IRISH CONSTITUTIONAL PROPERTY RIGHTS AND NORMATIVE

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IRISH CONSTITUTIONAL PROPERTY RIGHTS

AND NORMATIVE THEORIES OF PROPERTY

Abstract: Irish courts have failed to engage with the wording of the constitutional property rights clauses, a

failure justified on the basis that the wording of these clauses is ambiguous. Through the application of

normative theories of property, this article seeks to show that the clauses contain an unambiguously

communitarian meaning. It is argued that courts have at times defaulted to a liberal understanding of property

as exemplified by cases like Blake-Madigan. However, this 'liberalism creep' has largely now abated and

recent judgments in areas such as planning law show the emerging predominance of communitarianism in

constitutional property rights adjudication.

Author: James McGovern B.A. (Dubl.), LL.M (Northumbria), Solicitor.

Introduction

Irish courts have failed to engage with the wording of the constitutional property rights

clauses, a failure that has been justified on the basis that these clauses are ambiguous in

nature.

Courts and commentators have often talked past one another, some suggesting that

the property clauses contain communitarian values and others suggesting they contain liberal

values, at times without employing a thorough analysis of the area.

Evidence of the failure

to engage with the property clauses and ultimately to clarify them may be seen in the ongoing

uncertainty over whether certain political proposals to address the Housing Crisis would fall

foul of the constitutional property rights provisions.

The failure to adequately interpret the

constitutional provisions has created an ambiguity that has arguably given rise to proposals

for a referendum to insert new wording into the Constitution to clarify the Oireachtas’

powers in the area of housing.

This article asks how Irish constitutional law understands the values through which property

rights must be interpreted. It will apply two normative theories of property, communitarian

and liberal, as an aid to determining this question.

Utilising the insights of the property theory set out in the first section of the article, the

second section will conclude that the constitutional property wording is imbued with

communitarian values. The origin of the Constitution and the significance of the Land

Question will be critical to the analysis. It is argued that Irish courts, in a similar way to courts

in other common law jurisdictions, have at times defaulted to a liberal understanding of

property as occurred in cases such as Blake-Madigan. However, this ‘liberalism creep’ has

largely now abated and recent judgments in areas such as planning law are given as examples

of the emerging predominance of communitarian considerations in constitutional property

rights adjudication.

* I am grateful to Dr Gabriel Brennan and Dr Brian Barry for reading earlier drafts and providing me with helpful comments.

Gerard Hogan, ‘The Constitution, Property Rights and Proportionality’ (1997) 32 Irish Jurist 373, 375.

For example, Mr Justice O’Donnell, writing extrajudicially, has suggested the Constitution contains liberal values with

respect to property rights. See O'Donnell, ‘Property Rights in the Irish Constitution: Rights for Rich People, or a Pillar of

a Free Society’, in Oran Doyle and Eoin Carolan (eds), The Irish Constitution: Governance and Values (Thomson Round 2008)

413. In contrast, Mr Justice Brian Walsh, writing extrajudicially, has argued for the idea that the Constitution contains

communitarian values on property rights. See Walsh, ‘The Judicial Power, Justice and the Constitution of Ireland’ in Deirdre

Curtin and David O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Honourable

Mr Justice TF O’Higgins (Butterworth 1992) 147.

See Rachael Walsh, ‘No legal reason Government can’t limit sale of new homes’ The Irish Times (Dublin, 7 May 2021).

'Why a Referendum' (Home for Good) <https://www.homeforgood.ie/referendum> accessed 28 May 2023.

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Normative Theories of Property

Overview

This section will outline the two most relevant normative theories of property for Irish

constitutional property rights: communitarian theory and liberal theory. These theories will

then be used as an interpretative aid in the following section when analysing the Irish

constitutional position.

It is useful to introduce this discussion with a brief overview of constitutional interpretation.

Daly argues that the ‘interpretivist approach’ has dominated in Irish constitutional law, that

is where constitutional provisions are interpreted so as to express an underlying philosophy.

Mr Justice Brian Walsh writing extrajudicially, argues ‘each of our judges must work from a

philosophical conviction which does not differ from the philosophy underlying and

informing the Constitution’.

Citing Sunstein,

Whyte argues that all judges necessarily come

to constitutional adjudication with a set of 'preinterpretative values'.

This follows from the

fact that a given passage in a constitution will often not have one clear and definitive meaning

and a judge must select which meaning is the most plausible.

The text of the Irish Constitution refers to property rights twice; the first reference being in

Article 40.3.2° where, under the heading of 'Personal Rights', it is stated that the State shall

protect, as best it may, the property rights of every citizen from unjust attack. The second

reference is Article 43 which asserts that there is a natural right to the private ownership of

external goods and that the State accordingly guarantees to pass no law attempting to abolish

the right of private ownership or the general right to transfer, bequeath and inherit property.

Article 43 goes on to state that the exercise of property rights ought to be regulated by the

principles of social justice which means that the State may delimit property rights with a view

to reconciling their exercise with the exigencies of the common good.

In discussing the values which permeate the Constitution, legal commentators have posited

a dichotomy between communitarian and liberal content. Van der Walt has discussed this

dichotomy specifically with reference to Article 43 of the Constitution, comparing it to the

constitutions of South Africa and Germany in terms of its communitarian impetus.

This liberal-communitarian dichotomy is crucial to understanding how constitutional

property rights have been interpreted. This is because, as Pistor has pointed out,

constitutions presume property rights but do not define them nor do they specify who has

the right to define them.

Thus it is left to judges to determine how property rights are

interpreted and what values, be they liberal, communitarian or otherwise, are brought to bear

in that interpretative process. Relatedly, Allen discusses the possibility that the idea of value-

free judicial interpretation in the context of constitutional property rights has in practice been

a way for liberal values-influenced judiciaries to incorporate liberal presuppositions into their

adjudication.

Eoin Daly, ‘Public Philosophy and Constitutional Interpretation after Natural Law: Republican Horizons’ in Eoin Carolan

(ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional 2012) 91.

Brian Walsh (n 2) 147.

CR Sunstein, The Partial Constitution (Harvard UP 1993) 93.

Gerard Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (Institute of Public Administration 2002) 26.

AJ Van Der Walt, ‘The Protection of Private Property under the Irish Constitution: A Comparative and Theoretical

Perspective’ in Oran Doyle and Eoin Carolan (eds) The Irish Constitution: Governance and Values (Thomson Round Hall 2008)

398.

Katerina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton UP 2019) 68.

Tom Allen, The Right to Property in Commonwealth Constitutions (Cambridge UP 2000) 106.

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Irish judges have historically understood the political implications surrounding the

interpretation of the property clauses of the Constitution and have, at times, done their

utmost to avoid interpreting the meaning and values contained therein. In Pigs Marketing

Board v Donnelly, when discussing ‘social justice’ as the term appears in Article 43, Hanna J

stated that it was a:

nebulous phrase, involving no question of law for the Courts, but questions

of ethics, morals, economics, and sociology, which are, in my opinion,

beyond the determination of a Court of law, but which may be, in their

various aspects, within the consideration of the Oireachtas, as representing

the people, when framing the law.

That case is now considered bad law in that the High Court in its judgment failed to carry

out its duty to interpret the Constitution.

However, commentators who have been satisfied

to write off Pigs Marketing as bad law have themselves sought to avoid interpreting Article 43

and its terminology. Hogan has called the language of Articles 40.3.2° and 43 ‘so inherently

subjective and open-textured that its interpretation is replete with difficulties’.

In the same

article, he sympathised with the courts’ approach in avoiding interpreting the language ‘in

favour of a workable judicial methodology’ centring on the use of the proportionality test.

O’Neill has similarly written that the phrases of Article 43 ‘are so broad and subjective as to

be of little real guidance’.

Thus there has been a reluctance among both the courts and legal

commentators to fully engage with the language of the Constitution’s property provisions

and the values contained therein. Many have preferred to side-step the issue altogether and

to replace the language of the Constitution with alternatives such as the proportionality test.

The following sections of the article will set out the aspects of the communitarian and liberal

theories of property relevant in an Irish context before returning to the actual wording of

the Constitution, its influences and how it has been interpreted in order to understand where

the Irish Constitution falls along the communitarian versus liberal values axis.

The Communitarian Position

The communitarian theory of property emphasises the obligations of property rights holders

toward their communities and the potential uses of property law to bring about human

flourishing.

