Spotlighting Research: Part Three - Is There a Right of Freedom of Thought in Irish Law?

1 Oct 2020

In this series, we spotlight exciting and impactful research currently being undertaken at the UCC School of Law. We also showcase the researchers themselves – academic staff at the School, who produce cutting-edge legal scholarship independently or through our research centres.

In Part  Three of the series, we are shining the spotlight on Professor Maria Cahill and her research on the right of freedom of thought. Professor Cahill has written this blog post based on a forthcoming article entitled “Recognising Freedom of Thought in Irish Constitutional Law” which is one of a series of articles in a ground-breaking collection examining freedom of thought in comparative perspective, and which will be published in early 2021 in a special issue of an international journal.

Is there a Right of Freedom of Thought in Irish law?

Freedom of thought does not enjoy specific recognition in the text of the Irish Constitution. And although there have, to date, been several dozen proposals to amend the Constitution, none of them has suggested adding freedom of thought. If this is evidence that lawyers, or politicians, or the general public have generally been indifferent to freedom of thought, recent technological advances have made clear that such indifference is no longer a reasonable option.

Techniques such as neuroimaging, neuromarketing and neuroenhancement, deep brain stimulation and transcranial magnet stimulation as well as non-voluntary psychiatric intervention have the potential to endanger freedom of thought in ways that were perhaps inconceivable only a short time ago. In doing so, they create an urgent opportunity for us to remind ourselves of and to re-articulate for our contemporary world the reasons why freedom of thought is important.

While freedom of thought does not enjoy specific recognition in the text of the Constitution, that is not to say that it enjoys no recognition at all. There are three ways in which freedom of thought is at least tentatively recognised in Irish constitutional law.  

First, some of the rights that are expressly protected by the Constitution, such as the freedoms of expression, conscience and religion, are corollaries of freedom of thought and necessarily imply its existence. Freedom of expression protects the expression that follows from free thought which tries to shape public opinion, freedom of conscience protects the actions or refusals to act that follow from free thought in relation to moral questions, and freedom of religion protects the beliefs and practices that flow from the freedom of thought in relation to religious belief. These intrinsic connections were recognised in a 2011 High Court decision on the question of whether the parents of a baby who would likely die without a blood transfusion were entitled to refuse such a procedure. Mr Justice Hogan held that:

“Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters.”

Freedom of expression, freedom of conscience and freedom of religion are to be understood, therefore, as rights that include a prior commitment to freedom of thought.

Second, freedom of thought is protected in several international treaties to which Ireland is a party. Article 10 of the Charter of Fundamental Rights of the European Union, Article 9 of the European Convention on Human Rights and Article 18 of the International Covenant on Civil and Political Rights all protect the freedom of thought, conscience and religion in the same provision. There are six recent High Court decisions (handed down between 2009 and 2018) and one 2015 Supreme Court decision in which these international protections for the freedoms of thought, conscience and religion are mentioned as if they all enjoy equal protection in Irish law. Not one of the judges pointed out that while the Constitution expressly protects freedom of conscience and freedom of religion, it does not expressly protect freedom of thought. If the example were altered – if those same international law treaties protected conscience, religion and a right to food in the same provision – it seems likely that the Irish courts would have found cause to mention that a right to food is not one of the rights protected by the Constitution. Failure to do so may signal that international protection for the right of freedom of thought confirms an unspecified sense among the Irish judiciary that freedom of thought is already within the ambit of the rights protected by constitutional law.

Third, freedom of thought has been recognised as an unenumerated right in the 2017 decision of NVH v. Minister for Justice, a decision which is noteworthy for many reasons: its discussion of dignity and human personality, its recognition of the necessary sociality of the human condition, its treatment of the right to work as an unenumerated right and a negative freedom, its approach to the question of remedies, as well as its  cautious and conscientious reacknowledgement of the doctrine of unenumerated rights. It is also important for the fact that it recognises freedom of thought as a constitutionally-protected, if unwritten, right, for the first time. This recognition is achieved in a short passage in the judgment of Mr Justice O’Donnell, which reads

“Set on a foundation of the essential equality of the human person, the Constitution guarantees first life and then personal liberty, and freedoms radiating outwards from that: freedom of thought and conscience, freedom of expression, freedom to associate with others, family rights and the right to acquire, hold and transfer property among others.”

