This the second part of my short series on unenumerated rights in the Irish constitution. The series is looking a classic debate about the interpretation of Article 40.3 of the Irish constitution. It does so in light of some important concepts from linguistic philosophy, particularly the concepts of implicature and enrichment. I gave an overview of those concepts in part one.
In this part, I look at Mr Justice Kenny’s argument in favour of the existence of unenumerated rights. I also look at the philosopher Gerard Casey’s reconstruction and rebuttal of that argument. In doing so, I will be working primarily off Casey’s article “The ‘Logically Faultless’ Argument for Unenumerated Rights in the Constitution”.
If you haven’t read part one, I would recommend doing so. In what follows, I will be relying on some of the concepts and tests that are explained in that post.
1. Mr Justice Kenny’s Argument from Ryan v. Attorney General
Ryan v. Attorney General is a famous Irish constitutional law case. It involved a woman objecting to the fluoridation of the public water supply on the grounds that it violated her right to bodily integrity. The problem was that no such right is mentioned in the Irish constitution. In his judgment, however, Mr Justice Kenny found that the constitution — specifically Articles 40.3.1 and 40.3.2 — implied the existence of unenumerated rights, and that among those unenumerated rights was the right to bodily integrity. He did not, however, find in favour of Ryan, holding instead that fluoridation did not violate that right.
The right to bodily integrity is not what interests me. What interests me is the argument Kenny J. made for the existence of unenumerated rights. To understand that argument, we first need to review the wording of the relevant articles:
Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
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.
I’ve emphasised some of the key phrases since they are crucial to Kenny J’s argument. That argument — such as it is — is contained in the following extract from his judgment:
The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40.3.
So Kenny J thinks that Article 40.3.1 contains a general guarantee that the state will defend and vindicate the personal rights of the citizen. He then thinks that Article 40.3.2 provides a non-exhaustive list of some of those personal rights, and since none of those rights appear elsewhere in Article 40 (you’ll just have to take my word for this - unless you want to read the full text for yourself), it follows that the general guarantee covers unenumerated rights too.
The argument is a little odd, but in his analysis, Casey offers the following semi-formal reconstruction:
- (1) Article 40.3.1 provides a general guarantee of the personal rights of the citizen.
- (2) Article 40.3.2 by virtue of the words “in particular” provides a detailed specification of that general guarantee.
- (3) But Article 40.3.2 refers specifically to rights in connection with life and good name and there are no such rights specified in Article 40.
- (4) Therefore, the general guarantee in 40.3.1 must extend to rights not specified elsewhere in Article 40. (i.e. there are unenumerated rights)
The logical validity of this argument is open to doubt, but let’s grant that it is valid. It’s important to realise how premises (2) and (3) are crucial to the argument Kenny J is making. Initially, I thought it would be possible to make a case for unenumerated rights based solely on the wording of Articles 40.3.1 and 40.3.2. The idea being that in using the phrase “in particular”, Article 40.3.2 implies that the list being given is non-exhaustive and therefore that there must be other rights not specified in the article. But this is flawed, as we shall see in a moment. For Kenny J, it was the fact that Article 40.3.2 gave a non-exhaustive list combined with the fact that the rights listed there are not covered elsewhere in Article 40 that made the case for the existence of unenumerated rights.
Anyway, how plausible is this argument? In the remainder of this post, I will look at Casey’s rebuttal of the main premises.
2. Casey’s Critique of Premises 1 and 2
Casey doesn’t have much to say about premise (1), except that referring to the guarantee in Article 40.3.1 as “general” may prejudge the issue. Instead, we should simply say that it acknowledges that the state shall vindicate and defend a class of personal rights.
Premise (2) is more problematic. The claim made by Kenny J and his defenders is that the use of the phrase “in particular” implies the existence of other personal rights, i.e. it implies that the list being given is non-exhaustive. But does it really do so? Casey argues that it doesn’t. He bases his argument on the idea of conversational implication, but I find that argument unhelpful because it elides the distinction between semantics and pragmatics. So I’m going to substitute my own argument. It agrees with Casey’s basic conclusion, but hopefully provides a more compelling reason for doing so.
The argument draws on Marmor’s cancellability and negation tests, both of which were discussed in part one. The tests help us to determine whether an implication arises as a matter of semantics or as a matter of pragmatics. The idea is that if it is not possible to cancel an implication, then the implication is semantically-encoded into the text. If, on the other hand, it is possible to cancel an implication, then it arises as a matter of pragmatics (i.e. as a function of the specific context in which the text was produced).
