Natural Law in Irish Jurisprudence
Martin Haverty, B.A, L.L.B, L,L,M (public law)
Traditional natural law is based on value judgement, which emanate from some absolute source e.g. God’s revealed word. However the term “natural law” lacks a precise definition, and there is “very little agreement, even among experts or proponents of natural law theory about its application to specific, complex, moral, or legal issues”1.
The basic premise of natural law is that rights exist, which inhere in man because of his rational nature, and not because of any purported grant of right. The corollary point however is that if the rights are not granted by the positive law, they cannot be taken away by positive law. However Ely argues that this leads to indeterminacy because, “you can invoke natural law to support anything you want”2, and as will be demonstrated throughout this essay, natural law has been invoked in Irish Constitutional jurisprudence, ultimately creating rights not specifically mentioned in the text of the Constitution.
It is submitted from the outset that the use of natural law in Irish Constitutional Jurisprudence has assisted the Courts in establishing that uneneumerated rights exist in the Constitution by reference to Article 40.3.3. There are however problems inherent in the manner and multiple approaches used by the courts in affirming such rights, in particular the lack of observance towards objectivity and certainty. Thus it is submitted that in affirming rights not mentioned in the Constitution, despite resulting in the expansion of the fundamental rights available to citizens, the development of such implicit rights, has resulted in an unprincipled expansion of the judicial review process.
The reliance upon natural law theory raises far-reaching questions, because it essentially creates a platform from which the judiciary can frustrate the democratically enacted laws of the Oireachtas3. The scope of this inquiry is to outline the emergence of natural law in Irish Constitutional jurisprudence, its subsequent application throughout the years in case law, and its eventual demise, with a view to establishing that when “push comes to shove”, the courts have an obligation to uphold the will of the people to the detriment of natural law. As such, while the doctrine of uneneumerated rights has added significantly to the fundamental rights afforded to a citizen, when natural law comes into direct opposition with the democratically enacted will of the people, natural law will loose out, thereby respecting the sovereignty of the Irish people to amend the constitution, over an unelected judiciary’s desire to interpret the constitution in line with the multiple principles of natural law.
The Irish Constitution and Natural Law
In the preamble to the constitution there is the implication that there are two interacting bases of authority for its legal order: divine authority and the will of the people. The constitution is premised on the notion of popular sovereignty coupled with theistic ideas, which, provide for a broad range of human rights. However the preamble is also understood to embrace a Catholic natural law philosophy. Article 41.1.1 of the Irish constitution acknowledges the authority of a higher law as the source of “inalienable and imprescriptable” rights, which are “antecedent and superior to all positive law”. However one of the major difficulties is to ascertain the scope of natural rights, which can change over time.
The Irish Constitution is said to “leave us in little doubt” as to whether it acknowledges the authority of a higher law as the source of “inalienable and imprescriptable” rights which, are “antecedent an superior to all positive law”(Article 41.1.1)4. Natural law is also said to be of universal application and in essence immutable, residing as it does in the innermost common denominator of all humankind through all generations, that is, human reason.
Justice O’ Hanlon makes the argument that the references in the Preamble to the Constitution to “the Most Holy Trinity” and to “God” in Article 6, unambiguously identifies “the Most Holy Trinity” as the ultimate source of a “higher law” by which all human,positive law may be measured. Therefore any positive law or decision that “has not got the character of law” is not lawful6. However such observance to natural law creates the risk of self-contradiction and illogical paradoxes if applied consistently to the Constitution7.
The text of the Irish Constitution however contains five references to “nature” or “natural”. Article 10.1 includes the State’s claim to “all natural resources, including the air and all forms of potential energy” within its jurisdiction. This reference is in itself unproblematic, however the other four uses of the term “natural” are central to any natural law interpretation of the Constitution. The constitution recognises the family as the “natural primary and fundamental unit group of society”8, and it also recognises the family as “the natural educator of the child”9. The only natural rights, which are explicitly mentioned in the Constitution, are those of the child, “the natural and imprescriptible rights of the child”10, and those relating to property, “man, in virtue of his rational being, has the natural right antecedent to positive law, to the private ownership of external goods”11.
