COMMON GOOD CONSTITUTIONALISM: LESSONS FROM THE IRISH CONSTITUTIONAL ORDER

Abstract

In this essay, I offer an extended case study of the Irish constitutional order’s long engagement with the classical natural law tradition. My aim is to yield useful points of reflection for jurists and scholars interested in ongoing debates over common-good constitutionalism sparked by Professor Adrian Vermeule and others.

One insight is that Ireland’s experience should offer considerable encouragement and succor to proponents of common good constitutionalism, by offering several powerful examples of the classical tradition in action in the domain of public law: including how officials approach constitutional interpretation, understand the appropriate relationship between individual rights claims and the common good, and how officials conceive of the appropriate ends of constitutional government and legitimate scope of public power. It should also take the air out of overblown critiques of the classical tradition which describe it as a form of authoritarian political theory.

The second main insight Ireland’s experience has for proponents of the classical tradition – which should both encourage and caution – is that the tradition’s vibrancy is at risk of being severely sapped should a critical mass of elites begin to reject the core precepts of the natural law. In Ireland, the waning of the classical tradition’s dominance in public law, beginning at pace in the 1990s, was not solely due to many senior judges distancing themselves from it in favor of liberal constitutionalism. Rather, its gradual eclipse walked hand in hand with the more widespread embrace of liberalism as the state’s ideological lodestar by political and social elites like lawyers, jurists, politicians, and civil servants. Considering this broader socio-political development, the classical tradition’s displacement as the undisputed foundation of Irish public law should be unsurprising. The tradition is conceptually anchored on a core of moral realism – in a firm belief in a binding natural law accessible by reason and which serves as the rule and measure of posited law. As such, when this belief is significantly eroded amongst political and juridical actors, it undermines the tradition’s intelligibility and coherence.

Ireland’s experience thus makes clear the potential scale of the challenge for those aiming for a revival of the classical tradition in legal systems where there is marked skepticism about the natural law: that it will be a multifront engagement that goes well beyond ensuring its acceptance by elements of the judiciary. It will involve a widespread revival of a jurisprudential state of mind: an attitude that views a community’s law as being comprised of both the positive written law (lex) and background principles of legality stemming from the natural law (ius) – both playing their distinctive parts in ordering a polity to the common good.

But this should not necessarily be cause for despondency amongst natural lawyers. History has frequently shown – including the Irish legal system’s own remarkable embrace of natural law jurisprudence in the mid-20th Century – that natural law theory has an enduring capacity to bury its undertakers time and again and re-emerge with renewed vigor.

About the Speaker:

Conor is a Lecturer in Law at the School of Law and Social Justice. Prior to his appointment, he was a Max Weber Postdoctoral Fellow at the European University Institute in Florence, Italy.

Conor completed an LLB at Trinity College, Dublin, an LLM at Yale Law School, and a Ph.D. at Trinity College, Dublin. Conor is a non-practising barrister, having been called to the Irish Bar in 2020.

Conor’s research specialises in administrative law, constitutional law, and legal theory.

He has had work featured in leading journals like the American Journal of Jurisprudence, Edinburgh Law Review, European Constitutional Law Review, International Journal of Constitutional Law, Harvard Journal of Law & Public Policy, Maryland Law Review, Modern Law Review, Law & Literature and Public Law. He is also a regular contributor to the classical legal theory blog Ius & Iustitium.

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