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Eoin Carolan
invisible in the much more limited sense that its legal status is textually vis-
ible but its content is not. On this view, it is an unwritten source of textual
meaning.
In fact, even leaving aside the positivist aspect of this argument, Walsh J’s
account of natural rights as legally contingent on their recognition in the con-
stitutional text seems to logically reject the O’Hanlon thesis that they should
be regarded by the courts as superior to all positive law, including the text of
the Constitution. If natural law is capable in its own terms of requiring and
commanding obedience, natural rights should be self-executing rather than
dependent for their protection on an ‘inferior’ legal authority.
This reading of Walsh J’s analysis is further supported by the guidelines
outlined later in his decision concerning how courts should approach natural
law arguments:
What exactly natural law is and what precisely it imports is a question which
has exercised the minds of theologians for many centuries and on which
they are not yet fully agreed . . . In a pluralist society such as ours, the Courts
cannot as a matter of constitutional law be asked to choose between the dif-
fering views, where they exist, of experts on the interpretation by the different
religious denominations of either the nature or extent of these natural rights
as they are to be found in the natural law. The same considerations apply also
to the question of ascertaining the nature and extent of the duties which flow
from natural law . . . In this country it falls finally upon the judges to interpret
the Constitution and in doing so to determine, where necessary, the rights
which are superior or antecedent to positive law or which are imprescriptible
or inalienable. In the performance of this difficult duty there are certain
guidelines laid down in the Constitution for the judge . . . The judges must,
therefore, as best they can from their training and their experience interpret
these rights in accordance with th[e] ideas of prudence, justice and charity
[recognised in the Preamble].
37
Perhaps because of its focus on the practicalities of the litigation process, this
passage has sometimes been less cited than other aspects of Walsh J’s judgment.
It is, however, of critical importance to the question of the precise relation-
ship between natural law and the text of the Constitution because it expressly
disavows the proposition that the courts should treat religious teachings as a
distinct source of constitutional value. This runs counter to the misconcep-
tion evident in much of the Irish commentary that any acknowledgement
37
[1974] IR 284, 317–19.
The Evolution of Natural Law in Ireland
445
of natural law necessarily commits the courts to enforce a freestanding and
non-constitutional set of religious (or even moral) norms.
Desmond Clarke, for example, has criticised the reasoning of Kenny J in
Ryan for a perceived logical delegation of constitutional decision-making to
Christian institutions:
[T]he State in Ireland is governed by laws that were inspired by Christianity,
and their proper interpretation requires the courts to understand them as
reflecting specifically Christian values. The wide diversity of Christian beliefs,
especially since the Reformation, would require judges to decide authorita-
tively between alternative theological interpretations of Christianity, or to
consult Christian theologians about what Christianity would require in dis-
putes about legal rights in much the same way as De Valera consulted Revd
McQuaid when drafting the text. Alternatively, courts could refer disputed
theological claims to an authoritative Christian court.
38
Similarly, Doyle’s discussion of the natural law unenumerated rights case law
seems in places to overstate the breadth of the discretion as both envisaged
and exercised by the post-Ryan courts.
[T]he unenumerated rights doctrine leaves open the possibility that all unjust
rules can be overturned once they are sought to be applied. The avoidance
of an injustice is considered more important than the general need for law to
have and maintain a determinate position that can be identified in a way that
does not call for moral judgment. Of course, this does not just undermine
the certainty of laws only when a particular law is overturned: it leaves open
a standing possibility that any law can be overturned. The test for overturning
such a law is ‘the Natural Law’.
39
This would be a valid concern if, for example, the Supreme Court had ever
endorsed Albert Keating’s suggestion that the basic norm of Ireland is that ‘one
ought to obey the natural law’.
40
Keating’s argument, however elides the exist-
ence, authority, obligatory character and legal status of natural law in a way
that is unnecessary, arguably confused and certainly without obvious support
in the Supreme Court’s case law.
The O’Hanlon thesis similarly assumes that a natural law dimension logi-
cally requires that constitutional adjudication be subordinated to a separate set
38
Desmond M. Clarke, ‘Unenumerated Rights in Constitutional Law’ (2011) 34 Dublin Univer-
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