The emergence of Natural law in Ireland
Since the adoption of the Irish Constitution in 1937 until recently, the Irish judiciary consistently recognized and upheld the influence of natural law in interpreting the Constitution. However a line of recent cases illustrates that natural law is being displaced in Irish jurisprudence by democratic principles12, and it has also been asserted by the courts, that in recognizing the Constitution as the fundamental law of the state to which all organs of the state are subject, the courts at no stage recognized
the provisions of natural law as superior to the Constitution, as per Re Article 26 and the Regulation of Information (Services out of the State for Termination of Pregnancies Bill) 1995 13.
Historically, there has been a tension between the positivist and natural law approaches to interpreting the constitution in this jurisdiction. The courts inevitably were slow to grasp the shift in emphasis from positivism to the expressive rights based constitution, and the clash between the two kinds of rights came into focus in The State (Ryan) v Lennon14.
Unenumerated Rights and Natural Law
The courts in exercising their powers of judicial review in the past have done so within the overall rubric of a concept of natural law, which has found its most noteworthy manifestation in the courts development of the doctrine of “unenumerated personal rights” in the 1960’s. The Constitution as a result recognises some implicit rights in Article 40.3, and it also explicitly includes references to at least one natural law tradition in Article 41.1.1 and 43.1.115. What is important to note here is that the legal status in Irish law of these implicit rights derives exclusively from their implicit recognition by Article 40.316.
The impact of the natural law or higher law approach was most clearly seen in the seminal case of Ryan v Attorney General 17. The difficulty in this case was to find a “legitimate” source for the unspecified right of bodily integrity which was found based on “rights resulting from the Christian and democratic nature of the state”. Apart from the implications for the expansion of strictly constitutional rights from the explicit to the latent, the reference to the State as “Christian and democratic” suggested a “higher law” approach to interpreting the constitution.
Kenny J, in a judgement that was upheld by the Supreme Court, held that Article 40.3.1 protected rights which were not stated explicitly in the text of the Constitution and that the plaintiff had a Constitutional right to bodily integrity, an unenumerated right protected by Article 40.3.1. In this case Kenny J identified a right to bodily integrity by reference to the Christian and democratic nature of the State and to a papal encyclical which identified bodily integrity as being amongst the natural rights of a person.
Kenny J said: “ Natural Law is both anterior and superior to any positive or man made law. There are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all.” 18.
This case signalled a new approach to the interpretation of Article 40.3.1 where a more expansive view was taken of its meaning. The controversy however in Ryan lay in one of the sources from which Kenny J deduced that the plaintiff had an implied, unenumerated right to “bodily integrity” – the papal encyclical Pacem in Terris. Kenny J announced, apparently without any need for explanation, that personal rights stem from the “Christian and democratic nature of the State.” Considering that Kenny J found certain “Christian” and “democratic” rights to be already enumerated in the Constitution his decision to rely upon supra-textual, Catholic teaching (i.e., Pacem in Terris) to enumerate other, formerly unrecognised personal rights was a bold judicial move. Kenny J’s bold move set the stage for Supreme Court reliance upon theocratic natural law doctrine to list additional unenumerated personal rights for the next several decades19.
However while the language of Article 40.3.1 seemed to compel the judiciary to arrive at the analysis approved in Ryan, the result is not one which should be met with unqualified approval, since the lack of objectivity in the method whereby such unenumerated rights are arrived at coupled with the attendant uncertainty thereby entailed, all seriously undermine the important legal values of objectivity and certainty. As such the rather loose language of Article 40.3.1 has resulted in a vast, unprincipled expansion of the power of judicial review.
