The Search for Coherence in the Use of Foreign Court Judgements by the Supreme Court of Ireland

Abstract

The reference to foreign court judgments by the US Supreme Courts - particularly in cases involving the US Constitution - has sparked controversy. This controversy flared in Lawrence v. Texas, where Justice Scalia criticized Justice Kennedy for reference to judgments by the European Court of Human Rights in Justice Kennedy's majority opinion striking down the Texas sodomy statute. This article examines the issue from a different perspective: references to 'foreign' court judgments (including US Supreme Court opinions) by the Supreme Court of Ireland. The article examines the Irish Supreme Court's use of judgments from the European Court of Justice, the European Court of Human Rights and the US Supreme Court. The article argues that the Irish Supreme Court's attitude to reference to 'foreign' court judgments depends upon whether the Irish Court occupies a vertical or horizontal position with respect to the other court. Where the Irish Court's relationship is horizontal (meaning in essence that the other court cannot overrule or directly criticize the Irish Court), the Irish Court is less reluctant to refer to the foreign judgment. When the relationship is vertical (in the sense that the other court can criticize or overrule the Irish court), the Irish Court is more reluctant to refer to the foreign judgment. The article examines a number of Irish cases in support of this thesis. It concludes that because the relationship with the European Court of Human rights is vertical, the Irish Court is reluctant to refer to these cases in the Irish Court's opinion. On the other hand, because the relationship with the US Supreme Court is horizontal, the Irish Court shows less reluctance in citing US Supreme Court opinions.

Keywords: international law, European Union law, constitutional law, human rights