We need to apply these tests to the text of article 40.3.2. To do this, we must first identify the relevant portion of 40.3.2 and specify the alleged implication. As follows:
“The State shall in particular… vindicate the life, person, good name and property rights of every citizen” → there are other unenumerated personal rights that the state must vindicate.
Now we must apply the negation test. Take the negation of the alleged implication:
There are no other personal rights that the state must vindicate.
And then pair that negation with the original wording. What do we then have? Well, we have the statement that the state will, in particular, vindicate a certain set of rights, and the claim that there are no other rights beyond that set. The question is whether this pair of statements involves a contradiction. The answer is that it doesn’t. It just involves an awkward turn of phrase. This means the alleged implication is cancellable in this instance, which in turn suggests that if Article 40.3.2 implies that the list of rights there specified is non-exhaustive, it does so pragmatically, not semantically. In other words, the existence of unenumerated rights is rendered possible but not necessary by the use of “in particular”.
An analogy will probably be helpful, and Casey supplies a good one. Consider the statement:
"John is an attractive fellow. He has, in particular, a friendly disposition and a generous spirit."
We might suppose that this form of words implies that John has other attractive qualities. But that implication would not pass the negation test. It is logically consistent to state that he has those qualities in particular, and that he has no other attractive qualities. It’s an awkward way of putting it, to be sure, but it’s not inconsistent. The same could be true in the case of Article 40.3.2.
3. Casey’s Critique of Premise (3)
The rebuttal of premise (2) makes a neat linguistic point, but it is hardly fatal. There could be other linguistic factors which decisively make the case for the existence of unenumerated rights. That’s exactly what premise (3) tries to do. By highlighting the discrepancy between the rights listed in 40.3.2 and those mentioned elsewhere, it tries to add further linguistic reasons for thinking that the list provided in 40.3.2 is non-exhaustive.
The problem, as Casey points out, is that premise (3) is false. Kenny J is convinced that 40.3.2 specifically mentions the right to life and good name, but it actually doesn’t. It only mentions property rights. To see the problem go back to the wording of 40.3.2:
Article 40.3.2: The State shall in particular… vindicate the life, person, good name and property rights of every citizen.
Kenny J seems to parse that in the following manner:
Kenny J's Reading: The State shall, in particular…vindicate the [right to life], [right to person], [right to a good name], and [property rights] of every citizen.
But that’s a very odd way of reading it, particularly since it seems to force us to accept the notion of a “right to person” (though maybe this could be read as simply repeating the general guarantee to respect the “personal” rights of the citizen). The correct reading, according to Casey, is as follows:
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.
This reading makes clear that only property rights are referenced in Article 40.3.2. What’s more, property rights, unlike the right to life and good name, are explicitly covered by another subsection of Article 40 (and again later in Article 44). This defeats premise (3) of Kenny J’s argument.
Actually, there is an even more decisive reason for endorsing Casey’s reading. The Irish constitution is written in two languages: Irish and English. Whenever there is an inconsistency between the two, the Irish language version prevails. The Irish language version of 40.3.2 reads like this:
Article 40.3.2: Déanfaidh an Stát, go sonrach, lena dhlíthe, beatha agus pearsa agus dea-chlú agus maoinchearta an uile shaoránaigh a chosaint ar ionsaí éagórach chomh fada lena chumas, agus iad a shuíomh i gcás éagóra.
This does translate as being roughly equivalent to the English language version, but the way in which the bit after “in particular” is drafted in the Irish version is slightly clearer. I have highlighted the relevant portion of text. It reads literally as “life (beatha) and person (pearsa) and good name (dea-chlu) and property rights (maoinchearta)”. The use of “and” suggests that these are all distinct things, and the use of the composite “maoinchearta” for property rights is important. “Cearta” is the Irish for “right”. If it occurred at the end of the phrase as a separate word, we might have reason to prefer Kenny J’s reading. The fact that it is explicitly conjoined to the word for property, suggests that Casey’s is the correct reading.
For that reason, Casey holds that Kenny J’s argument for the existence of unenumerated rights is flawed. There are, however, some possible responses to Casey’s rebuttal. I’ll discuss those in part three.