The Sources of Irish Law

Law is the essential and one of the primary elements which controls and protects economic, political and social relationships in every country. The first set of rules which can be referred to as a system of law was called the “Code of Hammurabi” which was written by an ancient Babylonian king around 1760BC, this can be considered as a catalyst for the growth and development of the human civilization. Greek and Roman empires made the greatest impact on formulation the law as we know it today. Nowadays, most countries have tens or hundreds of thousands of pages of law. In Ireland laws are enforced by an Garda Síochána (Ireland’s National Police Service), supported by the courts and prison systems.

In the following sections of this paper the seven sources of Irish law will be discussed:

• Common Law
• Equity
• Constitution
• Legislation
• European Union Law
• Custom
• International Law

2 Common Law

The common law was originally developed in England in the beginning of the eleventh century by judicial decisions that were based on tradition, custom and precedent. To this country common law was introduced with Normans in 1170. Precedent in legal terms means seeking guidance for a current legal scenario based from past legal cases. The idea is to ensure that the law is applied equally which means that similar cases are treated in the same way. Case based decisions avoid the application of conflicting rules by judges. To this day significant areas of law are governed by common law unaffected by rules derived from other sources.

For the proper operation of the system of precedent four conditions are required:

• The existence of a hierarchal system of courts that allows the evaluation of a particular precedent.
• The record of previous decisions in accurate and reliable manner.
• The binding manner of decisions is accepted by the legal community.
• A general acceptance of society that consistency, certainty and predictability are values worth pursuing and protecting.

Advantages of the “Doctrine of Precedent”

• Consistency.
• Systematic development of principle.
• Predictability.
• It provides a definite though reasonably flexible structure[Kelly notes].

Disadvantages of the “Doctrine of Precedent”

• Over dependence on individual decisions
• The rules are very technical (J. Kelly p25).

3 Equity

The term Equity dates back to the first petitions to the King claiming that the decisions made by the Common Law judges were unfair. The number of such cases increased as the Common Law judges based their decisions mostly on precedents, which sometimes were inappropriate or inapplicable to specific cases. The litigants who was not satisfied with such decisions brought the case to the King who claimed people to bring the justice. The King in his turn forwarded the cases to the Lord Chancellor, and with the considerable growth of people not satisfied with the court decisions and bringing such petitions, he had to involve members of his clergy to resolve such cases. Soon the system headed by the Lord Chancellor became known as Courts of Chancery or Equity, which applied the maxims of Equity.

At first the Equity, the Courts of Chancery, conflicted with the decisions of Common Law judges, and King James had to involve Attorney General to resolve the conflict. Soon by the order of King James it was decided that if the Equity system contradicts to the Common Law system, the “rule of Equity would prevail”.

Despite these contradictions the rule of Equity was a considerable improvement to the Common Law system, unable to bring the justice by decisions based only on the rule of precedent. Equity brought effectiveness to resolving specific cases which could not be decided on a certain precedent. Eventually The Supreme Court of Judicature Act, 1873 and its Irish counterpart in 1877 merged the administration of common law and equity to create a unified court system

(J. Kelly p30).

4 Constitution

Constitution is a document which outlines the most basic rules of the country and takes advantage over other interior sources of law. Ireland have had three constitutions since the foundation of the state. First constitution called “Constitution of Dáil Éireann” was declared on 21 January 1919 containing only 2 paragraphs. This document, although of historical importance, had no subsequent constitutional or legal significance (B. Doolan p4). After the Anglo-Irish Treaty which was signed on 6 December 1921, the second “Constitution of the Irish Free State Act 1922″ was enacted by Dáil Éireann on 25 October 1922. The “Constitution of the Irish Free State Act 1922″ contained a declaration of rights and social principles such as religious freedom, inviolability of the person and freedom of expression (B. Doolan p4,5). The Constitution of 1937 is the successor of the “Constitution of Dáil Éireann 1919″ and the “Constitution of the Irish Free State Act 1922″. It represented a considerable change in the nature of the State and created the Constitutional framework which basically transformed from the Irish Free State to the Republic of Ireland to be accomplished by an Act of the Oirechtas (G. Horgan p165). Constitution covers issues like the state, the sovereignty of the people, the institutions of the state, constitutional and fundamental rights, the president, the government, the Oireachtas and the courts. Referendum is required if any amendments have to be introduced to the constitution.

