Q3. “The unenumerated rights doctrine was the usurpation of a law-makingpower on the part of the courts.

” Critically analyse this statement withreference to Irish case law.IntroductionIn this essay I will criticallyanalyse whether the unenumerated rights doctrine was the usurpation of alaw-making power on the part of the courts. I will investigate, acknowledge andaccept the academic criticisms regarding the flawed nature of the doctrine. Iwill outline the doctrine’s weaknesses and I will defend the Irish court’scurrent stance on the matter.  Finally,having reviewed the impact of the unenumerated rights doctrine, I will suggestthat however controversially and dubiously it has been regarded, labelling it a”usurpation of a law-making power on the part of the courts” may be taking itscriticisms a step too far. Article40.3 of the Irish constitution provides;         “1. The State guarantees in itslaws to respect, and, as far as practicable, by its laws to defend andvindicate the personal rights of the citizen.

” “2. The State shall, in particular, by itslaws protect as best it may from unjust attack and, in the case of injusticedone, vindicate the life, person, good name, and property rights of everycitizen.” 1Birth of the Unenumerated Rights doctrine in Ireland- Usurped to life?  In the landmark case of Ryan v Attorney General 1965 2Kenny J used the phrase “in particular” to suggest there existed rights thatwere implicitly protected by this constitutional provision. He argued thetextual implication in Article 40.3.2? indicated there were unenumerated rightsprotected in Article 40.3.1?.

This is my first argument against the claim of a”usurpation of a law-making power on the part of the courts” granted by theunenumerated rights doctrine. The power of judges to enumerate rights isgrounded in textual implication. 3One of the most popular arguments held against the unenumerated rights doctrineincludes the illegitimate democratic power of judges, who under this doctrine,can write their own moral preferences into law. The majority of academicsobject to this and I also question whether the judiciary, as unelectedrepresentatives, should have this authority. However, does this constitute as ausurpation of power? I would say no, because regardless of how explicit theprovision may be, Article 40.3 of the constitution essentially allows them todo so.Professor James Casey noted that;”It would be difficult to exaggerate the importance of Ryan’s doctrine of’unenumerated rights’.” 4John M Kelly also went on to describe the argument put forward by Kenny J in Ryan v Attorney General for unenumeratedrights as “logically faultless”.

5This enthusiasm has since been rebutted by countless arguments against thedoctrine. Indeed, many academics have proven that the doctrine is logicallyfaulted. Gerard Casey holds the opinion that Kenny J’s analysis of Article 40.3is “fundamentally flawed”. 6However, the Irish case law that directly proceeded Ryan seemed to accept Kenny J’s reasoning for the most part.In Moynihan v Greensmyth 1977 7it was found that given they existed, unenumerated rights under Article 40.3 ofthe constitution were “by no means absolute”.

O’Higgins CJ said that it was theduty of the state to “balance its protection of the right” (the plaintiff inthis case claimed a right to sue under the 40.3.2) with the “common good”.  He stated; “It is noted that the guarantee ofprotection given by Article 40, s.

3, sub-s. 2, of the Constitution isqualified by the words “as best it may.”” 8In Landers v AG 9it was found that children did not have the right to earn a living and Hand v Dublin Corp10adopted a similar approach in failing to recognise rights. Theserestrictions somewhat limit the effect of Article 40.3.1. This “by no meansabsolute” status given to the doctrine would suggest that a “usurpation of alaw- making power” is not entirely possible.  The “Christian and Democratic” Argument and Natural Law Oran Doyle says Kenny J’s firstargument was; “a necessary precondition for the existence of the judicial powerto recognise rights at all, the other two arguments only being relevant to thequestion of which rights should be judicially recognised.

” 11Kenny J’s other two arguments related to the “Christian and democratic natureof the state” and to Catholic teachings. 12The Christian and democratic argument is a logic that could be appropriatelyclassified as natural law, with the word “democratic” being a vitalnon-religious justification.13It was not however until the caseof McGee v Attorney General 1974 14that this dependence on natural law was emphasised. Walsh J noted thatnatural law is constitutionally protected; “They (natural laws) indicate thatjustice is placed above the law and acknowledge that natural rights, or humanrights, are not created by law but that the Constitution confirms theirexistence and gives them protection.”15Walsh J also argued that justice is above positive law; “The structure and content of the Articlesdealing with fundamental rights clearly indicate that justice is notsubordinate to the law. In particular, the terms of Article 40.

3 expresslysubordinate the law to justice.” 16The preamble of the constitution mentions justice, along with prudence andcharity. This argument by Walsh J, if accepted, essentially requires rights tobe read into the constitution.

