The Irish Constitution and Common Good Constitutionalism

Abstract

My symposium essay analyses the concrete application and elaboration of precepts of the classical legal tradition within the Irish legal system. I offer an extended case study of the Irish constitutional order’s long engagement with the classical legal tradition, by showing how lawyers, jurists, and judges tried to work out and elaborate many of its basic precepts over several decades in the context of a common law constitutional democracy with a codified Constitution. With this in-depth case study, which blends doctrinal and theoretical analysis, I hope to provide an intellectual resource featuring the classical legal tradition ‘in action’ that can yield useful points of reflection for jurists and scholars interested in ongoing debates over common-good constitutionalism.

I proceed in four parts. Part I gives an overview of the drafting history of the 1937 Irish Constitution and the main intellectual inspirations behind its text. It documents how the drafters of the Irish Constitution were influenced by a rich fusion of natural law thinking, Catholic social teaching, American and continental constitutionalism, and commitment to Westminster-style parliamentary democracy.

Part II offers an eclectic study of several domains of Irish public law doctrine, which showcase the Irish Courts engagement with a diverse set of classical legal precepts. I begin by outlining the Court’s approach to constitutional interpretation, which bears several of its hallmarks. I outline how Irish Courts see posited constitutional text as an important part, but not exhaustive of, the polity’s overall legal commitments, which also include background principles of legal justice. In hard cases, Irish Courts approach interpretation by attempting to understand the meaning of posited constitutional text considering the principles of political morality and legal justice underpinning them. This approach is visible across a range of influential cases concerning the duties placed on political authorities to safeguard and vindicate the flourishing of citizens from unjust attack, and in cases providing robust protection to the institution of the Family from state overreach. It is also visible in the fact that Irish public law doctrine works from the premise the Constitution envisages the common good and true social order as the proper ends of political authority.

Part III examines the pressures being placed on the classical legal tradition as the methodological lodestar of the Irish Courts and legal community. Finally, Part IV offers some points of reflection for ongoing debates over common good constitutionalism.

Overall, I hope this contribution will serve as a useful intellectual resource for those interested in both encouraging and critiquing the revival of classical thinking in public law theory.