Marking a watershed in Irish family law


THE past 12 months have been widely characterised as a watershed in Irish family law. In two crucial decisions the Supreme Court dispatched the philosophical basis of human rights expressly identified in the Constitution and replaced it by an unashamedly positivist model, where rights are creatures of the law, always subject to legal modification or extinction at the hands of the law maker.

In the divorce referendum constitutional protection was removed from lifelong marriage in favour of a sequential model of relationships.

We can't say how history will judge this moment, but we are free to make our predictions. My own view is a sceptical one. I think that 1995 will ultimately be seen, not as a year of profound change in social values but rather as the culmination of a more ambiguous process, reflecting complex and deep rooted intellectual influences on the Irish judiciary.

The truth of the matter is that in 1937, when the Constitution came into effect, the Irish judicial mind was largely hostile to any legal philosophy grounded in human rights superior to legislative prescription.

It was not simply a case of the Irish judges having little sympathy for a Catholic version of natural law their entire legal tradition was based on the English model, in which jurisprudence, if studied at all, was in the positivist mould of Bentham or Austin.

The Constitution, so far as it spoke of fundamental rights, was for many years regarded by most judges as essentially a document articulating a particular political philosophy rather than as an effective charter for practical protection of these rights.

The fact that De Valera was its author did not help most barristers and judges were of Fine Gael sympathies and those few with Fianna Fail leanings who received judicial preferment had (with the odd striking exception) little enough interesting matters jurisprudential.

In short, there was no sustained legal tradition supporting the radical human rights philosophy underlying the Constitution.

Practitioners, whose legal education had been in the empirical mould (a polite expression for (learning on the job) were hostile, and there was no strong intellectual base in the university faculties on which any sophisticated jurisprudential theory might be developed. The tiny handful of legal academics who had full time positions in the universities had little sympathy with natural law theory.

When I studied law and philosophy at University College Dublin in the 1960s, I was struck by the fact that the philosophers had almost nothing to say about the Constitution and the law professors tended to regard the philosophical elements of the Constitution with a skepticism that harmonised well with their colleagues in Oxford, Cambridge and London.

THE leading intellectual force as Prof John Maurice Kelly whose pioneering works on the Constitution led the way for the judges to follow.

Prof Kelly acknowledged the natural law basis of the fundamental rights provisions of the Constitution, but he took the view that only in extreme cases should it affect the outcome of judicial decision making. In Fundamental Rights in the Irish Law and Constitution (2nd edition, 1967, p. 73), he wrote

"The result is, I think, that in those who make or administer laws all we can hope for is an honest conscience, and that to assert that natural law provides a clear set of rules beyond and above a Constitution (as distinct from providing its theoretical basis, and forming the hearts of those who frame and interpret it) is, to imagine a vain thing.

Therefore, I repeat, the ultimate protection of human rights in a democracy lies with the people themselves. If they allow villains into, Government, a piece of paper will, not protect them from the consequences, nor must they expect a few learned men in wigs and gowns to save the fools from the knaves they have elected."

Article 40 of the Constitution guarantees respect for the personal rights of the citizen, including the right to life. So far from being a partisan sectarian provision, the Article in its original formulation contained no reference whatsoever to such contentious matters as abortion and euthanasia (both of which featured in the Supreme Court's activities in 1995).

There is little doubt that these subjects were excluded because they simply were not perceived to raise issues of controversy at the time the Constitution was promulgated.

Article 41 clearly identifies the family as a natural human institution, not subject to legislative definition and redefinition, but rather an integral element in human flourishing.

Article 41, as promulgated, went on to provide, in unambiguous terms, that divorce legislation was not permissible and, in somewhat more opaque language, to prohibit the remarriage within the Slate of persons whose marriages, dissolved abroad, remained subsisting valid marriages here.

For three decades Article 41 yielded a poor dividend of judicial analysis. The notorious Tilson litigation, in the early 1950s, presented itself as an issue of spousal equality in the rearing of children but on closer examination was little more than a revival of a 19th century style contest between parents of differing denominations as to the religion in which their children should be reared.

Throughout the 1960s, 1970s and 1980s the judges were content to uphold the human rights philosophy underlying Article 41, without contributing much by way of intellectual analysis.

The courts' treatment of the issue of recognition of foreign divorces was relatively unsophisticated their handling of the constitutional position of unmarried parents suggested" an element of post hoc rationalisation.

The judges showed an increasing discomfort with the issues of general, equality in relation to family life. It was understandable that they should find difficulty with the specific pro woman's the judges maintained a view of the role of married women which was not reflected in the wider community.

