Tom Hickey
Dr. Tom Hickey works in the fields of constitutional law and political theory, with an emphasis on questions around judicial review and models of constitutionalism. He is the co-author of The Political Theory of the Irish Constitution: Republicanism and the Basic Law (MUP, 2015) and co-editor of Judges, Politics and the Irish Constitution (MUP, 2017). Tom joined the School of Law and Government at Dublin City University in 2013, having previously taught at the School of Law, NUI Galway. He is programme chair of the LLM (Master of Laws), and teaches in the areas of public law and legal theory. He is also a Visiting Professor at Université Montesquieu, Bordeaux IV. Tom holds BCL and PhD degrees from NUI Galway and an LLM from Cambridge University (Queens' College). He was a Visiting Research Scholar at the Center for Human Values, Princeton University, in 2009, where he worked with the neo-republican scholar, Professor Philip Pettit.Email: tom.hickey@dcu.ie
Phone: 00353 01 7007858
Address: School of Law and Government, Dublin City University, Glasnevin, Dublin 9
Phone: 00353 01 7007858
Address: School of Law and Government, Dublin City University, Glasnevin, Dublin 9
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Papers by Tom Hickey
But in Zalewski v Workplace Relations Commission a majority of the Supreme Court has signaled a shift away from the rigid judicial 'centralism' that has prevailed for a century in the Irish legal system. The judges have departed from the formulaic approach to assessing what counts as judicial power, preferring instead a purposive approach more in line with comparator countries. They have revived a 'saver' provision of the Constitution (Article 37.1) expressly providing for 'the exercise of limited functions and powers of a judicial nature' by bodies other than courts. And they have indicated that courts and lawyers do not have a monopoly on authority in respect of public law norms.
Things remain in flux, however, because there are conflicting messages in the majority judgment in respect of this more 'pluralist' conception of public law.
This article interrogates that line of attack. It explores its roots in political theory, particularly the idea that those guilty of it (such as Aileen Kavanagh) follow in John Rawls’ supposed prioritisation of justice over legitimacy. And it turns to republican and later-Rawlsian thinking on these two concepts to see whether it may offer a sound basis upon which the case for judicial review can be made…legitimately.
Article is free to access online at: For my short article on this judgment in the Journal of Social Welfare & Family Law [2021], "Interpreting Natural Rights: Gorry and 'the Family' under Article 41,
See, https://www.tandfonline.com/doi/full/10.1080/09649069.2021.1953854
In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This article assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.
The article is in four parts. Part I places feminist approaches to adjudication in broader theoretical context. Part II considers Dworkin’s theory of adjudication and Rackley’s critique. Part III sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part IV critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.
This article makes the case for judicial review based on the idea of freedom as non-domination. It is a democratic case for the institution, rooted in Philip Pettit’s republican account of democracy as “equally shared popular control.” It is also a legitimacy-based and non-epistemic case – it does not rely on Rawlsian/Dworkinian ideas around the special wisdom or the special virtue of judges. The article thus accounts for the main concerns of political constitutionalists. In fact, building as it does on Richard Bellamy’s insights in particular, it is itself a political constitutionalist case for judicial review. It diverges from Bellamy, however, in its conclusions about judicial power. This divergence emerges from a particular understanding of how common goods might emerge over time in a democratic society. Following Pettit, the article emphasizes a long-term perspective on that question, and suggests fluid, iterative processes towards that end; processes which account for and embrace disagreement among citizens. The article holds that non-electoral contestatory institutions play a necessary role in such processes. And it holds that there are good reasons why judicial review – and, in principle, judicial supremacy – might be understood as one such institution. These reasons are good in part because they are non-epistemic: they do not conflict with the fact of reasonable disagreement on rights questions.
The case I make for judicial review avoids what I, among others, see as the basic flaw in most of the justifications that have been offered previously. It does not rely on the notion that judges are more enlightened than legislators in respect of the resolution of rights questions. It does not hold that judicial insight is such that, with judicial review, outcomes are more likely to treat individuals with equal concern and respect. This means that the "fact of reasonable disagreement on rights" objection cannot be levelled at my case in the way that it can be levelled at legal constitutionalist cases. The republican understanding of democracy upon which I build my case not only accounts for this fact of disagreement, it relies quite heavily on it. In turn, my case relies on that fact of disagreement.
Irish Supreme Court – the exclusionary rule – Justices Brian Walsh and William Brennan – Quinn’s Supermarkets – retrospective application of declarations of unconstitutionality – Defrenne v. Sabena – A v. Governor of Arbour Hill – Justice Gerard Hogan – suspended declarations of invalidity – proportionality and the application of R v. Oakes – the ‘right to die’ in Ireland and Canada – ‘comparative localist’ analysis in constitutional adjudication – foreign law and ‘theoretical authority’
This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a " people " sharing a thick, value-laden identity that renders that " people " antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty.
The chapter is in two parts. Part I elaborates and critiques the accounts of rights, freedom and popular sovereignty that are identifiable in the jurisprudence. Part II introduces the republican approach, elaborating its very different (and more plausible, more coherent) understandings of rights, freedom and popular sovereignty. It draws some conclusions – mainly practical in nature – for Irish constitutional law and practice.
This Chapter is concerned with the separation of powers in the Irish constitutional system. It considers the ideal in the context of looking at how constitutional law affects the structure of Irish politics. That is, where Eoin Carolan’s chapter examines the implications of constitutional law for the substance of politics – for policy formation and so on – this chapter examines its implications for the scope of the powers of the political institutions (Carolan, 2019). It looks at how constitutional norms, as they have been developed and applied by the judicial arm of government, empower and constrain the executive and legislative arms of government.
