PROPERTY RIGHTS OF CREDITORS AND THE PUBLIC

INTEREST

Presentation by Professor Gerry Whyte, Law School, Trinity College Dublin, to FLAC conference on

“Legislating for Personal Insolvency in Ireland”19 April 2012

1. PROPERTY RIGHTS Article 43

1.1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. 1.2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property. 2.1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. 2.2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Article 40.3.2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good

name, and property rights of every citizen.

UNJUST ATTACK, SOCIAL JUSTICE AND COMMON GOOD

• State must be pursuing a principle of social justice

•Restrictions on property rights then justified by exigencies of the common good

FACTORS RELEVANT IN IDENTIFYING UNJUST ATTACK

• Presumption of constitutionality• Other constitutional provisions • Doctrine of proportionality• Retrospective measures prima facie unjust• Inequitable distribution of cost of implementing social policy• Fair procedures • Compensation

2. ADMINISTRATION OF JUSTICE

• Art.34.1 – “Justice shall be administered in courts ….”

• Art.37 – Offers constitutional protection for the exercise by non-judicial personnel of limited functions and powers of a judicial nature in civil matters