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The Evolution of Natural Law in Ireland
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invisible and directly effective ideal form and one which regards the visible
constitution as the imperfect but currently operative instantiation of a par-
ticular normative vision. As the Abortion Information Bill reference demon-
strates, these differences may also have practical significance in extreme cases
involving issues about the role of, and relationship between, visible and invis-
ible norms. Under a Platonic approach, the text is conceptually and inevita-
bly inferior; under the Irish approach, the text is authoritative if incomplete.
The invisible values that it promotes may be normative ideals, but they are
ultimately subject in the judicial sphere to the limits imposed by the con-
stitutional text and institutional context. They remain, in the final analysis,
internal to the constitutional order.
15.4. Conclusion
Does the Irish experiment with natural law have potential implications for the
concept of an invisible constitution? For the reasons explained above, the Irish
courts’ invocations of natural law have to be interpreted first and foremost in
light of the somewhat idiosyncratic conceptions of positivism and natural law
that were at one time prominent in Irish legal thinking. It is also necessary to
bear in mind the limited and narrow role which natural law reasoning per-
formed in this early case law. Natural law never functioned as a law, let alone
as a distinct (if invisible) constitution. Indeed, perhaps the first lesson of the
Irish experience is of the risks of describing non-textual norms in terms that
carry with them the connotations of more formal legal texts.
More generally, the survival in Ireland of a form of constitutional reasoning
that looks much like a non-religious version of natural law may speak to the
difficulty (or impossibility) of the kind of objective adjudications of consti-
tutional value by reference to which the original natural law jurisprudence
was unfavourably compared. The bare assertion that natural law involves an
illegitimately broader discretion than other forms of constitutional reasoning
seems somewhat flimsy when compared to the Fleming Court’s reliance on
concepts of dignity, autonomy or self-determination. A similar point might be
made about other abstract legal standards like natural justice or procedural
fairness.
Two points may follow from this. The first is that the Supreme Court’s
decision in the Abortion Information Bill reference may not represent the
renunciation of abstract or subjective reasoning by the Irish courts that some
have claimed. Rather, it arguably reflected the anachronistic and socially
unacceptable nature of continued references to Christian teachings in a more
pluralistic and less religious society. If this is the case, however, it may be more
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Eoin Carolan
plausible to explain this as a readjustment in the judiciary’s description of
the normative underpinnings of the constitutional order. This would fit with
Tushnet’s point about the possibility of an overlapping consensus: the values
that are incorporated into and underpin the Constitution remain the same
even if the inspiration for their inclusion varies.
This in turn leads to a second point about the relationship between abstract
or invisible values and the social and political functions of a constitutional
system. I have argued in more detail elsewhere that constitutionalism’s politi-
cal utility derives from the extent to which it helps to foster a unitary sense of
social consciousness.
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That is a necessary element of the system’s stability in
the face of inevitable pluralism.
One way in which this can be achieved is by the constitution’s system dec-
laration and ongoing reinforcement of a sense of common identity and value.
This provides one explanation of the rise, fall and residual influence of nat-
ural law reasoning in Ireland. Whereas the drawing of a connection between
the Constitution and Christian morality would have reinforced the unifying
authority of the constitutional text in the 1960s and 1970s, the invocation of
Christian morality in more recent times would be likely to have imperilled
that same broad social acceptance. This would also account for the shift to the
less explicitly religious rhetoric of dignity, autonomy and justice.
This is, of course, no more than a descriptive explanation of the social and
political dynamics of the Irish experience. It does, however, raise a related
question about the general relationship between abstract moral values and
constitutional adjudication. The Irish experience provides anecdotal sup-
port for the argument that constitutional adjudication ought to involve some
degree of reliance on invisible (or at least textually undeveloped) norms. If it
is assumed that legal adjudication requires some degree of reason-giving, that
there is a social and political necessity for a constitutional order to be accepted
by (at least a portion of) its citizens and that this social and political utility
also requires that it must be publicly seen to be so accepted, then there would
seem to be a political value (at the very least) in the constitutional system
being regarded as a social good. Connecting the Constitution to broad norma-
tive principles, the contents of which are not made explicit, provides a means
of publicly declaring the system’s goodness, while nonetheless preserving a
politically necessary space for moral contestation. In this account, invisibility
has real political and social utility in maintaining the constitutional system.
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See the discussion of constitutional stability and public reason in Eoin Carolan, The New
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