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The Evolution of Natural Law in Ireland
439
The courts, as they were and are bound to, recognised the Constitution as
the fundamental law of the State to which the organs of the State were sub-
ject and at no stage recognised the provisions of the natural law as superior
to the Constitution.
24
And so, ‘with these brief but unequivocal statements, it seemed that the influ-
ence of natural law on Irish constitutional jurisprudence had been stopped in
its tracks’.
25
The Court’s reasoning has been criticised as illogical,
26
as disin-
genuous in its treatment of the authorities,
27
or as having outright ‘abandoned
precedent by using positive law’.
28
Whatever one thinks about the historical
accuracy of the Courts’ account, the decision marked a clear step away from
the religious rhetoric and moral reasoning that characterised the earlier juris-
prudence. The accepted view of the Abortion Information Bill reference is
thus that it heralded ‘the death of natural law’ in Ireland. This has also been
linked in the literature with an asserted abandonment of the unenumerated
rights doctrine.
29
Perhaps of particular relevance to the broader questions addressed in this
book is the view of these developments as a rejection of an illegitimate ‘lack
of objectivity in recognition of rights’ by allowing judges to make decisions
by reference to unspecified values. This account holds that the ‘none of the
techniques used to identify these implied constitutional rights seemed to give
any objective guide to what rights were contained within the Constitution’,
instead involving a ‘breadth of . . . discretion [which] eclipsed the discretion
ordinary afforded in interpreting ambiguous text’.
30
This is a view that appears
to take direct issue with both the possibility and appropriateness of invisibility
in constitutional adjudication.
As the next section contends, however, this ‘death of the natural law’ narra-
tive may be misconceived. The proposition that the Irish courts have eschewed
the invisible (be that natural law or unenumerated rights) in favour of an
24
[1995] 1 IR 1, 42–3.
25
A. Kavanagh, ‘Natural Law, Christian Values and the Ideal of Justice’ (2012) 48 (2) The Irish
Jurist 71, 91.
26
G. Whyte, ‘Natural Law and the Constitution’ (1996) 14 Irish Law Times 8.
27
Twomey, Supra note 2.
28
Kristen E. Carder, ‘Liberalizing Abortion in Ireland: In re Article 26 and the Passage of the
Regulation of Information (Services Outside the State for the Termination of Pregnancies)
Bill’ (1996) 3 Tulsa Journal of Comparative and International Law 253, 254.
29
Oran Doyle, ‘Legal Positivism, Natural Law and the Constitution’ (2009) 31 Dublin University
Law Journal 206.
30
David Kenny, ‘Recent Developments in the Right of the Person in Article 40.3: Fleming v
Ireland and the Spectre of Unenumerated Rights’ (2013) 36 Dublin University Law Journal, 322.
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Eoin Carolan
objective (and visible) approach to constitutional reasoning is contradicted by
subsequent developments, by the original natural law jurisprudence properly
construed and, arguably, by the nature of constitutional adjudication itself.
15.3. The Death of Natural Law: A Report Greatly Exaggerated?
In rejecting the claim advanced on behalf of the unborn in the Abortion
Information Bill reference, the Supreme Court has commonly been por-
trayed as having rejected the constitutional status of natural law itself. This
may, however, represent an overreaction to the outcome of that reference. As
Gerry Whyte has pointed out, the proposition on which the Court was asked
to adjudicate in this reference was a stark one which went far beyond its pre-
vious jurisprudence.
[Here t]he Supreme Court was asked to take one variant of natural law theory
beyond its previous role as a source of implied rights to its logical, anti-major-
itarian extreme so as to empower an unelected, unrepresentative judiciary to
set aside decisions of the people made by way of referendum.
31
Indeed, it may be questioned whether this proposal was, from a legal perspec-
tive, the logical corollary of the Constitution’s endorsement of natural law.
The fact that the natural law was undoubtedly invisible in the sense of
being non-explicit did not thereby mean that it was invisible in the non- or
extra-constitutional sense of standing outside or above the legal regime. Even
O’Hanlon’s argument drew a distinction between natural law as a source of
constitutional value and natural law as the constitutionally authoritative value,
although it seems to regard the two as logically intertwined. In seeking to
understand the precise implications of the Abortion Information Bill ruling, it
is important to carefully consider what the courts’ earlier references to natural
law may or may not have meant.
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