Communitarians envisage that the social obligations of property rights holders

may, through democratic decision-making, be fulfilled through property law.

While the

term ‘communitarian’ is a recognised one in the context of Irish property rights discussion,

‘progressive property theory’ is the approximate United States equivalent.

Walsh’s recent

monograph has attempted to apply some of the insights of progressive property theorists to

an Irish context.

Progressive property theorists promote a theory of property rights and

[1939] IR 413, 418.

See, inter alia, Rachael Walsh, ‘The Constitution, Property Rights and Proportionality: A Reappraisal’ (2009) 31 Dublin

University Law Journal 1, 13; Donal Barrington, ‘Private Property under the Irish Constitution’ (1973) 8 Irish Jurist 1, 6.

Hogan (n 1)375.

ibid 377.

Ailbhe O’Neill, ‘Property Rights and the Power of Eminent Domain’ in Oran Doyle and Eoin Carolan (eds) The Irish

Constitution: Governance and Values (Thomson Round Hall 2008) 439.

JW Singer, ‘Democratic Estates: Property Law in a Free and Democratic Society’ (2009) 94 Cornell L Rev 1009, 1010.

Eduardo Peñalver, ‘Land Virtues’ 94 Cornell L Rev 821, 869-71.

For the use of the term ‘communitarian’ in Ireland, see, for example, Rachael Walsh, ‘Private Property Rights in the

Drafting of the Irish Constitution: A Communitarian Compromise’ (2011) 33 Dublin University Law Journal 86.

Walsh, Property Rights and Social Justice: Progressive Property in Action (Cambridge UP 2021) 45-6.

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values which are particularly useful in interpreting the Irish Constitution because they draw

from many of the same intellectual sources from which the Constitution itself has drawn.

Progressive property theorists accept the insights of Aquinas and Thomism,

the influence

of which on the Irish Constitution has been long recognised and will be discussed further

below. Peñalver, for example, argues for the reconfiguration of property law rules in order

to promote human flourishing, a theory grounded in the thought of Aristotle and Aquinas.

In common with Lyall’s interpretation of property rights as ultimately consisting of relations

between people,

Aquinas similarly viewed property rights, in contrast to liberal theorists, as

concerning matters of justice between people, not just human relationships to things.

His

justification for property being allocated to private individuals rather than the community as

a whole was that holding property in common would lead to a neglect and misuse of

resources akin to a tragedy of the commons. However, this allocation was subject to the

proviso that the use of resources was ultimately common; that all possessions are in some

sense morally available to those in need. Aquinas sets out three categories of resources or

property: (a) a category corresponding to absolute necessity, resources required for one’s

own survival and one’s dependants’ survival, (b) a category corresponding to relative

necessity, including maintaining one’s responsibilities to one’s household, for example by

educating one’s children and maintaining one’s business, and (c) a category called the

superflua, resources remaining following provision of resources for absolute and relative

necessity.

Justice, not charity, requires an individual to distribute one’s superflua to those

lacking in their provisions as to absolute and relative necessity. Aquinas believed that rulers

had a responsibility to provide a fair distribution of resources to their subjects.

Finnis

concludes that Thomist property theory entails that states should legislate to ensure superflua

are distributed accordingly.

The 'general justice' which Aquinas believed governed property

relations, broadly corresponds with the notion of social justice promulgated by the Catholic

Church in papal encyclicals such as Quadragesimo Anno.

The ideas of Thomism have been

extremely influential in Catholic social teaching and it is via this route that they become

particularly relevant in an Irish constitutional context.

Underkuffler emphasises that property is an allocative choice by government and society.

Property is unlike the other liberal civil rights often coupled with it, e.g. voting rights or free

speech rights, in that allocating property to one person necessarily excludes it from another.

It is these characteristics that leads Kingston to argue against the traditional liberal

categorisation and alternatively to group property as an economic rather than a civil right.

Underkuffler similarly discusses how property cannot effectively exist without the State to

protect it through its police power and legal institutions.

In an Irish context, Pettit makes

See Rachael Walsh, ‘Property, Human Flourishing and St Thomas Aquinas’ (2018) 31 Canadian Journal of Law and

Jurisprudence 197.

Peñalver (n 18) 869.

Niamh Howlin and Noel McGrath, Lyall on Land Law (4th edn, Thomson Reuters 2018) 2.

John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford UP 1998) 188-9.

ibid 191.

Walsh (n 21) 214.

Finnis, Aquinas (n 24) 195.

John Finnis, Natural Law and Natural Rights (Oxford UP 2011) 461-2.

LS Underkuffler, ‘What Does the Constitutional Protection of Property Mean’ (2016) 5 Brigham-Kanner Property Rights

Conference Journal 109, 120-1.

LS Underkuffler, ‘A Special Right’ (1996) 71 Notre Dame L Rev 1033, 1038.

James Kingston, ‘Rich People Have Rights Too? The Status of Property as a Fundamental Human Right’ in Liz Heffernan

(ed), Human Rights: A European Perspective (Round Hall 1994) 286.

Underkuffler (n 30) 1046.

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the same communitarian point.

Where liberals see property as a right that protects people

as they interact with society, progressive theorists argue that the existence of the institution

of private property itself presumes society. There must first be society to create and enforce

property rights.

Singer argues that liberal thinkers have failed to take account of the historical development

of property.

He references the fact that land in the United States, following dispossession

of the Native Americans, was allocated to European settlers by government grant. The

justification in that instance was that European settlers would use the land more

productively.

In an English context, a similar justification based on efficiency and

productivity was employed by the State when it enclosed the commons and divided it

amongst large landowners.

Thus, the distribution of property today has its origins in

historical allocations justified by reference to the common good. In an Irish context, the

Land Acts are highly salient to this point and will be discussed below.

Communitarian thinkers can rely on the fact that land law in England and Ireland originated

in Anglo-Norman feudal law and therefore always contained a notion of the obligations of

property owners.

The conception of property rights as absolute derives from Roman law,

as does the distinction between dominium (property) and imperium (sovereignty).

Despite

favouring a liberal conception, Smith has discussed how the feudal origins of the common

law gives property in common law jurisdictions today a distinctive character as compared

with its Roman-law based civil neighbours.

A hard distinction between property and

sovereignty has long been recognised as having a dubious philosophical and logical basis.

Cohen describes how property entails a 'sovereign power compelling service and obedience',

a relationship clearer during the feudal system but obtaining still in the modern economy,

for example, in the necessity to pay rent to a landlord and be governed by her rules.

Property

is, although admittedly limited by law, a form of delegated sovereignty.

Communitarians recognise the inherent political nature and implications of property rights.

Walsh alludes to the importance of political considerations in judicial determination of

constitutional property rights cases and quotes Nedelsky that property implicates the core

issues of politics, distributive justice, and the allocation of power.

This author respectfully

considers this to be an understatement. As is argued in Lyall, property rights fundamentally

structure social relations.

Politics is the elephant in the room of any discussion of property.

The Liberal Position

Underkuffler characterises the American constitutional idea of property as a 'bulwark

surrounding the sphere of individual liberty' and as 'an absolute and inalienable right, which

provides a bedrock or protection'.

This is effectively the liberal view of private property,

Philip Pettit, ‘The Republican Constitution’ in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects

(Bloomsbury Professional 2012) 42-3.

Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford UP 2002) 8, 31-2.

JW Singer and JM Beermann, ‘The Social Origins of Property’ (1993) 6 Canadian Journal of Law & Jurisprudence 217.

ibid 229.

Pistor (n 10) 78-80.

Howlin (n 23) 70.

Morris Cohen, ‘Property and Sovereignty’ (1927-1928) 13 Cornell Law Quarterly 8, 8.

Yun-chien Chang and Henry E Smith, ‘An Economic Analysis of Civil versus Common Law Property’ (2012) 88 Notre

Dame Law Review 1.

Cohen (n 39) 12.

Walsh (n 20) 236.

Howlin (n 23) 2-3.

Underkuffler (n 30) 1044.

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evolving from the Anglo-American enlightenment and associated with the classical liberal

tradition. While embracing the progressive theory of property, Underkuffler does speak for

the putative benefits of personal property for psychological development. O’Donnell cites

Underkuffler in this respect and sets out some of the other aspects of the liberal viewpoint,

which he sees as being contained in the Irish Constitution:

at the core of the right to private property, in common with all personal

rights, is the right to be ‘let alone’, a zone of personal freedom. [...]