It stands to reason that since Kenny J’s decision was not based upon the Constitution itself, he drew from his law-making authority as a member of the judiciary. Although a definition of judicial activism would probably include the requirement that the judge strike down all or a portion of existing law or government action as unconstitutional, Kenny J’s decision was activist in the sense that he made a deliberate choice to reject the status quo of strict reliance on the Constitutional text in exchange for reliance upon a papal encyclical published during the course of argument in the Ryan case, in order to reach a more “just” result. In the years after Ryan and apparently following its lead, the Irish Supreme Court adopted an approach to Constitutional interpretation, particularly the area of unenumerated personal rights, by invoking natural 20.
The Rise Of Natural Law Up to 1995
There are several other cases that demonstrate a willingness on behalf of the judiciary to interpret the Constitution by reference to extra-Constitutional natural law principles. Walsh J. for example has observed “the present Constitution firmly established the natural law as the basis of many of the rights guaranteed as fundamental rights” 21. O ’Hanlon has also opined that the Constitution acknowledges the authority of a higher law as the source of “inalienable and imprescriptible” rights which are “antecedent and superior to all positive law”, and he has also opined that natural law is of universal application and that it is in essence immutable, “it is not contingent on contemporary mores or any particular culture, because it resides in the innermost common denominator of all humankind through all generations, that is, human reason”22.
Similarly in McGee v Attorney General 23, Walsh J acknowledged that law does not create natural rights and human rights, however the Constitution confirms their existence and gives them protection. “The Constitution itself concedes their existence, Articles 41, 42 and 43 emphatically reject the theory there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They 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”.
In this case Walsh J also stated “both in its preamble and in Article 6, the Constitution acknowledges God as the ultimate source of all authority. In view of the acknowledgement of Christianity in the preamble and in view of the reference to God in Article 6 of the Constitution, it must be accepted that the Constitution intended the natural human rights as being in the latter category” 24.
With the passage of time the judicial invocation of natural law appeared to become more unashamed, and in The State (Healy) v Donoghue25, Gannon .J stated that “The sense of justice is fundamental in human nature, and it derives essential rights which do not require any positive law for their enunciation in my view they are rights which are anterior to and do not merely derive from the Constitution”26.
Emergence of Democracy over Natural Law.
The Irish Constitution has been described as being “unique among the Constitutions of the world because there is a law superior to all positive law, which is not capable of being altered by legislation, or even by a simple amendment of the Constitution itself”27. O’ Hanlon has stated that amendments to the Constitution which offend against natural law do not have the “character of law”28.
To subscribe to such a theory however presents the danger that the will of the majority could be sidelined by an unwritten law that has multiple interpretations. Therefore one needs to ask, do amendments to the Constitution have to conform with natural law for it to be valid, and secondly can an un-elected judiciary overturn the will of the people?
There is little doubt that the issue that “reoriented the debate” on the use of natural in Constitutional interpretation was abortion29. It was really only a matter of time before the conflict between natural law and positive law came to the surface30, and in 1995 the courts had to decide whether the Services out of the State for Termination of Pregnancies Bill 1995 was constitutionally valid.
In Re Information 31, it was argued that fourteenth amendment which permitted the giving of information, which amounted to assistance in the destruction of the life of the unborn, was inconsistent with the eighth amendment and also, that the natural law is the foundation on which the Constitution was built, and ranks superior to the Constitution.
The Supreme Court had to decide whether to subscribe to a theory as espoused by O’ Hanlon or whether or not to uphold the Bill’s constitutionality. To subscribe to the O’ Hanlon theory would in essence mean that the Courts could strike down positive law and obviate the need for a written Constitution.
In effect the Court was been asked, “Who is sovereign, the people or God?”. Quinn suggests that in reality both are sovereign, since the preamble makes it plain that the underlying authority of the constitution is split between popular sovereignty and religious conceptions of what is right. However a choice had to be made in this case. The Court rejected the notion that natural law is the source of all law, holding instead in favour of the Constitution and the will of the people. The court concluded that an appropriate balance had been struck between citizens right to information and the right to life of the unborn32.
In what was a historic judgement the Supreme Court stated, “It is fundamental to this argument, what is described as the “natural law” is the fundamental law of this State and as such it is antecedent and superior to all positive law, including the Constitution, and that it is impermissible for the people to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted under Article 46 of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and if they purport to do so, such amendment had no effect”33.
