The Irish Legal System – Explained
Ireland’s legal system has three main sources of law – Constitutional, Statute and the Common Law. Since its’ entry into the European Economic Community (EEC) on 1 January 1973, Ireland has also subscribed to the law of the European Union.
The Irish Free State was established in 1922, in the wake of the War of Independence. In 1924, the newly-established Dáil Eireann passed the Courts of Justice Act. The Act set up the structure of the Courts as we know them today. The Irish courts make their decisions based on the following sources of law:
- Constitutional Law
Ireland has a Common Law legal system, similar to that of the United Kingdom, however Ireland is different to Britain in that it has a written Constitution. The current Irish Constitution – Bunreacht na hÉireann – was ratified by the Irish people in 1937 and is the fundamental law of the state. It defines the functions of the State and its agencies, provides for the fundamental rights of Irish citizens and sets out the separation of powers in the state.
The Constitution divides the authorities of the State into three separate law-making entities – the Government, the Judiciary, and the Legislature. Each are independent of one another, and each have their own specific powers and functions.
The Constitutional rights of Irish citizens are enforced and protected by the superior courts of the state i.e. the Supreme Court and High Court. Examples of citizen’s ‘fundamental rights’ include:
- The right to private and family life.
- The right to personal liberty.
- The right to own private property.
- The right to equal treatment before the law.
Constitutional rights are guaranteed by the Irish judiciary in the superior courts. These rights are also guaranteed through a process known as Judicial Review whereupon the Court examines the validity of a law passed by the government.
A law passed by the Oireachtas must be compatible with the provisions of the Constitution in order to be valid and they are presumed to be Constitutional, until the contrary is proven. The onus is on the litigant to prove that the particular law is adversely affecting their Constitutional rights.
The public law will be declared invalid if the Court views it as an infringement on the individual’s Constitutional rights. In such cases, the Court weighs up the need to protect the common good versus the need to protect the fundamental rights of citizens in society.
Amendments to the Constitution itself can only be made by way of a public referendum. The government can only make changes to the Constitution with the consent and approval of the Irish people.
- Statute Law (Legislation)
Statute law is enacted in Ireland by the national parliament, colloquially known by its Irish name, The Oireachtas. The Oireachtas is bicameral parliament, meaning it has an upper and lower house. The House of the Senate is the upper house and its primary function is to examine the merits of new pieces of legislation. Dáil Éireann is the lower house of Parliament, and it is here where most of the government’s power resides.
The government introduces new laws in the form of a bill and the draft bill must be approved by the Dáil before being passed to the Seanad. If both the Seanad and the Dáil deem the bill to be acceptable, it will be passed into law.
Both houses of parliament must pass the bill, however if Seanad votes against the bill, then this will not be fatal to its enactment. The Seanad can only delay a bill for up to 180 days, this is why the Dáil is seen as the more important of the two houses. The bill is then signed into law by the Irish President and thereafter becomes an Act of binding law.
- The Common Law
The Common Law is a body of legal rules which formed through previous judge-made decisions. In making its’ decision, the court relies on previous case law, otherwise known as ‘judicial precedent’, and applies it to the problem or issue of the present case, but only in the situation where the facts of a case are substantially the same.
The judge decides which precedents apply to the present case before the court. A judge may view a previous decision to be outdated or incorrect and if so, the judge may overrule the precedent and replace it with a new principle of law. Furthermore, a judge will apply the rules of statute or constitutional law if it applies to the issues of the current case.
A court’s decision is binding in the same court or in the lower courts. The ruling of a lower court will not be binding on a higher court, but it may be of persuasive authority. On the other hand, the rulings of higher courts are always binding on the lower courts.
In the common law legal system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties to a dispute present their cases to a neutral fact finder, either in the form of judge and jury or before a judge or judges sitting alone. The judge and/or jury in the case will evaluate the evidence, apply the law to the facts of the case and makes a judgement in favour of one of the parties. If one of the parties is unhappy with the decision, they may appeal the decision to an appellate court.