[Regarding Underkuffler’s psychological development point] This approach

is of a piece with James Madison’s understanding of the importance of

property: not for personal acquisitiveness, but rather as a guarantor of liberty

and thus of every other right.

This liberal idea of property rights characterises property as providing a robust level of

private authority to individuals, thereby allowing for enhanced autonomy and the ability to

plan one's future.

Property protects the individual from encroachments by a potentially

tyrannical state and also provides security from dependency on that State.

Intertwined with

this perspective historically are certain moral and economic claims. The moral claim

according to Locke is that a person acquires property through mixing their labour with it. It

follows that property is just desert for labour.

State interference with these rights is

presumed to be unjustified unless a sufficient justification is given.

Numerous economic justifications are also associated with the liberal viewpoint, some

reaching back to Aristotle. These include that private property encourages improvement of

the things to which the property rights relate, a justification that extends to intellectual

property rights as reward for ingenuity.

If an individual does not have the certainty of

ownership of an object into the future, why would she improve it?

The classical liberal

vision of property also emphasises that property serves to coordinate market interactions in

a tried and tested way.

In the context of the collapse of the USSR, Sunstein provided a modern reiteration of the

liberal position on property rights in a piece that encouraged the emerging new nations to

constitutionalise those rights.

The piece repeats some of the justifications referenced above,

such as property providing security against dependency on the state. On the above counts,

there is little disagreement with communitarians who, in the main, do not propose abolition

of property rights but only their regulation and/or reconfiguration to promote the common

good. Sunstein then lays out a strong liberal apologia for minimal state interference in

property rights:

[O]ne of the best ways to destroy a democratic system is to ensure that the

distribution of wealth and resources is unstable and constantly vulnerable to

O’Donnell (n 2) 428.

Hanoch Dagan, A Liberal Theory of Property (Cambridge University Press 2021) 1-3

See Jeremy Waldron, ‘Property and Ownership’ The Stanford Encyclopedia of Philosophy (Summer edn, 2020)

<https://plato.stanford.edu/archives/sum2020/entries/property/> accessed 2 January 2022.

David Miller, ‘Justice and Property’ (1980) 22 Ratio 1, 5-7.

See TW Merrill, ‘The Demsetz Thesis and the Evolution of Property Rights’ (2002) 31 Journal of Legal Studies 331, 332.

Dagan (n 46) 5.

For a contrary view, i.e., that property is a form of monopoly that impedes the functioning of efficient markets, see EA

Posner and E Glen Weyl, Radical Markets: Uprooting Capitalism and Democracy for a Just Society (Princeton UP 2018).

Cass R. Sunstein, 'On Property and Constitutionalism' (1992) 14 Cardozo Law Review 907.

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reevaluation [sic] by the political process. A high degree of stability is

necessary to allow people to plan their affairs, to reduce the effects of

factional or interest group power in government, to promote investment, and

to prevent the political process from breaking down by attempting to resolve

enormous, emotionally laden issues about who is entitled to what.

The power of Sunstein’s argument is that it not only applies to actions such as compulsory

acquisition of property at full market value by the State, but also warns against any

interference in long-recognised property rights for fear of disrupting the stability on which a

society depends.

Liberals tend to favour a property system containing minimal restrictions on the ability of

persons to transfer their property rights in a market.

Their justifications here, to a large

extent, dovetail with the views of the law and economics scholars. The latter tend to promote

and justify property rights, and minimal state interference therewith, through the application

of concepts from the field of Neoclassical microeconomics.

It is notable that critiques of

the law and economics approach have come from perspectives aligned with

communitarianism, progressive property theory and republicanism.

This is relevant as, for

reasons discussed below, the communitarian tradition in Ireland is intertwined with

republicanism.

Perhaps the most significant modern defence of the liberal position is Dagan’s A Liberal

Theory of Property, a text that, interestingly, asserts a liberal theory far more sensitive to

communitarian concerns than, say, Sunstein's above.

Dagan admits that the challenge of

justifying property is 'much heavier and much more pressing than its friends take it to be'

since the existence of the current private property regime creates vulnerabilities for many

groups of people.

Dagan follows the liberal tradition of understanding private property as

power-conferring for individuals and therefore promoting of self-authorship and self-

determination.

However, he is also open to a property regime that restricts the rights of

property in 'means of production', as private authority over such resources means significant

power over the preferences of others.

He favours a background regime to property that

ensures everyone is entitled to own some autonomy-enhancing property, an idea with

politically social-democratic connotations.

Ultimately, of course, Dagan is a liberal thinker.

He views property rights interacting with markets as 'empowering' and argues that State

interference in property,

if required, ought to be undertaken gradually.

Thus, in contrast to the communitarians, liberals emphasise the importance of certainty of

property rights for a society to function properly and to achieve economic success.

ibid 916.

Margaret Jane Radin, 'The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings' (1988) 88

Columbian Law Review 1667, 1667.

See Amy Sinden, ‘The Tragedy of the Commons and the Myth of Private Property Solution’ (2007) 78 University of

Colorado Law Review 533.

Jane B Baron and Jeffrey L Dunoff, ‘Against Market Rationality: Moral Critiques of Economic Analysis in Legal Theory’

(1995) 17 Cardozo Law Review 431, 454-7.

Dagan (n 46).

ibid 243.

ibid 1-3.

ibid 42. 102.

ibid 42.

ibid 185.

ibid 213.

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The Irish Constitutional Position

Origin of the Constitution

As discussed above, the Irish Constitution possesses both communitarian and liberal aspects.

On the liberal side, for example, the courts have interpreted the Constitution as providing

for a strong separation of powers and strong criminal trial rights.

Regarding the property

clauses however, it will be argued that the Constitution falls squarely at the communitarian

end of the values spectrum. This will be done, first, by analysing the text of the Constitution

itself and secondly, by reference to case law. Irish courts have not always interpreted the

property clauses to give effect to communitarian values but, on the whole, they have

increasingly recognised the communitarian basis of the property clauses and have adjudicated

accordingly.

As Walsh clarifies with respect to her work, the purpose of delving into the history of the

constitutional property clauses is not to assert an 'originalist' reading of the Constitution but

to attempt to resolve some of the ambiguity within the meaning of the text itself.

The

following section engages with the history of the constitutional wording to elucidate the

intended meaning of the constitutional property clauses. Clarifying the origin of the

constitutional property clauses should aid judges when interpreting those clauses. It is not

intended to close off other aids to interpretation.

Historical scholarship shows that Archbishop John Charles McQuaid had a ‘considerable

influence’ on drafting Article 43 of the Constitution, along with Article 45 which was

originally intended to accompany Article 43.

Correspondence between McQuaid and de

Valera clarifies that the former was reading the papal encyclicals Quadragesimo Anno and Rerum

Novarum when providing the latter with draft clauses.

Where passages from the encyclicals

are placed side by side with Articles 43 and 45, the parallels are striking.

Quadragesimo Anno explicitly dealt with the subject of private property. While it is true that

the encyclical defended private property against socialist movements which were perceived

as a threat to the institution, Walsh perhaps slightly over-emphasises liberal influence on the

encyclicals.

By quoting McDonagh’s argument that the Catholic Church’s strong anti-

communism influenced the encyclicals and therefore the Constitution,

Walsh does not

emphasise the anti-liberal message of Quadragesimo Anno.

The document contains multiple

denunciations of liberal private property and the economic system that it undergirds,

including the following:

See, for example, David Gwynn Morgan, The Separation of Powers in the Irish Constitution (Round Hall 1997).

Walsh (n 20) 45-6.

Dermot Keogh and Andrew McCarthy, The Making of the Irish Constitution 1937: Bunreacht na hÉireann (Mercier 2007) 117.

ibid 108.

ibid 117-8. Ultimately, concerns about litigants attempting to sue the state on the basis of the highly communitarian

Article 45 'Directive Principles of Social Policy' led to their removal from the cognisance of the courts. However, Walsh

has argued that, in balancing the values contained in Article 43, Article 45 could be a useful aid for courts. She refers to a

number of cases which provide something of a wedge to bring the principles partially back into judicial cognisance including

Attorney General v Paperlink [1984] ILRM 373 and Re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR

321. The Indian Constitution explicitly borrowed the wording of many of the Article 45 principles and was amended to

prohibit judicial review of any legislation in furtherance of the principles. In an Indian case to be discussed below, the court

cited the principles in a communitarian ruling; an indication of possible success from another jurisdiction of Walsh’s

argument in favour of Article 45. See Walsh (n 20) and Allen (n 11) 47.