Listed as first among the rights that flow from human freedom, freedom of thought is presented as though it is entirely uncontroversial that the Constitution protects such a right. Indeed, this short passage seems to convey that it is unthinkable to the Supreme Court that freedom of thought is not one of those rights that is protected under the terms of the Constitution.

Although the technological challenges to freedom of thought may be new, the indispensability of freedom of thought within the human experience is timeless. The conclusion that freedom of thought is the central to the human experience finds support, for example, in the many testimonies of persons who were so physically confined or debilitated that they were deprived of physical, social and vocational freedom. Viktor Frankl, a philosopher, psychotherapist and Holocaust survivor, wrote of how thoughts of his wife and imagining mental conversations with her allowed him to find meaning even in the horror and misery of a Nazi concentration camp, and subsequently led him to found the school of logotherapy. Similar experiences of the centrality of freedom of thought to human freedom and the quest for meaning in human life, even in the direst circumstances when all other freedoms are denied, are told in the testimonies of Aleksandr Solzhenitsyn, Immaculée Ilibagiza, Aung San Suu Kyi and Jean-Dominique Bauby, among others.

For now, although freedom of thought is not explicitly recognised by the text of the Irish Constitution, it seems that there are good legal reasons to suppose that it would be taken seriously by the Irish courts, and we can only wait in hope for the case that will give the superior courts in Ireland a chance to further explore and defend this most fundamental human right.

The full draft paper, "Recognising Freedom of Thought in Irish Constitutional Law", is available to view at https://ucc-ie.academia.edu/MariaCahill 

On a lighter note...

Why did you choose to study law?

I had lots of intellectual interests, so the CAO form was very tricky for me. I ended up beginning a degree in Psychology and Economics in Trinity, and had a friend who was studying Law there. She kept telling me about William Binchy’s fascinating Tort Law lectures and eventually convinced me to get up at 6.30am one Friday morning to catch the train to Dublin to sit in on a 9am lecture. I did, and it was wonderful, and that was that.

Who are your greatest academic influences?

Gerard Hogan, Advocate-General at the Court of Justice of the European Union, taught me constitutional law in first year and impressed on us the priority of principle over expediency in constitutional law. Neil Walker, my PhD supervisor, had – and still has – a wonderful way of mapping intellectual disagreements with composure and justice and grace. When I go to conferences, the academics who impress me most are those who make creative contributions that go against the grain. That’s when you feel the exhilaration of academic freedom.

What is your favourite non-law book?

2020 is such a great year for reading good books, so this changes frequently, but one of my current favourites is Fyodor Dostoevsky’s “The Brothers Karamazov”. It’s not short, but every few pages there are moments of pure genius.

What is proudest academic achievement to date?

Any of the little moments when you can see that students have transcended the syllabus, the exam, and the intellectual imprisonment of worrying about what they think I think they should think, and are caught up in the joy of exploring an interesting idea for its own sake, no matter where the thought takes them.

Further information

Maria Cahill is Professor of Law at University College Cork and a Research Associate at the Programme for the Foundations of Law and Constitutional Government at the University of Oxford. She was a Visiting Fellow at the Institute of European and Comparative Law at the University of Oxford in 2015 and a Kathleen Fitzpatrick Visiting Fellow at the Centre for Comparative Constitutional Studies at the University of Melbourne in 2019.

Her work has been published, among other places, in the International Journal of Constitutional Law, Cambridge Law Journal, American Journal of Jurisprudence, German Law Journal, Dublin University Law Journal, Irish Jurist, and the Irish Journal of European Law.

Recently, Maria's research has focussed on social groups: examining concepts such as subsidiarity (as a concept, in its interaction with sovereignty and liberalism, in its application within the European Union and the Council of Europe, in the context of fundamental rights adjudication, and so on) and freedom of association and pluralism. More generally, she is interested in issues of constitutional theory (questions of amendability, constituent power, constitutional architecture), legal theory, legal history and comparative law.

View Professor Cahill's IRIS profile at: http://research.ucc.ie/profiles/B012/mariacahill