Natural Law: Part III: Things We Can’t Not Know
The only way of stopping Western civilisation’s escalating self-harming may be to present it with a thoroughly desacralised version of natural law by which to reframe its values for the secular age.
Taking God Out (To Put Him Back In)
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A friend writes in response to the first two parts of this series expressing a view that, while complimentary of their exposition of the issues, is sceptical of ‘any law-based remedies for our societal disfunction in the West.’ My correspondent claims that ‘appeals to “natural law” per se are not particularly useful . . . because natural law is a figment of the imagination of the particular society at its own particular time in history. In other words, it is as fluid as our bodies of constitutional law are in the modern age. It gets us nowhere in terms of getting out of the current cul de sac. What I would suggest to you is that the so-called natural law, at any given time or place, is solely a matter of consensus of the society at hand, as to what mores will govern its operation. For Western Civilisation for the last 2,000 years, the Christian consensus was a given. And it led to all of the wonderful cultural and civic accomplishments that we note in our history books and cultural artefacts, as well as in the brains of our more intelligent people even to this day. But now, as society careers into some insane realm that has not been witnessed in these parts since the French Revolution, all of that is gone with the wind, and try as we might to reconstruct the magic, it vaporises instantly. It is all so hopeless, at least until we reach the bottom of the descent into the canyon of idiocy and moral degradation.’
For these reasons, my correspondent believes that ‘a retreat into religious fundamentals (specifically Christian) is the only way out of the madness that is gradually consuming everything.’
‘I know how desperately you cling to the written law of your land, thinking that it must still have some resonance for even a jaded or hypnotised population, but you will be disappointed. Its moral basis is “moralbund.” (How is that for a play on words that fiddles with our demise as cleverly as Nero did?) I used the word “resonance” for a particular reason. Of late, I have become fascinated by the studies of Rupert Sheldrake on the subject of a term he has coined, “morphic resonance”. His theories, in essence . . . revolve around the concept that humanity (and all animal species on the planet) march to the tune of an ancestral drum that controls in so many ways our behaviour. “Habit”, he posits, more than genetics, defines our lives here on earth. Taking his theories into the discussion at hand, I am thinking that the computer age has disrupted, in some cataclysmic manner, this field of sanity and conservatism that we all grew up with, and that the human species is headed down a very dark road that natural law, however it has been passed down to us, is powerless to course correct. . . . Morality, in whatever form we find it, looks like a fairly dead letter up against these odds.’ In the era of the internet, my correspondent asserts, these factors are rendered exponentially worse.
This, though it displays a misunderstanding of my objectives in writing these articles, is well-observed in its outlining of the broad sweep of the conditions hobbling our cultures’ chances of holding on to fundamental precepts in an age of rampant relativism. The problems my correspondent outlines are real, but I would insist that they are problems of modernist construction in the post-Enlightenment era, rather than naturalistic outcomes of variegated human community. In differing times, the forms and slants of laws may take differing forms, but the roots in natural law must continue to do the work that roots are there to do, or the plant of justice will wither and die.
Though I do not believe that we have yet reached the depths of the chasm my correspondent speaks of, I think it possible that we may yet be able to avoid any further plummeting with the right thinking and leadership. I do not disagree that the situation is bad, but nor do I accept that ‘a retreat into religious fundamentals (specifically Christian) is the only way out of the madness that is gradually consuming everything.’ At a theoretical level, that might well be advanced as a possible remedy, due to all the factors concerning reason and ideology that we have gone into under those headings, it is a practical impossibility. The forms of ‘reason’ in use these days have as though permanently barred us from rediscovering the understandings that supported the construction of much of our civilisation. But I believe there is a ‘halfway house’ between where we are and that hypothetical re-embracing of fundamental understandings, a kind of fake-it-’til-you-make-it intermediate point in which, in the legal context, we might become re-convinced of the necessity to re-establish the bedrock foundations of our freedoms without the language or codifications that have long connected these to religiosity, which for the moment at least are culturally unhelpful, to say the least.
As a by-product of the conditions, my correspondent has adduced, there is a problem with public apathy concerning the tabulation of legal principles. In the dog days of 2020, attending anti-lockdown demonstrations, I would meet people who, aware I was involved in taking a constitutional action against the ‘measures’, and, having declared their support for that endeavour, would go on solemnly to declare their lack of interest in the Irish Constitution. Usually, though not invariably, they were young people — likeable, ostensibly smart, hip to the groove on just about everything. In the course of a brief conversation, it would emerge that they felt there was something uncool or old hat about knowing how the Constitution is put together. ‘I’m not really bothered about the Constitution,’ they would say. In response, I would say, ‘Well, next time you go to a Coldplay concert, try walking around saying to yourself, “I’m not really bothered about electricity!” The analogy is good, but we need to be precise as to what it sets in comparision. The parallel is between live music and freedom, a rather trite analogy but a useful one. The stuff that courses though ten thousand wires at a Coldplay concert, vivifying the electric guitars, piano, mics, lights and dry ice, is analogous to the mystic sparking stuff that blows unseen through the streets and byways of our country, guaranteeing our right to walk about, speak, meet our friends, pray in public to our God, close the door of our homes behind us, without a thought for what that might mean or how it is achieved. It is not necessary, every time we find ourselves doing any of the above, to recite the wordings of Articles 40-44 of the Constitution of Ireland, but it is nonetheless advisable that we retain some subliminal sense of a connection. This is especially true when the right to do these everyday things comes under stress, as it did in the Time of Covid. To say, ‘I’m not really bothered about the constitution’ is — at the best of times — careless, negligent, lazy, though perhaps understandable in light of the dismal civic educations most people have received. We may be turned-off by the arcane language and pedantry of legal formulations, but we have a duty — to ourselves and to those who come after us — to enclasp, somewhere deep in our hearts, a sense that this stuff matters, that it doesn’t just happen, that if we stop remembering how things are done, the day may come when our amnesia proves fatal.
I am blessed — or cursed? — to have had a different upbringing. As a child, driving around in my father’s mailcar, I heard on at least a weekly basis better discussions about the Constitution of Ireland than I have heard on Irish radio or television for the past 30 years. My father, a pro-treaty republican, anathematised the Constitution’s architect, Eamon de Valera, but revered his Constitution. ‘We have to give the Devil his due,’ he would say. ‘It is thanks to him that we have one of the greatest constitutions in the world.’ He it was who taught me to treasure Bunreacht na hÉireann, to see it as a belonging of mine, the guarantee of my freedoms. He it was, a mechanic by training, a mailcar driver by occupation, who showed me how the text of the Constitution was subtly and intricately constructed to combine invisible cohesive agents in a mechanism that enabled Irish society to function without anyone noticing the hum of the engine or the clicking of the gearbox.
In the decade that departed around the time the Covid scam was rolled out — the teens of the 21st century — the Constitution of Ireland came under escalating attack from forces foreign and domestic — forces that only in the last three years or so began to come into clear focus. I wrote about the earlier stages of this assault in my 2018 book, Give Us Back the Bad Roads, a letter to my father describing what had befallen our country since he left us bereft on June 3rd, 1989.
