Does the Irish constitution imply the existence of unenumerated rights? (Part Three)

(Part One, Part Two)

This is the third and final part of my short series on unenumerated rights and the Irish Constitution. The series is examining a classic debate about the interpretation of Article 40.3 of the Irish Constitution in light of some important concepts from linguistic philosophy, specifically the concepts of implicature and enrichment. In part one, I explained what those concepts were. In part two, I looked at an argument from the philosopher Gerard Casey which claimed that Article 40.3 does not imply the existence of unenumerated rights.

In this part I’ll look at a response to Casey’s argument. This response builds upon the concepts and arguments discussed in the previous entries. Even though I do revisit some of those concepts and arguments below, I would still recommend reading the previous entries before reading this.


1. Casey’s Reading and the Substantive Response
To understand the response to Casey’s argument we need to briefly recap some of the key elements of his argument. As you recall, Article 40.3.1 of the Irish Constitution says that the state shall “defend and vindicate the personal rights of the citizen”. Article 40.3.2 then follows up by saying:

Article 40.3.2: 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.

The argument for the existence of unenumerated rights holds that because this section refers “in particular” to a group of rights (life, person, good name and property) not elsewhere discussed in Article 40, it must be a non-exhaustive list of personal rights and therefore citizens must have other personal rights that the state must vindicate and protect.

Casey argues that this is the wrong way to read Article 40.3.2. He maintains that the article does not refer to a bunch of personal rights; rather, it only refers to one set of rights: property rights (which are mentioned elsewhere in Article 40). This is because he views the following as the correct way in which to parse what is being said in Article 40.3.2:

Casey's Reading: The State shall, in particular…vindicate [the life, person, and good name of every citizen] and the [property rights] of every citizen.

We also saw the last day that Casey seems to have pretty good support for his reading from the Irish language version of the Irish Constitution.

Now, you might be inclined to view Casey’s argument as nothing more than a bit of linguistic trickery. His claim — that Article 40.3.2 only refers to property rights — might be correct as a matter of pure semantics, but when you think about in more detail, you might be persuaded that Article 40.3.2 must — as a matter of legal necessity — refer to other rights.

How might you be persuaded of this? Well, take the first bracketed-phrase from Casey’s reading. Then ask yourself: how could the state vindicate and protect those things except by creating a set of legal rights? How could someone’s life, for instance, be protected by the state, through that state’s constitution, without there being some sort of legally recognised and enforceable right to life? How could someone’s person be protected without some sort of set of personal rights (including the right to bodily integrity, which featured in the case Ryan v. Attorney General) be recognised and enforceable? And so on.

This is the substantive response to Casey’s argument. It holds that even if Article 40.3.2 doesn’t literally and explicitly refer to anything other than property rights it does as a matter of legal substance. This response isn’t perfect. After all, it is technically possible for a state to protect someone’s life and good name without creating a legal right to those things. Nevertheless, within the world of constitutional law, there is a pretty tight connection between the protection of those things and the creation of a legal right. This, incidentally, means that if the substantive response is to succeed it will succeed as a matter of pragmatics, not semantics — see part one for the distinction. It is an argument about what makes sense in a particular pragmatic context; it is not an argument about what sort of meaning is semantically encoded into the text.


2. Casey’s Reply and Concluding Thoughts
Is the substantive response any good? Casey recognises and replies to it in his article. His reply is interesting, though I’m not sure what to make of it. First of all, Casey concedes the main thrust of the substantive argument. He doesn’t kick up a fuss about the conceptual connection between the existence of rights and the state’s proclaimed duty to protect and vindicate things like the life, person and good name of the citizen. The only thing he does say is that if we accept this we must accept the further linguistic quirk that article 40.3.1 and 40.3.2 both refer to “personal rights”. The repetition is not fatal to the case for unenumerated rights, but it is odd.

Casey’s main objection to the substantive response is that it proves too much. One of the keys to Kenny J’s original argument for unenumerated rights was the claim that the right to life and the right to a good name were not specified elsewhere in Article 40.3, but if the substantive response is correct they are specified in Article 40.3. They are specified in Article 40.3.2. It’s true that they are not specified anywhere else, but as Casey points out, what difference should that make?

There is still the problem that Article 40.3.2 uses the phrase “in particular”, which suggests (pragmatically if not semantically) that the list of rights in 40.3.2 is non-exhaustive. But Casey thinks you can deal with this by supposing that the phrase “in particular” attaches to the words “vindicate” and “protect” not to the list of rights. As he himself puts it:

…if the substantive response is correct, these rights are specified in Article 40; they are specified precisely, if implicitly, in 40.3.2. They may not be specified elsewhere in Article 40 but why should that be problematic, just as the mention of personal rights in both sub-s. 1 and sub-s. 2, on this reading, would have to be unproblematic. In this context the phrase ‘in particular’ could attach to the verbs ‘protect’ and ‘vindicate’ and would commit the State to protect the (implied) rights in sub-s. 2o from unjust attack and to vindicate them in the case of injustice done, as distinct, perhaps, from other rights in Article 40, such as those mentioned in 40.6.

I find this a little unsatisfactory. Casey seems to be tying himself into knots in order to get us to accept his preferred reading. If he’s right, then we’d have to accept two linguistic oddities: (i) the repetition of “personal rights” in 40.3.1 and 40.3.2; and (ii) the attachment of “in particular” to “vindicate” and “protect” rather to the list of rights (odd given that article 40.3.1 already refers to the state's duty to "defend" and "vindicate" personal rights). If we are going by which interpretation commits us to the fewest anomalies, I would suggest that the substantive response is more appealing in that it only commits us to the first.

I would also add, as a concluding thought, that the substantive response definitely seems more plausible when we think about the argument from a pragmatic rather than a semantic viewpoint. The problem with Casey’s arguments is that they tend to elide the distinction between the two, starting out by making purely semantic points and staying with those once the argument has drifted into pragmatic territory (which it has by the time we get to the substantive response). I am inclined to agree with him as a matter of semantics: the Irish constitution does not semantically imply the existence of unenumerated rights. Indeed, the cancellability argument that I outlined in part two would seem to be nearly decisive on that score. But the question is really whether the constitution implies their existence as a matter of pragmatics (i.e. as a function of the legal and historical nature of the relevant provisions). To be fair to him, Casey may acknowledge this point when, at the end of his article, he accepts that certain personal rights may require constitutional recognition as a result of the “Christian and democratic” nature of the constitution. To evaluate that argument, however — and the pragmatic argument for unenumerated rights more generally — would require a far longer series of posts. So I’ll have to leave it there for now.