5 Legislation

Legislation is the name given to laws stemming from an entity conferred with law-making power. This is in contrast to the common law as it is an identifiable body with an exclusive law-making power. The Oireachtas translates as the Houses of Parliament and consists of two Houses: A House of Representatives called Dáil Eireann and a Senate called Seanad Éireann. The President is also technically a part of the Oireachtas as he or she signs the Bill passed by the two Houses of Parliament into law.

There are two main types of legislation. Primary legislation consists of Acts of the Oireachtas called statutes and statutes are enacted after a specific procedure. Secondary Legislation consists of acts or measures of a person or body to which the Oireachtas has lawfully delegated power. These two forms of legislation have as their distinguishing feature force of law.

If the Oireacthtas makes a law that is in conflict with the constitution it may be struck down on the basis of its unconstitutionality. The High Court has the power to determine the constitutionality of legislation. Post 1937 Acts have the benefit of the presumption of constitutionality. Legislation is by its nature rigid. Once a Bill becomes an Act the written text becomes ossified until it is expressly amended or repealed by a further piece of legislation. It is another important characteristic of legislation that the rules are specific and not general.

6 European Union Law

Ireland became a member of the European Economic Community on 1 January 1973, following a referendum which was held on 10 May 1972 to amend the Constitution to allow for membership (B. Doolan p76). On 1 December 2009 the European Community was replaced by the European Union

Currently the European union (EU) consists of twenty seven independent member states and is founded on the general principles of liberty, democracy, human rights and fundamental freedoms and the rule of law (B. Doolan p76).

The EU possess its own legal system complete with a body of law which is applicable and enforceable in each member state and is presided over by the Court of Justice in Luxembourg (also Ct of First Instance). Community Law dominates over conflicting national law ( including constitutional law) both as a matter of EU law and national law (J. Kelly p115). EU law deals with establishing a common market and an economic and financial union as well as raising the quality of life and social stability.

There are 5 institutions of the European union:

The European Parliament

Members are elected for five years from the twenty seven member states. Their task is to develop acts and legislation but adoption of the legislation on its own is not in the range of their power. Parliament is essentially a deliberative rather than a decision making forum (B. Doolan p77).

The Council of Ministers

This is the real power body in the EU and represents the individual Member States governments.  Ministers of national governments attend its meetings. Council institution consists of nine different Council formations. Each country is represented by the relevant Minister for the issue on the agenda (eg foreign affairs, transport, agriculture etc). The Presidency of the Council rotates every six months.

The Council of the European Union has six key responsibilities:

1. It passes laws, usually legislating jointly with the European Parliament.
2. It co-ordinates the broad economic policies of the Member States.
3. It defines and implements the EU’s common foreign and security policy, based on guidelines set by the European Council.
4. It concludes, on behalf of the Community and the Union, international agreements between the EU and one or more states or international organisations.
5. It co-ordinates the actions of Member States and adopts measures in the area of police and judicial co-operation in criminal matters.
6. The Council and the European Parliament constitute the budgetary authority that adopts the Community’s budget (J. Kelly p144,148)

The European Commission

President of the commission is elected by the European Parliament. One of the roles of the European commission is to propose legislations to Parliament and the Council. It also manages and implements EU policies and the budget as well represents the EU on the international stage. In other words negotiates with the rest of the world in terms of trade agreements.

The European Court of Justice

The European Court of Justice’s main task is to ensure that EU laws and treaties are applied and used in the same manner in all EU member countries. The court consists of twenty seven judges from each EU member state each one serving for four years. It issues a single judgment and decision is not based on stare decisis or precedent as in Irish courts (B. Doolan p78).

The Court of Auditors

The Court of Auditors is responsible for carrying out of an audit on the all revenue and expenditure of the EU.

7. Custom

Custom played a significant role in the development of the common law. It has also inspired developments in civil and criminal laws, so it deserves to be as one of the sources of law. Custom is a pattern of history and traditions which exists in a particular society or place where things are treated how they always been done sometimes it can be considered as law. With the development of legislation and common law custom has almost been eliminated.

8. International Law

International Law is the term which refers to a law which governs the relationship between the independent nations. In 1955 Ireland joined the United Nations organisation. Ireland ratified a number of international treaties and other agreements with many states and international organisations. These treaties and agreements are conducted at the international diplomatic level. Its provisions do not influence on the domestic law unless incorporated so by the Oireachtas. Eg The European Convention on Human Rights ratified by Ireland in 1953(J. Kelly 188).