As I have repeatedly emphasised, my purpose in pursuing a legal challenge to the lockdowns from 2020, and, arising from that process and experience, in ventilating the mechanisms by which the Irish Constitution was disabled — or, perhaps more correctly, disassembled — in advance of that date, is not an expression of my desperate clinging to the written law of the land, nor an avowal of trust in the courts system — it is an attempt to shout ‘Fire!’ for the benefit of anyone with ears to hear. The constitutional challenge taken by Gemma O’Doherty and me was in large part an exercise in dramatising the nature and extent of the dismantling of the Irish People’s claims to fundamental rights, by demonstrating that they had already been spancelled in the jurisprudential processes without this coming to public attention. In this series, I am not so much ‘appealing to natural law,’ as seeking to retroactively fill in the gaps in public discussion that enabled that coup to take place. Remember: almost none of this was reported with necessary pointedness at the time it occurred. And a key element of what I am seeking to do is leave behind a ‘map’ of what existed and what was done to it, so that the coming generations — have they the mind to undo the chaos that is being generated out of the legal malfeasance that has occurred — will be able to construct a road back out of the shambles we have bequeathed them.
I believe my reader and correspondent is correct in diagnosing a disruption in humanity by computers and the internet of the age-old habits born of what she calls the ‘field of sanity and conservatism that we all grew up with’. This is a good description of things. The technological/technocratic world has rendered us ‘too clever’ while stealing away with our smarts, beguiling us with the notion that, if we are able to develop machines that add so significantly to our functional capacities, we are surely capable of transcending and leaving behind the paltry efforts of our ancestors to manage their own rights and freedoms. Modern society, in its ‘cleverness’ has forgotten not merely how the construction of our civilisation was effected, but even lost sight of the concept that it was — had to be — constructed in the first place in its filigreed detail, which includes the underpinning and guaranteeing of our fundamental rights and freedoms. Modern minds are unaware of ‘how it was done’, or even of the very fact that anything needed to be ‘done’ to enable us to walk unmolested down the street, open our mouths to speak, close our front doors behind us, or take it for granted that we could not be compelled by the state to accept poison into our bodies in the name of something as abstract as ‘the common good’.
Rupert Sheldrake argues that there is no need to suppose that all the laws of nature sprang into being fully formed at the moment of the Big Bang, ‘or that they exist in a metaphysical realm beyond time and space.’ Before the general acceptance of the Big Bang theory in the 1960s, he claims, eternal laws seemed to make sense: The universe itself was thought to be eternal and evolution was confined to the biological realm. 'But we now live in a radically evolutionary universe’:
If we want to stick to the idea of natural laws, we could say that as nature itself evolves, the laws of nature also evolve, just as human laws evolve over time. But then how would natural laws be remembered or enforced? The law metaphor is embarrassingly anthropomorphic. Habits are less human-centred. Many kinds of organisms have habits, but only humans have laws.
My answer would be that, in this as in many other contexts, humans take a ‘short cut’ to each new evolutionary stage, and in this we have employed instruments like writing, printing and other technologies, to leapfrog over our non-human neighbours. Humans have both habits and laws, and each of these categories evolve in their externalities, while remaining constant at their cores. Moreover, what is called ‘law’ in the context of ‘natural law’ does not occur in the form of edict or diktats, but of irreducible principles that might be called ‘the justice gene’. It is interesting that even our most modern charters, conventions and constitutions do not have sections headed ‘Natural Laws’, rather, these irreducible principles have tended to be detectable in the form of unstated, indivisible assumptions, which are so obvious and axiomatic that they are simply ‘recognised’ or ‘acknowledged’ in these texts. What we are calling ‘law’ in this context is not a tabulated statute or Bill, but the residue of the historical workings of an instinctual sense of what is right and wrong, retained within a catalogue of precedent as a rolling mechanism for resolving conflicts or punishing harmful deviations. The natural law comprises mainly positive principles, out of which the behaviour of a community may be cultivated, and this, more a memory bank than a law library, has long guided the ‘habits’ of men, generally enforced by community sanction. As Sheldrake outlines:
‘Habits are subject to natural selection; and the more often they are repeated, the more probable they become, other things being equal. Animals inherit the successful habits of their species as instincts. We inherit bodily, emotional, mental and cultural habits, including the habits of our languages. The habits of nature depend on non-local similarity reinforcement. Through a kind of resonance, the patterns of activity in self-organizing systems are influenced by similar patterns in the past, giving each species and each kind of self-organizing system a collective memory.
Here, Sheldrake is referring to something like a ‘species-specific telepathy’ — one of the more controversial aspects of his work — what he calls ‘morphic resonance’, which relates to mysterious interconnections and collective memories in animals and humans, and sometimes working between humans and their pets.
This may well be a factor in the way the natural law evolved and found its way into the historical thread of our civilisational thoughtstream. Though varying from locality to locality, it converged on the fundamental issues, which became universalised.
Ireland, having had one of the oldest, most sophisticated legal systems in the world, stretching back to more than 1,000 years before Christ, again provides an appropriate petri dish. Of pagan origin, the Brehon Laws were based on memorised precedent, which the judges were required to retain and recall with perfection on pain of punishment for issuing an unjust verdict. Ireland was, in the early period of these laws, not a single kingdom, but sub-divided into multiple túaths (jurisdictions), each with its own cultures and laws. These ‘laws’ — comprising principles that emerged from legal schools, and elaborated by judges when required, were enforced by the community rather than any central civic power as we might understand that concept today. This system survived in this manner through several periods of invasion, until it was eventually written down, when it emerged as possessing enormous consistency across the túaths, especially in general and fundamental principles of behaviour. These laws were co-opted by the Normans in the 12th century and remained in common use until the Penal Laws were introduced by the English colonisers after the Reformation split in the 17th and early 18th centuries. These new and entirely different laws — in Irish: Na Péindlíthe — comprised a series of legal prohibitions imposed mainly on the Catholic majority, though also on other nonconformists to the official Protestant religion, and also to Catholics in Britain itself, and were of the modern form of law, which expresses itself more by prohibition than permission.
Like the Brehon Laws that preceded them, Na Péindlíthe included laws about religion, the speaking of Irish, family, marriage, education, inheritance and land ownership, voting and the holding of public office, but they differed from the Brehon culture in ways that convey a radical regression from a society that was, in modern parlance, ‘progressive’, to one that reverted to the level of primitive tyranny. In many respects, Ireland is therefore a perfect context in which to assess the trajectory and fate of natural law through history, and to consider the consequences of any further erosion of fundamental emancipatory principles, but that’s a rather different article.
