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Eoin Carolan
characterisation of the choice between natural law and positivism was, of
course, problematic in that it encouraged ‘the fallacy that rejecting formalist
judicial reasoning entails support for a natural law approach’.
34
Nonetheless,
natural law explained and justified these textual choices in a manner that
spoke to powerful aspects of the Irish identity.
The specifically negative nature of this usage means, however, that it over-
states the position to present the constitutional jurisprudence in the thirty
years after Ryan as an extended engagement with natural law. Judicial ref-
erences to ‘natural law’ often signified no more than a repetition of the text
of Article 41 or of a vague characterisation of the Constitution of Ireland as
acknowledging a natural law. Indeed, as Kavanagh notes, ‘it has often been
noted that whilst the Irish courts tended to refer to natural law or natural rights
in their judgments, this was never matched by a willingness to examine in any
detail what the requirements of the “natural law” were or what its source or
sources might be’.
35
Certainly, the more complex issues explored elsewhere
in this book around the respective roles of the visible text and invisible values
were rarely, if ever, considered.
15.3.2. What Was It Not?
In the absence of an authoritative judicial account of natural law within the
Irish system, some guidance may be gleaned from an examination of certain
indications of what it was not. As Whyte has observed, the deciding authorities
had never declared that natural law should take precedence over the result
of a referendum to amend the Constitution. Less starkly than that, however,
there are also several indications in the case law that natural law was never
conceived as a superior or antecedent source of legal values. In fact it seems
possible, contrary to Twomey’s and Carder’s claims, to read the natural law
jurisprudence in a manner that is consistent with the conclusions drawn by
the Supreme Court in the Abortion Information Bill reference.
Take, for example, Walsh J’s decision in McGee. This is of central impor-
tance to this discussion because of Walsh J’s general position as an intellectual
leader of the Court, because of his position as perhaps the leading advocate of
natural law and because of his unusually detailed analysis in McGee not only
of the natural law dimensions to the Constitution, but also of what that meant
34
Kavanagh, Supra note 25.
35
Ibid.
, 94, citing T. Murphy, ‘The Cat amongst the Pigeons: Garrett Barden and Irish Natural
Law Jurisprudence’ in E. Carolan and O. Doyle (eds.), The Irish Constitution: Governance and
Values (Dublin: Thomson Round Hall, 2008).
The Evolution of Natural Law in Ireland
443
for the practice of constitutional adjudication. The following passage has been
read by some as an endorsement of the supremacy of the natural law over the
Constitution.
Articles 41, 42 and 43, emphatically reject the theory that there are no rights
without laws, no rights contrary to the law and no rights anterior to the law.
They indicate that justice is placed above the law and acknowledge that nat-
ural rights, or human rights, are not created by law but that the Constitution
confirms their existence and gives them protection. The individual has natu-
ral and human rights over which the State has no authority; and the family,
as the natural primary and fundamental unit group of society, has rights as
such which the State cannot control.
36
Although it contains language that describes certain values as being ‘above the
law’, there are several reasons to suggest that it should not properly be read as
supporting – even as a logical extreme – O’Hanlon’s later belief in the natural
law as a non- or anti-constitutional norm.
First of all, the language in the first sentence about the relationship between
rights and the law is a direct paraphrase (and rejection) of Bentham’s work. For
the reasons already explained, this, it is suggested, should be understood as a
renunciation of a specific conception of English legal philosophy rather than
as a positive assertion of the supremacy of rights over law.
Second, the supremacist language used in relation to the position of the
family is similar to that used in the text of the Constitution itself, so that this
also cannot necessarily be characterised as an extra-textual reliance on a
‘shadow’ natural law, still less as an endorsement of natural law as a distinct
and superior form of legal authority.
Finally, and perhaps most importantly, the portion of the passage which
quotes neither Bentham nor Articles 41 and 42 outlines a view of natural rights
as morally free-standing but dependent for their legal protection on their hav-
ing been incorporated into the Constitution. Walsh J accepts the core logic of
the natural law that it is an enduring and overarching set of values which does
not depend on positive law for its existence. He does not, however, extend that
logic to the O’Hanlon conclusion about the legal effect of the natural law.
The Constitution seems to provide the important and necessary link between
the moral or normative notion of a natural law and the capacity of the courts
to protect it. This is a very different constitutional role. Here natural law is
36
[1974] IR 284, 310.
444
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