When I was studying for my Arts degree in Economics and Politics at UCD in the early 1970s, we had a choice whether to take either Statistics or else Roman Law and Jurisprudence as the third leg of our degree. One look at the Statistics course materials convinced me to take the other option.
And so, I was immensely privileged to attend the lectures in Roman Law and Jurisprudence given by the late Professor John Maurice Kelly, then a senator as well as being a stellar legal academic and author, on Saturday mornings in the Old Physics Theatre at Earlsfort Terrace.
Instead of teaching us classic, conventional, and theoretical jurisprudence, he often chose singular and quite divers topics such as the death penalty – then still on the statute book and provided for in the Constitution – as his lecture themes.
On one occasion he chose the very broad topic of legal and constitutional rights. He expounded the fundamental and oft-forgotten truth that rights are entirely theoretical – as they were in the then USSR’s written constitution – unless they correspond to duties.
Put plainly, his thesis was that unless someone or everyone was under a corresponding duty to vindicate your rights, they were legally and practically worthless – merely rhetorical. His thesis is a truth that I have always since considered to be “self-evident” as the American founding fathers might say.
We now live in a highly moralistic world where, it seems to me, everyone is encouraged to assert their rights, and the term “duty” is regarded as outdated and, perhaps, intrusive on personal autonomy and freedom. We have an Irish Human Rights & Equality Commission; we have among legal academics a “human rights” community; they sometimes use the term “rights speak” to denote a kind of political or ideological vernacular; and they regularly call for policy and processes to be “rights based”.
All of this is valid – but only up to a point. Because the more rights are promulgated and identified in social and political discourse, the more that corresponding duties are implied.
And if we collectively designate rights as justiciable, they are, pace John Kelly, meaningless unless the judiciary are empowered to cast justiciable duties on individuals, groups, or on the community at large – namely the State.
These issues arose tangentially in the recent referendum debates. Was the term “duties” in some way outmoded and unacceptable as it appeared in article 41.2 referring to mothers parenting in the home? Was it that the reference was only to mothers? If it were a reference instead to “parents”, would it require amendment or deletion? Was it wrong to imply that parents could have “duties” in the home – as distinct from rights?
In the cut and thrust of stopwatch-timed debates on TV and radio, any considerations of parents’ duties would have been pointless. But at a deeper level, the truth is that parenting is hugely about duties whether or not one is working outside the home – part-time or full-time – and no matter how fulfilment of those duties are, should, or can be shared between parents.
We inserted a new article into the Constitution in 2012 concerning children (article 42A) obliging the State to recognise, protect and vindicate “the natural and imprescriptible rights of all children”. That article also dealt with cases where parents “fail in their duty towards their children”, providing for intervention to safeguard the welfare and safety of such children.
And article 42 of the Constitution also speaks of the “right and duty” of parents to provide for the religious, moral, intellectual, physical and social education of their children.
The Constitution thus asserts that parents have duties corresponding to the rights of their children. They are the natural and fundamental obligations of parenthood. It isn’t outdated to recognise the need to fulfil such obligations as “the necessary basis of social order”.
Happily, we live in an era where duties and obligations of parenting are becoming more fairly shared than they were a century ago. And the judiciary has emphasised in the Supreme Court that the duties of fathers were assumed by the Constitution.
But still the role of parental and other caring falls more on women rather than men in most – but not all – homes. Maternity and paternity are not the same. Airbrushing recognition of that reality out of our fundamental law was always going to be problematic – especially when article 41 did not imply that women’s place was in the home but merely affirmed a duty to endeavour to support the choices of mothers in these matters.
During the Dáil debate on the Constitution in 1936, De Valera dismissed the still-repeated canard that article 41 provides that a “woman’s place was in the home” as untrue and as a “cheap jibe”.
Let’s not forget John Kelly’s truth. We must fulfil duties if any of us are to have rights.