Sources of Irish law

What are the 4 primary sources of Irish law?

1. The Constitution

2. Statue Law (Legislation)

3. Common Law & Case Law (Precedent)

4. EU Law

what is the Irish Constitution of 1937?

The constitution ( Bunreacht na hEireann, which means “Basic Law of Ireland”) is the most fundamental source of Irish law. It is like a rulebook for the entire country.

What are the 3 sources of fundamental laws?

1. Primary and Fundamental

2. Written documents

3. Governance rights

Primary and Fundamental

It is the foundation upon which all other laws are built

Written documents

It is a formal written document containing 50 articles

Governance rights

It outlines how Ireland should be governed and rights of Irish citizens

The constitution key points

1. Establishes State Institutions

2. Separation of Powers

3. National Parliament (Oireachtas)

4. The Courts

5. Fundamental Rights

6. Amendments

Establishes State Institutions

It creates the main branches of the Irish government

What are the 4 main branches of Establishes State Institutions?

1. The president

2. The oireachtas

3. The government

4. The courts

The president

The head of state which is articles 12-14

The oireachtas

The National Parliament which is consisting of the Dáil (Lower House) and Seanad (Upper House)

The Government

Led by the Taoiseach and Ministers

The Courts

The judicial systems

Separation of Powers

It establishes the concept of the separation of powers, meaning that the legislation (Oireachtas), executive (Government), and judicial (Courts) branches have distinct roles and responsibilities to prevent any one branch from becoming too powerful

National Parliament (Oireachtas)

Grants the Oireachtas the sole power to make laws (Legislation). It also sets rules the Oireachtas must follow (Articles 15-33).

The two rules that the Oireachtas must follow

1. Repugnancy Clause

2. Presidential Signature

Repugnancy Clause

Article 15.4 states that the Oireachtas cannot create laws that conflict with the Constitution (Laws that are “repugnant” to the constitution).

Presidential Signature

A bill (proposed law) must be passed by both houses of the Oireachtas and then signed by the President before it officially becomes a law (an act)

The courts

The Courts (Establishment and Constitution) Act 1961, which stems from Article 34 of Constitution, set up the modern court system

The courts of administration of justice

The courts are responsible for administering and applying the law (Articles 34-37)

Can you name some of the courts of Ireland?

• District Court

• Circuit Court

• High Court

• Court of Appeal

• Supreme Court

Fundamental Rights

The constitution protects certain fundamental rights of citizens (Articles 40-45) which contains Equality before law and Freedom of Expression

Amendments

The constitution can be amended (changed), but only through a referendum (a direct vote by the people) as outlined in Articles 46-50

Can you give an example?

If the government wants to change the constitution to allow for a specific new right, they must hold a referendum and the majority of voters must approve the change

Can you give a summary?

The Irish Constitution is the supreme law of land. It establishes the structure of the government, protects fundamental rights, and can only be changed by a referendum. It ensures that all other laws are in line with its principles

What is Statue Law?

Statue Law refers to laws made by the Oireachtas (Parliament). These are also known as Primary laws or Acts of the Oireachtas

What are the two primary laws/acts?

1. Written Form

2. Acts of the Oireachtas

Written Form

Statue laws are written down, making them more precise and specific than common law

Acts of the Oireachtas

Legislation passed by the Oireachtas following the procedures outlined in the Constitution

Can you give an example?

The Unfair Dismissals Act 2013 specifies what exactly constitutes an unfair dismissal of an employee

The process of a Bill

Before a law is enacted, it’s known as a “Bill”. This is a proposal for a new law

The process of an Act

Once the Bill is passed by both houses of the Oireachtas and signed by the President, it becomes an “Act of the Oireachtas”, and it is then an official law

Can you give an example?

The Family Law (Divorce) Act 1996 is an example of a law created through this process

Delegated or Secondary Legislation

Sometimes, the Oireachtas passes a law that gives another body (like a government minister or agency) the power to make more detailed rules and regulations. This is called delegated legislation or secondary legislation

Delegated Legislation or Secondary Legislation

1. Power Granted by Legislation

2. More Detailed Matters

Power Granted by Legislation

These documents are created by people or institutions authorized to do so by an Act of the Oireachtas

More Detailed Matters

Delegated legislation deals with specific and technical matters, while the main Act sets out the general principles

Can you give an example?

The Revenue Commissioners might be given the power to make regulations about vehicle registration and tax collection. These regulations would be secondary legislation, stemming from a primary Act

Delegated Legislation

A common form of delegated legislation is a Statutory Instrument

Statutory Instrument

This includes regulations, rules, schemes, or bye-laws made under the power given by a statute (Act)

Can you give an example?

The Child Care Act 1991 allows the Minister for Health to make regulations about children’s residential centers. This could lead to regulations like the Child Care (Placement of Children’s in Residential Care) Regulations 1995 or the Child Care (Pre-School) Regulations 2006

Can you give a summary?

Statue Law is created by the Oireachtas in the form of Acts. These Acts can also delegate power to other bodies to create more specific regulations (delegated or secondary legislation) in the form of Statutory Instruments

What is Common Law?