The Court however did not accept this argument, and it went on to say that by virtue of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic State. Also by virtue of the provisions of Article 6, all powers of Government, legislative, executive and judicial, derive under God from the people, whose right it is to designate the rules of the State, and in final appeal to decide all questions of national policy, according to the requirement of the common good34.
In this case the Supreme Court also stated, “The Courts recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution.
The people were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the 14th Amendment is the fundamental and supreme law of the State representing as it does the will of the people”35.
The Court cited Articles 5, 6, 15, 26, 28, 34 and 35, as illustrating the supremacy of the Constitution. The Court went on to consider case law on personal and fundamental rights. The Court opined that in a pluralist society the courts cant be asked to choose between differing views of experts of either the nature or extent of rights as they are to be found in the natural law. It falls on the judges to interpret the Constitution and in so doing determine the rights which are superior or antecedent to positive law or which are inalienable or imprescriptible. In considering the constitutionality of the Regulation of Information Bill, the Supreme Court seems to have suggested that the interpretations of constitutional provisions which are based on natural law theory or Catholic teaching are sectarian and, therefore, illegitimate36.
The decision in Re Information37 highlights what amounts to an almost defiant rejection of natural law by the Supreme Court. In rejecting the argument that “the natural law is antecedent and superior to all positive law”, the Supreme court would appear to have put an end to a debate which has raged for many years. The courts assertions in this case however are remarkable in light of a string of decisions which have been handed down by the superior courts over a period of almost sixty years which clearly acknowledge that the constitution is not the source and origin of fundamental human rights, but simply recognises or accepts the existence of rights which have always formed part of the natural law38.
In this case the court declined to accept arguments against the constitutionality of the bill based on natural law theory and concluded that “from a consideration of all the
cases, the courts, as they were and are bound to, recognised the constitution as the fundamental law of the state to which the organs of the state were subject”39.
From a consideration of the case law which recognised the existence of a personal right not enumerated in the Constitution, it is manifest that the Court in each such case had satisfied itself that such personal right was one which could reasonably be implied from and was guaranteed by the provisions of the Constitution, interpreted in accordance with its ideas of prudence, justice and charity. However the courts, as they are bound to, recognised the Constitution as the fundamental law of the State and did not recognise natural law as superior to the Constitution in Re Information. Thus the People were entitled to amend in accordance with Article 46 and the Constitution as amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People.
It is suggested that the decision in Re Information should be applauded for its unceremonious abandonment of a clearly undemocratic portion of prior Irish jurisprudence. Some commentators however still feel uneasy with the result in this case. Quinn for example is unconvinced with the courts reasoning that natural law had not achieved an elevated status in Irish constitutional law. He also posits the question; What would the courts do if the people democratically voted to abolish democracy and to purge human rights from the Constitution? Would the courts really take the view, the law is the law?40.
Sovereignty and Natural Law.
The preamble to the Constitution states that, “we the people of Eire, do hereby adopt, enact, and give to ourselves this Constitution”. The judiciary have relied upon the preamble and on Article 1, 5 and 6 of the Constitution as establishing that sovereignty is vested in the people who act through the State41. It has also been observed in Byrne
v Ireland, that the nation could only be understood as the peoples, and that Articles 1 and 6 of the Constitution “indicate that it is recognised in the Constitution itself that there is a higher authority than the State, it is the people who are paramount and not the State”.
Further in Webb, Walsh J added that, “Our constitutional history, and in particular the events leading up to the enactment of the Constitution, indicate beyond doubt, that the declaration as to sovereignty in Article 5 means that the State is not subject to any power of government save those designated by the people in the Constitution itself, and that the State is not amenable to any external authority for its conduct”43.