Walsh (n 20) 61.

Enda McDonagh, ‘Philosophical-Theological Reflections on the Constitution’ in Frank Litton (ed), The Constitution of

Ireland 1937-1987 (Institute of Public Administration 1988) 192.

Walsh (n 20) 75.

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Property, that is, 'capital,' has undoubtedly long been able to appropriate too

much to itself. Whatever was produced, whatever returns accrued, capital

claimed for itself, hardly leaving to the worker enough to restore and renew

his strength. […] It is true, indeed, that things have not always and

everywhere corresponded with this sort of teaching of the so-called

Manchesterian Liberals; yet it cannot be denied that economic social

institutions have moved steadily in that direction.

In contrast to the liberal vision of property, Pius XI promulgated a vision of ownership with

a ‘twofold character’, individual and social.

With respect to the social dimension, people

had to consider not only their own interests and desires but also those of the common good.

In terms of defining the duties property holders had in relation to the common good, the

State had the primary role.

Reflecting Thomism, the encyclical states that the law of social justice prohibits the exclusion

of one part of society from the wealth produced by society as a whole.

The superflua

discussed above also appear and the text states that a person’s superfluous income is ‘not left

wholly to his own free determination’.

The rich are instead bound to practice almsgiving,

beneficence, and munificence. While the emphasis here may be on individuals themselves

redistributing some of their resources, in the context of the document's overall emphasis on

public authority, the implication is that the State is sanctioned to undertake redistribution of

property.

Beyond the evidence for the direct influence of Quadragesimo Anno on the text, during the

parliamentary debates over the new Constitution, de Valera again reflected the encyclical’s

philosophy in his response to opposition TDs,

including the future Taoiseach, and barrister,

John A. Costello. Far from understanding the property clauses as a ‘classic “first generation”

statement of liberal, civil and political rights,’ in the words of O’Donnell,

the contemporary

opposition feared Article 43 had the potential to enable a future left-wing government to

carry out property confiscation without compensation.

De Valera strongly rejected this

contention and explicitly referred to the dual character of property, individual and social, an

idea directly derived from Quadragesimo Anno.

Even while robustly defending Article 43

from accusations of being communist-friendly, de Valera strongly emphasised the social

aspect of property rights, reiterated their subjection to the common good, and emphasised a

natural law understanding of property rights.

Two prominent churchmen who had some influence on the drafting of the property clauses

in varying ways, Father Edward Cahill and Father Alfred O’Rahilly, felt the clauses did not

sufficiently reflect Catholic social teaching, mainly because they feared the legal class’s

education in the British legal tradition would lead to a liberal interpretation of the

Encyclical of Pius XI, ‘Quadragesimo Anno’ <https://www.vatican.va/content/pius-

xi/en/encyclicals/documents/hf_p-xi_enc_19310515_quadragesimo-anno.html> accessed 2 January 2022, para 54.

ibid [45].

ibid [49].

ibid [57].

ibid [50].

Anthony Coughlan, ‘The Constitution and Social Policy’ in Frank Litton (ed), The Constitution of Ireland 1937-1987 (Institute

of Public Administration 1988) 154.

O’Donnell (n 2) 429.

Dáil Deb 12 May 1937, vol 67, col 210.

Dáil Deb 11 May 1937, vol 67, col 171.

Dáil Deb 13 May 1937, vol 67, col 215.

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Constitution. Cahill wrote that ‘individualistic and Liberal [sic] principles of English

jurisprudence’ influenced many Irish lawyers and there was a ‘real danger’ that the ‘intentions’

of the Constitution would thereby be frustrated.

Hogan argues that Cahill was ‘prescient’

in this view and that courts have somewhat adopted an individual-centred approach to

property rights.

Cahill’s anxiety over the ability of legal minds to understand the meaning

of the language of Article 43.2 should serve to remind those legal minds of the philosophical

basis for Article 43.2 rather than absolving them of their responsibility to properly construe

the text simply because judges have failed to do so on previous occasions. As Walsh notes,

judges are mandated by the Constitution to engage with the communitarian values of Article

43.2; it is not an optional exercise.

The connection between Article 43, Quadragesimo Anno and Thomist philosophy has long

been recognised by commentators.

Mr Justice Brian Walsh, writing extrajudicially, opined

that the Constitution reflected almost perfectly the Thomistic conception of property

discussed above. Indeed, his understanding of Irish constitutional property rights mirrors the

values of the progressive property theorists in the US and their emphasis on the obligations

of property rights holders:

The starting point must be a philosophical concept of what are property

rights. [...] Nobody is given the right to accumulate property and retain it and

to assert that right against the requirements of social justice. [...] Strictly

speaking one cannot claim as of right more property than one requires for

one’s own support. While the right of private property exists in the interests

of the common good it is subordinate to the common good. [...] The

reference in Article 43 Section 1, to ‘maoin tsaoghalta’ or ‘external goods’, in

contrast to ‘goods of the body’ and ‘goods of the soul’, provides the clue to

the philosophy in question. These were the ideas of St Thomas Aquinas.

Mr Justice Brian Walsh went on in the same passage to contrast the Thomistic philosophy

of Irish constitutional property law with both the absolutism of the French Civil Code and

the common law’s orientation in favour of property rights.

If Mr Justice Brian Walsh’s

contention that the values of Irish constitutional jurisprudence on property rights are

Thomist is correct then it follows that property rights that protect the material security of

human beings are worthy of greater protection than property rights that protect returns on

investment; a position for which there is some authority (as discussed later). However, while

Thomism is undoubtedly an influence on the values to be applied to constitutional property

rights in Ireland, it would be a stretch to argue that Thomism must be the sole metric with

which to evaluate such rights.

Commentators sympathetic to a liberal viewpoint of the Constitution, not finding Article 43

conducive, often turn to Article 40.3.2° instead. Judges have also found the simpler wording

of Article 40.3.2° more attractive than the ‘tortured syntax’ of Article 43.

Article 40.3.2°

appeared to be an avenue for the entrance of liberal values into constitutional adjudication

Gerard Hogan, The Origins of the Irish Constitution, 1928-1941 (Royal Irish Academy 2012) 573.

ibid 96.

Walsh (n 20) 183.

See Walsh (n 21).

Brian Walsh (n 2) 148.

ibid.

Walsh (n 20).

Ronan Keane, ‘Land Use, Compensation and the Community’ (1983) 18 Irish Jurist 23, 32.

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of property rights. However, as was pointed out in Moynihan v Greensmyth, even the State

protection of property from ‘unjust attack’ in Article 40.3.2° ‘is qualified by the words ‘as

best it may’ which ‘implies circumstances in which the State may have to balance its

protection of the right as against other obligations from regard for the common good.’

Walsh highlights the fact that where State protection of property rights from 'unjust attack'

has been centred by judges, Article 43 values have been marginalised.

In the context of commonwealth constitutions, Allen has written about what might be

termed liberalism creep, a phenomenon where post-colonial states chose to imbue their new

constitutions with communitarian values but where courts at a national and commonwealth

level have handed down judgments that favoured individual rights over those of the

community.

The most prominent example of this occurred in India where the Supreme

Court struck down legislation that provided for graduated scales of compensation for

compulsory acquisition of lands from the aristocratic zamindar class.

The legislature

responded with constitutional change and the courts were forced to compromise. Allen

discusses the relationship between ownership of property and political power and argues that

the preference judiciaries in post-colonial states have historically had for individuals over

communities created a 'real risk' that those communities could be deprived 'of their capacity

to define their common identity' and their ability to enrich their own lives having fought to

achieve independence.

The Land Question

As discussed earlier, there has been a failure by courts and commentators to even attempt to

understand the meaning of Article 43’s wording despite its clear origin in Catholic social

teaching. An aspect of this failure, arguably, has been the further failure to situate

constitutional property rights in their historical context, particularly in relation to the

historical land question in Ireland.

