Q3. “usurpation of a law-making power on the

Q3. “The unenumerated rights doctrine was the usurpation of a law-making
power on the part of the courts.” Critically analyse this statement with
reference to Irish case law.

Introduction

In this essay I will critically
analyse whether the unenumerated rights doctrine was the usurpation of a
law-making power on the part of the courts. I will investigate, acknowledge and
accept the academic criticisms regarding the flawed nature of the doctrine. I
will outline the doctrine’s weaknesses and I will defend the Irish court’s
current stance on the matter.  Finally,
having reviewed the impact of the unenumerated rights doctrine, I will suggest
that 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 its
criticisms a step too far.

Article
40.3 of the Irish constitution provides; 
       

“1. The State guarantees in its
laws to respect, and, as far as practicable, by its laws to defend and
vindicate the personal rights of the citizen.”

 “2. The State shall, in particular, by its
laws protect as best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights of every
citizen.” 1

Birth of the Unenumerated Rights doctrine in Ireland- Usurped to life?

 In the landmark case of Ryan v Attorney General 1965 2
Kenny J used the phrase “in particular” to suggest there existed rights that
were implicitly protected by this constitutional provision. He argued the
textual implication in Article 40.3.2? indicated there were unenumerated rights
protected 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 the
unenumerated rights doctrine. The power of judges to enumerate rights is
grounded in textual implication. 3
One of the most popular arguments held against the unenumerated rights doctrine
includes the illegitimate democratic power of judges, who under this doctrine,
can write their own moral preferences into law. The majority of academics
object to this and I also question whether the judiciary, as unelected
representatives, should have this authority. However, does this constitute as a
usurpation of power? I would say no, because regardless of how explicit the
provision may be, Article 40.3 of the constitution essentially allows them to
do so.

Professor James Casey noted that;
“It would be difficult to exaggerate the importance of Ryan’s doctrine of
‘unenumerated rights’.” 4
John M Kelly also went on to describe the argument put forward by Kenny J in Ryan v Attorney General for unenumerated
rights as “logically faultless”. 5
This enthusiasm has since been rebutted by countless arguments against the
doctrine. Indeed, many academics have proven that the doctrine is logically
faulted. Gerard Casey holds the opinion that Kenny J’s analysis of Article 40.3
is “fundamentally flawed”. 6
However, the Irish case law that directly proceeded Ryan seemed to accept Kenny J’s reasoning for the most part.

In Moynihan v Greensmyth 1977 7
it was found that given they existed, unenumerated rights under Article 40.3 of
the constitution were “by no means absolute”. O’Higgins CJ said that it was the
duty of the state to “balance its protection of the right” (the plaintiff in
this case claimed a right to sue under the 40.3.2) with the “common good”.  He stated; “It is noted that the guarantee of
protection given by Article 40, s. 3, sub-s. 2, of the Constitution is
qualified by the words “as best it may.”” 8
In Landers v AG 9
it was found that children did not have the right to earn a living and Hand v Dublin Corp10
adopted a similar approach in failing to recognise rights. These
restrictions somewhat limit the effect of Article 40.3.1. This “by no means
absolute” status given to the doctrine would suggest that a “usurpation of a
law- making power” is not entirely possible.

 

The “Christian and Democratic” Argument and Natural Law

Oran Doyle says Kenny J’s first
argument was; “a necessary precondition for the existence of the judicial power
to recognise rights at all, the other two arguments only being relevant to the
question of which rights should be judicially recognised.” 11
Kenny J’s other two arguments related to the “Christian and democratic nature
of the state” and to Catholic teachings. 12
The Christian and democratic argument is a logic that could be appropriately
classified as natural law, with the word “democratic” being a vital
non-religious justification.13

It was not however until the case
of McGee v Attorney General 1974 14
that this dependence on natural law was emphasised. Walsh J noted that
natural law is constitutionally protected; “They (natural laws) indicate that
justice is placed above the law and acknowledge that natural rights, or human
rights, are not created by law but that the Constitution confirms their
existence and gives them protection.”15
Walsh J also argued that justice is above positive law; “The structure and content of the Articles
dealing with fundamental rights clearly indicate that justice is not
subordinate to the law. In particular, the terms of Article 40.3 expressly
subordinate the law to justice.” 16
The preamble of the constitution mentions justice, along with prudence and
charity. This argument by Walsh J, if accepted, essentially requires rights to
be read into the constitution.

