The contribution of Mr Justice Brian Walsh to judicial decision-making and the role of the judge in Irish law

For the most part, judges are anonymous and their contribution to Irish law and society is often underappreciated. They walk along Grafton Street without being recognised by the general public. Given the pivotal role judges often play in nudging social change, this is striking. While there is no desire for judges to be given ‘celebrity status’ in Ireland, it is certainly worth examining the impact of our ‘towering judges’ and so legal biography, therefore, warrants in-depth study.

Brian Walsh, born in 1918 against the background of war at home and abroad and the zenith of the Catholic Church, served the Supreme Court of Ireland from 1961 until 1990. Walsh J has been deemed one of Ireland’s most brilliant legal minds. Walsh J’s judgments have been regarded as the foundation of the modern legal system yet his approach to judging, and more specifically his interpretation of the Constitution, is not always met with the same appraisal. His judging has been associated with a robust era of judicial activism, the development of the doctrine of unenumerated rights, and natural law. Judicial activism is often viewed pejoratively because striking down law or policy as unconstitutional can blur the separation of powers. Employing natural law theory and identifying unenumerated rights when interpreting the Constitution has also been viewed with scepticism because vague principles and ideas can undermine objectivity and certainty in the law and permit the vast expansion of the judicial role.

This thesis sets out to explore this contradiction which lies at the heart of Walsh J’s legacy. Legal biography will be relied on as a vehicle to explore Walsh J’s contribution to judicial decision-making and the role of the judge in Irish law, with a focus on constitutional law given his controversial interpretation of the Constitution. Also, constitutional law is generally more political than other areas of law and judges can often influence society through their interpretation of constitutional law, making it an important area of law when researching the legal biography of Walsh J.

This approach will inform an analysis of the reasons for the demise of the interpretative flame lit by Walsh J. This thesis also challenges the traditional narrative of the role of the judge in Ireland; that judges simply apply the law, in a neutral way, to the case at hand. It suggests that Walsh J’s judging was likely influenced by his worldview in addition to constitutional constraints. This field of inquiry is valuable as it demonstrates the lasting impact that judges can have on the development of the law and the nation at large.