The connection between the political battle over ownership of land in Ireland and

constitutional property rights is clear. Mr Justice Walsh extrajudicially opined that judicial

approaches to property rights have been 'conditioned by history and the land struggle'.

Prior

to Mr Justice Walsh, JM Kelly had enquired as to how certain conservative commentators’

views on constitutional property rights could be reconciled with the compulsorily purchase

and redistribution of land carried out through the Land Acts.

Wylie describes the stages through which increasingly strong legislation led to the

redistribution of land from landlords to tenant farmers.

He further describes the evolving

role of the Land Commission in the process whereby the vast majority of Irish agricultural

land changed possession. Lyall describes how the Land Act 1881 was contemporaneously

denounced as an infringement of landlords’ property rights as it required a landlord to

compensate a tenant for disturbing his occupancy and to compensate him further for

[1977] IR 55 (SC) 70.

Walsh (n 20) 95.

Allen (n 11) 109-110.

ibid 49-53.

ibid 110.

See John Cleland Wylie, Wylie on Irish Land Law (6th edn, Bloomsbury Professional 2020) ch 1.45-1.56.

Brian Walsh, ‘Foreword’ in James O’Reilly and Mary Redmond (eds), Cases and Materials on the Irish Constitution

(Incorporated Law Society of Ireland 1980) xx-xi.

John Maurice Kelly, Fundamental Rights in the Irish Law and Constitution (2nd edn, Allen Figgis and Co 1967) 173.

Wylie (n 95) ch 1.45-1.56.

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improvements made to the property.

Later Acts, including those introduced during the Free

State period and following the introduction of the Constitution, granted the Land

Commission very significant powers to intervene in property rights.

100

Wylie very directly

sees the history of increasing State intervention in property as informing the 1937

Constitution.

101

Indeed, senior civil servants were worried about the prospect that

constitutional property rights could allow challenges to the work of the Land Commission,

a very practical concern in 1937 when the Commission continued to transform Irish land-

holdings.

102

In cases such as Fisher v Land Commission

103

and Foley v Land Commission,

104

the social

importance of the Land Acts and Land Commission was recognised. Fisher involved a

challenge to the Land Acts which argued it was unconstitutional that the Acts did not bestow

a right of appeal to the courts following expropriation of land by the Land Commission from

a tenant. The land could be re-occupied by the Land Commission on the basis of one of a

number of reasons listed in the 1939 Act, including for the improvement or rearrangement

of a land holding. While the decisions of the High Court and Supreme Court would now be

considered bad law given the evolution of separation of powers and fair procedures, their

recognition of the significance of the Land Question is of note. The High Court stated that

the main object of the legislation must have been the 'common weal' in the form of relief for

'small holders struggling with uneconomic farms'.

105

The Court stated further:

the Legislature (i) conceived that the public interest demanded a more

equitable distribution of certain estates, involving the curtailment or the total

expropriation of some proprietors to minister to the land hunger of the

afflicted smaller people; (ii) saw that, whatever compensation might be paid,

public policy alone could justify the necessary interference with lawful rights

of property in land […].

106

The Supreme Court echoed the above, stating that the 'main task' of the Land Commission

was the creation of a 'peasant proprietorship of a certain standard'.

107

The words of the High

Court above were stated by Gavan Duffy J, the same judge who would go on to give the

ruling in Buckley v Attorney General,

108

a judgment considered to be much less deferential to

the Oireachtas on the matter of property rights and of separation of powers. Gavan Duffy J

refers to the 'land hunger of the afflicted smaller people', a phrase that echoes the famine

period and shows the continuing resonance of the Land Question in the 1940s. This suggests

that while the courts were not willing to allow the legislature deprive citizens of their property

rights for political motives and without fair procedures, as had occurred in Buckley, they were

willing to defer to the legislature on property rights when the legislation in question had clear

and recognisable social goals. Another case involving a challenge to the powers of the Land

Howlin (n 23) 375.

100

These included the Land Law (Commission) Act 1923 during the Free State era and the Land Acts 1933, 1936 and 1939;

the 1936 and 1939 Acts being introduced by the Oireachtas in response to certain judicial decisions that affected the power

of the Land Commission. See Brendan Edgeworth, ‘Rural Radicalism Restrained: The Irish Land Commission and the

Courts (1933-39)’ (2007) 42 Irish Jurist 1.

101

Wylie (n 95) ch 1.61.

102

Hogan (n 82) 327.

103

[1948] IR 3.

104

[1952] IR 118. (SC).

105

Fisher (n 103) 10

106

ibid.

107

ibid 26.

108

[1950] IR 67.

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Commission, Foley, chose to follow Fisher and to distinguish Buckley. The Supreme Court in

that case referred to the Land Acts as ‘a very important branch of our social legislation’.

109

The more recent case of Shirley v A. O'Gorman & Co Ltd provides further evidence of the

courts’ recognition of the historical significance of land in Ireland when determining

questions of property rights.

110

Shirley concerned a challenge to legislation which allowed

tenants in business premises to buy out the ground rent from their landlord in some instances

at prices only one eighth of market value. The High Court rejected the challenge and in doing

so stated that it was entitled to consider 'the social history of the country' in order to provide

context to the challenged legislation.

111

The social history in question here was that of the

Land Question and the redistribution it brought about from the land-owning class to the

tenant class. This context was required in determining whether the legislature had social

justice in mind when passing said legislation. Peart J concluded that social justice had been a

significant factor for the legislature, and this was crucial in his rejection of the constitutional

challenge.

112

Complementarily, other scholars have emphasised how the Land Question must be

understood against the colonial context of Irish history. As suggested by Walsh above,

113

understanding that context is crucial for understanding why property rights in an Irish

context are to be distinguished from Britain and the United States. Allen has described how

former colonies who became members of the commonwealth chose to place different

emphases on property rights, usually of a communitarian nature, than their colonisers.

114

Walsh and Fox O’Mahony argue for the existence of a unique Irish conception of property

in contrast to Britain, centring the idea of property as security;

115

a point further discussed

below. So at variance with Britain was the Irish experience of property rights that the first

draft constitution for the Irish Free State put forward by Cumann na nGaedheal contained

a property rights provision that was influenced by a Soviet constitution with the 'Soviet

character' of the property clauses being a factor in its rejection by London.

116

The fact that it

was put forward in the first place by what became Ireland’s staple centre-right party illustrates

how the independence struggle shaped the Irish understanding of property rights.

It is unsurprising that a country like Ireland with a colonial history intimately tied to the Land

Question would choose to place a different emphasis on property rights than certain other

common law jurisdictions. While Irish law remains based on the common law, the

Constitution is the exact place to pursue general modifications of the common law. The

Constitution's preamble itself centres the struggle for independence.

The political ideology which framed that anti-colonial struggle was republicanism and its

influence can also be seen on the Constitution.

117

In reformulating land law through the Law

and Conveyancing Law Reform Act 2009, the Law Reform Commission justified changes to

109

Foley (n 104) 153.

110

[2006] IEHC 27.

111

ibid.

112

ibid.

113

See 'Origin of the Constitution' section above.

114

Allen (n 11) 109-110.

115

Rachael Walsh and Lorna Fox O’Mahony, ‘Land Law, Property Ideologies and the British-Irish Relationship’ (2018) 47

Common Law World Review 7, 23.

116

ibid 18. See also Thomas Mohr, ‘British Involvement in the Creation of the First Irish Constitution’ (2008) 30 Dublin

University Law Journal 166

117

McDonagh (n 70) 197-8; Coughlan (n 77) 145.

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common law property rules on the basis of the republican character of the State.

118

Indeed,

Daly has argued for republicanism as the solution to the falling away of natural law as an

'underlying public philosophy' of the Constitution.

119

As judges must necessarily interpret the

Constitution against some set of values, given that value-free interpretation is impossible for

a document that expressly mandates the courts to balance various principles against each

other, Daly argues that republicanism holds the most appropriate set of values.

120

Republicanism is easily reconciled with communitarian property theory as the republican

conception of freedom is as freedom from domination, as opposed to the liberal conception

of freedom as freedom from interference.

121

Freedom from domination accords, for

example, with property as material security more so than with property as a vehicle for the

pursuit of profit.

