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The Evolution of Natural Law in Ireland
451
While her claim was ultimately unsuccessful, the Court appeared in its
reasoning to accept that these invisible values can be relevant to constitutional
adjudication, and that this relevance follows from the Constitution’s overarch-
ing commitment to certain normative values or goals.
Whether therefore values of autonomy, self-determination and dignity, as
they find expression in the rights guaranteed by the Constitution, provide
constitutional protection for the performance of specific acts depends on a
concrete analysis of the impact of any law which is impugned in a particular
case on the life of the individual, and a careful consideration of the provi-
sions of the Constitution and the values it protects in the rights it guarantees.
52
This last phrase draws a distinction between the rights specifically guaran-
teed by the text and a distinct set of values which the Constitution (implic-
itly?) protects. The Court seems to suggest that the Constitution protects and
guarantees both visible rights and invisible values, and that both have a role
to play in constitutional adjudication. The meaning of the Constitution can
be influenced by a distinct set of values which the express provisions of the
Constitution aim to protect. This is a clear endorsement of some kind of invis-
ible constitution: one which appears to be conceptual, normative in charac-
ter, and – at the very least – with an extra-textual dimension. The parallels with
the role performed by the ‘natural law’ in the earlier case law are obvious, and
arguably made explicit, by the courts’ direct citation of Henchy J’s ‘human
personality’ approach in McGee. Notably, the Court accepted the continued
relevance of the unenumerated rights jurisprudence, outlining an interpretive
methodology which takes account of concerns around certainty, legitimacy
and the authority of the written text, but which also nonetheless embraces a
natural law-style recourse to non-textual normative principles.
[T]he test for the identification of an unenumerated right, or the determi-
nation of the extent of an enumerated right, is a test necessarily lacking in
precision, and there are irreducible areas of choice. It is all the more impor-
tant therefore that the reasoning be as explicit as possible. The approach that
any right inheres in a citizen by virtue of his or her personality and should
be fundamental to the personal standing of the individual in the context of
the social order envisaged by the Constitution provides a useful structure and
focus for analysis.
53
The Court went on:
52
[2013] 2 IR 417, 444. Emphasis added.
53
[2013] 2 IR 417, 446.
452
Eoin Carolan
Here, while the Constitution does not expressly refer to any right similar to
those asserted on behalf of the appellant, it does by Article 40.3.2 commit the
State to protect and vindicate the life and person of every citizen. Can it be
said that the right to life as so guaranteed, whether on its own or in conjunc-
tion with the guarantee of the protection of the person, necessarily implies as
a corollary, the right of every citizen to terminate his or her life and to have
assistance in so doing? . . . [I]t is not possible to discern support for such a the-
ory in the provisions of the Constitution without imposing upon it a philoso-
phy and values not detectable from it . . . In the social order contemplated by
the Constitution, and the values reflected in it, that would be the antithesis
of the right rather than the logical consequence of it.
Thus, insofar as the Constitution, in the rights it guarantees, embodies the
values of autonomy and dignity and more importantly the rights in which
they find expression, it does not extend to a right of assisted suicide.
54
Leaving aside the religious rhetoric of the natural law case law, there is much
in the Court’s reasoning that finds echo in the earlier jurisprudence. Like
many of its predecessors did in the 1965–95 period, the Court accepts that the
specific rights guaranteed by the Constitution are the expression of a deeper
set of values which may have greater moral or normative force. As the courts
did in these earlier decisions, the Fleming Court also accepts that these values
may be relevant to constitutional adjudication as a source of constitutional
meaning or value. However, like Walsh J in McGee, the Court also reiterates
that such an acknowledgement of these values does not justify treating them
as a standalone source of moral value. The question is not whether the prop-
osition before the court is one which is capable of being justified by a philo-
sophical (or theological) account of dignity, autonomy or natural law.
This makes this understanding quite different from the Platonic conception
of a constitution explored in Iddo Porat’s Chapter
9
. The Irish natural law
approach (and arguably the Thomistic theory of natural law too) foregrounds
the fallibility of human and judicial reason in a way that runs counter to the
entitlement of judges under the Platonic conception to directly interpret and
apply what they regard as an ideal form of rights.
In practice, the differences between these two approaches may be less stark.
Both, after all, allow a court to consider textually invisible normative values in
determining a question of constitutional law. Both, therefore, allow a degree
of relatively unguided normative reflection to inform constitutional adjudi-
cation. There are, however, conceptually important differences between an
approach that treats a written constitution as an imperfect placeholder for an
54
[2013] 2 IR 417, 446–8.
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