Irish Legal System - Sources of Law

Irish Legal System - Sources of Law

• Ireland's legal system has four major primary sources: European Union Law, Bunreacht na hÉireann (Irish Constitution), Legislation, and Case Law/Common Law.
• The Bunreacht na hÉireann is the supreme and highest-ranking domestic source of law, outlining the country's governance and fundamental rights.
• Examples of fundamental rights include the right to marry (regardless of sex), free primary education, and owning private property. Freedom of conscience and religion are also guaranteed, with some limitations in special cases.
• However, fundamental rights are not absolute and can be limited for the common good or public order (e.g., freedom of movement can be restricted in some circumstances). Personal liberty, inviolability of home (with warrant exceptions), and property rights are examples of rights subject to limitations.
• Unenumerated rights, those not explicitly listed in the Constitution, are also recognized through interpretation of its text. Examples include the right to marry, bodily integrity, and earning a livelihood.
• The Irish Constitution consists of the 1922 Constitution, the Free State Constitution, and the 1937 Constitution currently in effect. The document utilizes 50 articles organized into sections and sub-sections. It's available online.
• The Constitution also delineates the structure of the Irish legislature (the Oireachtas, comprising Dáil Éireann, Seanad Éireann, and the President).
• Articles 2 and 3 specify the national territory, and the Oireachtas' composition (articles 15-27).
• Articles 40-44 detail fundamental enumerated rights.
• Ryan v Attorney General (1965) case affirmed the existence of unenumerated rights not listed in the constitution.
• Legislation made by the Oireachtas must adhere to the Constitution, and individuals can challenge laws that conflict with constitutional provisions.
• An amendment process exists for the constitution, requiring a referendum.

Sources of Law - Legislation

• Legislation, also known as Acts or Statutes, are legal documents created by the Oireachtas.
• The Oireachtas is composed of the Dáil Éireann, Seanad Éireann, and the President.
• The power to make legislation is delegated to the Oireachtas by Article 15.2.1 of the Constitution.
• The legislative process involves several stages: initiation, general principles debate, committee scrutiny of the bill's sections and amendments, and culminating in the bill's passage through both legislative houses and the President's signing into law. This final stage is called enactment.
• The role of the President includes the consideration of bills passed by the legislature, with associated references to the Supreme Court as outlined in Article 26 of the Constitution. Article 27 outlines additional legislative processes.
• Bills can be categorized into government bills, private member bills, public bills (public interest focus), and money bills (financial matters).
• Resources for accessing current bills are available on the Oireachtas website.

Sources of Law - Delegated Legislation

• Delegated legislation (also known as secondary legislation) is created by government departments or other delegated bodies, authorized by acts of the Oireachtas.
• This legislation is largely framed as statutory instruments, orders, regulations, schemes, or rules, with a formal structure and purpose.
• Examples include commencement orders, which give force of law to an act or statute. Local authorities create bye laws.

Sources of Law - Judicial Precedent

• Ireland's common law system is heavily reliant on judicial precedent (the doctrine of stare decisis).
• Similar cases are resolved based on the reasoning previously applied in those cases.
• The Ratio Decidendi (reasoning for the decision) is binding in future cases.
• Decisions from higher courts hold more weight than from lower courts. Higher courts have the power to overrule decisions made by lower courts.
• Decisions from other jurisdictions, and dissenting judgments are persuasive, but not binding, and considered supplemental.
• Locating and understanding a relevant case is critical, through proper citations.

Sources of Law - Statutory Interpretation

• Legislation is interpreted by judges, with a range of approaches, although the ability to alter statutes is prohibited (due to separation of powers).
• Examples of statutory interpretation methodologies include the literal rule, golden rule (avoiding absurd interpretations), and mischief rule (identifying the legislative intent to address a specific problem). Purposive or schematic or teleological analysis combines the other two.
• Important cases like Whitely v Chappell and Re Sigsworth and Smith v Hughes illustrate how judges apply these rules in real situations.

Sources of Law - European Union Law

• EU law significantly influences Ireland's legal system.
• Ireland joined the EU in 1973.
• Primary EU law includes treaties.
• Secondary EU law takes the form of regulations (binding and directly applicable to all Member States), directives (binding the Member States in result, but allowing flexibility in implementation), and decisions (binding to directly addressed individuals or member states).
• Both EU regulations and directives are explained in detail, highlighting differences in their application and implementation within the European Union.

Additional Reading

• Refer to Áine Keenan (chapters 1 & 29), Kennelly & Tully (chapters 5-8), and Byrne & McCutcheon (chapters 2, 12 - 16) for in-depth examination of the topics.