What is called natural law also left its traces in English common law, which in time became the chassis of the modern Irish legal system, and eventually the core of the (informally) Bill of Rights part of Bunreacht na hÉireann. The sixteenth-century English lawyer, Christopher St. German, described the fundamental object of any sound theory of natural law as an instrument of understanding the relationship(s) between the particular laws of particular societies and the permanently relevant principles of practical reasonableness: ‘In every law positive well made is somewhat of the law of reason,’ he said, ‘and to discern . . . the law of reason from the law positive is very hard. And though it be hard, yet it is much necessary in every moral doctrine, and in all laws made for the commonwealth’. In other words, the laws of fundamental reasoning do not change, although the times may change, and with them human desiring or demands, and the mode of their articulation. Laws may be ‘positive’ in the sense of being drafted in accordance with the mores of the time and the needs of the people, but they must at all times follow the rules of practical reasonableness. Murder is wrong, and no amount of semantic casuistry can make it seem right. The Brehon laws were concerned, in individualised ways across the island of Ireland, with matters that, to this day, are the concerns of human societies in seeking to maintain peace within themselves: matters like murder, violence, property, theft, inheritance, et cetera. In these fundamental issues, they bore remarkable similarity across the island, that can only in part be attributed to inter-túath travel, which was limited due to cultural and territorial issues. Here we can observe in laboratory conditions the workings of the American philosopher J. Budziszewski’s concept of ‘things we can’t not know’.
Natural law might be called intuitive law, in that it is open to any person, having attained the use of reason, to understand it. It is called natural law because, as J. Budziszewski has put it, it is ‘built into the design of human nature and woven into the fabric of the normal human mind.’ It is ‘religious’ in the sense that religion is the ‘science’ of the fundamental, the absolute, the infinite, the ultimate and the eternal. Seen in the clear light of day, natural law is uncontroversial among human beings, provided they comprehend their own natures and seek not to subdivide them. We understand that murder is wrong, and this idea is therefore relatively uncontroversial. The Commandments, for example, forbid murder, but so does all secular law. As Budziszewski says, ‘Natural law is about general revelation, not special revelation. However, a Christian natural-law thinker will make use of special revelation to illuminate general revelation — and will use God-given reasoning powers to understand them both.’
The natural law offers not simply prohibitions, but a series of corollaries or dualisms that flow logically one from another, with each providing affirmation for the other. That murder is wrong flows inexorably from the right to life of every human being, and by the same token our repugnance of murder provides confirmation for the existence of a fundamental right to one’s life. Our instinct that stealing is wrong implies a right of every human being to own property and have this right respected. These rights in turn imply that man is a free agent, imbued with conscience, which in turn implies that the public good requires freedoms of various kinds as fundamental requisites for its proper functioning.
The Brehon Laws were 'natural laws’ in the sense that we might nowadays describe as 'coming naturally’ or ‘no-brainers’. Although natural law is nowadays assumed to be the imposition of religious doctrines, its origins are everywhere rooted in secular and civic forms of thinking.
In an excellent essay on his Substack page, Clemmy, in April 2021, Thaddeus Kozinski, himself a convinced Christian, wrote:
‘The secular, pluralistic city is the best one, we know now, for it secures the blessings of liberty and freedom for all, requiring only a modicum of shared principles, such as not killing each other over disagreements about the Good and the Real, educational and economic opportunity for all, and not taking other people’s stuff.’
Contrary to what the modern discourse tries (usually for reasons of ideological tactics) to suggest, this does not necessarily mean coercive laws of enforcement. It is odd that we refer to modern statute as ‘positive law’ when in most instances it consists in prohibitions; the natural law, on the other hand, was of its essence the articulation of positive values. The criminalisation of breaches of offence was a different matter, with such breaches seen as deviations from the positive code rather than ‘crimes’ in the modern sense.
Nor is any of what is most useful in all this necessarily ‘religious’ in its conception. The Brehon Laws date from pagan times, but there is very little in them that is overtly ‘religious’, even in the sense of what might be termed sexual morality, which has become the great bugbear of modern, post-Christian times. In Ireland at least, the legal civilisation that was finally truncated after the Reformation, and which survived for the first millennium of the Christian era, came unstuck under attack from English Protestantism, for reasons born essentially of the concupiscence of Henry VIII. It is not the case, therefore, that Christian consensus was invariably facilitatory of cultural-legal cohesion, anymore than it can be said that the Brehon period of highly advanced civilisation was a Christian formulation.
My correspondent, referred to above, is of course correct in suggesting that the ‘modern’ moment presents unprecedented difficulties in the nurturing of human ‘habits’ to the benefit of everyone, as seemed a straightforward matter in even the relatively recent past. What I propose is not so much that natural law might act as a corrective on current drifts as that developing a renewed understanding of what things were like, what happened and what has resulted, might serve to begin a process of re-evaluation of our radical deviation from the principles that delivered human stability and the civilisation now unravelling. What confronts us in the present day is not a naturalistic absence of consensus, but the abuse of power, especially the powers of collective indoctrination and ideological prosletyzing. The careening of society towards ‘the canyon of idiocy and moral degradation’ to which my correspondent refers, is an induced process of demoralisation — literally, de-moral-isation, a standard instrument of totalitarian induction. I do not believe that the present state of hopelessness would long survive the removal of the corrupt layers of our society, especially the political, legal and discourse-related ones. Moreover, the erosion or dismantling of the natural law did not arise out of public consensus — certainly not an educated public consensus — but again from the machinations of politicians and their proxies in response to external prompts or stimuli. In Part II of this series, for example, I described the process of judicial mauling that resulted in the deletion from the pubic record (and solely that) of Irish law of the rights of the unborn child. The ‘consensus’ preceding this was of an ideological/political nature only, since at the time of its initiation (1995) the public impulse was overwhelmingly to protect the rights of the unborn child. Even in 2018, when the process was shamelessly completed, the ‘consensus’ purporting to have hightailed in the opposite direction was overwhelmingly achieved by biased media, manipulating of quasi-democratic instruments (opinion polls and a ‘citizens assembly) and a constant wash of quasi-legal propaganda and psychological assault. Of course, since this demoralisation is directed at softening-up the people of the West for a full-scale attack on human existence in the former nations of Europe, America and Oceania, it is now revealing itself as the precursor of several even greater evils.
As a means of understanding, at least in part, how we got here, we need to pay attention to what has been done to the very foundations of our laws and the fundamental defences of our freedoms. To draw attention to natural law is merely to remind ourselves of the existence of first principles which we might do well to consider anew before it grows too late. And, while I agree with my correspondent that a reversion to Christian roots would offer an even more effective means of achieving this, I do not believe this is possible, not least because the Catholic Church itself has latterly unravelled in a kind of neo-pagan (i.e. diabolical — nothing like the original paganism) tailspin devoid of either prudence or wisdom.
