IRISH JUDICIAL STUDIES JOURNAL
 Irish Judicial Studies Journal Vol 4(1)
OUR HERCULEAN JUDICIARY?:
INTERPRETIVISM AND THE UNENUMERATED
This paper examines the unenumerated rights doctrine through the prism of Dworkinian legal
theory. It contends that an interpretivist attitude is evident in much of the essential judicial dicta, and further
explores the extent to which judges in the unenumerated rights cases have exercised an interpretive methodology
akin to law as integrity, Dworkin’s theory of law and adjudication propounded in Law’s Empire.
Author: Finn Keyes LL.B (Dubl), LL.M (UCL) is a Parliamentary Researcher (Law) in the Houses of
the Oireachtas and a Barrister-at-Law Candidate at the Honorable Society of King’s Inns
In the discussion of the theoretical underpinnings of the unenumerated rights doctrine,
natural law theory has dominated and has been thoughtfully explored in a number of
This is unsurprising given the explicit advertence to that school of
jurisprudence in a number of the key judgments, perhaps most notably that of Walsh J in
McGee v Attorney General.
Equally, the doctrine has been analysed, and chiefly criticised, from
a positivist perspective on law, for the reason that it allows judges to ‘make law’ without the
clear constraints of precise and preordained constitutional text.
Thus, while the doctrine has
sometimes been characterised as a conflict between these competing schools of
jurisprudence, it has not been extensively explored through the prism of interpretivism and
Dworkinian legal theory.
This is somewhat striking, given the extraordinary influence of
Dworkin in legal scholarship over roughly the same period as the lifespan of the
unenumerated rights doctrine.
The aim of this paper is to show some of the key unenumerated rights judgments through a
different prism. It contends that an interpretivist attitude is evident in much of the essential
judicial dicta, and further explore the extent to which the judges have exercised an
* I would like to thank Conor Crummey, Alexandra Hearne and Ad vocate-General Gerard Hogan for their comments on
earlier drafts of the paper. Any remaining errors are my own.
See Aileen Kavanagh, ‘The Irish Constitution at 75 Years: Natura l Law, Christian Values and the Ideal of Justice’ (2012)
48(2) The Irish Jurist 71; Richard Humphreys, ‘Interpreting Natural Rights’ (1993) 28(1) The Irish Jurist 221; Roderick
O’Hanlon, ‘The Ju diciary and the Moral Law’ (1993) 11(6) Irish Law Times 129; Mark De Blacam, ‘Justice and Natural
Law’, (1997) 32(1) The Irish Jurist 323; Cian O’Connor, Laurence Kelly and Eoghan McSwiney, ‘Natural Law: A Bible for
Judicial Reasoning?’ (2012) 15(1) Trinity College Law Review 75.
McGee v Attorney General  IR 284 (SC).
See Gerard Hogan, ‘Unenumerated Personal Rights: Ryan’s Case Re-evaluated’ (1990) 25(1) The Irish Jurist 95; John
Maurice Kelly, Fundamental Rights in the Irish Law and Constitution (2nd ed. Allen Figgis & Co, 1967) 42-47.
Desmond Clarke has noted a parallel between Dworkin’s theory of adjudication and th e reasoning employed in the
unenumerated rights case law: ‘Without appealing to natural law, and without reducing law to mere fact, he [Dworkin]
seems to have captured both the challenge and the risks involved in what the Irish courts of appeal have practiced since
Ryan v Attorney General’. Desmond Clarke, ‘Interpreting the C onstitution: Essentially Contested Concepts’ in Eoin Carolan
and Oran Doyle (eds) The Irish Constitution: Governance and Values (Round Hall 2008) 112. Aileen Kavanagh also alludes to
Dworkin’s work when discussing the unenumerated rights doctrine in Aileen Kavanagh, ‘The Quest for Legitimacy in
Constitutional Interpretation’ (1997) 32(1) The Irish Jurist 195.
Ryan v Attorney General  IR 294 (HC), the first case to discover unenumerated rights, was decided in 1963, while
Dworkin’s first major article, ‘The Model of Rules’ was published in 1967 in the University of Chicago Law Review. (Ronald
Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14)