436
Eoin Carolan
in Finn v. Attorney General demonstrated, the relationship was one which was
complicated by the immanent superiority of natural law claims.
13
It is arguable that [the fundamental rights protected by the Constitution in
Articles 40 to 44] derive not from a man’s citizenship but from his nature as
a human being. The State does not create these rights, it recognises them
and promises to protect them . . . Articles 41, 42 and 43 recognise that man has
certain rights which are antecedent and superior to positive law. By doing so,
the Constitution accepts that these rights derive not from the law but from
the nature of man and society, and guarantees to protect them accordingly.
The impression here is of two distinct and free-standing bodies of rights: one
visible, the other invisible but accessible by reason. However, the precise inter-
action between the two remains unclear. The Constitution, at the very least, pro-
vides a textual basis for a natural law influence on Irish constitutional reasoning.
However, the justification – and perhaps authority – for so doing derived not
from the text but from the Constitution’s inherent status and value. This is invis-
ibility in a deeply normative sense but it is not immediately clear where, if at
all, intra-constitutional meaning ends and extra-constitutional morality begins.
Perhaps the most extended and influential engagement with natural law
is that found in the decision of the Supreme Court in McGee v. Attorney
General.
14
In seeking a more precise understanding of the role of natural law
in Irish constitutional adjudication, it is, accordingly, deserving of detailed
scrutiny. The proceedings involved a challenge to the statutory prohibition
on the import or usage of contraceptives in Ireland. The plaintiff, a married
mother, contended that this was a breach of her unenumerated right to mari-
tal privacy. This argument was accepted by a 4:1 majority of the Court. In the
course of his judgment as part of that majority, Walsh J considered in some
detail the nature, content and status of the natural law insofar as it is impli-
cated by the Constitution.
Both in its preamble and in Article 6, the Constitution acknowledges God as
the ultimate source of all authority. The natural or human rights to which I
have referred earlier in this judgment are part of what is generally called the
natural law. There are many to argue that natural law may be regarded only
as an ethical concept and as such is a reaffirmation of the ethical content of
law in its ideal of justice. The natural law as a theological concept is the law
of God promulgated by reason and is the ultimate governor of all the laws
13
[1983] IR 154.
14
[1974] IR 284.
The Evolution of Natural Law in Ireland
437
of men. In view of the acknowledgment of Christianity in the preamble and
in view of the reference to God in Article 6 of the Constitution, it must be
accepted that the Constitution intended the natural human rights I have
mentioned as being in the latter category rather than simply an acknowledg-
ment of the ethical content of law in its ideal of justice.
15
This was a fairly clear (if, as we shall see, ambiguous in other respects) accept-
ance of certain propositions: that the Constitution acknowledged the exist-
ence of natural law and natural rights; that the version of natural law and
natural rights endorsed by the Constitution had religious and specifically
Christian roots; and that, in particular, the natural law recognised by the
Constitution was that version which, represented ‘the law of God’ as ‘the ulti-
mate authority’.
Walsh J’s confirmation of the religious character of the Constitution’s nat-
ural law dimensions therefore left open the possibility of an invisible ‘shadow’
corpus of non-constitutional norms, values which the Constitution acknowl-
edged but which were neither derived from it nor dependent on it for their
authoritative status.
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