Keith Mack
Ireland has a distinct body of law, with Irish law referring mostly to the law of the Republic of Ireland. Northern Ireland, on the other hand, is a separate legal jurisdiction with its own devolved legal system within the United Kingdom. The law of the Republic of Ireland consists of constitutional, statutory, and common law, with the Constitution of Ireland being the highest law in the state. Ireland was the first country outside of England to adopt the English common-law legal system, which gradually supplanted Irish customary law. As a result, Irish common law is nearly identical to that of the United Kingdom, and Irish courts frequently follow English and Welsh precedents.
| Characteristics | Values |
|---|---|
| Law of the State | Constitution of Ireland |
| Legal System | Common-law |
| Type of Democracy | Parliamentary |
| Election of President | Popular election |
| Separation of Powers | Yes |
| System of Constitutional Rights | Developed |
| Judicial Review of Primary Legislation | Yes |
| Influence of English Common Law | High |
| Influence of UK Commercial Practice | High |
| Influence of European Union Law | High |
| Influence of US Law | Some judgments are of persuasive value |
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What You'll Learn
Ireland's legal heritage
Ireland has a distinct body of law, with Irish law referring mostly to the law of the Republic of Ireland. Northern Ireland, on the other hand, is a separate legal jurisdiction with its own devolved legal system within the United Kingdom. The law of the Republic of Ireland consists of constitutional, statutory, and common law, with the Constitution of Ireland being the highest law in the state.
Ireland was the first place outside of England to adopt English common law, which gradually replaced the customary law of the Irish. This process began with the Statutes of Kilkenny, enacted in 1366, and Poyning's Law in 1494, which stipulated that all laws passed in England would also apply to Ireland. By the mid-16th century, during the reign of King Henry VIII, English law had spread beyond the Pale, an area encompassing Dublin and the east coast, and was administered throughout the country. The authority of Brehon Law, an early Irish legal system, was gradually eroded, and it was ultimately abolished during the Cromwellian conquest of Ireland, which ended in 1653.
Irish common law is virtually indistinguishable from English common law in many important areas, including contract law, civil wrongs, restitution, personal property, and tort. This similarity is due to the shared legal history of the two countries, as Ireland was part of the United Kingdom until 1922. As a result, many of the key statutes relevant to the legal system in Ireland are the same as those enforced in the United Kingdom. For example, commercial law statutes such as the Partnership Act, the Sale of Goods Act, and the Bills of Exchange Act are either identical or very similar in both countries.
However, there are some differences between Irish and English law. For instance, while judgments of the British courts are persuasive in Irish courts, they are not legally binding. Additionally, Ireland's membership in the European Union has led to the amendment of the Irish Constitution, with European Union law taking precedence over national law in certain cases.
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The Republic of Ireland's constitution
The Republic of Ireland has a distinct body of law, with Irish law referring specifically to the law of the Republic. The law of Ireland consists of constitutional, statutory, and common law. The highest law in the State is the Constitution of Ireland, from which all other laws derive their authority. The Constitution may be amended solely by a national referendum.
The Constitution of Ireland is the fundamental law of the country, asserting the national sovereignty of the Irish people. It guarantees certain fundamental rights, including a popularly elected non-executive president, a bicameral parliament, a separation of powers, and judicial review. It is the second constitution of the Irish state since independence, replacing the 1922 Constitution of the Irish Free State. It came into force on 29 December 1937 following a statewide plebiscite held on 1 July 1937. The Constitution is composed of a preamble, numbered articles arranged under headings, and a final dedication. It is approximately 16,000 words long and is written in both Irish and English.
The Constitution establishes the branches or organs of government, the courts, and how these institutions should be run. It also describes the fundamental rights of every Irish citizen, including education, religion, and the family. The Constitution is also part of a wider human rights framework in Ireland, including legal and other human rights commitments made by the country, such as treaties under the United Nations, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union.
Ireland shares a close common legal heritage with England and Wales, and Northern Ireland. It uses the common-law system, which provides the basic rules of law in many areas, including trade and business. Irish common law is almost identical to that of the United Kingdom, with many foundational areas of business law being wholly or largely identical. English cases and precedents are usually followed in Irish courts, and legislation is often similar or identical.
Ireland has a dualist legal system, meaning that treaties are not part of Irish domestic law unless incorporated by the Oireachtas, the bicameral National Parliament. The Oireachtas is considered the "sole and exclusive" legislature, although it can delegate its law-making powers to other bodies as long as the delegated legislation does not exceed the "principles and policies" set out.
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Northern Ireland's legal jurisdiction
Northern Ireland is a separate legal jurisdiction from the Republic of Ireland. It operates under a system of statute and common law, which has been in place since the partition of Ireland in 1921. The Privy Council of Northern Ireland was established in 1922, the same year that Ireland became independent from the United Kingdom, but it became dormant in 1972 with the reinstatement of direct rule. From 1972 until the establishment of the Northern Ireland Assembly following the Good Friday Agreement, legislation for Northern Ireland was primarily made through orders in council under the Northern Ireland (Temporary Provisions) Act 1972.