There is another reason why I pursue these questions. Because a cause is ‘lost’ does not vitiate its rightness, or its grandeur, nor does it mean that human beings cannot enrich themselves by learning of its foundational logics, or the ideals that provoked it. Nor can we assume that what is lost cannot be resurrected, and go on to change the world. There is an ancient saying, adapted by W.B. Yeats: ‘Things reveal themselves passing away’, which hints that, whereas in their time ideas may become invisible as such by virtue of being intangible but axiomatic, in the process of their dying they demand to be stated clearly and comprehensively so that what was once taken for granted may be understood in its vitality and indispensability. ‘The past,’ Richard M. Weaver wrote in 1962, ‘shows unvaryingly that when a people’s freedom disappears, it goes not with a bang, but in silence amid the comfort of being cared for. That is the dire peril of the present trend toward statism. If freedom is not found accompanied by a willingness to resist, and to reject favors, rather than to give up what is intangible but precarious, it will not be long found at all.’
The case for the natural law is that there is a source of wisdom higher than man, and independent of him, which itself derives from the intuition that reality results from the application of mind. The logic of this becomes axiomatic when you consider the basic truth that man does not make himself, and never has. This way of thinking brings one inexorably to acceptance of universal truths and values: that man everywhere is driven by the same desires, and constrained by the same limits. This is the antithesis of the idea of man as a product of his environment, which leads to relativism, reductionism, and ultimately to nihilism, whereby human existence becomes a journey without a map, in which direction is decided by testing the breezes of whim.
More than two centuries ago, the great Irish philosopher Edmund Burke might have been prophesing the 1995/2018 barbarism of Irish Supreme Court justices when he wrote of modernist tendencies towards dismantling the past: ‘All the decent drapery of life is to be rudely torn off. All the superadded ideas, furnished for the wardrobe of a moral imagination, which the heart owns and the understanding ratifies as necessary to cover the defects of our naked, shivering nature, and to raise it to dignity in our own estimation, are to be exploded as a ridiculous, absurd and antiquated fashion.’
Thus, sure enough, we were to kick away the ladder that brought us to our recent place of rest in something like advanced civilisation — more or less unscathed, despite our congenital vulnerability. Even now, with the walls tumbling inwards, those of us who seek to draw attention to what is lost are rudely instructed that we ‘can’t turn the clock back’. As Richard M. Weaver wrote in Ideas Have Consequences (In 1948!) ‘The very possibility that there may exist timeless truths is a reproach to the life of laxness and indifference which modern egotism encourages.’
The most important element of cultural consolidation is to imagine by ‘remembering’, and therefore to reinterpret, some dreamt-of ideal state of a society’s equilibrium, which sensitive humans have the capacity to glean almost instinctively from a constructed sense of origin and an imagined sense of destiny; living in the space between, we were moved to fill in the blanks. Natural law was a central element of this process through history, and without it — and the rest of our ultimate speculations and deductions — we are stymied in a moment that we seem unable to escape from. In the absence of what Weaver calls ‘the metaphysical dream’, our societies become increasingly incoherent and adrift from any guiding idea capable of harnessing the variegated impulses of the human, caught, as he says, ‘between sentimentality and brutality.’ Modern man’s downfall resides in the fact that he recognises only one form of metaphysics: progress. We return to nature, courtesy of the basest responses, or rather the latest perversions of the basest responses, and the chronicle of man’s journey of discovery is re-written to make this seem ‘progressive’, when it actually propels us backwards. Whereas it is wise to respect the thought underlying ancient forms, and pay attention to their details, progress teaches us the opposite: to regard as ipso facto outmoded and obsolete that which is chronologically old. The resulting absence of a shared worldview based on virtue or truth results in a populace divided between those who are happy with the descent and those who decry it, though mainly on narrow grounds of repugnance. Soon, the central activity of the society is the war between these sides.
It is frequently observed that all this came about through man’s retreat from what is termed ‘religion’, but it may more clearly be seen as an inability to contemplate transcendence. Man came to believe that his presumed approaching state of omniscience entitled him to sit on the throne once occupied by God. But, in claiming all authority, man, devoid of powers of ex nihilo creation, becomes impotent in the face of his own unacknowledged limits. The slide from transcendentalism — in the broadest conceivable sense — to man-as-the-measure-of-all-things marooned future generations in a partial world defined chiefly by power: Might is right and let the fittest be King. Having cut himself off from first principles, man substitutes an obsession with fact and ‘the science’ for truth, seeing only what is expedient in the pursuit of unrefined desires. The scientist is, in a sense, the antithesis of the philosopher, because he focuses on details of details. Because there is no need to take account of foundational ideas, or ultimate hypotheses, all ‘facts' can be moulded to fit the needs of the problematic moment, with those that don’t fit the preferred hypothesis ‘factchecked’ out of play. In this ‘manmade’ new world, the only form of learning that is still respected is that of the narrowly but intensely qualified ‘expert’. Each ‘expert’ rules absolutely for his 15 minutes of fame, but the incoherence is discernible within the hour, because no one is qualified to critique the absence of connectivity between the various forms of ‘expertise’. Thus, synthesis — and accordingly any hope of ultimate sense — becomes impossible. Since the ‘expert’ is elevated to the level of deity, all men fancying themselves ‘learned’ must aspire to the same quality technical expertise. This includes judges, who seek to deliver to the world the moral and ethical conditions which best suit its conceits. In a world thus governed, the respect for contemplation evaporates and games of language and semantics come to fill in for the absence of reason rooted in truth or its contemplation. To say that, as a result, we have lost our collective moral compass is at once obvious and pointless, because it reads at once as both a gross understatement and a sign of frowned-upon antediluvian judgmentalism. What could morals have to do with it? In the hands of a skilled wordsmith, ‘facts’ outweigh ethics and morals, and facts may be adjusted and tweaked to order, whereas the truth may not.
The idea has been put about, especially by politicians, lawyers and journalists, that natural law is simply religion in another form. In fact, many religious-minded people repudiate the natural law, claiming it is not the unmediated word of God, and therefore places too much faith in man’s capacity to himself divine right from wrong. In Biblical terms, it therefore amounts to man eating the fruit of the Tree of Knowledge. In addition, some Christians complain about the pagan roots of natural law, and accordingly have refused to defend it with all necessary vehemence. This is despite the fact that natural law has long been adopted by Christianity as a framework of moral behaviour, and that the Bible provides many elaborations on the fundamental understandings of natural law. Many of the arguments concerning these matters, then, tend to be mutually contradictory, and may be refuted in various ways, but it remains the case that traces of and references to the natural law are to be found in the traditions of every recorded culture and society, regardless of religious inclination.
Multiple forms of modern secular law come steeped in natural law. The Commandments forbid murder, but so does all secular law. As J. Budziszewski, an unapologetic Christian, says, ‘Natural law is about general revelation, not special revelation. However, a Christian natural-law thinker will make use of special revelation to illuminate general revelation — and will use God-given reasoning powers to understand them both.’
In our self-styling ‘modern’ societies from the mid-twentieth century, there has developed a distinct problem arising from the insinuation of the idea that natural law is purely a religious matter.
It was pluralism and the associated repudiation of religion that put paid to natural law. Yet, the objection does not appear to have been to religion itself, but rather to the moral strictures that many religions have in common, in particular those pertaining to procreation and sexuality. Atheists and secularists who objected to the incursions, as they saw it, into their bedrooms of white-bearded old men. In response to this objection, we appear to have thrown out (literally, in many cases) the baby along with the bath, the sponge, and the rubber duck.
