such, we can estimate the extent to which measures depart from Constitutional and legal norms and how long this disruption needs to last to enable a restoration to the pre-shock status quo. In some cases, of course, the measures proposed are improvements on what went before, and this can lead to the establishment of a higher level equilibrium into the future; but the key from a resilience analysis perspective is to return to a resilience equilibriumas quickly as possible, and the capacity of a system to respond rapidly -with extraordinary events being met by extraordinary measures.
There are, of course, other aspects of constituting or reconstituting our future which will be relevant to this School and which, I’m sure, will be addressed by other speakers in the course of the weekend, not least the question of how the blight of corruption can be curbed in our body politic, and whether widespread Constitutional change is politically realisable in the Ireland of 2012. In doing so, we might allow ourselves to be guided by the spirit of John O’Donohue, who, while acknowledging a compassionate response to human frailty, recognised that “the duty of privilege is absolute intregity. This in turn calls for a calm and quiet assessment, undertaken regularly, of where we stand in the public life of our country.
This is where you come in.
I rejoice therefore in the success of this Law School, now in its 19th year. I commend Deputy Alex White T.D., the director and the Law School Committee on a stimulating programme, and I am honored and proud to have been invited to launch it.
1 A Historie of Ireland, Written in the Yeare 1571 by Edmund Campion, Reprinted at the Hibernia Press, 1809
2 The Spirit Level by Seamus Heaney (Farar Strauss & Giroux, 1996)
3 The O'Davorens of Cahermacnaughten, Burren, Co. Clare by Dr. George U. MacNamaraPart I: Historical: Demise of Law School
4 John O'Donohue, Anam Cara: A Book of Celtic Wisdom
5 John O’Donohue, Prologue The Confession of Saint Patrick and Letter to Coroticus John Skinner
6 A. Rose and S. Liao, Modeling regional economic resilience to disasters: A computable general
7 Heaney v. Ireland  3 IR 593