The rejection therefore by Hamilton C. J, in Re Information 44, of the argument that the people were bound by natural law, when amending the Constitution, appears to signal the end of natural law in this jurisdiction. It is submitted that such a development will make the judicial process of interpretation more consistent, because the application of conferring a superior constitutional status on some unwritten law, to declare invalid, what is explicitly written in the Constitution, either in its original enactment or in a subsequent amendment, clearly is an ursupation of the democratic process by constitutional interpretation.
The case of T.D v. Minister for justice 17th December 2001 further demonstrates that natural law influences are becoming less apparent in Irish constitutional jurisprudence. In this case the Chief Justice, in dealing with unspecified rights, opined that he would have the, “The greatest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unennumerated rights guaranteed by Article 40”. The judge doubted the source and continued existence of unspecified rights in the Constitution. Referring to Ryan v. AG 45 he opined that: “In the High Court in that case, Kenny J stated that there were many personal rights of the citizen which flow from “the Christian and democratic nature of the state” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court, perhaps because the rights under discussion in that case was conceded on behalf of the Attorney General to be such unennumerated right”.
While the decision in Re Information “seemed to end the Irish experiment with natural law jurisprudence”,46the issue re-emerged again in the case Re a Ward of Court (No 2)47. In this case Chief Justice Hamilton decided that in very limited circumstances, the right to life implied a right to let nature take its course and not to have life artificially prolonged. While this judgement “would appear to support the overriding importance of the harmonious approach to the exclusion of any natural law or religious component, this may be an inaccurate view”48.
The decision in Re Information 49 has been criticised by various commentators. However had the Supreme Court decided to choose the supremacy of natural law over the expressed wish of the people, it would have been a case of the Supreme Court falling on its own sword50. There is no doubt that the judiciary’s reference to the natural law in deciding constitutional matters has had a profound effect on constitutional jurisprudence especially since the 1960’s. However natural law, cannot prevent the extreme incursion on personal rights which can be created by a positivist legal system in a tyrannical regime such as Nazi Germany, as is sometimes suggested 51.
The Constitution review group argue that the main problem with natural law as a guide for interpretation is the difficulty of determining its content. The courts have also attempted to deal with the problem posed by the uncertain nature of natural law by attempting to interpret the Constitution and to determine where necessary what
rights are superior to positive law by reference to the judges own ideas of prudence, justice and charity. The overall result is that reference to the principles of natural law, in the absence of a text establishing its principles, lacks the objectivity and precision, which might reasonably be expected52.
It is submitted that the use of natural law by the judiciary in the 1950’s and 1960’s was less contentious owing to the nature of society that existed at the time. Ireland during this period in history was relatively homogeneous in terms of its core values, and as such doing the “right thing” was not necessarily perceived as being undemocratic when everyone knew what the “right thing” was.
In Ireland at present there is certain unease in an increasingly secular culture in relation to its linkages with religion and the law of god. Quinn has also stated that as “natural law drew the judiciary into novel fields, and as secularisation broke down the old conventions revealing deep divisions over first principles, it became harder to credibly assert that there was “one right way” and that the courts were uniquely positioned to identify it”53.
Despite the problems associated with a disenchanted secular society, there is also the added problem of ascertaining what natural law actually means. It is submitted that, “a feature of most of the judicial references to “natural law” or “natural rights” under the Constitution is that they assume that there is a general consensus about the identity of the natural law. However, the concept of “natural rights” has a variety of meanings”54.
The use of natural law is problematic because in fact there is no general consensus about the identity of the political, moral, judicial and theological theory being named, and there is no guarantee either that the constitution will in some sense benefit by
relying on such a theory. Hogan and Kelly have also stated that, “Judicial invocation of such an un-distilled concept of natural law in the context of review presents the obvious danger that invalidation of legislation passed by the Oireachtas might not always be seen to be based on objective, ascertainable criteria”55.
One of the main questions therefore that emerges from the debate regarding the use of natural law is the extent to which natural law can provide guidance to members of the court in deciding constitutional issues. It can be taken for granted that in a parliamentary democracy the judicial review procedure as provided for in the constitution is necessary to defend the rights of individuals. Therefore inevitably the burden of defending the rights of individuals against oppressive legislation falls in part, on members of the court56. Thus while defending the rights of individuals may be a prerogative of the judiciary, one is forced to ask; Can such a prerogative ever be justified by reference to principles of natural law? And if so can such a right ever be justified in overriding the democratic will of the people? The answer is a clear no.
