McDowell may clash with some human rights groups, says Carol Coulter, Legal Affairs Correspondent
The courts should not have the power to adjudicate on social and economic rights, according to the Minister for Justice.
In a paper delivered to a conference on Irish Culture and the Law, Mr McDowell stated his opposition to any legal or constitutional moves which could make it easier for people to seek the support of the courts in vindicating their rights to health, education, housing or other social benefit.
This is likely to bring him into conflict with those campaigning for a new Disability Bill, for example. The previous one fell precisely because these groups opposed it on the grounds, among others, that it did not give people with disabilities the right to go to court in pursuit of their rights.
It could also cause differences with the Human Rights Commission which, in its strategic plan published only last week, stated its commitment to social and economic, as well as other human rights. Various international instruments, including those signed by Ireland, also incorporate such rights.
"I believe it is right that we should question the extent to which it is necessary or desirable to provide in the fundamental law of this State - the Constitution - for a justifiable corpus of rights relating to economic and social issues," said Mr McDowell.
"There is an important political and philosophical question yet to be answered satisfactorily: that is whether the protection and achievement of policy values in the social and economic sphere is properly for the legislative and executive arms of the State or for enforcement through the judicial system. I, for my part, believe passionately in politics as the means for conducting and resolving social and economic issues."
He challenged the view that social and economic rights could be compared to civil and political rights at all.
The former were private rights, while the latter were public rights. One individual exercising his or her right to vote or to freedom of expression did not prevent anyone else from exercising it at the same time.
However, rights to housing, healthcare and higher education, because of resource constraints, are different.
"The exercise of these rights must, therefore, be rationed by queuing, by price or by some other mechanism.
"Such decisions are, in my view, the stuff of politics, and not at all appropriate to be decided by the courts.
"It seems to me that it is a fundamental error to imagine that the area of resolution of value differences in a modern, liberal society can be consigned to the courtroom.
"On the contrary, differences within societies concerning economic and social values and ends should, in the normal course of things, be resolved by the democratic political process."
Otherwise, he said, the judiciary would become ever more politicised in carrying out its function. It would then trespass on the proper sphere of the executive without a mandate.
If a court was to order the State, for example, to ensure for all citizens the highest attainable standard of physical and mental health irrespective of resource implications, it would result in a threat to our economic prosperity from a health budget growing exponentially.