J. Budziszewski: ‘We are passing through an eerie phase of history in which the things that everyone really knows are treated as unheard-of doctrines, a time in which the elements of common decency are themselves attacked as indecent. Nothing quite like this has ever happened before. Although our civilization has passed through quite a few troughs of immorality, never before has vice held the high moral ground.’
Natural law emerged initially in pagan societies, especially — though not exclusively — Ancient Greece. Later it was adopted, adapted and refined by Thomas Aquinas, providing it with a Christian veneer, and extending its reach into some of the more personal and intimate areas not initially explored by Aristotle, and actually in many respects contrary to the easygoing morality of the Brehon Laws. The problem is that, in imagining they are discarding only religious dogmas, supposedly designed with the sole intention of maintaining regimes of sexual continence among the Abrahamic flocks, modern societies overlook that they are throwing out, along with the bathwater of an allegedly superfluous morality, the bath that their own fundamental rights were birthed in, and the beating, timeless heart of their own freedoms. The objection to natural law is based in part on a misapprehension: that Aquinas was purely a theologian, when he was also a great philosopher. The idea that a ‘modern’ state can dispose of the natural law because of its condition of being ‘a sovereign, independent, democratic state’ — as the Irish Supreme Court ludicrously suggested in 1995, in dismissing and dismantling the 58 year-old historical centrality of natural law to the Irish Constitution — is akin to abolishing the alphabet and claiming that literature is about sentences, not words.
It has made things rather easy for those seeking to abolish fundamental rights that, as David Novak pointed out in a First Things article in November 2019 (‘Does Natural Law Need Theology?’), natural law discourse and advocacy are pursued chiefly by members of the three Abrahamic religions — Judaism, Christianity, and Islam. He asked: ‘Must one be religious in order to be a natural law advocate?’ and continued: ‘The fact that natural law is an interreligious or interfaith enterprise does not necessarily imply its universal rationality. Indeed, isn’t it likely that advocacy of natural law arises from theological reasons, and is thus limited by them? Just as the Catholic magisterium could be seen as teaching a universally applicable morality, prescribed by its own revelation-based authority, so too the Jewish tradition’s teaching of a universally applicable morality could be seen as issuing from its revelation-based authority. In this view, then, natural law is universal only in its application; in its conception, it remains particularistic. What is universally binding is represented to the world as stemming from God’s particularly authoritative will rather than from his universally persuasive wisdom.’
He answered himself pretty comprehensively by emphasising that, although natural law is aided by theology ‘in that theology shows natural law its origin and ultimate end’, theology does not show natural law’s 'intelligibility, nor its practicality’: Natural law is vital in that it informs our moral behaviours by placing them in the broadest context of the ‘created, purposeful cosmos.’
‘But,’ he adds, ‘our moral acts are not thereby removed or displaced from their more immediate political locale in the world. Despite being certain that our theologies show us a more adequate source of law than do the modern theories of Hobbes, Rousseau, Kant, and Rawls, religious natural law thinkers should keep our theological certitude mostly to ourselves. We should bring our religious convictions into the public square only when we need to fend off the charge of secularists that our existential commitments not only do not help public reason, but in fact hinder it.’
Religious thinkers, Novak stressed, can argue more persuasively in the larger world by employing a philosophical conception of natural law, which allows them to enter public reasoning ‘with integrity’.
‘In a secular society like the United States,’ he pointed out, ‘the legitimizing warrant is not theological but philosophical, as when Thomas Jefferson declared American independence by invoking self-evident truths. Yet, for Jefferson, these self-evident truths concerned the rights with which all humans had been “endowed by their Creator.” Jefferson’s secularity, then, was not atheistic, but rather theistic or “Unitarian” in the early modern sense. Still, Jefferson was not arguing as a Christian (nor as a Jew), insofar as his argument was not based on revelation. The acceptance of the divine source of natural law is not, then, philosophically necessary.’ The theological aspects of natural law, he argued, are matters for discussions internal to faith communities. ‘In the public square, we are philosophers; at home, we are theologians; and the two disciplines are quite compatible. We religious natural law thinkers and advocates should practice them both with political savoir faire, philosophical perspicacity, and theological fidelity.’
In the present age of relativism, where the very articulation of a principle in a religious context is sufficient for it to be dismissed by secular society, there is a need for a return not necessarily to the particularities of the law but to its principles in a spirit of common-sense curiosity. In most contexts, what is right is obvious to all. When it is not, we usually can detect the influence of ideology, which bends the truth and introduces shades of grey.
The problem we ran into in Ireland in 1995 was not unique. The same subterfuge had (probably not unconnectedly) been visited on the United States by its Supreme Court in 1992, in a rather infamous case known as Casey.
J. Budziszewski: ’When the [US} Supreme Court announced a right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life, some thought it was rejecting the very idea of natural law. Really it was asserting a degenerate theory of natural law, one widely held in the culture — or at least in those parts of it which our controllers choose to recognize, such as law schools, abortion facilities, and liberal seminaries. It was propounding a universal moral right not to recognize the universal moral laws on which all rights depend. Such liberty has infinite length but zero depth. A right is a power to make a moral claim upon me. If I could “define" your claims into nonexistence — as the Court said I could “define” the unborn child’s — that power would be destroyed.’
J. Budziszewski lists four ‘instruments of witness’ within the human structure that enable us to comprehend the natural law — i.e. things ‘we can’t not know’ and things we ‘can’t help learning’:
1. Deep conscience;
2. Our recognition of the designedness of things in general, which not only draws our attention to the Designer, but also assures us that the other witnesses are not meaningful.
3. The particulars of our own design (as creatures) — our structure, desires, limits, mortality, sexual differences et cetera.
4. The natural consequences of our behaviour or deviancy.
In other words: common sense, the instinct, or the recognition of and obedience to the instinct that enabled our forefathers to tell right from wrong. Natural law, says Budziszewski, is ‘common moral sense, cleansed of evasions, elevated and brought into systematic order’.
Since these devices are available to everyone, it is possible to arrive a a share cultural understanding of the natural law and its role in community.
‘[T]he foundational principles of the natural law are not only right for all, but at some level known to all. This means that non-Christians know them too — even atheists. It does not follow from this that belief in God has nothing to do with the matter. The atheist has a conscience; atheists know as well as theists do that they ought not steal, ought not murder, and so on. The problem is that they cling to a worldview that cannot make sense of this conscience. If there is no moral Lawgiver, how can there be a moral Law? Worse yet, if it is really true that humans are the result of a meaningless and purposeless process that did not have them in mind, then how can our conscience be a Witness at all? It is just an accident; we might just as well have turned out like the guppies, which eat their young. For this and other reasons, I do not think we can be good without God.’
Budziszewski defines four separate stages in the evolution (or devolution!) of natural law: Aristotle, Aquinas, Enlightenment and the present one, which we are seeking to define in these articles.