Professor John Hart Ely criticisedthe natural law for this reason; “Theadvantage is that you can invoke natural law to support anything you want. Thedisadvantage is that everybody understands that.”17Judges must use their own sense to determine what natural law requires, and itis this judicial activism against which, so many people stand. Oran Doyle’scriticisms echo this; “the court’s political power to reorder society becomes apower fettered not by any clear text, nor by any relatively clear politicaltheory but rather only by each individual judge’s own sense of what the naturallaw requires.”18 In Gv An Bord Uchtála 1980 19 WalshJ and O’Higgins J argued different interpretations of the natural law in theirjudgments. Walsh J held that; “among the mother’s natural rights is the rightto custody and care of her child” and given that the mother had not willinglysurrendered this right her child should be returned to her.

O’Higgins CJ on theother hand interpreted the natural law to mean that the mother had in factsurrendered her constitutional rights to her child by putting the child up foradoption.  He said such natural rights”can be lost by the mother if her conduct towards the child amounts to anabandonment or an abdication of her rights and duties.” 20It is evident that the natural law is subject to judicial interpretation, butdoes this subjectivity really amount to a usurpation of a law-making power?Can’t all bodies of law can be subjective to some degree?How subjective is too subjective?RichardHumphry said; “It is but natural that from time to time the prevailing ideas ofthese virtues may be conditioned by the passage of time; no interpretation ofthe Constitution is intended to be final for all time. It is given in the lightof prevailing ideas and concepts.”21Laws need to be able to adapt to societal change and development.

An example ofthis is the case of McGee v Attorney General 1974 22, where the natural law was responsible for the liberalisation of the sale ofcontraceptives in Catholic Ireland. Henchy J recognised that the plaintiff hada personal right to privacy protected by Article 40.3.

1. To decide whether agiven right was afforded constitutional protection he said; “it must be shownthat it is a right that inheres in the citizen in question by virtue of hishuman personality.” 23HenchyJ’s dissent in Norris v Attorney General 24appealed to the same logic. He said the right to privacy “inheres in eachcitizen by virtue of his human personality, and that such right is constitutionallyguaranteed as one of the unspecified personal rights comprehended by Article40, s 3.” 25McCarthy J on the other hand, dissented on the basis of the “Christian anddemocratic” test, whereas the majority used this same test to hold against theplaintiff.

  Oran Doyle notes thatdifferent understandings of Christianity led the minority and majority todifferent conclusions. 26This case illustrates inconsistent judicial interpretation and it seems theeffect of Article 40.3.1 was to assign judges a power not just to interpret therights that were protected by the constitution, but to decide what rights oughtto be protected.

27Naturally a degree of subjectivity is inevitable, and it is arguable thatcomplete objectivity is almost impossible to achieve in interpreting theConstitution. David Kenny said however; “the breath of this discretion eclipsedthe discretion ordinarily afforded in interpreting ambiguous text.” 28The “Human Personality” Test The “human personality” test continued to pushthe boundaries as perhaps the least convincing, or vaguest reasoning that wasused to enumerate rights in Irish case law, even more so than the “Christianand democratic” logic, according to Oran Doyle. 29Henchy J said that Article 40 had to be considered in light of the constitutionas a whole to minimise these concerns.

30What needs to be determined is whether this vague and ambiguous test, asapplied, amounts to the usurpation of law making power by the judiciary.Indeed, many aspects of the law are vague and ambiguous.It could be said that some degree of ambiguity is required to enable some sortof Constitutional development. The written Irish Constitution can only beamended by the people, is it really feasible to hold a referendum for therecognition of every right? Donal Small said; “A Constitution should not be astatic instrument, but a living document.” 31The unenumerated rights doctrine pratically breathed a new-found life into theIrish Constitution. I wouldalso think it impossible for legislators to be capable of legislating in a waythat identified all rights, or future possible rights, in the constitution.Oliver Wendall Holmes said; “law is never a science, we never know the ‘right’answers to legal cases as we do arithmetic, law should be a product ofhistorical change and social forces and should not be deduced from a set ofself-evident principles.

Social preferences, political ideologies and economicphilosophies all have a greater ‘bearing’ on how it comes out than any logicalor deductive scientific method.” 32This seems to defend the unenumerated rights somewhat lacking “self-evidentprinciples”. I don’t think the Irish courts usurped any law-making power, butmerely utilised it in the most appropriate manner. Other Criticisms DavidKenny notes that the unenumerated rights doctrine is criticised for threereasons; lack of textual grounding, objectivity and judicial activism. 33  Gerard Hogan and Gerry Whyte are alsocritical; “from the point of view of one attempting a systematic expositionof an organic law” this development has, resulted in “a certain blurringof definition, a certain bursting of conceptual banks, rather as thoughlegal rivers finding their confluence in the estuary of liberty and justice,had had their courses confused by flooding further upstream, leaving asomewhat trackless delta for the constitutional geographer.

