Constitutional equality in Ireland : a critical account

Abstract

The ideal of equality has become increasingly prominent in Irish political discourse. Article 40.1 of the Constitution of Ireland, 1937 guarantees the equality of all citizens, as human persons, before the law, but has for many years remained undeveloped by the courts. This thesis attempts to provide a comprehensive overview of the case law interpreting Article 40.1 and to place that case law in its theoretical context. The major conclusions of this thesis are that the drafters of Article 40.1 understood it is a guarantee of civil and political equality, but not social equality. In interpreting the Constitution, however, the courts have adopted a weak process conception of equality which applies in civil, political and social spheres of life. This weak process conception is based on the first half of Aristotle’s injunction to treat like cases alike and unlike cases unalike. As a matter of constitutional law, this requires the courts to test whether legislative classifications correspond to real differences in society. Dicta in a number of recent cases suggest that the courts may be strengthening this process conception by requiring a higher level of justification for some grounds of classification, such as race, than for others.