Sources of Irish Law Essay
Sources of Irish Law
The 1937 Constitution, containing 50 articles, is the cornerstone of the Irish legal system. It lays down the rules that govern interactions between organs of the state and between the state and the individual. The legal system is based on common law tradition. It may be invoked by individuals to challenge the constitutionality of laws passed by the Oireachtas. Under the terms of Article 6 of the Constitution, sovereignty is vested in the Irish people. However the State is separately sovereign in terms of its stance on international law. The State (Ireland) is answerable before the courts for breaches of an individual’s constitutional/legal rights. The Constitution may only be amended by a referendum (Article 46). Once passed by the people, the President (Michael D. Higgins) signs the bill into law.
The Irish Supreme and High Courts exercise the right to review legislation and contest laws not consistent with the constitution. The constitution is written in two separate languages, Irish being listed as the official language and English listed as a secondary language. . Where a divergence occurs between both texts of the Constitution, the text in the Irish language will prevail.The written constitution is a uniquely distinguishing characteristic of the Irish legal system. Articles 40 and 44 of the constitution guarantee the fundamental rights of Irish citizens e.g. all citizens are to be held equal before the law. Expressed rights within the constitution include the right to freedom of expression, assembly and association. Rights not listed in the constitution (unenumerated) such as right to marry, right to earn a living etc. are granted ‘personal rights’.
Primary Legislation: Irish legislation is made by the Oireachtas, a bicameral parliament made up of two separate political houses, The Seanad and The Dail. Approximately forty acts are passed by the Oireachtas each year. These are available in print from the Government Supplies Agency, which is part of the Office of Public Works. While the Oireachtas is bicameral, the upper house, the Seanad, has little power which at most allows the Senate to postpone rather than veto legislation. Article 50 of the Constitution of Ireland carried over all laws that had been in force in the Irish Free State prior to its coming into force in 1937. Secondary Legislation: Most subordinate legislation is made by Government Ministers under powers conferred on them by Acts. Approximately 500 pieces of lesser legislation are passed each year.
Ireland is a dualist State. Article 29.6 of the constitution states the use of international agreements in Irish domestic law will be determined by the Oireachtas. International treaties must be incorporated by legislation before being applicable within the State. The dualist approach in international law allows the state to sign and reason treaties without incorporating them into domestic law. The exception to this point is ‘European Community Law’ has the force of law in the State, according to Article 29 of the Constitution. The adoption of European treaties is a necessity of Ireland’s membership of the European Union, since its joining in 1957. Such treaties have the statutory effect as if they were primary legislation. Principle Treaties of the EU
The Treaty of Paris (1951)
The Treaties of Rome (1957)
The Single European Act (1986)
The Maastricht Treaty on European Union (1992)
The Treaty of Amsterdam (1997)
The Treaty of Nice (2001)
Ireland operates under a common law system. Judicial precedent is the application of a principle of law as laid down by a higher court on a past occasion in a similar case to the case before the court. This is known as the doctrine of ‘stare decisis’ i.e. to stand by the decided. These means inferior courts are bound by the legal principles laid down by higher courts in previous cases. This provides predictability and consistency in law. Common law systems place great importance on court decisions, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret the law to be.
By contrast, in civil law jurisdictions, courts lack authority to act where there is no statute, and judicial precedent is given less interpretive weight i.e. the judge deciding has more freedom to interpret the statute on his own. This reduces the predictability of the judge’s decision. Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic code.