Professor John Hart Ely criticised
the natural law for this reason; “The
advantage is that you can invoke natural law to support anything you want. The
disadvantage is that everybody understands that.”17
Judges must use their own sense to determine what natural law requires, and it
is this judicial activism against which, so many people stand. Oran Doyle’s
criticisms echo this; “the court’s political power to reorder society becomes a
power fettered not by any clear text, nor by any relatively clear political
theory but rather only by each individual judge’s own sense of what the natural
law requires.”18

In G
v An Bord Uchtála 1980 19 Walsh
J and O’Higgins J argued different interpretations of the natural law in their
judgments. Walsh J held that; “among the mother’s natural rights is the right
to custody and care of her child” and given that the mother had not willingly
surrendered this right her child should be returned to her. O’Higgins CJ on the
other hand interpreted the natural law to mean that the mother had in fact
surrendered her constitutional rights to her child by putting the child up for
adoption.  He said such natural rights
“can be lost by the mother if her conduct towards the child amounts to an
abandonment or an abdication of her rights and duties.” 20
It is evident that the natural law is subject to judicial interpretation, but
does 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?

Richard
Humphry said; “It is but natural that from time to time the prevailing ideas of
these virtues may be conditioned by the passage of time; no interpretation of
the Constitution is intended to be final for all time. It is given in the light
of prevailing ideas and concepts.”21
Laws need to be able to adapt to societal change and development. An example of
this is the case of McGee v Attorney General 1974 22
, where the natural law was responsible for the liberalisation of the sale of
contraceptives in Catholic Ireland. Henchy J recognised that the plaintiff had
a personal right to privacy protected by Article 40.3.1. To decide whether a
given right was afforded constitutional protection he said; “it must be shown
that it is a right that inheres in the citizen in question by virtue of his
human personality.” 23

Henchy
J’s dissent in Norris v Attorney General 24
appealed to the same logic. He said the right to privacy “inheres in each
citizen by virtue of his human personality, and that such right is constitutionally
guaranteed as one of the unspecified personal rights comprehended by Article
40, s 3.” 25
McCarthy J on the other hand, dissented on the basis of the “Christian and
democratic” test, whereas the majority used this same test to hold against the
plaintiff.  Oran Doyle notes that
different understandings of Christianity led the minority and majority to
different conclusions. 26
This case illustrates inconsistent judicial interpretation and it seems the
effect of Article 40.3.1 was to assign judges a power not just to interpret the
rights that were protected by the constitution, but to decide what rights ought
to be protected. 27
Naturally a degree of subjectivity is inevitable, and it is arguable that
complete objectivity is almost impossible to achieve in interpreting the
Constitution. David Kenny said however; “the breath of this discretion eclipsed
the discretion ordinarily afforded in interpreting ambiguous text.” 28

The “Human Personality” Test

 The “human personality” test continued to push
the boundaries as perhaps the least convincing, or vaguest reasoning that was
used to enumerate rights in Irish case law, even more so than the “Christian
and democratic” logic, according to Oran Doyle. 29
Henchy J said that Article 40 had to be considered in light of the constitution
as a whole to minimise these concerns. 30
What needs to be determined is whether this vague and ambiguous test, as
applied, 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 sort
of Constitutional development. The written Irish Constitution can only be
amended by the people, is it really feasible to hold a referendum for the
recognition of every right? Donal Small said; “A Constitution should not be a
static instrument, but a living document.” 31
The unenumerated rights doctrine pratically breathed a new-found life into the
Irish Constitution.

I would
also think it impossible for legislators to be capable of legislating in a way
that 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 of
historical change and social forces and should not be deduced from a set of
self-evident principles. Social preferences, political ideologies and economic
philosophies all have a greater ‘bearing’ on how it comes out than any logical
or deductive scientific method.” 32
This seems to defend the unenumerated rights somewhat lacking “self-evident
principles”. I don’t think the Irish courts usurped any law-making power, but
merely utilised it in the most appropriate manner.

