From The Irish Constitution Explained by Darrell Figgis 1922

It is the duty of a Constitution, not merely to provide for the present, but to leave itself lissom and flexible for the development of the future. If those developments can in any way be foreseen, it is its duty further, to indicate them by allowing specifically for them, without of necessity pledging the future to them. How far these indications may profitably be carried is a question not so easy to answer. Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Constitutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Constitution made during and since the Great War such indications are scattered freely. And from that fact alone the historian of the future could tell with assurance that these were years of rapidly changing conceptions.

We in Ireland cannot but have a share in these changes. Fortunately for us, heirs of an ancient tradition, in looking forward we look backward, and in looking backward we look forward. We may, and often do, use phrases identical with those used by other nations; but in many cases it will be found by the thoughtful student that what to them is often social theory, to us is a slumbering historic memory. Very frequently this will be found to be the case.

An indication of this kind, that looks both forward and backward, is to be found in Article 44 of our Constitution. This article has aroused considerable interest. It reads:—

"The Oireachtas may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the Nation. A law establishing any such Council shall determine its powers, rights and duties, and its relation to the government of the Irish Free State."

As a matter of curious interest it happens that the German Constitution contains an article very similar to this; but the conception had been in development in Ireland for some years. It had, indeed (as I endeavoured to shew in a little book on The Gaelic State, published in 1917), been a slumbering memory of the Irish Nation during the centuries when the characteristic political conceptions of the people were frustrate and idle, as they may now be put into practical development. It had been worked out in practical detail for one of our largest and most important industries in the Report on Sea Fisheries of the Commission of Inquiry, published in 1921. And it had actually, though imperfectly, been in operation for another great industry since 1896 in the Council of Agriculture.

What, then, are these Functional (or Vocational or Occupational) Councils for which provision is made, and on what political or social conception do they rest? One need not travel outside the present draft Constitution to discover the need for them. For in this Constitution, as in most constitutions, the people are, outside this one Article, considered in only two of the three relations that go to make up their lives, and which therefore constitute the complete life of the Nation. All the persons of the State are considered either as individuals or as citizens. But these two descriptions do not exhaust their lives. In addition to being individuals and citizens they are also workers in some craft, industry, trade or profession. Indeed, it is seldom they have time to be individuals, and it is seldom they are reminded that they are citizens. For good or for ill, these are only occasional parts of their lives. But they are never permitted to forget the parts they are required to play in the social and economic life of the Nation.

The Constitution establishes their rights as individuals putting these rights beyond the reach of interference either of those who make or those who execute the law. It also establishes their rights as citizens, certifies the manner of their action as citizens, and derives all authority in the State from those rights and actions. But these are only the lesser, however supremely important, parts of our lives. The greater part of our days is, for each of us, packed with the thoughts are cares of our functional lives. We are more frequently, in the intake and output of our lives, blacksmiths or architects, or whatever else, than we are individuals or citizens. Have we not rights and duties there too, both for ourselves and to the Nation; and should not the Constitution make provision for this, the larger part of our lives, as well as for the lesser parts? Can provision be said to have been completely made either for our own lives or for the interplay that constitutes the life of the Nation if this aspect be neglected?

We are faced at once with a difficulty. Seeing that we have the experience of it, it is easy to perceive how we can be represented in the State as citizens. How can we be represented in the State in respect of our functions? To answer this question one may turn to an instance that lives before us, an example from elder days when such an order of society was familiar. For in old Ireland (as in other nations) guilds were a recognised form of the industrial life of the nation. They were also, though not known by that name, a recognised form of the professional life of the Nation. And as a relic of those times we have to-day what is in effect a guild of Lawyers. The lawyers of Ireland, for example, are organised as a whole, with a Council representative of the profession as a whole. That Council, representative of all who practice as lawyers, is a responsible body, not only to the lawyers who are represented in it, but to and in the State on behalf of the legal profession. It is responsible for the honour and good conduct of lawyers. It is responsible for the economic maintenance of its constituents. No lawyer is allowed to practice except by consent of the Legal Council—that is to say, except by the consent of all other lawyers. The legal profession as a whole—in the legal sense, as a Person— protects its own honour, protects the individual lawyer, protects the public interest (in theory, at least), and requires a guarantee of efficiency and rectitude from every lawyer before he is allowed to practice his profession.

So it was in ancient Ireland. At that time, when the Assembly of the Nation met, the lawyers, or 'brehons,' met in a Council of their own. The administrative heads of each unit of local government met in a Council of their own. The Recorders, or Seanchaidhe, of the local petty states, met in a Council of their own. And each Council was responsible for the administration of its own concerns. Each Council drew up its own regulations, for the conduct of it own duties in the State, and for the protection of its own 'functional' rights. Each Council, in the modern legal phrase, was a responsible 'Person,' and was by the State, as it existed at that time, entrusted with the conduct and administration of its own affairs, subject to the general execution of the public interest.

It lay with the Assembly of the Nation to co-ordinate the whole in the public interest. Whether this was or was not done effectively in olden times is indifferent to the present problem of Functional Councils in the modern State, with its better organisation and more perfect national sense. The problem of organisation is very real, but it does not affect the necessity of functional representation and functional responsibility in the State. It is, for example, absurd that persons unfamiliar with architectural problems, however highly placed in the nation they may be, should be entrusted with architectural decisions that require special training and knowledge. It is equally absurd that a person unfamiliar with the needs of the Fishing Industry should, because for political reasons he should happen to be chosen as Minister of Fisheries, make proposals and be responsible for decisions that affect the present livelihood of fishermen and the successful future of the Fishing Industry. These matters must be reposed in the care of representative Functional (Occupational or Vocational) Councils, that should be required to render account, on the one hand, to the Function which they represent, and, on the other hand, to the State on behalf of that Function.

When such an organisation of the social and economic life of the Nation has been achieved, then, and only then, will it be possible to say that all parts of the life of the Nation have been brought within the reach and authority of the Constitution. It may be objected that these matters lie in the future. That is true. The Constitution allows for them, and by allowing for them indicates that they should be, and probably will be, the natural development of the future of the Irish Nation.

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