Whatever the political potential of the constitutional property provisions, the evolution of

case law has bounded that potential in particular ways. The point about the influence of

republicanism and anti-colonialism, however, does complement both the importance of the

Land Question in the Irish constitutional constellation and, ultimately, the communitarian

character of the constitutional property rights provisions. The Land Question context reveals

the extent to which the Constitution envisages the possibility for comprehensive

redistribution and reconfiguration of property rights.

Blake-Madigan – A Threat to Communitarian Property Jurisprudence

The relationship between Articles 40.3.2° and 43 is critical for determining whether the

Constitution leans communitarian or liberal on property rights since the Constitution’s

communitarian content emanates from Article 43 with its references to 'social justice' and

the 'exigencies of the common good'. The courts’ position on the relationship has

continuously changed over the years with many judgments contradicting each other often

without one expressly overruling another.

122

While it appeared at one point that 40.3.2° might

predominate in constitutional interpretation, the communitarian values of 43 have re-

emerged as a crucial component in constitutional property rights adjudication.

Many early cases in Irish constitutional property jurisprudence ruled that the property rights

comprehended by Article 40.3.2° were those listed in Article 43.

123

The question of the

relationship between these articles appeared to be definitively answered in Blake-Madigan,

124

case involving a challenge to rent control legislation, where the ruling on the relationship

between Articles 43 and 40.3.2° was to the detriment of the former and the communitarian

values contained therein.

125

Blake-Madigan has never been expressly overruled and many of

its rulings continue to cast a shadow of doubt over how the legislature can constitutionally

intervene in property rights.

126

118

Law Reform Commission, Consultation Paper on Reform and Modernisation of Land Law and Conveyancing Law (LRC CP 34 –

2004) 34.

119

Daly (n 5) 91.

120

ibid 104-6.

121

Pettit (n 33) 40.

122

Hogan and others, Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018) ch 7.8.

123

See Foley (n 104) and Attorney General v Southern Industrial Trust [1960] 94 ILTR 161.

124

Blake v Attorney General [1982] IR 117 (SC).

125

Gerard McCormack, ‘Blake-Madigan and Its Aftermath’ (1983) Dublin University Law Journal 205, 224.

126

See Hilary Hogan and Finn Keyes, ‘The Housing Crisis and the Constitution’ (2021) 65 Irish Jurist 87, 89.

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The facts in Blake-Madigan involved a particularly extreme infringement of the plaintiffs’

property rights.

127

The legislation in question imposed rent control to the extent that rent

was between nine and nineteen times less than the market rate. Combined with onerous

obligations to repair the premises in question and strong protections for tenants from

eviction, the plaintiffs argued that the legislation effectively rendered their properties of no

financial benefit. O’Higgins CJ stated that the Constitution offered a 'double protection' for

property, a general guarantee that the State could not abolish private property as per Article

43.1 and a protection for individuals that their specific items of property would be protected

as per Article 40.3.2°.

128

This interpretation would have made Article 40.3.2° the clause of

real importance and effectively side-lined Article 43 values almost entirely from adjudication.

The court went on to rule that, as the legislation affected the plaintiffs’ property rights and

as it did so without justifying why this particular group of individuals were being singled out,

i.e. persons who happened to have property rights in rent-controlled dwellings, it constituted

an unjust attack.

129

The means of the tenants in question or of the landlords were not factors

in the legislation nor did the legislation provide any compensatory factor to the landlords for

the interference in their property. The rent control provisions were therefore

unconstitutional. The court did not explicitly rule on the recovery of possession aspect of

the legislation. It acknowledged restriction of landlords’ rights in that respect could be

justified in certain circumstances but as those restrictions were part of a legislative package

with unconstitutional elements in this instance, the whole legislation must fall together.

130

The case concluded by gently pointing out that the legislature should protect the tenants in

question by passing new legislation that would determine fair rents and provide for a degree

of security of tenure.

131

The Bill proposed by the legislature to fill this lacuna was referred to the Supreme Court by

the President under Article 26 of the Constitution and the resulting judgment appeared to

further cement the Blake-Madigan decision itself. The Bill envisaged a period where tenants

would pay a higher rent each year until, after five years, they would be paying market value.

132

The court ruled that market value rent was the 'just and proper rent' and found the bill

unconstitutional on the same basis as Blake-Madigan; that it constituted an unjust attack on

the plaintiffs’ property rights without justification.

133

On the face of it, the Article 26 case

appears to enshrine a right to market rent.

134

Christman points out that granting full income

rights such as the right to receive market rent would amount to allowing full bilateral trades

with no regulation, taxation or interference.

135

It would preclude any regulation by the State

that related to the distribution of resources and would thus infringe upon state sovereignty.

Cohen further argues that property rights as a guarantee to investors of a return on their

investment is akin to the State guaranteeing private actors a percentage of the value produced

by society as a whole; a position clearly at odds with a communitarian constitutional

jurisprudence.

136

127

Blake-Madigan (n 124) 132.

128

ibid 135.

129

ibid 136-40.

130

ibid 140.

131

ibid 142.

132

[1983] IR 181 (SC).

133

ibid 190.

134

Walsh (n 20) 142-3.

135

John Christman, ‘Distributive Justice and the Complex Structure of Ownership’ (1994) 23 Philosophy & Public Affairs

225.

136

Cohen (n 39) 13.

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A short number of years later, however, the same Chief Justice who had given the ruling in

Blake-Madigan gave a judgment in O’Callaghan v Commissioners of Public Works that contained

an altogether different approach.

137

In doing so, he was influenced by the intermittent

judgment in Dreher v Irish Land Commission, a case where the Land Commission carried out a

compulsory purchase for monies marginally below market value.

138

Walsh J had stated in

Dreher that any State action authorised by Article 43 could not by definition be unjust for the

purposes of Article 40.3.2°.

139

The plaintiff in O’Callaghan had claimed legislation which allowed the Commissioners of

Public Works to make a preservation order protecting a national monument on his land

without providing him with compensation was unconstitutional. The Supreme Court ruled

the plaintiff was not entitled to compensation. Referring to Blake-Madigan, the court disagreed

with the role in constitutional property rights to which that case had consigned Article 43. It

stated that Article 43 did ‘more than merely institutionalise private property’.

140

It ‘authorises’

the State to regulate the exercise of the property rights referenced in that article. When the

question of an ‘unjust attack’ on a property right was raised, Articles 43 and 40.3.2° ought to

be read together ‘so as to give effect, in so far as possible, to both provisions’.

141

This position was generally followed thereafter with the ruling in Dreher emphasised, that is,

if a piece of legislation conforms to Article 43 then it is necessarily constitutional for the

purposes of 40.3.2°.

142

In more recent years, the relationship between the Articles has been

summarised as that they 'mutually inform each other'.

143

It is important to therefore note

that, since Dreher implicitly overruled the Supreme Court's interpretation of Article 43 in

Blake-Madigan, if a case with the same facts were being decided today then courts would have

to apply different considerations, i.e. it would have to apply communitarian values to the

legislation.

Moreover, the Article 26 case was intimately related to Blake-Madigan itself and cannot be

read without the aid of the latter judgment. The Oireachtas’ bill sought to legislate as Blake-

Madigan had suggested; to protect the now precarious tenants in question by providing for

'fair' rents. The Article 26 case seemed to then rule that the only fair rent was market rent.

Such a contradiction may be resolved by looking to the fact the Article 26 judgment again

reiterated that no justification was provided for why property owners of rent-controlled

dwellings should, in particular, be subjected to infringements of their rights. If no such

justification was provided and no reference to the circumstances of the tenants was made,

then the court could perhaps only conclude there was no reason why market rent would not

be the assumed rent. It is arguable, therefore, that where a better justification is provided by

the Oireachtas for why it seeks to diverge from market rent as the norm and, in light of

Dreher, especially where issues of social justice and the common good arise, courts should

not apply the logic shown by the Supreme Court in the Article 26 case. Courts have not

applied such logic in practice, and this further indicates that these cases should be seen as

results produced by unique sets of facts and a unique application of the law, focusing only

137

[1985] ILRM 364 (SC).

138

[1984] ILRM 94 (SC).

139

ibid 96.

140

Blake-Madigan (n 124) 367.

141

ibid.

142

See, inter alia, ESB v Gormley [1985] IR 129 (SC) 150; Lawlor v Minister for Agriculture [1990] 1 IR 356 (HC) 373; Clancy v

Ireland [1988] IR 326 (HC) 336; Murphy v GM [2001] 4 IR 113 (SC) 157; Re Article 26 and the Health (Amendment) Bill 2004

[2005] 1 IR 105 (SC) 200.

