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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Friday, December 24, 2010


Let's return to this case for a bit. In previous posts, we've considered Irish law and we've considered the respective facts relating to the three applicants.

Much of the long judgment relates to procedural issues such as whether the applicants could be considered, as a matter of practicality, to have exhausted their remedies under Irish law before seeking the assistance of European human rights law. After consideration of this and under points, the applicants were allowed to go ahead with aspects of what they were claiming in the European Court of Human Rights. All this is of interest to lawyers in the jurisdiction, but not of much interest from a public policy perspective, or a philosophical one.

The main basis for the applications was alleged breach by Ireland of Article 8 of the European Convention on Human Rights. This provides as follows:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As you'd expect, arguments were put to the effect that Irish abortion law and/or its interpretation and application by the government breached this right of privacy. But before we go any further, it would be good to take note of what a toothless tiger Article 8 is!

It allows the government to breach the kind of privacy that it describes by enacting laws that are "reasonably necessary in a democratic society ... for the protection of ... morals." But that is almost no protection to the individual at all. If the government can enact such laws as are reasonably necessary for the purpose of enforcing "morals" then the convention simply does not protect Europeans from moralistic legislation, which is exactly what you'd think such a convention was for. Obviously, this sentence tends to get read a bit more narrowly so that it does give a certain amount of protection, but on its face Article 8 of the convention is useless. It should be amended to take out the reference to protection of morals, and similar amendments need to be made throughout the convention. No Western democracy should be enacting laws that invade sexual and reproductive privacy merely for the protection of morals, as opposed to protecting people from harm to their secular interests.

This is, incidentally, a problem that runs right through international human rights law, including UN conventions. It countenances a great amount of illiberalism. I often feel like I'm a voice crying in the wilderness when I make this point, but it became important in the case that we're discussing. It left the applicants hamstrung in what they could actually submit to the court. Instead of being able to put a clear, clean submission that Ireland's abortion laws interfered with sexual and reproductive privacy for no compelling reason (or any compelling interest that the state might have in ensuring that all fetuses are brought to term), the applicants were forced to put complicated and, let's face it, contrived-sounding submissions.

We need to create the momentum for a movement to critique this illiberal aspect of international human rights law.

The Irish government, of course, submitted that "The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Frankly, I doubt it. I suspect it is based on the shallow moral values of people who are not prepared to interrogate the morality they have been taught to see how far down it can actually be justified. I get sick of the word "profound" whenever religion, or some kind of morality that is intertwined with religion, is under discussion. I suggest that every time the word "profound" is used in such a context we simply replace it with the word "shallow" ... and we'll invariably get a more accurate statement.

Okay, we're moving towards the climax of this series of posts, but that's enough for one day. Back soon with more on this fascinating case. We're now up to about page 45 of 75, at paragraph 180, for anyone who is trying to follow all the detail.


Christian Munthe said...

You spot on here, Russell - most of, e.g., the UN declaration of human rights can be disarmed by reference for the statutes on the right of countries to legislate according to their own culture, tradition, et cetera. But at the same time, that international law contain these sort of clauses that let countries off if only they have clear and coherent national laws and due process, is to be expected. We would hardly ever have any sort of international consensus unless these clauses were in place.

myrana said...

frankly, you merely doubt something without any evidence to back it up.

please provide evidence that the Irish people in the land of Ireland didn't spend a long time intensely debating the morality of abortion on a profoundly deep way.

but, first, you must understand just exactly how those laws were made, defended and legally protected.

Just because you may be pro-abortion does in no way attest to the way the Irish deeply and profoundly worked at deciding as a culture, how to deal with unwanted babies.

Russell Blackford said...

So, what is the "profound" aspect of it? Take it down five or six levels for me, and then demonstrate to me that this is what anti-abortionists typically do.

You know damn well that that is not how it works, and so do my other readers.

You can't just sneak in an adjective like "profound" and expect me to accept it. Neither can the Irish government and neither can the European Court of Human Rights. The reasons why people oppose abortion are almost always shallow and stupid, and, again, you know it.