The Derivative Rights Doctrine: A Means to Safeguard Democracy From The Bench?

The Abortion Information Case of 1995 halted the Supreme Court of Ireland’s judicial activism as it ‘rejected an implication of Walsh’s J’s reasoning in McGee that a constitutional amendment could itself be declared unconstitutional for breach of the natural law’ because Ireland was a ‘democratic state.’ This case thus discouraged the natural law and the concomitant doctrine of unenumerated rights which was rebirthed as the derivative rights doctrine.
Part I of this paper will examine the judicial reasoning of Mr Justice Brian Walsh in McGee to outline the significance of the natural law and the unenumerated rights doctrine during the heyday of judicial activism. Part II will examine the rise of the derivative right doctrine and how it differs from its predecessor. Part III will consider whether the derivative rights doctrine has the potential to safeguard against judicial activism and maintain Ireland’s democratic ideals, an analysis that will benefit other common law jurisdictions.