While there is widespread acceptance that the task of judges is to interpret the Constitution, during this process it is necessary for the judiciary to rely on the text, without reliance on sources from outside the four corners of the Constitution. Whether or not the judiciary should supplement the text cuts to the very heart of what it means to have a written Constitution, enforced by an independent judiciary, in a democratic state. As such the apparent death of natural law should not necessarily be seen as a bad thing if it results in more consistent, truly impartial, reasoned judgments from the judiciary.
Proponents of natural law often argue that the use of natural law “far from being a licence for unlimited government and a roving judiciary, natural rights and natural law arguments are the best defence of liberty and of limited government”57. However despite such sentiments, the decision in Re Information 58, like all previous Article 26
references will not be overturned. What the decision in Re Information makes clear is that natural law cannot be relied upon to invalidate any explicit provision of the Constitution, however it is also suggested that it does not address what residual role natural law plays in the constitutional order59.
It would appear therefore that a deep fissure exists between concepts of popular sovereignty and natural law. When “push comes to shove” the Irish judiciary have preferred the former to the latter. Therefore the politics of normative choice through the democratic process is open and not bounded by fixed notions of natural law60.
While the recent demise of natural law has been described as “one of the great tragedies of the bitter debate on abortion”61, it would be wrong to conclude that the Regulation of Information Bill 1995 signalled the death of natural law62. Natural law will remain a significant aid in constitutional interpretation, however it is submitted that it will not be as influential as it has been in the past.
1 Clarke, “The Constitution and Natural law: A Reply to Mr. Justice O’ Hanlon”,  Irish Law Times 11, p.177.
2 John Hart Ely, Democracy and Distrust, (1980), p.50
3 Clarke, “The Role of Natural Law in Irish Constitutional Law”,  Irish Jurist, p.187-188.
4 O’Hanlon, “Natural Rights and the Irish Constitution”,  11 Irish Law Times, p.8.
5 Ibid, p.8.
6 Murphy, “Democracy, Natural Law and the Irish Constitution”,  11 Irish Law Times, p.81
7 Clarke, “The Constitution and Natural Law: A reply to Mr Justice O’ Hanlon”,  11 Irish Law Times, p.178.
8 Article 41.1.1
9 Article 42.1
10 Article 42.5
11 Article 43.1
12 Buckley, “The primacy of democracy over Natural law in Irish Abortion Law: An examination of the C Case”, 9 Duke J. of Comp. & Int’l L 275,
13 Re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill (1995),  1 I.R 1;  2 I.L.R.M. 81, hereinafter Re Information.
14  I.R. 170, in this case despite being outvoted, Kennedy C. J, in a famous dissent, championed the natural law approach. See also The judgement of Gavin Duffy, J. in The State (Burke) v Lennon,  I.R 294,while not mentioning or even alluding to natural law it still deserves recognition because the judgement did suggest that higher principles lay behind the Constitution, which the Constitution “enshrined” but did not necessarily replace, “In my opinion, the right to personal liberty and the other principles which we are accustomed to summarize as the rule of law were most deliberately enshrined in a national constitution, drawn up with the utmost care for a free people, and the power to intern on suspicion or without trial is fundamentally inconsistent with the rule of law and with the rule of law as expressed in the terms of our Constitution”.
15 Clarke, “The Constitution and Natural Law: A reply to Mr Justice O’ Hanlon”,  11 Irish Law Times, p.178.
16 ibid, p.178.
17  I.R. 294
18  I.R. 294
19 Walter, “Law as literature: Illuminating the Debate over Constitutional Consistency”,  C.O.L.R xi
20 O’Mahony, “The Failure of Practical Reasonableness: Another look at Finnis”, C.O.L.R, V, 2002
21 Walsh, “The Constitution and Constitutional Rights”, The Constitution of Ireland 1937-1987, (1987) 90 in Editorial, The Supreme Court, Judicial Independence and Four Cases  13 Irish Law Times, p.270.
