|
Eoin Carolan
Aside from specific acknowledgements that ‘the homage of public worship is
due to Almighty God’
7
and of the special position of the Catholic Church,
8
the text’s description of certain rights pertaining to the family as ‘inalienable’,
‘imprescriptible’ and ‘antecedent and superior to all positive law’ followed
Catholic natural law philosophy. Perhaps most notably, the Preamble to the
Constitution as one judge later put it, ‘reflects a firm conviction that we are a
religious people’,
9
proclaiming:
In the Name of the Most Holy Trinity, from Whom is all authority and
to Whom, as our final end, all actions both of men and States must be
referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,
Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the
rightful independence of our Nation,
And seeking to promote the common good, with due observance of
Prudence, Justice and Charity, so that the dignity and freedom of the
individual may be assured, true social order attained, the unity of our
country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.
These provisions were to prove important in the next phase of natural law
jurisprudence within the Irish courts.
15.2.2. Natural Law and the Unenumerated Rights Doctrine
This second and more extended engagement with natural law began with
the decision of Kenny J in the High Court in Ryan v. Attorney General.
10
This
judgment has foundational significance for modern constitutional jurispru-
dence in Ireland because of its inauguration of a doctrine of unenumerated
personal rights. Kenny J held that the Constitution conferred protection upon
a set of unenumerated (or invisible) rights. This followed, in his view, from
the wording of Articles 40.3.1 and 40.3.2 of the Constitution. The former com-
mitted the State to defend and vindicate the ‘personal rights of the citizen’.
The latter explained that the State shall ‘in particular’ defend and vindicate
7
Article 44.1.
8
Now deleted by reason of a constitutional amendment.
9
Quinn’s Supermarket v. Attorney General [1972] IR 1, per Walsh J.
10
[1965] IR 294.
The Evolution of Natural Law in Ireland
435
‘the life, person, good name and property rights of the citizen’. For Kenny J, the
reference to ‘in particular’ confirmed that subsection 2 was a non-exhaustive
statement of the personal rights of the citizen and that ‘the general guarantee
in sub-s. 1 must extend to rights not specified in Article 40’. The courts, accord-
ingly, were charged with ‘the difficult and responsible duty of ascertaining and
declaring what are the personal rights of the citizen which are guaranteed by
the Constitution’ – with making visible the values and entitlements protected
by a provision that was pregnant with possibilities. This reading of Article 40
as a guarantee of unspecified rights was accepted on appeal by the Supreme
Court, and led over time to the recognition by the Irish courts of many tex-
tually ‘invisible’ entitlements such as the right to bodily integrity, the right to
privacy, the right to marry, the right to dignity and autonomy, and so on.
However, as the passage cited from Kenny J’s decision acknowledges, the
idea of a power to identify and declare unenumerated rights gave rise to obvi-
ous challenges. This included the immediate question of how such rights
ought to be ascertained. In Kenny J’s view, the personal rights protected by
this general guarantee were those that followed from the ‘Christian and dem-
ocratic’ nature of the State. Kenny J did not expand on this criterion in any
detail in his decision, while the Supreme Court, in circumspectly confining
itself to the observation that ‘to attempt to make a list of all the rights which
may properly fall within the category of “personal rights” would be difficult
and, fortunately, is unnecessary in this present case’, did not even go that far.
11
Nonetheless, by construing Article 40.3.1 as a laconic and incomplete acknowl-
edgment of invisible – and arguably Christian – values, Ryan’s unenumerated
rights doctrine became the vehicle for a more explicit consideration of natural
law issues in subsequent litigation.
In these later cases, natural law tended to be discussed either as an extra-
constitutional source of the values textually protected by the Constitution, or
as a justification for the elevated status of the rights described by Articles 41, 42
and 43 as inalienable, imprescriptible or antecedent and superior to all posi-
tive law.
12
The former account of natural law is the one that is the more direct
focus of the analysis here, but both senses are relevant to important defini-
tional questions about the nature of the relationship between natural law and
the Constitution. Was the natural law external to the 1937 Constitution? An
invisible extra-textual constitution? An extra-constitutional source of textual
meaning? Or something not textually explicit but wholly internal to the inter-
pretation of the constitutional text? As Barrington J’s summary of the position
11
[1964] IR 294, 344–5.
12
Do'stlaringiz bilan baham: | 
