Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine

• Author: Finn Keyes
• Position: 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
• Pages: 45-61

IRISH JUDICIAL STUDIES JOURNAL

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[2020] Irish Judicial Studies Journal Vol 4(1)

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OUR HERCULEAN JUDICIARY?:

INTERPRETIVISM AND THE UNENUMERATED

RIGHTS DOCTRINE

Abstract

:

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

Introduction

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

academic articles.

1

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.

2

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.

3

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.

4

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.

5

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.

1

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.

2

McGee v Attorney General [1974] IR 284 (SC).

3

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.

4

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.

5

Ryan v Attorney General [1965] 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)

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interpretive methodology akin to law as integrity, Dworkin’s theory of law and adjudication

propounded in Law’s Empire.

6

To support the first proposition, that Irish constitutional law is interpretive, it is necessary

to establish (i) that the principle of legality exists in Irish law and informs constraints on the

State’s use of coercive force; and (ii) that substantive disagreement exists as to its content.

This flows from a central premise of Dworkin’s theory of law; that the grounds of law, the

means by which determine whether a proposition of law is true or false, are not exhausted

by the simple record of what legal institutions have previously decided, but include the

principles those decision pre-suppose and endorse. As we will see, Dworkin demonstrates

this by reference to the deep theoretical disagreement among judges and lawyers as to what

the grounds of law actually are.

Having thus established the existence of the interpretive attitude, I explore to what extent

the judiciary, in attempting to devise a theory of interpretation for the unenumerated rights

doctrine, have utilised a methodology akin to law as integrity.

The paper examines the various methods utilised by the courts for identifying what rights

Art. 40.3 protects, particularly the ‘Christian and democratic nature of the state’ and the

‘human personality test’, and argues that they represent serious, albeit flawed, attempts to

identify the most basic principles underlying Ireland’s legal order and to enumerate rights

derived therefrom. This reflects the central thrust of law as integrity; that rights and legal

decisions should follow from the principles of justice and fairness that provide the best

constructive interpretation of the community’s legal practice.

7

Interpretivism in Irish Legal Practice

This section will investigate whether an interpretive attitude exists in Irish law, and in

constitutional adjudication in particular. This is necessary as law as integrity builds on and

presupposes an interpretivist attitude to law and legal practice. An interpretivist attitude is

one that sees the principles that underlie a given legal instrument or decision as forming as

much a ground of law as the legal instrument or decision itself.

8

Interpretivism relies on

evidence of theoretical disagreement among judges and lawyers to demonstrate this. In order

to show an application of the interpretive attitude in Irish law, and particularly with respect

to the unenumerated rights doctrine, it is therefore necessary to establish two things: (i) that

the principle of legality exists in Irish law and informs constraints on the State’s use of

coercive force; and (ii) that substantive disagreement exists as to its content

The Principle of Legality

The first point is that Irish legal officials accept that constraints exist on the State’s use of

coercive force by virtue of the principle of legality, such that we can have theoretical

disagreement about that very principle.

The principle of legality, broadly stated, is the setting of conditions for the legitimate exercise

of state coercion. It speaks to the point of law, to place conditions on the exercise of arbitrary

6

Ronald Dworkin, Law’s Empire (Hart Publishing 1998).

7

Dworkin (n 6) 210.

8

In Dworkin’s language, an interpretivist considers the plain text of law (‘the plain statute’) and then interprets or constructs

the plain text in light of the relevant legal principles to arrive at a full, true statement of the law (‘the real statute’). Dworkin

(n 6) 16-20.