'Treat courts with respect or legal system falls apart'
As lawyers we are accustomed to accepting directions and orders from the court whether we like them or not, writes solicitor Micheál O’Dowd.
We advise our clients of the perils of disobeying a court order on a daily basis.
Threats of damages, fines, and the prospect of going to jail will suffice for most.
The courts are treated with respect, as they should be, because if they were not the legal system would fall apart.
The rationale is that you must take the rough with the smooth, and you can’t derive a benefit from a stable legal system if you disregard the bits that don’t suit.
Appropriate sanction
Most solicitors, without putting much thought into it, ascribe to the Austinian view that law is simply the command of a sovereign backed by appropriate sanction.
The procedure of the legal system is there to keep things moving smoothly.
But is the legal system as well balanced as we like to think it is?
One man appears to think not.
There is no need here to repeat the facts of Enoch Burke’s saga, save to suggest it is common cause that Mr Burke appears to be a man of deep faith and conviction, and places this above all else, including any order any court may make.
If Enoch Burke is channelling Thomas Aquinas rather than John Austin, he has not told us, but it does appear that Mr Burke did not break any criminal law, and may not have committed any civil wrong either, save for ignoring more court orders than anyone cares to count.
We know Enoch Burke likes to say that the reason he is in jail is because he refused to use a certain pronoun to describe a person.
Purge contempt
Most with legal training will disagree with him and suggest he is the author of his own misfortune, and could be free at any time if he purges his contempt.
Both versions are correct and flawed in equal measure.
For Enoch his conviction and beliefs are, to his mind, preventing him from accepting that what he views as unjust.
On a practical level there is a plausible argument that had he complied with the court orders (‘like a normal person’) a perceived left-wing institutional bias may have made it hard for Mr Burke to keep his job.
Would the Workplace Relations Commission have contemplated the merits and meaning of article 44 of Bunreacht na hEireann, which addresses freedom of conscience?
Unlikely, one must suspect.
Public support
Ignoring Enoch Burke or what he stands for, or ignoring the groundswell of public support he has, would be unwise for the legal profession.
It is perhaps too easy to frame Enoch Burke as “off the wall”, jocose, or a mere distraction to more important business.
However, Mr Burke is standing up for something he believes in, and there is some merit to that.
The recent clarification from the Department of Education that it has never mandated the use of preferred pronouns appears to undercut much of the initial reasoning as to why Mr Burke was enjoined from his workplace to begin with.
As Mr Burke remains in jail, hundreds of thousands of taxpayer money has been spent.
Logic of return to work
The logic of his request that he just be allowed to go back to work is becoming increasingly harder to resist.
The legal system has shown itself ill-equipped to deal with the debacle thus far and is lending itself to the criticism that compliance with the law is the end in itself rather than a means to the end we all strive for; a just and fair one.