” 34As mentioned above, it is down to interpretive problems in cases like Norrisv Attorney General 35that the “trackless delta” is what leads the majority and minority”constitutional geographers” in different directions. Would explicit step bystep guidance from the constitution be possible, or even necessary, for aqualified judiciary? Surely the judiciary, in their role as “constitutionalgeographers”, should be able to decipher the map for themselves.In Macauley v Minister for Posts and Telegraphs 1966 36Kenny J implied the right of access to the courts from Article 34.1.

Thismethod, of implying rights from other constitutional provisions poses its owninterpretive difficulties, however maybe not as significantly as the othermethods used. Hogan condemns the concept of unenumerated rights as “practically tantamount to an open invitation to thejudiciary to become later day philosopher kings via the guise of Constitutionalinterpretation.” 37 Hoganseems to be wary of a kritarchy government, but this is hardly possible whenthe majority of Ireland’s legislation is passed by the Oireachtas. The idea oflegislating judges is one of the biggest objections held against the doctrine.In Ryan 38Kenny J tried to justify this; “In modern times this would seem to be afunction of the legislative rather than of the judicial power, but it was doneby the Courts in the formative period of the Common Law and there is no reasonwhy they should not do it now.

” 39John Kelly called this a “doubtful” and “historical” justification and noted thatwe have a legislature to perform this function. 40From a practical perspective, it is hard to see how this almost impossible taskcould be dealt with by the legislative alone. The sharing of a law-making poweris a more accurate and reasonable description than the usurpation it. Current StanceRe Article 26 and the Regulation ofInformation Bill 1995 41marked the beginning of the demise of the unenumerated rights doctrine.The case introduced a degree of scepticism into the Irish courts.

  Byrne vIreland 1972 42contradicted the previous decision inMcGee v Attorney General 43when Walsh J said the Constitution was subordinate to the people.  This became very problematic for the courtsDuncan argued; “The difficulty…is that the theory that the natural law standsabove the Constitution is being justified by the terms of a human instrument,the Constitution, which is itself subject to the natural law. The Constitutioncannot be both subject to the natural law and the legal justification for thatsuggestion.” 44The consensus following the Supreme Court judgement was a general apprehensionof the unenumerated rights doctrine. In O’T v B it Keane CJ held that courts should be hesitant torecognise new rights in the absence of a strong textual link. 45He reiterated this need for caution in TDv Minister for Education 46when he commented that he had the “gravest doubts” as to whether the courtsshould enumerate socio-economic rights under Article 40.

3.1. The right tohousing or social welfare for example, imposes an obligation on someone tosupply these things, and for this reason, Gerard Casey makes the argument thatthey are more suited to “legislative deliberation” than “judicial action”. 47In Duniya v Residential Tenancies Board however,Barron J said that there was no “express constitutional right” to the provisionof housing by the state, but that this did not mean that an unenumeratedconstitutional right to accommodation or housing might not be discovered by thecourts in the future.

48Is this a suggestion that there is a future for the unenumerated right doctrine,a possible solution to one of Ireland’s biggest social problems- homelessness? Conclusion The unenumerated rights doctrinehas enjoyed numerous victories in Irish case law. It recognised rightsincluding bodily integrity, martial privacy, and the right to communicate andearn a living. The courts used the unenumerated rights doctrine to strengthen theprotection of individual rights 49 andthe results were indisputably advantageous. The doctrine allowed the Irish Constitutionto evolve to suit a changing society, to develop and enhance the fundamental rightsof Irish citizens. I acknowledge that the methods usedto enumerate rights were indeed controversial. But while academic criticismsays one thing, Irish case law says another. The constitutional cases that proceededRyan 50established principles for the enumeration of rights and these wereacknowledged and accepted by the Irish courts again and again.

The rightsrecognised were not drawn from thin air, they formulated by valid constitutionalinterpretation and just because these methods were somewhat subjective doesn’t renderthem invalid. Brian Doolan praised the doctrine saying; “The courts have beeninventive and flexible by interpreting the Constitution in such a way as toacknowledge the existence of other constitutional rights which are notexpressly enumerated” which “paved the way for one of the most innovativefeatures of our constitutional law.”51The unenumerated rights doctrine was not a usurpation, but perhaps an “inventive”extension of a law-making power on the part of the courts. 1 Bunreacht na hÉireann Article 40.42 1965 IR 2943Oran Doyle, ConstitutionalLaw; Texts, Cases and Materials (1st edn, Clarus Press Ltd,2008) 86. 4James Casey, Constitutional Law in Ireland, 3rd ed.