143

J & J Haire v Minister for Health [2010] 2 IR 615 (HC) 644 quoting JM Kelly: The Irish Constitution (4th edn, Lexis Nexis

2003) 1993. The same language was used in Flynn v Breccia [2015] IEHC 547 [246].

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on Article 40.3.2°. The rent control cases therefore represent a road not travelled for the

courts and a road now cut off by further developments.

An argument might be made that the Constitution’s placement of property rights alongside

such liberal rights as freedom of assembly in Article 40 connotes a liberal understanding.

While this argument may have some merit, like the other rights contained therein, the rights

associated with liberalism contained in Article 40 have consistently been ruled not to be

absolute.

144

Article 40.3.2°, then, may simply be a guarantee that the Oireachtas, ‘under the

disguise of a claim that they were promoting the common good’, cannot unfairly and

disproportionately interfere with property rights.

145

Examples of such unfair and

disproportionate interferences may be seen in Brennan v Attorney General

146

and Daly v Revenue

Commissioners

147

where legislation produced demonstrably unfair tax results for individuals

without any social justification.

Even where cases appear to have had pro-property rights outcomes, communitarian values

have taken centre stage, for example in the Health Bill case (discussed below).

148

In Re Article

26 and the Employment Equality Bill 1996, the court held that the goal of equality in the

workplace did justify a delimitation of property rights via forcing employers to make their

workplaces more adequate for disabled employees.

149

The bill was ruled unconstitutional only

because it attempted to realise its goal by placing onerous burdens on employers, not taking

account of their respective means. Thus, the Court’s issue was with how the law applied, the

problem being with the unequal sharing of the burden rather than the existence of the burden

itself.

Neither has the proportionality doctrine ultimately impeded the realisation by the Oireachtas

of social justice and common good considerations through regulation of property rights.

While that doctrine will not be discussed in this article, it is important to point out that certain

commentators have argued that the doctrine had somewhat erased Article 43 values from

judicial discourse.

150

It is submitted that this outcome, although it had been a threat, did not

ultimately occur as some of the case law discussed in this section and later sections illustrate.

There is now consistency in that all constitutional property rights must be evaluated with

communitarian criteria in mind. While the property rights of individuals will also be given

due consideration, the spectre of liberalism creep denuding the communitarianism of Article

43,

151

which was arguably raised in the Blake-Madigan judgment, has largely been abated.

Liberal Aspects of Article 43

To evaluate the extent to which communitarian values predominate in Irish constitutional

property jurisprudence, it is important to also consider the possible liberal aspects of Article

43 and their potential to create a countervailing tendency. While 43.2 speaks of social justice,

the common good and the regulation of property rights in accordance with those principles,

43.1 states that the right to the ownership of external goods is a natural right, antecedent to

positive law. The concept of a natural right to the private ownership of external goods

144

E.g., in respect of freedom of expression. See Hogan and others (n122) paras 7.6.07 – 7.6.136.

145

Central Dublin Development Association v Attorney General [1975] 108 ILTR 69 (HC) 85.

146

[1984] ILRM 355 (SC).

147

[1995] 3 IR 1 (HC).

148

Re Article 26 and Health Bill (n 142).

149

[1997] 2 IR 321 (SC) 367-8.

150

Hogan (n 1) 377.

151

See McCormack (n 125) 224.

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appears at first sight to be a strong private property guarantee. Private ownership is placed

into the realm of natural rights and therefore outside the realm of political contestation.

In Blascaod Mór Teo, Budd J situated 43.1 in its historical context, stating that it connoted 'a

rejection of fascism and totalitarianism in the sense of recognising the right of the individual

to own property rather than the State owning all assets.'

152

This claim has some historical

basis in that de Valera’s government did not wish to be perceived as communist-friendly.

153

However, with further analysis, it can be seen that Article 43.1’s natural rights language is not

as strong of a property rights guarantee as it might first appear. The question of the natural

law conception of property returns the discussion to natural law philosophers such as

Aquinas who, as discussed earlier, do not necessarily have an absolutist perspective on private

property. A strict reading of the clause shows that it guarantees no more than that the general

rights to own objects and to transfer them may not be abolished. In a 1937 internal

memorandum, one of the Constitution's drafters, JJ McElligott, made the point that, on the

basis of the text alone, Article 43.1's wording was sufficiently general that it could

theoretically have allowed the State to prohibit the ownership of land.

154

In a more

contemporary context, Pettit made a similar point when he argued that Article 43 could only

be understood as a right to be able to own external goods under some system of positive law;

it did not impose any particular form on the ownership rights that the positive law was

required to establish.

155

Nevertheless, Article 43.1 does have certain liberal connotations. Blake-Madigan ruled that it

provided a general protection for the institution of private property.

156

By enumerating the

rights to transfer, inherit and bequeath property as further rights protected, the Constitution

to some extent separates from property rights, but provides protection to, rights to transfer

property associated with freedom of contract. By referencing both property and rights to

transfer it, the Constitution guarantees some form of a market in property. It could be argued

that Article 43.1 suggests, though does not necessitate, a property rights regime grounded on

liberal ideas of strong property rights and markets. The State’s ability to intervene in property

rights is thus to a certain extent bounded. In connotation at least, Sunstein would find much

to admire in this article.

While these liberal aspects of Article 43 should not be discounted, it is submitted that the

legislature has never approached the outer limits of its ability to intervene in the institution

of property as protected by Article 43.1. There has never been an attempt to abolish private

property and 43.1 has offered little practical value to litigants trying to protect their property

rights. Article 43.1 does, however, mandate that when judges apply Article 43.2 values in

adjudicating constitutional property rights, the liberal values in Article 43.1 must also be

considered.

Application of Communitarian Values

The below sub-sections relate to two areas where the courts have centred communitarian

values. The courts’ interpretation in these areas demonstrates the emerging dominance of

the communitarian tendency in constitutional property law.

152

[1998] IEHC 38.

153

See Walsh (n 19) 98.

154

Hogan (n 82) 513.

155

Pettit (n 33) 44.

156

Blake-Madigan (n 124) 135.

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Planning Law

In recent years, planning law generally has seen many judicial decisions which have applied

the communitarian values of Article 43. There has been no resolution but some evolution

on the question of whether planning law consists of an interference with property rights, an

enhancement of property rights, or whether planning permission is itself a species of

property right. For example, Central Dublin Development held planning legislation to be an

interference with property rights.

157

In two later cases, Re Article 26 and Part V of the Planning

and Development Bill 1999

158

and Pine Valley Developments v Minister for Environment,

159

the

Supreme Court took the opposite view and determined that planning permission was an

enhancement or enlargement of property rights. In the Part V case, the bill in question

required owners of land with development rights attached to it to cede 20% of that land to

local authorities for monies equivalent to existing use value as opposed to market value.

160

The bill’s aim as the provision of housing for people of moderate means in a housing context

where such people were increasingly excluded from purchasing property. The consideration

that planning permission enhanced property rights was crucial in reaching the

communitarian-friendly ruling that the bill was constitutional.

161

Pine Valley related to a challenge by a purchaser who made its purchase on the basis that an

outline of planning permission had been granted only for that planning permission to have

been deemed unlawfully granted in another Supreme Court decision.

162

The purchaser

claimed its property rights had been infringed by virtue of the latter decision but the court

rejected this argument on the basis that a grant of planning permission was an enhancement

of property rights. The diminution in value that occurred therefore only affected the

enhancement, not the property rights themselves.

In McGrath Limestone v An Bord Pleanála, a case where the plaintiff challenged a decision to

restrict its ability to use certain quarrying methods on its land, the High Court stated that

planning law extended the principles of tort law in that it provided that citizens had a stake

in how their community was developed and how that development was regulated.

163

In a

recent High Court case, Clonres CLG v An Bord Pleanála, the more communitarian position

was further asserted by the court which stated private property did not include a right to

develop one’s land:

The Constitution is a social contract - not a one-way offer.

Without taking from the principles of land law, we are all, at best, leaseholders

on Planet Earth. All property must be held with some view to the benefit of

society as a whole and of future generations, and is not to be dealt with as

one sees fit. Even the most self made Ayn-Randian entrepreneur draws

enormous benefits from her membership of society […] To argue that

society’s endeavours to ensure that outcome (through development plans,

for example) have to be read narrowly and restrictively, while the individual

157

Central Dublin Development (n 145).

