PROPERTY RIGHTS OF CREDITORS AND THE PUBLIC INTEREST

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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

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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.

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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

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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

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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