(Dublin, 2000), 386.5″Mr Justice Kenny’s view, based on the wording of Article 40 itself, that thecitizens’ personal rights are not exhausted by the specific guaranteescontained in the Article is logically faultless.” J. M. Kelly, FundamentalRights in the Irish Law and Constitution, 2nd ed. (Dublin 1967), 42.

6Gerard Casey, ‘The “Logically Faultless” Argument for Unenumerated Rights inthe Constitution,’ ILT Vol. 22 (N.S.) No. 16 (2004) 7Moynihan v Greensmyth 1977 IR 55.81977 IR 55 at 71.

9Landers v AG 1973 109 ILTR 1.10Hand v Dublin Corp 1988 10 JIC2801. 11Oran Doyle, Constitutional Law; Texts,Cases and Materials (1st edn, Clarus Press Ltd, 2008) 86.12Oran Doyle, ConstitutionalLaw; Texts, Cases and Materials (1st edn, Clarus Press Ltd, 2008) 87.13Ibid. 141974 IR 289.

15McGee v AttorneyGeneral 1974 IR 284, 310.16  McGee vAttorney General 1974 IR 284, 111.17 John Hart Ely, “Democracy and Distrust” (Harvard University Press, 1980)at 50.18Oran Doyle, Constitutional Law; Texts,Cases and Materials (1st edn, Clarus Press Ltd, 2008) 94. 191980 IR 32. 201980 IR 32, at 55. 21R. Humphreys, “Constitutional Interpretation” (1993) 15 D.

U.L.J. 57. 22McGee v Attorney General 1974 IR284. 23Ibid. 24Norris v Attorney General 1984 IR36.

251984 IR 36 at 71. 26Oran Doyle, Constitutional Law; Texts,Cases and Materials (1st edn, Clarus Press Ltd, 2008) 92. 27Ibid. 28David Kenny, ‘Recent Developments in the Right of the Person in Article 40.3:Fleming v Ireland and the Spectre of Unenumerated Rights’ 2013 DublinUniversity Law Journal 330. 29Oran Doyle, Constitutional Law; Texts,Cases and Materials (1st edn, Clarus Press Ltd, 2008) 89.

30McGee v Attorney General 1974 IR284. 31Donal Small, Ryan v. AG, A Bottomless Pitof Rights – A Proposal for Reform, 2 Galway Student L. Rev. 40 (2003). 32Oliver Wendall Holmes Jr., The Path of Law, 10 Harvard LawReview 457 (1897) 33David Kenny, ‘Recent Developments in the Right of thePerson in Article 40.

3: Fleming v Ireland and the Spectre of UnenumeratedRights’ 2013 Dublin University Law Journal 329. 34J. M. Kelly, The Irish Constitution (3rd edn Gerard Hogan and GerryWhyte) (Dublin, 1994), 755-756. 35Norris v Attorney General 1984 IR36.

36McCauley v Minister for Posts andTelegraphs 1966 IR 345. 37 G.W. Hogan, Unenumerated Personal Rights: Ryan’s Case Re-Evaluated, 23 IrishJurist 95, 110.

38Ryan v Attorney General 1965 IR 29439Ibid. 40John Kelly, Fundamental Rights in the Irish Law and Constitution (2nd ed.),(Dublin, 1967), 4241Re Article 26 and the Regulation ofInformation (Services Outside the State for Termination of Pregnancies) Bill1995 IESC 9 1 IR 1.

42Byrne v Ireland 1972 IR 241. 43McGee v Attorney General 1974 IR284. 44William Duncan, “Can Natural Law be used in Constitutional Interpretation?”1995 45 Doctrine & Life 125, at127.

45O’T v B 1998 2 IR 321. 462001 4 IR 259. 47Gerard Casey, ‘Are There Unenumerated Rights in the Irish Constitution?’ 2005 Irish Law Times, 23 (8): 123-127  48Duniya v Residential Tenancies Board 2017 IEHC 578.  49Oran Doyle, Constitutional Law; Texts,Cases and Materials (1st edn, Clarus Press Ltd, 2008) 108. 50Ryan v Attorney General 1965 IR 29451Brian Doolan, Constitutional Law and Constitutional Right in Ireland (Dublin,1994), 156

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