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particular overarching principles. However, while these can (and were) attrib-
uted to God, they exist not as arbitrary expressions of God’s will but as certain
common principles of humanity: prudence, justice, charity, dignity and so on.
Crucially, the Preamble makes specific reference to a number of these prin-
ciples. This meant that, in terms of constitutional adjudication, the notion
of God as the origin of natural law fulfilled an explanatory but strictly super-
fluous role in the Irish constitutional order. Divine authority was neither the
basis nor touchstone of natural law reasoning in the constitutional sphere.
Recourse to the natural law as a source of value could occur because of and
by means of a constitutional commitment to certain textual if incompletely
specified norms – but it is the meaning of the norms themselves rather than
their religious origins that are constitutionally critical. Mark Tushnet has sug-
gested that the Rawlsian idea of overlapping consensus may have value here,
observing that this is also consistent with the Thomistic claim that ‘its conclu-
sions are available to anyone exercising the capacity of human reason, with-
out regarded to his or her religious commitments’.
47
On this view, Clarke’s
concern about an invisible and theocratic ‘shadow’ constitution may be based
on no more than a fairly conventional instance of constitutional abstraction.
If this is correct, the decision in the Abortion Information Bill reference
is less a cynical sidestep and more the evolution of a trend towards ‘a more
gradual de-emphasis in the case law on the Christian strand of the consti-
tutional jurisprudence’.
48
However, this also means that an abandonment of
religious rhetoric does not necessarily signify an equivalent move away from
judicial reliance on invisible (or incompletely specified) moral norms. While
the summary of the jurisprudence in the Abortion Information Bill reference
is notably shorn of Christian rhetoric when compared to its predecessors, its
basic claim that the courts engaged in the unenumerated rights jurisprudence
regarded themselves as seeking to identify rights ‘which could be reasonably
implied from and was guaranteed by the provisions of the Constitution, inter-
preted in accordance with its ideas of prudence, justice and charity’ is not
inconsistent with decisions such as McGee or Norris. Prudence, justice and
charity may have been described (perhaps even explained) in those decisions
as Christian values, but their immediate derivation and constitutional force
came from the text of the Preamble.
47
Mark Tushnet, ‘National Identity as a Constitutional Issue: The Case of the Preamble to the
Irish Constitution of 1937’ in Eoin Carolan (ed.), The Constitution of Ireland: Perspectives and
Prospects (Dublin: Bloomsbury Professional, 2012) 49, 54.
48
Kavanagh, Supra note 25, 93.
450
Eoin Carolan
There is also the important consideration that the Irish courts have contin-
ued in certain instances to have regard to values such as dignity, autonomy
or justice in a manner that assumes (and depends for its justification on the
assumption) that they can be attributed to an independent code of morality
from which they derive some normative force. That is not to say that dignity or
autonomy are treated as freestanding values to which unlimited appeal can be
made – any more than natural law was in the past. But there is evidence of the
Irish courts using these textually invisible values as a source of constitutional
meaning where similar considerations of ambiguity, indeterminacy or moral
contestation arise.
In PP v. HSE, for example, a divisional High Court found that a pregnant
women who was brain dead but being kept alive while her body rapidly (and
gruesomely) deteriorated had an entitlement to dignity to which the Court
could have regard.
49
Furthermore, the Court explained and justified its posi-
tion by reference to the kind of universal (if non-religious) norm associated
with a natural law position.
[The right to retain dignity in death is] an approach has been the hallmark of
civilised societies from the dawn of time. It is a deeply ingrained part of our
humanity and may be seen as necessary both for those who have died and
also for the sake of those who remain living and who must go on.
Somewhat similar references can be found in the Roche v. Roche decision,
where several Supreme Court judges referred to the necessity to show ‘respect’
for the dignity and potential humanity of a frozen embryo that the Court had,
in its same decision, found not to fall within the scope of the constitutional
protection of ‘the unborn’.
50
Most notably, the Supreme Court’s 2013 decision in Fleming v. Ireland pro-
vides a reaffirmation of the unenumerated rights doctrine and of its contin-
ued relationship with certain natural law-style norms.
51
Fleming involved a
challenge to the absence of an assisted suicide regime under Irish law. The
applicant, who was suffering from motor neuron disease, asserted a right to
terminate her life and to have assistance with that if necessary (as it was in
her case). Her claim was based on the contention that the rights to life and
of the person protected by Article 40.3.1 should be considered in light of the
constitutional values of autonomy, self-determination and dignity as including
a right to assisted suicide.
49
[2014] IEHC 622.
50
[2010] 2 IR 321.
51
[2013] 2 IR 417.
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