Common Law refers to unwritten laws based on customs and judicial decisions. It evolves over time through court rulings

The two types of Common Law

1. Unwritten Rules

2. Custom and Judicial Decisions

Unwritten Rules

These laws aren’t written down in a single document like statutes. Instead, they’re based on customs and traditions of the people

Custom and Judicial Decisions

It originates from the customs of the people and the decisions made by judges in court cases

Can you give an example?

Establishing a right of way over land through long-standing custom. If people have been using a path across someone’s land for a very long time without objection, it can become a legally recognized right of way, even if there’s no written agreement

What is Case Law Precedent?

A crucial part of common law is case law, which refers to the interpretation of the law made by judges in court decisions. This is also known as precedent

The types of Case Law Precedent

1. Interpretation by Judiciary

2. Binding Decisions

3. Doctrine of Precedent (Stare Decisis)

Interpretation by Judiciary

Case law is how judges interpret and apply laws in specific cases

Binding Decisions

Previous court decisions (precedents) are binding on future cases with similar facts, until a higher court overturns them

Doctrine of Precedent (Stare Decisis)

This doctrine means that courts should follow earlier, relevant decisions

Questions

1. Why is it important for courts to follow precedents?

2. What could happen if the courts made completely different decisions in similar cases?

Steps of a Precent

1. Legal Principles Extracted

2. Law Reports

3. Ratio Decidendi

4. Obiter Dicta

Legal Principles Extracted

Lawyers and judges analyze past court decisions to identify the legal principles that were applied

Law Reports

These decisions are documented in law reports

Ratio Decidendi

The “reason for the decision” (Ratio Decidendi) is the binding part of the precedent. This is the specific legal principles that the court used to reach its conclusion

Obiter Dicta

Other statements of law made in judgement (Obiter Dicta) are not binding but can be persuasive. This might be a judges opinion or a discussion of a related legal point that wasn’t essential to the decision

Imagine you’re building with LEGO, explain the difference in Ratio Decidendi and Obiter Dicta

The Ratio Decidendi is like the essential building block that must be used in the same way every time to ensure the structure is sound. The Obiter Dicta are like extra decorative blocks that you can choose to use or not.

Binding Authority

A court must follow a binding authority. This is typically a precedent set by a higher court in the same jurisdiction

Persuasive Authority

A court has discretion whether or not to follow a persuasive authority

What are the main rules?

1. Superior Courts

2. Courts of Equal Jurisdiction

3. Lower Courts

4. Foreign Courts

Superior Courts

A court must follow the decisions of a superior (higher) court in the same jurisdiction

Courts of Equal Jurisdiction

Courts normally (but are not obligated to) follow earlier decisions of courts of equal jurisdiction

Lower Courts

A court is not bound by the decisions of a lower court

Foreign Courts

A court is not bound by the decisions of foreign courts. However decisions from foreign courts, especially those in common law countries like the UK, can be persuasive, especially if the legal principles are similar

Can you give a summary?

Common law is based on custom and judicial decisions. The doctrine of precedent (State Decisis) means that courts follow earlier, relevant decisions. The Ratio Decidendi (reasons for the decision) is binding, while Obiter Dicta (Other Statements) are persuasive. Courts must follow decisions of superior courts but have more discretion with persuasive authority.

What is European Law?

Ireland joined the European Union (then the European Economic Community) in 1973. This means that European Law is also a source of Irish Law

Commitment to Implementation

By joining the Eu, Ireland agreed to implement the legislation changes adopted by the EU since 1958

Treaty of Rome

The Treaty of Rome (1957) is a key document that serves as the foundation of the EU. It lays down the general objectives upon which the EU is founded

To ensure consistency across all member states, the European Commission, Council and Parliament create European Legislation in several forms

1. Regulations

2. Directives

3. Decisions

4. Recommendations

5. Opinions

What are the 3 Regulations?

1. Directly Applicable

2. General Scope

3. Binding in Entirety

Directly Applicable

Regulations are directly applicable in member states without the need for national implementing measures

General Scope

They have a general scope, meaning they apply to everyone

Binding in Entirety

They are binding in their entirety and directly applicable in all member states

Can you name the three examples?

1. Regulations protecting the names of agricultural products (i.e Parma Ham and Champagne)

2. EU Regulations on liquids when traveling by air (100ml limit)

3. Regulations on the standard of drinking water

What are the 3 Directives?

1. Result-Oriented

2. Implementation by Member States

3. Time Limit

Result-Oriented

Directives are binding as to result to be achieved. They set objectives that member states must meet

Implementation by Member States

They leave the choice of how to achieve those objectives to the individual member states

Time Limit

Directives must be implemented completely, in the most effective way and within a specified time limit

What are the categories of Directives?

1. Equality

2. Company Law

3. Competition & Consumer Policy

4. Privacy & Data Protection

5. The Environment

6. Transport

What is Recommendations and Opinions

(Non-Binding)

Non-Binding: is when Recommendations and Opinions have no binding force. They are simply suggestions or statements of policy

What is the decisions of Binding on Addresses?

Decisions of the Council/Commission are binding in their entirety upon those to whom they addressed. They apply to specific individuals, companies or member states

What are the 4 types of The Court of Justice of the EU (CJEU)

1. Interpretation and Application

2. Supreme Power of Interpretation

3. Legal Disputes

4. Binding Force

Interpretation and Application

The CJEU ensures that EU law is interpreted and applied con