As recently as 1979, a judge could say that a mother provides her children with "a last refuge in times of trouble and patience in listening their petty complaints".

THE courts consistently failed to find in the Constitution any practical protection for married women's property rights. In a decision five years ago the Supreme Court held that Article 41 did not confer on wives any entitlement to a share in the family home, regardless of how substantially they had committed themselves to the welfare of the family.

Such protection said the court, was a matter for the legislature to provide. Yet when the legislature did this, with the Matrimonial Home Bill of 1993, the court held it to be an unconstitutional interference in the joint decision making entitlements of married people.

The effect of the decision was that a selfish, unilateral decision of a husband not to share ownership in the family home with his wife received the court's protection.

Even if the judges found difficulty in providing any coherent philosophical support for Article 41, they were for many years not disposed to subvert it. Until recently there was something approaching a consensus in Irish society regarding the values underlying Article 41. Today there is no longer such a consensus witness the split on the divorce issue last November.

The judiciary today has lost the will to support the philosophy on which the fundamental rights provisions of the Constitution are based.

The breach was made in the X case in 1992. There the majority of the Supreme Court, with a brave dissent by Mr Justice Hederman authorised the direct intentional taking of life by reference to the concept of practicability. However one regards this approach, it cannot easily be harmonised with the human rights philosophy on which the Constitution is founded.

Last year marked the consummation of the rejection of any natural basis for human rights and its replacement that reduces human rights to the contingent definition of the law making authority for the time being.

The Supreme Court made this transformation in its decision on the constitutional validity of the abortion information legislation. In rejecting the natural law basis of the fundamental rights provisions of the Constitution the court was clearly mistaken. Why did it fall into such error?

Pragmatic reasons, of course, suggest themselves, the most obvious being that the court was anxious to divest the Constitution of any "taint" of a Catholic ethos, especially in the light of developments north of the Border.

One may, however, hope that the court has not gone so far down the political road as to dispense with its solemn obligation to interpret rather than alter the provisions of the Constitution.

If the court's decision was indeed one of interpretation, how could it have come up with such a patently, mistaken conclusion? Whether one likes it or not, the fundamental rights provisions of the Constitution" are expressly based (albeit not exclusively) on natural law theory.

Important constitutional issues, undoubtedly arise as to how such a may, as it were shake off law Is entirely new constitutional start necessary or do the general provisions

If the latter, must the language of an amendment unambiguously modify or extinguish the natural law values that permeate Articles 40 and (more clearly) 41? These entirely legitimate questions, worthy of very serious consideration, were dismissed by the court on the a priori ground that the Constitution, being our basic law, is the source of all our rights.

Why did the court thus silence these questions? The judgment reads almost as if the court preferred to avoid confronting them. We can only speculate as to the source of the court's embarrassment.

The simplest explanation is that the court instinctively endorsed the philosophy of legal positivism without a full appreciation of the natural law theory whose central position in the Constitution the court found itself obliged to deny.

The court mistakenly proceeded on the basis that it was being called on to referee a philosophical contest between natural law and positivism. In fact, its task was more subtle to draw out the implications in the context of the amendment of the Constitution of the central role of natural law theory within the existing constitutional order.

THE other crucial decision of 1995 was that where the Supreme Court, Mr Justice in dissenting, authorised the removal of a tube used in feeding a patient who had for over 20 years been in a state of virtually complete unconsciousness, though she retained some residual ability to recognise members of the nursing staff who tended her.

I don't wish here to rehearse the complex legal issues that arose in this tragic case. Of present relevance, is the philosophical basis on which the members of the majority of the court reached their decision.

What emerges is a miscellany of themes, including the following an autonomy based right to commit suicide, the notion of a life not worth living and the centrality of subjective happiness in determining the value of life.

None of these notions is easily reconcilable with the natural law theory underlying the protection of the right to life under Article 40 of the Constitution. So why do they feature in the several judgments of the majority?

I think that there is a simple, if alarming, answer. The judges do not regard themselves as under any obligation to develop constitutional principles relating to fundamental rights in accordance with any identifiable philosophical theory, let alone the specific natural law theory on which the Constitution is expressly based.

Instead they are content to absorb at a non critical level the rhetoric of other philosophies which whatever their merits, are simply incompatible with natural law theory.

Does all of this matter? I think it does. Philosophical disputation may seem far "removed" from the practicalities of day to day life but this is not, in fact, the case. All of the important human questions are ultimately philosophical, and even the more humdrum issues have to be resolved according to some philosophical criteria.

The members of the Supreme Court have raised anchor from the bedrock of philosophical coherence and have set out on a rudderless course with no sense of an agreed destination. Last year was when this new venture commenced. Who can say where it may lead?