446
Eoin Carolan
of religious doctrines. That was, however, expressly contradicted by Walsh J’s
view of how religious experts should be treated, by his specific reminder that
the exercise of determining these natural rights was undertaken as part of an
interpretation of the Constitution and conducted according to the ‘guidelines
laid down in the Constitution’ for the judge and, of course, by the outcome
of the McGee litigation as contrary to the official teaching of the Catholic
Church.
Walsh J’s judgment suggests, therefore, that natural law reasoning was influ-
ential in his era as a source of constitutional value, but not as a form of con-
stitutional or legal authority. In effect, it was an extant if invisible repository
of normative or moral value, with a particular utility in making explicit the
content of other similarly less visible aspects of the constitutional order. The
Constitution may have acknowledged a natural law dimension to Irish law,
but it was also the Constitution that provided the courts with the authority,
basis and parameters for referring to it in their rulings. While judges were enti-
tled to have regard to the natural law, they did so as judges – and were there-
fore subject to the other constitutional and institutional constraints applicable
to that position. Until the Abortion Information Bill reference, the courts’
natural law jurisprudence never considered the existence or otherwise of an
obligation to obey and apply the natural law as law.
41
Or, to put it in the ter-
minology of the invisible constitution discussion, the courts had never prior to
1995 had to determine whether natural law was non-explicit or extra-textual;
contextually embedded or free-standing; intra-, extra- or non-constitutional. It
was therefore arguably open to the Supreme Court to adopt the position that it
did without necessarily being understood (as it has been) to eschew the influ-
ence of natural law reasoning on constitutional adjudication in its entirety.
15.3.3. The Survival of the Natural Law?
This leads into the second main argument of Section
15.3
: that the Abortion
Information Bill decision did not, in fact, bring about the end of natural law-
style reasoning in Irish constitutional adjudication. This argument depends,
in part, on a separate question (which there is not space to consider here)
as to how to properly define natural law, and to what extent invocations of
moral norms in legal interpretation reflect a natural law position. The argu-
ment in this section is confined to a much narrower claim that the approach
adopted by the Irish courts in the 1965–95 period to the ‘invisible’ natural law
41
This brings in a related but separate argument about whether it is misleading to describe nat-
ural law as law.
The Evolution of Natural Law in Ireland
447
is comparable to that applied in some of the courts’ more recent case law on
fundamental rights. In particular, Irish constitutional adjudication continues
in certain instances to be informed by indeterminate norms, the content of
which is textually ‘invisible’ and the conceptual basis for which is quasi-moral.
This contradicts not only the ‘death of natural law’ narrative, but also the
associated assertion of a more objective style of constitutional reasoning that
makes little, if any, allowance for an ‘invisible’ constitution.
On this analysis, the major change in natural law-style reasoning in Ireland
has been not its abandonment, but rather its symbolic (and primarily rhetori-
cal) evolution from a Christian concept to one expressed in the more secular
terminology of dignity, autonomy or justice. This shift may have been most
clear in the Abortion Information Bill decision, but it can arguably be traced
to an earlier strand of the natural law jurisprudence that favoured a dignitarian
conception of Christian values.
This strand is most noticeable in the judgments of Henchy J in McGee and
in Norris v. Attorney General.
42
In McGee, Henchy J agreed with Walsh J that
a prohibition on contraception was inconsistent with the Constitution’s fun-
damental values. His account of the origin of these values placed considerably
less emphasis on the divine:
It is for the Courts to decide in a particular case whether the right relied on
comes within the [unenumerated Article 40.3.1] constitutional guarantee. To
do so, it must be shown that it is a right that inheres in the citizen in question
by virtue of his human personality. The lack of precision in this test is reduced
when [Article 40.3.1] is read (as it must be) in the light of the Constitution as
a whole and, in particular, in the light of what the Constitution, expressly or
by necessary implication, deems to be fundamental to the personal standing
of the individual in question in the context of the social order envisaged by
the Constitution.
43
This focus on the ‘human personality’ of the individual as a foundational con-
stitutional norm was even more pronounced in his dissent in
Norris. This
concerned a challenge to the criminalisation of male homosexual conduct
in Ireland. The majority held that there was nothing in a conspicuously
Christian text to ground a conclusion that such a ban should be struck down
as unconstitutional. By contrast, Henchy J relied on the natural law to con-
tend that an individual was entitled to a measure of dignity and privacy which
was violated by this statutory prohibition.
42
[1984] IR 36.
43
[1974] IR 284, 325.
