The Invisible Constitution in Comparative Perspective

15.3.1.  What Was the Natural Law in Ireland?

A first and critical point of cultural context is the likely relationship between 

the courts’ acknowledgment of natural law and the ‘manifesto’ or ‘identi-

tarian’ aspects of the Irish Constitution. As the Preamble demonstrates, the 

Constitution of 1937 was conceived in explicitly nationalistic terms. Given the 

complicated but undeniable links between Irish nationalism and the majority 

31 

Whyte, Supra note 26, 9.

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The Evolution of Natural Law in Ireland 

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Catholic population, a constitutional invocation of Christian values could 

also function as an assertion of a specifically Irish identity. For prominent legal 

figures, natural law seems to have had additional value as a statement of Irish 

legal and intellectual independence. Given its colonial past, Irish nationalism 

was often defined by contrast to what was understood as British – and in legal 

terms, that appears to have been regarded as a Benthamite positivism that 

famously treated the notion of natural rights as nonsense on stilts. Thus ‘natu-

ral law was part of Ireland’s rebellion against what was perceived to be Britain’s 

positivist tradition’.

32

This has important implications for any understanding of this ‘Irish’ con-

ception of natural law. References to natural law, in some instances at least, 

were as much a statement of opposition to a specific idea of British positivism –  

one connected (arguably inaccurately) with logically distinct concepts of 

parliamentary supremacy, strict precedent and Benthamite philosophy – as 

a comprehensive endorsement of a single version of Thomistic natural law.

The extent to which this consciously anti-Benthamite position shaped judi-

cial attitudes to natural law is well illustrated by Walsh J’s extra-judicial writ-

ings on the topic:

The concept of natural law and natural rights for many years was overshad-

owed by the positivist legal philosophy, of which the arch exponent was 

Jeremy Bentham. Bentham summed it up by saying ‘rights are the fruit of 

the law and of the law alone. There are no rights without law, no rights con-

trary to the law, no rights anterior to the law’ . . . In both South Africa and Nazi 

Germany, positivism led to a mechanical approach to the judicial function, 

so that no law could be invoked to invalidate the barbaric acts undertaken 

in each of those countries. However, the experience of Nazi Germany also 

proved to be the ultimate absurdity of positivism and led to its downfall.

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The easy equation of Benthamite positivism with apartheid South Africa and 

Nazi Germany is an instructive insight. What this means for reading Irish judi-

cial references to the natural law (especially those of Walsh J) is that they may 

be motivated at least in part by a desire to reject, and be seen to reject, ideas 

of unfettered parliamentary supremacy, or of rigid and unthinking obedience 

to text and precedent. The positions associated by Irish jurists with English 

positivism were clearly inconsistent with the Constitution’s express recog-

nition of fundamental rights and of a judicial review power. Such a binary 

32 

Kavanagh, Supra note 25, 99.

33 

Brian Walsh, ‘The Constitution and Constitutional Rights’ in Frank Litton (ed.), The Consti-

tution of Ireland 1937–1987 (Dublin: Institute of Public Administration, 1987), 92.

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