The Ontology of the Subject of Rights: Postmodern Perspectives on the Irish Constitution through a Case Study On the Right to Free Speech

Author:Robert Noonan
Position:Senior Sophister LLB Candidate and Scholar, Trinity College Dublin
[2014] COLR
Robert Noonan
Rights, in their various instantiations (‘human’, ‘Constitutional’, ‘statutory’, etc) seem to be
an indispensable feature of modern polities and legal systems. More specifically, what they
accomplish for individuals either in terms of protection from State interference, as is the
purpose of classical civil and political liberties, or securing certain positive State
interventions, as with the more controversial class of socio-economic rights, is rightly deemed
praiseworthy. All this said, however, one could not say that rights have gone uncriticised, and
they are far from conceptually flawless or unimpeachable.1 In particular, the actual content of
rights and the subjects to whom they are addressed are issues which at first blush seem
intuitive and obvious, but once they are not assumed a priori and instead questioned from a
more critical perspective, they reveal themselves to be built on very particular, and in some
cases restrictive, foundations.
This paper shall argue for an alternative model of rights channeling aspects of post-
modernism, particularly the autopoietic theory of law. The aspect of postmodernism, which is
most relevant to this paper, is the decentralisation of the subject. As will be seen, the subject
of rights is assumed to be a cohesive and obvious concept; however, jurisprudence on the
right to free speech suggests that assumed properties of the subject of rights, and ontological
presuppositions informing divisions in the treatment of the subject of rights (viz companies
and natural persons) may lead to inconsistencies and tensions within the normative theory
informing a given right. The postmodern perspective which this paper advances is an attempt
at treating these ideas critically as well as supplying an alternative analysis. This alternative
understanding of rights is explored in the applied context of the Constitution of Ireland;
specifically, the right to free speech is considered at both a theoretical and doctrinal level.
Senior Sophister LLB Candidate and Scholar, Trinity College Dublin.
1 Joseph Raz, ‘Rights and Politics’ (1995) 71 Ind L Rev 27.
[2014] COLR
This applied analysis renders more clearly some more abstract ideas which lie at the core of
rights theory.
A particularly distinct theoretical issue with the right to freedom of speech which makes it an
excellent right on which to test this rights thesis is the occasionally dualistic rationale
underlying the right. There are broadly two types of rationale for the existence of a free
speech principle, deontological and teleological theories, and the reliance placed on each in a
given case may oscillate. Due to the broad range of circumstances which must be covered by
a free speech principle, attempts to provide one umbrella theory have historically failed. In
Ireland, this problem has been compounded on a constitutional level by enshrining freedom of
expression under two separate rationales embodied in two separate Constitutional provisions.
It is for precisely this reason that the Irish jurisprudence on free speech has been criticised for
the ‘absence of any coherent judicial philosophy’2 underlying it. The particular problem of
dualism on which I shall focus in this paper is that of the legal subject. It is logically anterior
to any rights thesis that there must be a subject to exercise those rights. The panoply of
potential subjects possessed of different properties in the context of free speech has tended not
to procure a closer examination of the concept of the subject; rather, it has prompted the
development of different justificatory theories for the right. This leads to the divide between,
for example, natural persons and media corporations becoming a substantial one modern free
speech theory. This follows more generally from basic ontological assumptions of rights
theory, particularly human rights theory, regarding the personhood and capacity of entities
which can properly be said to bear (human) rights. Concisely stated, it is my contention that
theory on freedom of speech has treated the division between natural and legal persons as
both ontological and normative; I wish to recast this division as a purely ontological one,
which ontology may then be deconstructed by postmodern theory.
The stage thus set, this paper explores the philosophical movement of postmodernism,
particularly Niklas Luhmann’s theory of closed systems/autopoiesis. Given the radical
constructivism and decentralisation of the subject that the theory posits, by which it presents a
different way of parsing both reality and the metaphysical essence of subjects exercising
rights, it forms a challenge to many received epistemological and ontological truths in modern
rights theory. The case of autopoiesis is particularly interesting in the Irish context, as it has
2 Tom Daly, ‘Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1° (i) of the
Constitution’ (2009) 31 DULJ 228, 229.

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