The Core and the Mantle: Theorising the Content of the Right to Life (with Dignity) with Particular Reference to its Meaning in Irish Constitutional Law

The right to life enjoys an undoubted status as the foundation of the human rights pantheon. Despite this, a broad aspect of the right – the conditions needed to sustain life after birth and up until the point when death inevitably arrives – remains under-theorised. This neglect is especially apparent in Irish constitutional law, where no element of the right to life has yet received a sustained academic or judicial analysis. This thesis thus investigates what the right to life is actually a right to, and then uses the account of the right developed to critically analyse Irish constitutional right to life jurisprudence. The thesis begins by disassembling and then studying the component parts of the right to life, that is, the idea of a ‘right’, and the concept of ‘life’. The thesis explores what it means to have a right in the sense of a Hohfeldian ‘claim’ right, and it interrogates what ‘life’ itself is. These inquiries lead to the conclusion that a claim right to life, if it is truly to be a right to life – an entitlement to be able to live or to be alive (which correlates to a range of positive and negative duties) – contains conceptually necessary minimum content. This content can be derived from the empirical reality that ‘life’ is an ecologically embedded, bio-materially vulnerable, socially precarious, inter-dependent phenomenon – insights that can be succinctly captured by a socio-ecological approach. A right to life, therefore, is, at minimum, animated by concerns for ‘biology’ and ‘(socio)-ecology’, in other words, the fundamental physiological survival needs of a living organism, and the social and environmental relationships on which the fulfilment of those needs is contingent. Those needs consist of food, water, air, shelter, essential medical care, and a healthy environment (including biodiverse ecosystems and a stable climate), as well as protection against lethal dangers. Shue’s basic rights of ‘subsistence’ and ‘security’ – and the necessity rationale underpinning their status as ‘basic’ – neatly encapsulate this minimum essential content of the right to life. The ‘core’ of the right to life, focused as it is on survival or existence, also supplies the platform on which the ‘mantle’ of the right to ‘life’ can be built, i.e. a concern for material quality of life and the decisional capability that flows from that. This concern can be reflected in the notion of ‘biography’, i.e. the ability to write one’s own life story. However, whereas the content of the ‘core’ can be determined endogenously from within the right to life in that it is possible to determine what is objectively necessary for survival, recourse must be had to an external interpretive aid to draw the contours of the ‘mantle’ and to specify a particular quality of life. It is at this point that the value of dignity can provide normative enrichment and guidance to the right to life by transforming it into a right to life with dignity. The account of the right to life proposed in the thesis is utilised to evaluate the coherence of Irish judicial conceptions of the right to life. Applying this theoretical framework to Irish constitutional right to life jurisprudence exposes the downgrading of the right to life in certain judicial decisions to a lesser right that occurs by construing it only as a right not to be killed, as opposed to a right not to die of preventable causes. The thesis concludes – with references to illustrative comparative examples, like India – that the Irish courts must embrace the latter conception if the right to life protected by Article 40.3.2 of Bunreacht na hÉireann is genuinely to be a ‘right to life’.