The Wending Path of the Law: Unconstitutionality in the Irish Courts

Abstract

This article re-evaluates the operation of the declaration of unconstitutionality in the Irish courts. The jurisprudence on this topic has evolved in a way that is complicated and that is often seen as inconsistent. The case of Murphy v Attorney General set down a standard that, at least apparently, was subsequently tacitly abandoned by the Irish courts in A v Governor of Arbour Hill Prison and Damache v Director of Public Prosecutions. This article argues that the use of legal validity as the cornerstone concept in considering the effects of unconstitutional law is at the root of this supposed inconsistency. Although legal validity is relevant to unconstitutionality, it operates in conjunction with logically separate properties of legal norms such as existence and applicability. The differences between these properties are often poorly understood and contribute to conceptual confusion in this area. This article points out how these properties might be extricated from one another and how, by understanding parts of the holding in Murphy as being directed to applicability rather than validity, the courts' jurisprudence can be made more coherent.