Other Criticisms

David
Kenny notes that the unenumerated rights doctrine is criticised for three
reasons; lack of textual grounding, objectivity and judicial activism. 33  Gerard Hogan and Gerry Whyte are also
critical; “from the point of view of one attempting a systematic exposition
of an organic law” this development has, resulted in “a certain blurring
of definition, a certain bursting of conceptual banks, rather as though
legal rivers finding their confluence in the estuary of liberty and justice,
had had their courses confused by flooding further upstream, leaving a
somewhat trackless delta for the constitutional geographer.” 34
As mentioned above, it is down to interpretive problems in cases like Norris
v Attorney General 35
that the “trackless delta” is what leads the majority and minority
“constitutional geographers” in different directions. Would explicit step by
step guidance from the constitution be possible, or even necessary, for a
qualified judiciary? Surely the judiciary, in their role as “constitutional
geographers”, should be able to decipher the map for themselves.

In Macauley v Minister for Posts and Telegraphs 1966 36
Kenny J implied the right of access to the courts from Article 34.1. This
method, of implying rights from other constitutional provisions poses its own
interpretive difficulties, however maybe not as significantly as the other
methods used. Hogan condemns the concept of unenumerated rights as “practically tantamount to an open invitation to the
judiciary to become later day philosopher kings via the guise of Constitutional
interpretation.” 37 Hogan
seems to be wary of a kritarchy government, but this is hardly possible when
the majority of Ireland’s legislation is passed by the Oireachtas. The idea of
legislating judges is one of the biggest objections held against the doctrine.
In Ryan 38
Kenny J tried to justify this; “In modern times this would seem to be a
function of the legislative rather than of the judicial power, but it was done
by the Courts in the formative period of the Common Law and there is no reason
why they should not do it now.” 39
John Kelly called this a “doubtful” and “historical” justification and noted that
we have a legislature to perform this function. 40
From a practical perspective, it is hard to see how this almost impossible task
could be dealt with by the legislative alone. The sharing of a law-making power
is a more accurate and reasonable description than the usurpation it.

Current Stance

Re Article 26 and the Regulation of
Information Bill 1995 41
marked the beginning of the demise of the unenumerated rights doctrine.
The case introduced a degree of scepticism into the Irish courts.  Byrne v
Ireland 1972 42
contradicted the previous decision in
McGee v Attorney General 43
when Walsh J said the Constitution was subordinate to the people.  This became very problematic for the courts
Duncan argued; “The difficulty…is that the theory that the natural law stands
above the Constitution is being justified by the terms of a human instrument,
the Constitution, which is itself subject to the natural law. The Constitution
cannot be both subject to the natural law and the legal justification for that
suggestion.” 44
The consensus following the Supreme Court judgement was a general apprehension
of the unenumerated rights doctrine.

In O’T v B it Keane CJ held that courts should be hesitant to
recognise new rights in the absence of a strong textual link. 45
He reiterated this need for caution in TD
v Minister for Education 46
when he commented that he had the “gravest doubts” as to whether the courts
should enumerate socio-economic rights under Article 40.3.1. The right to
housing or social welfare for example, imposes an obligation on someone to
supply these things, and for this reason, Gerard Casey makes the argument that
they are more suited to “legislative deliberation” than “judicial action”. 47
In Duniya v Residential Tenancies Board however,
Barron J said that there was no “express constitutional right” to the provision
of housing by the state, but that this did not mean that an unenumerated
constitutional right to accommodation or housing might not be discovered by the
courts in the future. 48
Is 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 doctrine
has enjoyed numerous victories in Irish case law. It recognised rights
including bodily integrity, martial privacy, and the right to communicate and
earn a living. The courts used the unenumerated rights doctrine to strengthen the
protection of individual rights 49 and
the results were indisputably advantageous. The doctrine allowed the Irish Constitution
to evolve to suit a changing society, to develop and enhance the fundamental rights
of Irish citizens.

I acknowledge that the methods used
to enumerate rights were indeed controversial. But while academic criticism
says one thing, Irish case law says another. The constitutional cases that proceeded
Ryan 50
established principles for the enumeration of rights and these were
acknowledged and accepted by the Irish courts again and again. The rights
recognised were not drawn from thin air, they formulated by valid constitutional
interpretation and just because these methods were somewhat subjective doesn’t render
them invalid. Brian Doolan praised the doctrine saying; “The courts have been
inventive and flexible by interpreting the Constitution in such a way as to
acknowledge the existence of other constitutional rights which are not
expressly enumerated” which “paved the way for one of the most innovative
features of our constitutional law.”51
The 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 40.4

2 1965 IR 294

3
Oran Doyle, Constitutional
Law; Texts, Cases and Materials (1st edn, Clarus Press Ltd,
2008) 86.

4
James 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 the
citizens’ personal rights are not exhausted by the specific guarantees
contained in the Article is logically faultless.” J. M. Kelly, Fundamental
Rights in the Irish Law and Constitution, 2nd ed. (Dublin 1967), 42.

