Natural Law and Popular Sovereignty: The Irish Legal Order (original) (raw)
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Judicial Review in Ireland and the Relationship between the Irish Constitution and Natural Law
Nottingham Law Journal, 2006
This paper focuses on the various references to natural law within the Irish Constitution and the use of natural law theory as an interpretative tool within Irish constitutional jurisprudence. In Part I, the background to the drafting of the Irish Constitution will be discussed, followed by an account of the various canons of constitutional review and modes of constitutional interpretation. In Part II, the conflicting constitutional jurisprudence on the relationship between the Constitution and natural law will be dissected.
Popular sovereignty in Irish constitutional law
Dublin University Law Journal, 2018
Referendums – the Oireachtas – Crotty v An Taoiseach – Pringle v Government of Ireland – Lisbon Treaty Decision – Justice Donal O’Donnell – Justice Adrian Hardiman – Carl Schmitt – Eoin Daly – republican theory This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a " people " sharing a thick, value-laden identity that renders that " people " antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty.
Irish constitutional law and discourse has tended to suggest an underlying tension between freedom and democracy. Freedom is understood as a pre-political ideal, represented by the image of human beings in the state of nature. There they are unencumbered by interferences with their natural rights. Democracy is understood in majoritarian terms, often thought of as ideally realised through majoritarian decision-making by popular referendum. In this chapter, we argue that this framework is theoretically misconceived and that it has had problematic consequences in practical terms. It translates into a quasi-absolute conception of rights and thus fails to adequately account for the fact that rights come into conflict with one another and with legitimate public goals. It has facilitated a constitutional culture in which rights are seen as distinctively legal and thus as the domain of judges rather than of legislators (or of judges and legislators). We suggest the possibility of an alternative theoretical framework: a republican framework that understands freedom and democracy as interdependent, rather than contradictory, ideals. We make no strong claim that the Irish Constitution is an essentially “republican” one. Rather, we argue that existing themes and provisions can be read in light of republican ideas and that such readings can help address practical shortcomings in the broader (existing) constitutional framework. The chapter is in two parts. Part I elaborates and critiques the accounts of rights, freedom and popular sovereignty that are identifiable in the jurisprudence. Part II introduces the republican approach, elaborating its very different (and more plausible, more coherent) understandings of rights, freedom and popular sovereignty. It draws some conclusions – mainly practical in nature – for Irish constitutional law and practice.
Irish popular sovereignty in historical and theoretical perspective
In Irish constitutional law, popular sovereignty has been interpreted as guaranteeing the people an unfettered power of constitutional amendment. This article argues that the Irish jurisprudence of popular sovereignty appeals interchangeably to two rather disparate and contradictory historical concepts of sovereignty-one which understands the sovereign as a supreme political authority, and another as a more passive, abstract entity that approximates to " constituent power ". Accordingly, it argues that the doctrine of unfettered constitutional amendability relies on an account of sovereignty that is theoretically and historically incoherent.
Natural Law in 21 st Century Ireland
Irish courts in the 2020s This revolutionary constitutional wave started in the 1960s and had its apogee until the 1990s. During this period the Irish courts relied heavily on natural law concepts to find new unwritten constitutional rights. This was possible due to the wording of Article 40⁰ of the Constitution, which has been given space to various interpretations, that lead to the creation of these "unenumerated rights" by the judiciary. This occurred as a result of the judiciary's belief that there is a continuing need to read in the constitution, as many of these rights can become outdated very quickly, and because the Constitution is a living document, updating the "enumerated rights" is very difficult and expensive, due to the need to hold a referendum every time a new personal right is identified. As a result, the courts took control of the situation and utilized judicial activism to create more current rights and to shift constitutional law along with society as time passed. The doctrine was first introduced in Ireland in the seminal decision of Ryan v AG in 1965, 4 where Justice Kenny declared that Article 40.3.2⁰ 5 might be expanded to derive further unenumerated rights, but these rights 'must be developed and defined by the High Court'. 6 He further claimed that unwritten rights had equal status to legal rights, saying that they 'come from the State's Christian and Democratic nature.' 7 In support of his position, he cited the Papal Encyclical. As a result of this lawsuit, the right to bodily integrity has been granted constitutional protection. Judges in Ireland have utilized many ways of derivation to identify rights since the establishment of the unenumerated rights concept, but the judgements are not devoid of Christian influence in one form or another. Henchy J introduced the human personality test in McGee v AG, 8 emphasizing the significance of looking into the plaintiff's circumstances and stating that 'the law of God... governing all the laws of humanity' should be taken into account. However, 8 McGee v Attorney General [1974] IR 284 (SC). 7 Ibid.
This short chapter will discuss in some detail the conceptions of sovereignty that have been articulated in the Irish courts in the key decisions that have shaped our understanding of sovereignty over the seventy-five year history of the Irish Constitution. It turns out to be a fascinating area of study, since it becomes clear very quickly that, just as there are evolutions in the definitions of sovereignty that have been advanced in theory – the normative conception of sovereignty, the abstract conception of sovereignty and the speech act conception of sovereignty – so too the definitions of sovereignty that have been espoused in the Irish courts during this period have not always been entirely overlapping, and in their differences and tensions they reveal something of the richness, but also the complexity, of the subject. My purpose is to try to harvest, through this examination, the answers provided by the courts to the questions of (1) whether or not sovereignty contains essential ingredients such that the absence of those ingredients would be contra-indicators for sovereignty and (2) if there are – and if so what are – the tolerable limitations on sovereignty. This chapter focuses particularly on the Supreme Court judgments in the cases of Byrne v. Ireland, Webb v. Ireland and Crotty v. Ireland.
Reappraising judicial supremacy in the Irish constitutional tradition
Working paper
Perhaps the most distinctive feature of Irish constitutional culture is the strength of elite consensus that exists concerning the legitimacy and the merits of strong-form judicial review (i.e. judicial review of legislation on constitutional grounds). In this light, this chapter will consider whether or not, and how some of the well-known theoretical arguments against strong-form judicial review are borne out in certain aspects of the Irish experience. It argues that while there is a comparatively strong consensus in Ireland as to the benefits of strong-form judicial review in rights terms, these benefits have been broadly overstated and its political costs generally ignored. In particular, it will argue that the main effect of strong-form judicial review under the 1937 Constitution has been to stultify political discourse about rights during the legislative process.
Introduction to Judges, politics and the Irish Constitution
Based on a republican theory of democracy as equally shared popular control drawn from Philip Pettit’s recent work, this article argues in favour of the ‘new commonwealth model of constitutionalism’ practiced in Canada, the UK and elsewhere. It claims that the emphasis that the new commonwealth model places on political agents in the rights-related dimensions of the legislative process corresponds with the republican account of rights as political claims but also that the constricted role played by judges under the model answers to a number of important republican concerns around contestation and the dispersal of power. In particular the article argues that the role of judges under the model can be understood as contributing to the gradual emergence of norms that are ‘commonly avowable’ or shareable, and to the refining of those norms over time, such that it enhances the control exercised by citizens over government. In this way the role of judges under the model – in contrast to that under outright legal constitutionalism – can be understood as enhancing democracy, where democracy is understood in this republican way. Dr Tom Hickey, School of Law and Government, Dublin City University, Glasnevin, Dublin 9, Ireland. Email: tom.hickey@dcu.ie