The third phase of natural law’s evolution was the initiative of Enlightenment thinkers, who, out of religious scepticism or in an attempt to reduce inter-religious conflict, set out to sever the connections between faith and reason and between religion and philosophy. ‘Their aim,’ Budziszewski writes in his 2003 book, What We Can’t Not Know, ‘was to make natural law theory theologically neutral — a body of axioms and theorems that any intelligent, informed mind would consider obvious once they were properly presented, in fact equally obvious no matter what religions or wisdom tradition the mind followed, or whether it followed any at all. It wasn’t that the Enlightenment thinkers didn’t believe in God. Although some were atheists, others were Christians, of a sort. The problem was somewhat different, and it was twofold. In the first place, they thought that one could know all the important things abut man even while knowing very few of the important things about God. It was enough to work out His existence as a theorem; there was no further need to know Hs name, the history of His self-disclosure, His rightly deeds in history. In one way, this was a regression to the Unknown God of the Athenians, to the “pure Being or pure thought, encircling round for ever closed in upon itself without reaching over to man and his little world”. Yet, like all apparant regressions, in another way it was not that at all; whenever we try to return to an earlier stage and reject what we have learned since then, we lose what we had then too. The problem with the Athenians was simple ignorance; they had never heard about agape. The problem with the thinkers of the Enlightenment was rejection: they had heard about agape but decided that it wasn’t important. This was a kind of intellectual blindness, and it was progressive. Having lost their grip on agape, they came to lose their grip on the logos too. Consequently, they felt a greater and greater need to make natural law theory to be not only theologically neutral, but even ontologically neutral, independent of anything that might be important. And this was impossible. In the second place, they thought that the ability of the mind to grasp the truth about man was independent of moral virtue. To put it another way, ethics was like mathematics. A scoundrel ought to grab the virtue of purity just as easily as he grasped the Pythagorean theorem — and if he couldn’t, well, that showed it simply wasn’t a virtue. Needless to say, this had a certain flattening effect on moral philosophy.’
The reason we are entering a fourth phase, according to Budziszewski, is that the Enlightenment project has collapsed because modern man lost confidence in the idea of an ethics that would be universal and neutral. This was an inevitable consequence of the train of (il)logic Budziszewski has so economically described, for it introduced the age of relativism, in which ethics were retained but the idea of their universality abandoned — each faction would have its own right and wrong. Thus, statecraft was reduced to naked power, ‘because someone’s right and wrong has to win and there is no way to arbitrate among them.’ The ‘liberals’, meanwhile, retained the notion of neutrality, but abandoned the concept of ethics, insisting that laws must be justified independently of theology, ontology, and even ‘one’s conception of the good’.
Budziszewski notes: ‘Because this is impossible, what happens in practice is that their own views of the good prevail without challenge, just by pretending that they aren’t really views of the good.’
The fourth phase, according to Budziszewski, may be a step backwards to go forward. Latterly, thinkers have abandoned the Enlightenment fallacy of neutrality, while recovering the idea of a universal ethics. The common ground has been restored, but in a qualified sense. There is a single human nature, capable of being universally understood and interpreted, but this process cannot be neutral, because not all views of God, or the structure of reality, are equivalent. The new breed of natural law thinkers, he writes, also reject the notion that natural law is like mathematics. ‘To see it well, one must have pure eyes, and this requires moral virtue.’ But this presents the world as it is now, having moved to eradicate the influence of natural law from its statute books and constitutions, with a kind of Catch 22: ‘The more adequately one has been shaped and formed by traditions and disciplines that conform to the natural law, the more clearly one can discern the underlying moral realities on which these disciplines are based’.
And if you have not, you cannot. Since the ladder was pulled up, the incomprehension of the young has grown like Topsy. In the future, Budziszewski believes, natural law philosophers ‘will be free of the delusion that one can reason about natural law independently of how well one has been bought up, in what one places faith in, or to what intellectual tradition one is loyal. Natural law theory is itself the product of a tradition, and it thrives better in the soil of some faiths than others. It may seem that this implies that the whole aspiration of natural law is a failure: that there is no universal ethics, that just because our roots suck up nourishment from different traditions, we have nothing to say to each other. On the contrary, what it really implies is that there must be a new way of speaking together. The Enlightenment thought we could speak with each other only by setting aside our own traditions and regarding them as irrelevant — it was an anti-traditional tradition, which could never look at itself in the mirror for fear of discovering the incoherence at its foundation. The truth is that we must speak with each other from within our traditions, because only these give us something to say to each other.’
But there may be a necessity to identify some kind of halfway house, where the early stages of a rapprochement might be conducted. The more immediate obstacle is the need to find a solution to the conundrum whereby natural law, by virtue of being attributed to the ‘religious mentality’, is said to present an offence to secularism, which in the present climate has meant cutting off the nose of our freedoms to snub our notional creator. How, then, to propose natural law’s indispensability to the heathen hordes without appearing to be seeking a back-door re-entry for church control over civic affairs, or building a Trojan Horse for a religious-led insurgency against the secular City? This is by no means a trivial problem, especially given the reductionist nature of public discussion of the present day, largely arising from the utter corruption of modern media, which follow the drums of money and ideology (and in that order) rather than of truth and reason.
In his book Natural Law & Natural Rights, John Finnis makes a creditable stab at resolving the problem, proposing a rather simple device for ‘defusing’ the ‘God’ element of natural law, and tabling a proposal for an alternative formulation that may serve to embrace both believers and unbelievers, and possibly everyone in between.
Finnis is himself a Catholic, having converted from Anglicanism in 1962, aged 22, after spending his teens as an unbeliever. His formula operates off the premise that natural law, by virtue of deriving its logics from some innate quality of wisdom in the human intelligence, is by definition anterior to human existence. In the religious context, this logical structure is attributed to the generative capacities of ‘God’, or, in pagan terms, ‘the gods’ — concepts likely to present themselves as red rags to secular-atheistic societies of the modern era. Yet, this objection notwithstanding, the fact remains that it has long been understood as beneficial, if not vital, that the most fundamental rights and freedoms be maintained by humanity in a mindset of respect for their antecedent/anterior nature, if only for the purposes of protecting them from incursion by sinister busybodies.
Finnis argues that, regardless of what one has decided is the explanation for the existence of reality, the apparently troublesome question of the existence or non-existence of God need not be an obstacle to achieving a functional understanding of the significance and importance of given phenomena, including the natural law, but that, nonetheless, it is possible to consider such questions in an open manner, going as far as it is necessary to go in reaching functional understandings. His solution is simple — if not actually crude — but nonetheless startlingly effective. He suggests simply replacing the word ‘God’ in our understanding of the origins of natural law with the concept ‘D’. This concept — in a certain light a subterfuge — is unlikely to achieve popular approbation, but it is, nevertheless, at least a simple and effective means of comprehending the problem and its possible solution.