22 O’Hanlon, “Natural Rights and the Irish Constitution”,  1l Irish Law Times, p.8.
23  I.R. 284
24 O’Hanlon, op.cit, p.8.
25  I.R 325. See also Murphy v PMPA Insurance Co,  I.L.R.M. where it was stated that “certain natural and personal rights may exist side by side with the Constitution although not specifically referred to or comprehended in the Articles of the Constitution which give personal guarantees”.
26 ibid. p.325
27 O’Hanlon, “The Judiciary and the Moral Law”,  11 Irish Law Times, p.130.
28 ibid, p.9.
29 Lewis, “Liberal Democracy, Natural Law and Jurisprudence: Thomastic Notes on an Irish Debate”, in Reassessing The Liberal State: Reading Maritain’s “Man and the State”, (2001) p.154.
30 Duncan, “Can Natural law be used in Constitutional interpretation?” Doctrine and Life, Vol.45, (1995), p.125, as quoted in Whyte, “Natural Law and the Constitution”, ,14 Irish Law Times p.9.
31  1 I.R 18.
32 Quinn, “The rise and fall of natural law in Irish Constitutional Adjudication”, Vol.100, APA Newsletter on Philosophy and Law, No.1, (Fall 2000) p.89-100.
33  1 I.R 1;  2 I.L.R.M. 81.
34 Ibid, p.46.
35 Ibid, p.58.
36 Twomey, “The Death of Natural Law”,  13 Irish Law Times, p.270
37  2 I.L.R.M. 81
38 Twomey, “The Death of Natural Law”,  13 Irish Law Times, p.270
39 ibid, p.270
40 Quinn, “The Rise and Fall of Natural Law in Irish Constitutional Adjudication”, Vol.100, APA Newsletter on Philosophy and Law, No.1, (Fall 2000) p.89-100.
41 as per Walsh J, in Webb v. Ireland  I.R. 353
42 as per Budd J, in Byrne v Ireland  I.R. 241
43 Webb v Ireland  I.R 353
44  1 I.R. 1
45  I.R. p.294.
46 Lewis, “Liberal Democracy, Natural Law and Jurisprudence: Thomastic Notes on an Irish Debate”, in Reassessing The Liberal State: Reading Maritain’s “Man and the State”, (2001) p.155.
47 Re Ward  2 I.R. 79
48 Byrne and Mc Cutcheon, The Irish Legal System , (2001), p.609
49  1. I.R. 1
50 Walsh, “Between Scylla and Charybdis; The Supreme Court and the Regulation of Information Bill”(1995)
51 Report of the Constitution Review Group, May 1996, p 250
52 ibid, p.251.
53 Quinn, “The Rise and Fall of Natural Law in Irish Constitutional Adjudication”, Vol.100, APA Newsletter on Philosophy and Law, No.1, (Fall 2000) p.89-100.
54 Hogan and Whyte, JM Kelly: The Irish Constitution, (2003), p.1254
55 ibid p.1255-1256
56 Clarke, “The Role of Natural Law in Irish Constitutional Law”,  Irish Jurist, p. 219.
57 Clarence Thomas, “The Higher Law Background of the Privileges or Immunities Clauses of the Fourteenth Amendment”, 12 Harv. J.L. & Pub. Pol’y, 63 (1989)
58  1 I.R 1.
59 Hogan and Whyte, JM Kelly: The Irish Constitution, (2003), p. 1258.
60 Quinn, “The Rise and Fall of Natural Law in Irish Constitutional Adjudication”, Vol.100, APA Newsletter on Philosophy and Law, No.1, (Fall 2000) p.89-100.
61 Twomey, “The Death of Natural law”,  13 Irish Law Times, P.272
62 Byrne and Mc Cutcheon, The Irish Legal System, (2001), p.607.