Contesting the Irish Constitution and the World-System: 1945–2008

Abstract

Our attempts in ‘seeking to promote the common good’ cannot be considered highly successful as long as large-scale emigration and unemployment are a permanent feature of our national life…There is not much point in talking about the dignity of the individual to the unemployed man, to the man forced to emigrate [or] to the grossly overtaxed property owner and potential creator of wealth… – ‘Living up to the Bunreacht’, Irish Catholic , 1959 I pose this issue for those who champion social and economic legal or constitutional rights…If we were to create a society of enforceable rights, we create, by definition, a society based on enforceable duties. Flexibility, choice, dynamism, and ‘freedom to’ (as distinct from ‘freedom from’) are the qualities which provide the climate for change, growth, wealth creation, and social and cultural innovation. Could it be that a society based on an ever-increasing network of rights and duties would turn out to be as hidebound, as moribund, as economically unsuccessful and as intellectually unfree as the last great historical period of society based on rights and duties – the feudal period? – Michael McDowell, Minister for Justice, 2002 Postwar, during the drafting of the Indian Constitution of 1950, the Indian Constituent Assembly looked to the Irish constitutional experience for a number of provisions, notably including a series of non-justiciable ‘Directive Principles of State Policy’. The Indian courts have subsequently re-interpreted the two categories of fundamental rights and directive principles integrally, according them equal status. In wider civil society, the Directive Principles of State Policy are constantly referred to in political debate, social agitation, and academic research. In contrast, in Ireland, notwithstanding the close textual similarities of both sets of directive principles, Article 45 has not generated similar levels of political contestation, public identification, or judicial activism: its bearing on actual political, administrative, or legal practice remains slight. In the Houses of the Oireachtas, the Directive Principles have been referred to on no more than fifty occasions since 1937. Ireland, like India, has also seen a greatly empowered judiciary emerge in the postwar era. By asserting a fundamental law on the basis of popular sovereignty, de Valera had provided for the emergence of an American-style Supreme Court with significant powers of judicial review.