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11 Irish Jurist (N.S.) 223 (1976)
The Concept of the Family under the Irish Constitution

handle is hein.journals/irishjur11 and id is 229 raw text is: 

                   THE   IRISH   CONSTITUTION

                          MICHAEL   STAINES*

    Article 41 of the Constitution recognises the Family as the natural
primary and fundamental  unit group of Society, and as a moral institu-
tion possessing certain inalienable and imprescriptible rights which are
antecedent and superior to all positive law. The State (in Article 41.1.2)
guarantees to protect the Family in its constitution and authority as the
necessary basis of social order and as indispensable to the welfare of the
Nation  and the State. Article 42.1 acknowledges that the primary and
natural educator of the child is the Family. In it the State guarantees to
respect the inalienable right and duty of parents to provide for the educa-
tion of their children. Parents shall not be obliged to send their children
to State schools (Article 42.3). The State is bound to provide certain
educational facilities and institutions with due regard, however, for the
rights of parents, especially in the matter of religious and moral formation
(Article 42.4). Finally, it is only in exceptional cases where the parents
for physical or moral reasons fail in their duty towards their children
that the State by  appropriate means   shall endeavour to  supply the
place of the parents.
     Despite the fact that such important rights are guaranteed to the
family and  to parents neither of these words is defined in the Con-
stitution. It is the purpose of this article to examine the definitions
eventually accepted in Irish law and  to discuss some  of the resulting
     It may be argued at this stage that Article 41.3.1 which declares that
The  State pledges itself to guard with special care the institution of
Marriage,  on which  the Family  is founded, and  to protect it against
attack  provides us with  the answer  to the problem.  Indeed  several
judges, for instance Henchy J. in In re J., an Infant (1), and Walsh J. in
The  State (Nicolaou) v. An Bord Uchtdla (2), have used this sub-section as
authority for the contention that the Constitution only recognises a family
based  on marriage. However,  to state, as the sub-section does, that the
family is founded on the institution of marriage does not necessarily imply
that no  other family will be recognised by the Constitution. Nor is it
true that the recognition of the natural family (for example, a mother
and her illegitimate child) attacks in any way the institution of marriage.
The  two units can exist peaceably side by side. Article 41.3.1 was inserted

 (1) [1966] I.R. 295.
 (2) [1966] I.R. 567.

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