The Gazette 1974

claim under Article 40(3) is admissible on the d i f f e r e nt ground that her state of health is impaired. Both in its Preamble and in Article 6 of the Consti- tution, God is acknowledged as the ultimate source of all authority. The Natural or Human Rights which I have referred to earlier are part of Natural Law. Many argue that Natural Law may be regarded only as an ethical concept, and, as such, is a re-afhrmation of the ethical content of law in its ideal of justice. The Natural Law as a theological concept is the law of Cod promulgated by reason and is the ultimate governor of all the laws of man. In view of the acknowledgment of Christianity in the Preamble, and the acknowledgment of God in Article 6, it must be accepted that the Constitution intended Natural Human Rights as being in the latter theological category of Natural Law rather than simply as an acknowledgment of the ethical content of law. When the Constitution speaks of certain rights as being imprescriptible or inalienable, or being antecedent or superior to all positive law, it does not specify what all of those are. In a pluralist society such as ours, the Courts cannot, as a matter of constitutional law, be asked to choose between the differing reasons, where they exist, of experts on interpretation by the different religious denominations of either the nature and extent of the duties which flow from Natural Law, such as the inalienable duty of parents to provide for the religious, moral, intellectual and physical education of their children. In this country, it falls finally upon the Courts to interpret the Constitution—and, in so doing, where necessary, to determine what are the Rights which are superior or antecedent to positive law, and which are unprescriptible and inalienable. In the performance ol this difficulty duty, there are certain guide lines laid down in the Constitution for the Judge. The very struc- ture of the Articles and the content of the Articles dealing with Fundamental Rights indicate that Justice is not subordinate to Law. In particular Article 40 Section 3 expressly subordinates Law to Justice. Both Aristotle and the Christian philosophers have regarded Justice as the highest human virtue, but the virtue of Prudence was also esteemed. But the great additional virtue introduced by Christianity was that of Charity—- not the charity which consists of giving to the deserving, which is but Justice, but that Charity which is also called mercy. The Preamble mentions the due observance of Prudence, Justice and Charity, so that the freedom of the individual may be assured. The Judges must therefore, as best they can, from their training and experience, interpret these Rights, in accordance with their idea of Prudence, Justice and Charity. No intre- pretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts. The development of the constitutional law of the U.S.A. is ample proof of this. Per Henchy J. The Criminal Law Amendment Act, 1935, is aimed, not at population control, but at the suppression of vice, and the amendment of the law relating to sexual offences. Section 17 creates a criminal prohibition in an area in which the Legislature thought fit to intervene in the interests of public morality. What it seeks to do is, by means of the sanction of the criminal law, to put an end, as far as it was possible to do so by legislation, to the use of contraceptives in the State. ia {t does not in terms make the use of contraceptivesi v crime, but the totality of the prohibi- tion aims at nothing less. The effect of Section 17(1) makes it legally impossible to sell or buy a contra- ceptive within the State. Because contraceptives are not 54

Preamble and General Observations Per Walsh J. The plaintiff also invoked the portion of the Preamble to the Constitution in which "the People, in giving themselves the Constitution, express the intention to seek to promote the common good with due observance of Prudence, Justice and Charity so that the dignity and freedom of the individual may be assured". There is no law in force in the State which prohibits the use of contraceptives either in or outside of marriage, or the manufacture or distribution of contraceptives manufactured within the State. (There are none of these.) The Attorney-General contended that a statutory provision in force prior to the Constitution could con- tinue to be in force and to be carried over by Article 50 even though its provisions were such as could not now be validly enacted by the Oireachtas, because of the provisions of the Constitution. Stated as a general pro- position, this is in direct conflict with Article 50 and is quite unsustainable. In my view, Article 50 by its very terms, both in its Irish and English texts, makes it clear that laws in force in Saorstát Éireann shall con- tinue to be in force only to the extent that they are not inconsistent with the Constitution. If the inconsis- tency arises for the first time after the coming into force of the Constitution, i.e. 29 December 1937, the law carried forward thereupon ceases to have effect. To control or prohibit the sale of contraceptives is not per se necessarily unconstitutional, nor is a control on the importation of contraceptives per se necessarily unconstitutional. There may be many reasons grounded on considerations of public health, such as risk of infection, or of public morality, or even fiscal or protectionist reasons, why there should be a control on the importation of such articles. What is challenged here is the constitutionality of making these articles unavailable . . . in the present state of the law, which involves the possibility of a criminal prosecution and conviction. In concrete terms, O'Byrne J's dictum in Buckley v. Attorney-General —(1950) I.R. 67—that the Legislature is not free unjustifiably to encroach upon the fundamental rights of individuals, or of the family, in the name of the common good, or by act or omission to abandon or to neglect the common good, or the protection or enforcement of the rights of individual citizens, is approved. Counsel for the Revenue Commissioners contended that it was a matter for the plaintiff to prove that, if she had a right to use contraceptives within the privacy of her marriage, that it was for her to prove from whence this right sprang. At first sight, this appears reasonable, but it ignores an essential funda- mental point—the rights of a married couple to decide how many children they will have, if any—these are matters outside the reach of positive law, where the means employed to implement such decisions, do not impinge upon the common good, or destroy or en- danger human life. It is clear that, in the case of a moral code governing private morality, where the breach of it is not one which injures the common good, then it is not the State's business to intervene. It is outside the authority of the State to intrude into the privacy of the husband and wife relationship for the sake of imposing a code of private morality upon the husband and wife, which they do not desire. The claim under Article 41 is admissible on the basis that the plaintiff is a married woman, whereas the