Walter J. Walsh, The Priest-Penitent Privilege – An Hibernocentric Exercise in Postcolonial Jurisprudence, 80 Ind. L.J. 1037 (2005), https://digitalcommons.law.uw.edu/faculty-articles/814
priest-penitent privilege, evidence
Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the Irish-American priest-penitent privilege to identify its primary ideological impulses and to explain its fascinating postcolonial deviation from the English common law. Empirically, this history of the priest-penitent privilege seems to confirm Louisell's hunch that evidentiary privilege law developed as a necessary recognition of fundamental human rights; going further, this history also reveals the startling role of American postcolonial codification in advancing republican and democratic principles in place of anglocentric common-law reasoning.