He defines ‘D’ in this way:
D, of which all that is affirmed is that it is a state of affairs which exists simply by being what it is, and which is required for the existing of any other state of affairs (including the state of affairs: D’s causing all caused states of affairs).
It is likely that this definition of the origin/originator of reality might gain favour with an overwhelming majority of the population of the West. D, then, is the unknowable point of origin, the source without antecedent, the causeless cause of all that followed, the First Cause on which everything else is dependent but which is itself not dependent on anything, the mystery upon which we are unable to agree except to the extent that it exists as a mystery and cannot be ignored without incurring great risk.
For all its almost absurd technicality, there is no good reason why the essential logic of Finnis’s concept might not assist our cultures in reversing some of the self-harming it has conducted of recent decades, and no earthly reason why virtually every class of believer or non-believer could not join the discussion in his own language. Nothing in the ‘D’ concept belittles the God hypothesis: It merely ‘parks’ it around the corner while we sort out the philosophical gridlock.
He argues: ‘just as the fact that a good explanation of molecular motion can be provided, without adverting to the existence of an uncreated creator of the whole state of affairs in which molecules and the laws of their motion obtain, does not of itself entail either (i) that no further explanation of that state of affairs is required or (ii) that no such further explanation is available, or (iii) that the existence of an uncreated creator is not that explanation, so too the fact that natural law can be understood, assented to, applied, and reflectively analysed without adverting to the question of the existence of of God does not of itself entail either (i) that no further explanation is required for the fact that there are objective standards of good and bad and principles of reasonableness (right and wrong), or (ii) that no such further explanation is available, or (iii) that the existence and nature of God is not that explanation.’
Of course, it is inevitable that some religious people will ‘take offence’ at the very idea that the logic and language of religion ought to be bypassed in pursuit of some notional ‘higher’ purpose. But that it not what it proposes. The point is that, in an era characterised by a total misunderstanding of religion, we cannot for the moment usefully employ its language and logic to consolidate concepts which are essential to our very survival (and indeed to the longer-term prospects of restoring our religious imagination). In these circumstance, ‘taking offence’ is a luxury we cannot afford.
What the state and its attendant ideologies object to in religion is not so much its private practice as its collective influence. Religious thought and language possess the power to construct alternative vistas and understandings of collective existence that present a challenge to state power. That is why states often seek to suppress religion in its communal manifestations, as they did during the Covid masquerade. States and their governments find religion useful to their purposes in some respects, but not in others, which is why they would be happy to enable private practice if the collective effects and consequences could be avoided. This understanding explains why the modern state may well go out of its way to support the individual right to practice religion, while, in certain circumstances using all its devices to undermine the possibility of collective worship, public demonstrations of reverence, and the promulgation of religious understandings of human co-existence and society.
There is a legitimate religious concern that such an initiative, were it to be given practical teeth, might contribute to the acceleration of the eradication of God as a cultural concept, a risk described here by J. Budziszewski:
‘A conceit of contemporary liberal thought is that we have no business raising our voices in the public square unless we abstract ourselves from our traditions, suspend judgment about whether there is a God, and adopt a posture of neutrality among competing ideas of what is good for human beings. This is a facade — a concealed authoritarianism. Neutralism is a method of ramming a particular moral judgment into law without having to go to the trouble of justifying it, all by pretending that it is not a moral judgment.’
There is, nevertheless, a very profound sense in which it is essential to remove a certain default conceptualisation of ‘God’ from the equation, perhaps pending the resolution of the broader educational issues. This relates in part to the ever-present danger that, in secular-atheist societies, men, in dispensing with God, tend — unconsciously or otherwise — to seek to take the place of the deity on the vacated throne. This is a concept that surfaced in the early days of Alcoholics Anonymous, coming up on a century ago now, when author Ernest Kurtz write his book, Not-God: A History of Alcoholics Anonymous, in which he reminded his readers (chiefly recovering alcoholics) that ‘the fundamental and first message of Alcoholics Anonymous to its members is that they are not infinite, not absolute, not God.’ Every alcoholic’s problem had first been, according to this insight, claiming God-like powers, especially that of control. Kurtz identified alcoholism as a ‘dis-ease’ of modernity, an expression of the human being’s confusion at the fracturing of the human personality, the separation of the physical from the mental from the spiritual in a rational, secular, industrial context. A central idea of the book is that alcoholism is a malaise brought on by the way we live, work and play in our ‘modern’ societies, and of the thoughtforms of modernity. Our thinking is the cutting edge of the problem, since we have fallen into a way of thinking that really has caused our thoughts to become dissociated from our bodies and natures, a way of thinking that goes by the name of positivism.
In the different but related context of natural law, the important thing — to co-opt John Finnis’s concept — is that we are ‘not D’. In this context, we may more clearly see the potential problems arising from the loss to our legal systems of natural law: In its absence, and the related absence of the concept and spectre of D, there is no detached point of reference by which the ‘not Dness’ of human beings and their affairs can be identified, never mind dealt with as it needs to be, creating checks and balances to exclude risks of bias, self-interest, overreach or ill-intent, to the maximum extent that this is possible. This may at first appear to be a form of tricking with transcendence, but it is with the honourable purpose of weaning the prodigals back to the idea that they do not make themselves.
Deliberately or otherwise, many liberals misinterpret the primary argument about natural law, perceiving it only in its almost invariable particular context these days: the (losing) argument for the rights of unborn children. Regardless of one’s position on that question, it would be unwise to see natural law as an enemy, when in reality it sets to do on behalf of the unborn child what is offers to all human beings: proclaim and guarantee the most fundamental protections for the most precious rights and freedoms. The issue I sought to elucidate in the second part of my series was the destruction of the fundamental right to life of a child in his mother's womb, but in the context of exposing the underhanded manner in which the confiscation of the rights of the child was implemented by the Irish Supreme Court — with the added implication that the same fate might well await other categories of the human unless we start to pay attention. It was, in other words, an attempt to tease out the meaning of fundamental rights in a relativist society in which people fail to make fundamental connections, either through laziness or because the outcomes of the prevailing corruption suit their immediate wishes. What I addressed in the article essentially is the misconceived idea that what has happened — and is happening — to the fundamental rights of man as vested in our legal systems is not, as many people think, the inevitable consequence of the 'march of time', but of the arbitrary and self-ordained manipulations of words and concepts by the professional classes, acting on behalf of both the orchestrated common mentality and the unseen interests who are constantly seeking to manipulate this for reasons of their own. My principle concern in these article is the danger inherent in the scope that modern society provides for such chicanery to pass muster, and above all to signal the unseen dangers inherent in this. One thing genuine liberals (as opposed to the fake-Woke kind) need to pay attention to is that the freedoms they take for granted for themselves are entirely dependent on people they may disagree with seeking to elucidate the phenomena of corruption and overreach that may one day result in the kicking down of their own front doors. Had they been paying attention to events in the Covid escapade, they may already have intuited such a possibility for their futures.