Judges and Parliament – In re Haughey, Abbeylara, and Angela Kerins – Judges and Government - Crotty, McKenna and Pringle
Dr Tom Hickey, School of Law and Government, Dublin City University, Glasnevin, Dublin 9, Ireland. Email: tom.hickey@dcu.ie
But in Zalewski v Workplace Relations Commission a majority of the Supreme Court has signaled a shift away from the rigid judicial 'centralism' that has prevailed for a century in the Irish legal system. The judges have departed from the formulaic approach to assessing what counts as judicial power, preferring instead a purposive approach more in line with comparator countries. They have revived a 'saver' provision of the Constitution (Article 37.1) expressly providing for 'the exercise of limited functions and powers of a judicial nature' by bodies other than courts. And they have indicated that courts and lawyers do not have a monopoly on authority in respect of public law norms.
Things remain in flux, however, because there are conflicting messages in the majority judgment in respect of this more 'pluralist' conception of public law.
This article interrogates that line of attack. It explores its roots in political theory, particularly the idea that those guilty of it (such as Aileen Kavanagh) follow in John Rawls’ supposed prioritisation of justice over legitimacy. And it turns to republican and later-Rawlsian thinking on these two concepts to see whether it may offer a sound basis upon which the case for judicial review can be made…legitimately.
Article is free to access online at: For my short article on this judgment in the Journal of Social Welfare & Family Law [2021], "Interpreting Natural Rights: Gorry and 'the Family' under Article 41,
See, https://www.tandfonline.com/doi/full/10.1080/09649069.2021.1953854
In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This article assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.
The article is in four parts. Part I places feminist approaches to adjudication in broader theoretical context. Part II considers Dworkin’s theory of adjudication and Rackley’s critique. Part III sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part IV critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.
This article makes the case for judicial review based on the idea of freedom as non-domination. It is a democratic case for the institution, rooted in Philip Pettit’s republican account of democracy as “equally shared popular control.” It is also a legitimacy-based and non-epistemic case – it does not rely on Rawlsian/Dworkinian ideas around the special wisdom or the special virtue of judges. The article thus accounts for the main concerns of political constitutionalists. In fact, building as it does on Richard Bellamy’s insights in particular, it is itself a political constitutionalist case for judicial review. It diverges from Bellamy, however, in its conclusions about judicial power. This divergence emerges from a particular understanding of how common goods might emerge over time in a democratic society. Following Pettit, the article emphasizes a long-term perspective on that question, and suggests fluid, iterative processes towards that end; processes which account for and embrace disagreement among citizens. The article holds that non-electoral contestatory institutions play a necessary role in such processes. And it holds that there are good reasons why judicial review – and, in principle, judicial supremacy – might be understood as one such institution. These reasons are good in part because they are non-epistemic: they do not conflict with the fact of reasonable disagreement on rights questions.
The case I make for judicial review avoids what I, among others, see as the basic flaw in most of the justifications that have been offered previously. It does not rely on the notion that judges are more enlightened than legislators in respect of the resolution of rights questions. It does not hold that judicial insight is such that, with judicial review, outcomes are more likely to treat individuals with equal concern and respect. This means that the "fact of reasonable disagreement on rights" objection cannot be levelled at my case in the way that it can be levelled at legal constitutionalist cases. The republican understanding of democracy upon which I build my case not only accounts for this fact of disagreement, it relies quite heavily on it. In turn, my case relies on that fact of disagreement.
Irish Supreme Court – the exclusionary rule – Justices Brian Walsh and William Brennan – Quinn’s Supermarkets – retrospective application of declarations of unconstitutionality – Defrenne v. Sabena – A v. Governor of Arbour Hill – Justice Gerard Hogan – suspended declarations of invalidity – proportionality and the application of R v. Oakes – the ‘right to die’ in Ireland and Canada – ‘comparative localist’ analysis in constitutional adjudication – foreign law and ‘theoretical authority’
This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a " people " sharing a thick, value-laden identity that renders that " people " antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty.
The chapter is in two parts. Part I elaborates and critiques the accounts of rights, freedom and popular sovereignty that are identifiable in the jurisprudence. Part II introduces the republican approach, elaborating its very different (and more plausible, more coherent) understandings of rights, freedom and popular sovereignty. It draws some conclusions – mainly practical in nature – for Irish constitutional law and practice.
This Chapter is concerned with the separation of powers in the Irish constitutional system. It considers the ideal in the context of looking at how constitutional law affects the structure of Irish politics. That is, where Eoin Carolan’s chapter examines the implications of constitutional law for the substance of politics – for policy formation and so on – this chapter examines its implications for the scope of the powers of the political institutions (Carolan, 2019). It looks at how constitutional norms, as they have been developed and applied by the judicial arm of government, empower and constrain the executive and legislative arms of government.
Judges and Parliament – In re Haughey, Abbeylara, and Angela Kerins – Judges and Government - Crotty, McKenna and Pringle
Dr Tom Hickey, School of Law and Government, Dublin City University, Glasnevin, Dublin 9, Ireland. Email: tom.hickey@dcu.ie
Italian-Irish ‘Conversation’ on the ‘idea of a republic’
Trinity Law School
June 21st, 2021
Tom Hickey
School of Law and Government,
DCU