158

Part V (n 68) 352.

159

[1987] IR 23 (SC) 45.

160

Re Article 26 and Part V (n 68) 324.

161

ibid 353.

162

Pine Valley (n 159).

163

[2014] IEHC 382 (HC) [10.5].

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property owner can take the full advantage of societal provision both direct

and indirect, is to entirely distort the social contract.

164

Humphreys J’s above statement clearly reflects communitarian and republican values. The

judgment accords with progressive property theory and acknowledges that the existence of

property assumes a society and the institutions which protect property. It is strongly anti-

liberal while still recognising property rights. Nevertheless, the question of planning

permission's relationship to property rights has not been fully resolved as can be seen by, for

example, the judgment in Sister Mary Christian v Dublin City Council where the court favoured

the Central Dublin Development position that planning law curtails property rights.

165

In these recent cases, the Irish courts have, in a sense, approached planning law through the

prism of the normative aspect of property rather than through the descriptive aspect.

Assuming a particular set of property rights as inherent to property has the potential to create

a liberal bias in the normative evaluation of property rights due to the historical influence of

private actors on the concept of property.

166

However, this potential has been somewhat

limited by the principles articulated in Central Dublin Development which envisage State

intervention in property rights as routine, and property rights as far from absolute and not

requiring a very high bar to be met to justify State intervention.

167

Kenny J's judgment states

that the Irish constitutional position on property is that it was comprised of a bundle of

rights as opposed to one unified thing.

168

In an Irish constitutional context, there has been

no attempt to list the individual rights of this bundle. The most widely-used enumeration of

the bundle comes from Honoré

169

but even Honoré conceded that his bundle described a

certain western form of property.

170

Honoré recognised the political significance of property

rights

171

in a later essay explicitly arguing against Nozick’s libertarian theory of property rights

and for a system of redistribution by the State not dissimilar to that of Aquinas.

172

While

there is no doubt in practice that property in Ireland has not diverged substantially from

other western property rights systems, the centrality of communitarianism to the

constitutional undergirding of property in Ireland raises the possibility that in order to

determine what rights are included in the bundle in an Irish context, values must be part of

that discussion.

Property Rights Holders

A second area that reveals the communitarian understanding of property rights at the heart

of Irish constitutional jurisprudence is the recognition that the strength of property rights

can vary based on who holds those rights. This idea is intertwined with the idea of property

as corresponding to security. Christman posits that property rights relating to the material

security of the individual are deserving of greater protection than those relating to profit-

making.

173

164

[2021] IEHC 303 [84].

165

[2012] 2 IR 506 (HC) 561.

166

Pistor (n 10) 89-91.

167

Central Dublin Development (n 145) 85.

168

ibid.

169

Honoré’s standard incidents are the right to possess, the right to use, the right to manage, the right to the income of the

thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the

prohibition of harmful use, liability to execution, and the incident of residuary. Anthony Maurice Honoré, ‘Ownership’ in

Anthony Guest (ed), Oxford Essays in Jurisprudence (Oxford UP 1961) 370.

170

Anthony Maurice Honoré, ‘Property, Title and Redistribution’ in Larry May and Jeff Brown (eds), Philosophy of Law:

Classical and Contemporary Readings (Wiley Blackwell 2010) 265.

171

Honoré (n 169) 372.

172

Honoré (n 170) 267-8.

173

Christman (n 135).

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The question as to whether companies held constitutional property rights was not definitively

answered in the affirmative until Iarnród Éireann v Ireland which did not set out a

comprehensive reasoning as to why companies ought to have such rights.

174

Previous cases

had not recognised such rights, but indirectly protected property owned by companies by

virtue of protecting the property rights of shareholders. PMPS v Attorney General had held

that companies, as creatures of positive law, could not have constitutional property rights

under the Constitution as the property rights protected therein arose to 'man, in virtue of his

rational being'; the wording of Article 43.1.

175

Prior to Iarnród Éireann, the Constitution

Review Group had recommended that constitutional property rights should not be extended

to corporate persons.

176

The arguments put forward by those in the majority included the

contention that constitutional rights were intended to relate to human beings. They also

included the possibility that recognition of constitutional property rights of corporate

persons could mean ‘corporate resources and financial power’ would be marshalled to

challenge the constitutionality of legislation and thereby have ‘legal, financial and social

consequences.’

177

Despite the ruling in Iarnród Éireann, there has been further judicial recognition that

constitutional rights may apply differently to human persons than to corporate persons. Kelly

cites the High Court cases of Digital Rights Ireland v Minister for Communications

178

and Smith v

Considine

179

as examples of this recognition but comments that the courts have not offered

any guidance as to how the rights may differ as between the categories.

180

Some indication of

how Irish courts factor in the differences in who holds property rights may be seen in Pine

Valley. Without specifying the exact causal relationship with its decision, the Supreme Court

placed a strong emphasis on the fact that the company’s investment was of a speculative and

commercial nature in its conclusion that no compensation was payable on foot of the

removal of the planning permission attached to the properties in question.

181

Re Article 26 and the Health Bill concerned proposed legislation that would retrospectively

declare lawful nursing home charges imposed without legal basis on elderly patients of

limited means.

182

The Supreme Court held the bill repugnant to the Constitution. It stated

that there was a ‘moral quality’ to the right to ownership of property and this quality was

‘intimately related to the humanity of each individual’.

183

The court proceeded to find that

property rights of persons of ‘modest means’ must be particularly deserving of protection

since ‘any abridgment’ of their rights would be ‘proportionately more severe in its effects’.

184

Decisions such as these illustrate that, despite the existence of constitutional property rights

for body corporates, the courts will not treat property rights as protection for profit-seeking

investments the same as property rights which serve the material security of human persons.

This is an area where Irish constitutional property rights jurisprudence demonstrates clear

174

[1996] 3 IR 321 (SC) 345-6.

175

[1983] IR 339 (HC) 349.

176

Constitution Review Group, Report of the Constitutional Review Group (Government of Ireland Stationery Office 1996) 364.

177

ibid 363.

178

[2010] IEHC 221 [51].

179

[2017] IEHC 22 [12].

180

Hogan (n 144) para 7.8.42.

181

Pine Valley (n 159) 46.

182

Re Article 26 and Health Bill (n 142) 200.

183

ibid 201-2.

184

ibid 201-2.

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communitarian values, whether or not the implications of these values have yet been fully

realised.

Conclusion

The Irish Constitution, as interpreted by case law, requires the Article 43.2 concepts of social

justice and the common good to be engaged with and applied by the courts when they

adjudicate on constitutional property rights. The meaning of these concepts must therefore

be given a proper analysis. This article has set out the normative theories of property with

the potential to assist with such an analysis and has used those theories to conduct the

analysis.

The genesis of the Irish constitutional provisions on property rights lies in the

communitarian teachings of the Catholic Church. The historical record shows the direct

influence of Church figures on the text and, indirectly through those figures, the influence

of papal encyclicals. The influence of Thomism has also been felt in Irish constitutional

property jurisprudence, an influence finding its way into that jurisprudence through the papal

encyclicals and Catholic social teaching generally. It is of note that these communitarian

influences are consistent with republicanism, a significant influence in the formation of the

Irish constitutional order. The Land Question discussion illustrates the objects envisaged by

these communitarian values: redistribution of property rights and reconfiguration of

property relationships. At least in respect of property rights, there is a strong argument that

these tendencies inform the underlying public philosophy of the Constitution.

While liberalism has a place in Irish constitutional jurisprudence generally, the spectre of

liberalism creep denuding the communitarian spirit of the Constitution with regard to

property rights has receded in recent years. Recent decisions in areas such as planning law

shows how the courts have increasingly centred communitarian values.

It may be concluded from this article as a whole that Irish constitutional property rights

jurisprudence possesses a relatively unambiguous theory of property rights. The

communitarian values of Article 43 provide a prism in determining the extent to which

property rights may be intervened in by the Oireachtas. Following some initial contradictory

currents in the case law, a consistent communitarianism in constitutional property rights

adjudication has recently been emerging. The analysis set out in this article corroborates the

validity of this emerging position.