The sources of Northern Irish law reflect the history of Ireland and the various parliaments that have influenced the region. The early Irish legal system was known as the Brehon Laws, a relatively sophisticated civil legal system without criminal law. Acts that are now considered criminal, such as those committed by perpetrators, were addressed by having the perpetrator compensate the victim rather than imposing a punishment. This early legal system was gradually replaced by English common law, which was imported to Ireland and became the basis for the Irish common law that existed before the partition of Ireland in 1921 and the Acts of Union in 1801.
As a common law jurisdiction, Northern Ireland shares similarities with other common law systems, particularly England and Wales. The basic rules of law in many areas, such as trade and business, are derived from common law. Northern Irish law also has roots in Irish common law before the partition of Ireland, contributing to some differences in law and procedure compared to England and Wales.
The court structure in Northern Ireland is similar to that of the United Kingdom, with a High Court, Court of Appeal, and Supreme Court. The common law trial is the standard mechanism for resolving disputes and follows a nearly identical format to that of the United Kingdom. Barristers in Northern Ireland may be admitted in the United Kingdom with minimal formality due to the high degree of alignment between the two jurisdictions. Arbitration and mediation play similar roles in the Northern Irish legal system as they do in the United Kingdom.
In terms of commercial practice, Northern Ireland is heavily influenced by UK commercial practice. Precedents, forms of agreement, negotiation arrangements, and practices in commercial law in Northern Ireland are largely based on those in the United Kingdom. This familiarity extends to business law, with cornerstone commercial law statutes such as the partnership act, the sale of goods act, and the bills of exchange act being either wholly identical or largely similar between Northern Ireland and the United Kingdom.
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The influence of English common law
The spread of English common law to Ireland is described as the "first adventure of the common law", as Ireland was the first place outside England to which English common law was extended. This process began in 1171 when King Henry II held a council in Waterford, which declared that "the laws of England were by all freely received and confirmed". However, this was more of an aspiration than a reality, as English law was initially applied only in the province of Leinster, where Henry II had granted feudal land rights.
In 1172, Henry II appointed Hugh de Lacy as the first Justiciar of Ireland, and in 1204, King John authorised the issuing of writs, directing the Irish courts to apply the common law. In 1226, King Henry III ordered the Justiciar to adhere to English laws and customs. A year later, a Register of Writs, containing copies of all the writs issued by the English courts, was sent to Dublin. The first recorded appointment of an Anglo-Norman judge came in 1221.
English law declined in influence during the 14th and 15th centuries, as the Normans became "more Irish than the Irish themselves" through intermarriage with the native Irish. However, England sought to reassert the supremacy of its laws and parliament over any Irish parliament or legislation by enacting the Statutes of Kilkenny in 1366. English law gained further ground following the 'Flight of the Earls' from Ulster in 1607, which resulted in the land being granted to Scottish and English settlers.
The end of the Brehon Law's authority, an ancient Celtic tradition of law in Ireland, was signalled by the Proclamation of King James I in 1603, which received the Irish people into the King's protection. The country was subsequently divided into counties and English law was administered throughout. Brehon Law was further eroded by two decisions of the courts during the reign of James I, which rejected the Brehon rules of succession. The dominance of English law was consolidated by Oliver Cromwell's military campaign (1649-1652), which forced many Irish landowners to resettle in Connaught.
Following the Irish Famine (1845-1850), the campaign for land law reform became a focal point in Irish politics, leading to the passing of the Land Law (Ireland) Act, 1881, which established the Irish Land Commission and granted Irish tenant farmers fair rent, freedom of sale, and fixity of tenure.
Today, Ireland has a distinct body of law, with Irish law generally applying to matters or transactions within the state. However, the statute law of Ireland includes English and British statutes, which were applied to Ireland in their original enactment or subsequently. The law of Ireland consists of constitutional, statutory, and common law, with the Constitution of Ireland being the highest law in the state. The Republic of Ireland has a common-law legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system.
Irish common law is almost identical to that of the United Kingdom, and many of the foundational areas of business law are wholly or largely identical. English cases and precedents are usually followed in Irish courts, and Irish or UK legislation may be identical or similar. For example, legislation in areas such as the sale of goods, partnership law, and bills of exchange law are almost identical in Ireland and the UK. The basic principles of contract, tort, agency, property, and criminal law are very similar in Ireland and the UK. The court structure in Ireland is also similar to that of the UK, with a High Court, Court of Appeal, and Supreme Court. Arbitration and mediation play similar roles in the Irish and UK legal systems.
Despite the similarities, there are some differences between Irish and English law. Post-independence judgments of British courts are of persuasive value only and do not bind the courts of Ireland. Additionally, certain anomalies may emerge in Irish common law that are later reversed by legislation in the UK, but these anomalies may remain in Ireland unless specifically reversed.
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The Irish court system
Ireland's legal system also has a unique relationship with the European Union. Disputes involving European law in Irish courts may be referred to the European Court of First Instance or the European Court of Justice. The European Communities Act 1972 provides that treaties of the European Union are part of Irish law, and government ministers may adopt statutory instruments to implement EU law.
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Frequently asked questions
Yes, Ireland follows common law. Ireland was the subject of the first extension of England's common-law legal system outside of England.
The Constitution of Ireland is the highest law in the State. All other laws derive their authority from it.
The common law trial is the basic mechanism for the resolution of disputes and follows an almost identical format in Ireland and the United Kingdom.