6
Gerard Casey, ‘The “Logically Faultless” Argument for Unenumerated Rights in
the Constitution,’ ILT Vol. 22 (N.S.) No. 16 (2004)

7
Moynihan v Greensmyth 1977 IR 55.

8
1977 IR 55 at 71.

9
Landers v AG 1973 109 ILTR 1.

10
Hand v Dublin Corp 1988 10 JIC
2801.

 

11
Oran Doyle, Constitutional Law; Texts,
Cases and Materials (1st edn, Clarus Press Ltd, 2008) 86.

12
Oran Doyle, Constitutional
Law; Texts, Cases and Materials (1st edn, Clarus Press Ltd, 2008) 87.

13
Ibid.

14
1974 IR 289.

15
McGee v Attorney
General 1974 IR 284, 310.

16  McGee v
Attorney General 1974 IR 284, 111.

17
 John Hart Ely, “Democracy and Distrust” (Harvard University Press, 1980)
at 50.

18
Oran Doyle, Constitutional Law; Texts,
Cases and Materials (1st edn, Clarus Press Ltd, 2008) 94.

19
1980 IR 32.

20
1980 IR 32, at 55.

21
R. Humphreys, “Constitutional Interpretation” (1993) 15 D.U.L.J. 57.

22
McGee v Attorney General 1974 IR
284.

23
Ibid.

24
Norris v Attorney General 1984 IR
36.

25
1984 IR 36 at 71.

26
Oran Doyle, Constitutional Law; Texts,
Cases and Materials (1st edn, Clarus Press Ltd, 2008) 92.

27
Ibid.

28
David Kenny, ‘Recent Developments in the Right of the Person in Article 40.3:
Fleming v Ireland and the Spectre of Unenumerated Rights’ 2013 Dublin
University Law Journal 330.

29
Oran Doyle, Constitutional Law; Texts,
Cases and Materials (1st edn, Clarus Press Ltd, 2008) 89.

30
McGee v Attorney General 1974 IR
284.

31
Donal Small, Ryan v. AG, A Bottomless Pit
of Rights – A Proposal for Reform, 2 Galway Student L. Rev. 40 (2003).

32
Oliver Wendall Holmes Jr., The Path of Law, 10 Harvard Law
Review 457 (1897)

33
David Kenny, ‘Recent Developments in the Right of the
Person in Article 40.3: Fleming v Ireland and the Spectre of Unenumerated
Rights’ 2013 Dublin University Law Journal 329.

34
J. M. Kelly, The Irish Constitution (3rd edn Gerard Hogan and Gerry
Whyte) (Dublin, 1994), 755-756. 

35
Norris v Attorney General 1984 IR
36.

36
McCauley v Minister for Posts and
Telegraphs 1966 IR 345.

37
 G.W. Hogan, Unenumerated Personal Rights: Ryan’s Case Re-Evaluated, 23 Irish
Jurist 95, 110.

38
Ryan v Attorney General 1965 IR 294

39
Ibid.

40
John Kelly, Fundamental Rights in the Irish Law and Constitution (2nd ed.),
(Dublin, 1967), 42

41
Re Article 26 and the Regulation of
Information (Services Outside the State for Termination of Pregnancies) Bill
1995 IESC 9 1 IR 1.

42
Byrne v Ireland 1972 IR 241.

43
McGee v Attorney General 1974 IR
284.

44
William Duncan, “Can Natural Law be used in Constitutional Interpretation?”
1995 45 Doctrine & Life 125, at
127.

45
O’T v B 1998 2 IR 321.

46
2001 4 IR 259.

47
Gerard 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.  

49
Oran Doyle, Constitutional Law; Texts,
Cases and Materials (1st edn, Clarus Press Ltd, 2008) 108.

50
Ryan v Attorney General 1965 IR 294

51
Brian Doolan, Constitutional Law and Constitutional Right in Ireland (Dublin,
1994), 156