A Critical Analysis Of The Protection Of Families Under The Irish Constitution Of 1937

• Author: Donnacha O'Sullivan
• Position: BCL III, National University of Ireland, Galway
• Pages: 1-11

[2012] COLR

1

A CRITICAL ANALYSIS OF THE PROTECTION OF FAMILIES

UNDER THE IRISH CONSTITUTION OF 1937

Donnacha O’Sullivan*

A INTRODUCTION

Since its enactment in 1937, Bunreacht na hÉireann has created a furore of debate within the

confines of Irish society. Debate not just reserved to the traditional offices of power or courts

of justice, but amongst the everyday man as it champions the rights of her citizens and lays

out the sociological beliefs of the nation. As with any element of governance it does not

garner absolute approval from every demographic, but it has been instrumental in the creation

of the society and island we find ourselves inhabiting.

However, the Constitution remains a product of its time of drafting, and this goes some way

toward explaining its somewhat restrained and conservative nature. This is not to say that the

Constitution has been a hindrance to the progression of Irish society as the fledgling nation

came to terms with the rapidly changing times of the mid 20th century. In fact in some

instances it has been the stepping stone for progress, exemplified in the McGee1 case where

recognition and interpretation of the right to marital privacy allowed for specific sections of a

law criminalising the importation of contraceptives into Ireland to be held unconstitutional.

The Constitution places great importance on the family unit as the cornerstone of Irish society

calling it „the natural, primary and fundamental unit group of society‟2 and a „moral

institution that possesses inalienable and imprescriptible rights.‟3 Amongst the praise that it

heaps on the family unit one utterance stands tall above the others suggesting the family is

„the necessary basis of social order...indispensible to the welfare of the Nation and the State.‟4

Indeed the level of reverence the Constitution seems to hold for the family is at such a level

that Shatter describes the family unit as being „placed on a constitutional pedestal.‟5 It must

be said however that within the Constitution the modern family occupies a grey area whereby

it has been given express rights6 though under a rather narrow and outdated definition.

Throughout this article we will explore the relationship between the family unit and the

Constitution looking at the rights it does impart, those it does not, and the types of family it

recognises. We will ask whether or not the document drafted seventy four years ago still

protects and empowers the institution it so highly regarded at the inception of the state, as the

traditional family unit has unquestionably gone through a complete metamorphosis in the last

three quarters of a century. These questions shall be asked in the light of comparisons with

other jurisdictions and their legislation.

* BCL III, National University of Ireland, Galway.

1 McGee v Attorney General [1974] IR 284.

2 Bunreacht na hÉireann 1937 Art 41.1.1.

3 ibid.

4 ibid Art 41.4.2.

5 A Shatter Fa mily Law in the Republic of Ireland (4th edn Butterworths Dublin 1997) 5.

6 Bunreacht na hÉireann 1937 Art 41-42.