Things grow worse, often unnoticed above the moronic cacophony of the purchased media. Some four months after the rejection by the High Court of our initial application for judicial review in the case taken by Gemma O’Doherty and me, a strange episode unfolded in the Supreme Court in a case called Gorry, in which two judges, apparently independently, went to great lengths to emphasise the near-absolute significance of the use within the Irish Constitution of certain words — an argument that had been central to our submissions, but dismissed by the High Court judge on the basis that the language of the Constitution was ‘not absolute’ (and therefore . . . what? Meaningless?)
What is referred to as Gorry is actually two cases — both, interestingly, concerned with immigration issues. The case of Gorry (himself an Irishman) really concerned a Nigerian woman with whom he was romantically involved. The other, very similar case, packaged for jurisprudential purposes with Gorry, is known as the A.B.M. case, which concerns another Nigerian national who came to Ireland in 2006 and sought asylum and/or subsidiary protection. The issue common to both cases is the approach to be taken by the Minister for Justice in cases where it is argued that the interests of a married couple and a family are affected by the making of deportation orders, where a marriage has occurred after the making of a deportation order and its evasion.
Both judges appeared to be by implication addressing the long saga of judicial incursion on the meanings of certain words used repeatedly within the text of the Constitution that outwardly appear to have fairly absolute complexions. These words are sprinkled over in particular the Fundamental Rights section of the Constitution, essentially Articles 40 to 44 inclusive — words such as ‘indefeasible’, ‘inalienable’, ‘inviolable’ and ‘imprescriptible’. ‘Indefeasible’ means ‘not capable of being annulled or voided or undone’; ‘inalienable’ means ‘cannot be given away’; ‘inviolable’ means ‘immune from interference or incursion’; and ‘imprescriptible’ means ‘incapable of being lost by the passage of time’. In their analysis of the function of these words within the Constitution, the two judges appeared to be more or less agreed: the words mean pretty much what it says on the tin, and vague concepts like ‘the common good’ are insufficient to overcome the all but sacrosanct nature of certain individual rights and freedoms. This was the direct opposite of what Gemma and I had been told by a High Court judge, an outcome which the Supreme Court was subsequently offered by us an opportunity to overturn by inter alia affirming its positions as expressed in Gorry, which it declined.
The judgments in these two immigration case — both favourable to the foreign-national individuals wishing to remain in Ireland — were concerned with the fundamental rights of families, which arise under Article 41 of the Irish Constitution. The discussions entered into by the judges were by way of determining the correct weight to be allocated to considerations of individual personal rights in a balance with questions of the integrity of the immigration process and the ‘common good’ more generally. Both judges acknowledged the near-absolute meanings of the words as they appear in the Irish Constitution, one judge referencing ‘the stridency of the language’, the other disagreeing with some previous judicial pronouncements which held that ‘the words in Article 41, and in particular the words “inalienable” and “imprescriptible”, should not be given their ordinary and natural meaning.’ In one memorable section, that judge, O’Donnell J. (now, and at the hearing of our case, the Chief Justice) said that ‘[i]ndividual rights have value precisely because they are not subordinated to the interests of others.’ The consensus appeared to be that, although the wordings could not be regarded as ‘absolutely absolute’, they were as near to being so as made almost no difference. Again, this flies in the face of the judgments in our case. In our subsequent submissions to the Court of Appeal and a seven judge panel of the Supreme Court, we cited liberally from these judgements — all of which submissions were utterly ignored by no less than seven of the most senior judges in the country.
Given that the Gorry judgement was issued in the middle of the most radical incursion on human rights in Ireland since the foundation of the state, it stands as a remarkable statement of something or other. Since it was delivered just a few months after our public interest application for leave to mount a constitutional challenge to the lockdown was rejected by the High Court, it might at first sight be interpreted as a form of judicial gaslighting: Fundamental rights are for non-nationals only! (As though to confirm this incipient but rapidly escalating suspicion, the Irish High Court has in the past week issued an unprecedented judgment in which it has found in favour of a young male Afghan migrant who arrived here in February and immediately claimed a right to be provided with a home in Ireland under the UN Human Rights Charter. The judge who found in his favour was the one who had refused our application for a judicial review of the lockdown measures in May 2020.)
And there may well be a more profound and more disturbing interpretation: that these judgments (including in our case) announce the ushering in of a new dispensation whereby only fundamental rights concerned with circumstances unique to particular individuals would in future be given consideration by the courts, with the Constitution being in effect disabled with regard to impositions arising from governmental decrees bearing down on all citizens, and this — as I infer from the responses to our challenge right up the court system — to be insulated from judicial scrutiny by the doctrine of the Separation of Powers: The judicial arm of government would not in future question the actions of the executive and/or parliamentary arms. Any citizen might, in future, mount a challenge in the event of suffering an individual incursion on his rights under Articles 40 to 44 — an act of trespass by a state body, for example — and this would be heard and given full consideration within the literal meanings of the Constitution. But, no citizen, seeking to take a public interest case concerning incursion by the state/government on the rights of all citizens, could any longer expect to be given a hearing, because by questioning a decision arrived at by the executive and the Oireachtas, a judge or panel of judges would be overstepping his/its remit and powers.
It can be hard to persuade people that such shifts and twists in our legal cultures have any practical significance. Most people have rarely if ever been in a courtroom, most certainly not in the dock. Law is therefore, for them, an abstraction, and a negative one at that. They tend to think of laws as strictures rather than as emancipatory instruments: Do this, don’t do that. Even more dismayingly, many people nowadays — especially young people — think something like that laws are enacted by politicians functioning as quasi-absolute rulers, and implemented by omnipotent officials, mostly uniformed. When I was a child, we learned a subject in school called Civics; nowadays children are taught about masturbation and anal sex. They do not realise — have never been taught — that the law is the foundation upon which their freedoms rest.
And it’s not just young people. I had this conversation with an elderly man — not by any means uneducated — in the street in April 2020, shortly after we launched our legal action. He rather belligerently — clearly informed by the purchased media that our initiative in challenging the lockdowns was the act of self-serving upstarts — demanded (‘as a taxpayer’!) to know what the hell I was thinking of. ‘Freedom’, I explained. He looked at me strangely. ‘You mean, like, a costs-benefits analysis?’
I looked at him strangely.
‘No. I mean freedom.’
‘How exactly?’
‘The freedom you and I are enjoying right at this moment, talking in the street. Isn’t that worth preserving? Why do you presume to take it for granted? The cost-benefits analysis is a different matter, and we are nowhere near the level of gravity even to begin such a process.’ He shook his head and walked away.
We don’t know how it’s done, and don’t seem to care. We think freedom grows on trees, if we think abut it at all, and so are handing it away in increasingly sizeable chunks. Freedom? Is that not the natural order, disturbed only by mad tyrants with strange moustaches?
Or today — in the wake of the most egregious and widespread incursions on human freedom in the history of Western civilisation — is freedom not simply the concern of ‘far right’ actors waiting to defenestrate our ‘Western values’?
Echo answers: ‘Values?’
Series concluded.