Anaya Nolan
Ireland is a common law country, which means its legal system is based on the precedent of previous court decisions. Common law, also known as case law, is a system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In Ireland, common law was imported from England, supplanting the customary law of the Irish. This was a gradual process that occurred alongside English (and later British) influence in Ireland.
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What You'll Learn
The Irish Courts System
Ireland has a common law legal system. Sources of Irish law include the Constitution, legislation, case law, and EU law. The Irish Courts system includes five tiers of courts with the following hierarchy:
Supreme Court
The Supreme Court is the highest court in Ireland and the court of final appeals in civil and criminal matters. It is defined as the Court of Final Appeal, but usually hears appeals only on points of law. Its decisions as to the interpretation of the Constitution and the law are final. The Supreme Court has declared itself not to be bound by its own previous decisions.
Court of Appeal
The Court of Appeal is the newest of the superior courts, established in 2014. It hears appeals from the High Court in civil and criminal matters. It took over the former appellate jurisdiction of the Supreme Court and the jurisdiction of the former Court of Criminal Appeal.
High Court
The High Court has full jurisdiction to determine all matters on civil or criminal questions. When the High Court sits as a criminal court, it is called the Central Criminal Court and sits with a jury. The High Court includes a Commercial Court division that deals with business disputes, breach of contract, tort, property, trust and probate, IT disputes, corporate mergers, and intellectual property disputes, among other matters.
Circuit Court
The Circuit Court is a court of local and limited jurisdiction with four main areas of work: civil, criminal, family law, and jury service. It has appellate jurisdiction over all matters arising in the District Court.
District Court
The District Court is a court of local and summary jurisdiction dealing with four categories: criminal, civil, family law, and licensing. It deals with minor offences and has jurisdiction to grant bail in most cases.
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Common Law's History in Ireland
Ireland has a common law legal system. Sources of law include the Constitution, legislation, case law, and EU law. The Irish court system includes five tiers of courts, with the Supreme Court being the highest court and the court of final appeals in civil and criminal matters.
The common law in Ireland was imported from England, supplanting the customary law of the Irish. This was a gradual process that went hand-in-hand with English (and later, British) influence in Ireland. In 1171, King Henry II held a Council (known as the Curia Regis or King's Council) at Waterford, declaring that "the laws of England were by all freely received and confirmed." However, this declaration was more aspirational than realistic. English law was initially applied in the province of Leinster, where Henry II had granted feudal land rights. In 1172, Henry appointed Hugh de Lacy as the first Justiciar of Ireland (the king's representative). 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, and a Register of Writs was sent to Dublin. The first recorded appointment of an Anglo-Norman judge came in 1221.
The dominance of English law was further consolidated by Oliver Cromwell's military campaign (1649-1652), which forced many Irish landowners to resettle in Connaught. The victory of Protestant William of Orange over Catholic King James II at the Battle of the Boyne in 1691 led to the brutal repression of Catholics through the Penal Laws, which aimed to exclude Catholics from political and economic power.
The Irish Free State was established in 1922, centralising government power in London. The Irish Parliament was dissolved, and the Westminster Parliament in London became the sole legislative body of the United Kingdom of Great Britain and Ireland. The Irish Free State (Constitution) Act of 1922, enacted by the Dáil, enshrined the separation of powers: Executive, Legislative, and Judicial branches. The 1922 Constitution was amended several times until 1938, removing all references to the crown and the oath of allegiance. The current Constitution of Ireland was enacted in 1937, and it established the Oireachtas as the "sole and exclusive" legislature. Amendments to the Constitution can only be made by referendum, and a simple majority of voters is sufficient for a proposal to pass.
Reforms were introduced by the Supreme Court of Judicature Act in 1873 in Britain and its Irish counterpart in 1877, merging the administration of common law and equity to create a unified court system. The Court of Appeal was established in 2014 following the Thirty-Third Amendment to the Constitution to hear appeals from the High Court, allowing the Supreme Court to focus on cases of constitutional importance. Pre-1922 statute and common law remain in force to the extent that they are consistent with the current Constitution. Ireland's membership in the European Union has also led to further amendments, ceding a degree of sovereignty and subordinating national law to European law.
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The Irish Constitution
Ireland has a common law legal system. Sources of law include the Constitution, legislation, case law, and EU law. The Irish Constitution, or Bunreacht na hÉireann, is the fundamental law of the State. It guarantees certain fundamental rights, along with 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 may be amended solely by a national referendum.
The Irish Courts system includes five tiers of courts. The Supreme Court is the highest court in Ireland and the court of final appeals in civil and criminal matters. The Court of Appeal hears appeals from the High Court, which has full jurisdiction to determine all matters on civil or criminal questions. The Circuit Court is a court of local and limited jurisdiction with four main areas of work, including civil, criminal, family law, and jury service. The District Court is a court of local and summary jurisdiction dealing with criminal, civil, family law, and licensing.
The Constitution of Ireland was enacted in 1937, replacing the Constitution of the Irish Free State, which had been in effect since the independence of the Irish state from the United Kingdom on 6 December 1922. There were two main motivations for replacing the constitution in 1937. Firstly, the Statute of Westminster 1931 granted parliamentary autonomy to the six British Dominions, making them sovereign nations in their own right. Secondly, the Fianna Fáil government, led by Éamon de Valera, desired to replace the constitutional document they saw as having been imposed by the British government in 1922. De Valera personally supervised the writing of the Constitution, which was initially drafted by John Hearne, legal adviser to the Department of External Affairs.
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The European Union's Influence
Ireland has a common law system, which means that judge-made law is a significant source of law. The Irish legal system recognises the doctrine of precedent, or stare decisis, which means that a court is bound to follow the decisions made in former cases, particularly those of higher courts. However, this is a policy rather than a binding rule.
Ireland has been a member state of the European Union since 1973. The European Communities Act 1972, as amended, provides that treaties of the European Union are part of Irish law, along with directly effective measures adopted under those treaties. Ireland's membership of the European Union has also led to the cession of a degree of sovereignty and the subordination of national law to European law. The European Court of Justice (ECJ) has heard several significant data retention cases originating from Ireland. Ireland's membership of the European Union has also influenced its foreign relations.
The European Convention on Human Rights Act 2003 incorporated the European Convention on Human Rights into Irish law, giving domestic legal effect to the Convention's provisions. Citizens of Ireland can rely on the Convention's provisions before the European Court of Human Rights. Ireland's international legal obligations under the Convention have been in force since 1953.
The influence of the European Union on Ireland's laws and legal system is significant, with EU law being an important part of the domestic legal order of the state. However, concerns have been raised about the potential waning of the influence of the Irish Constitution due to the expanding scope and reach of European Union law.
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Civil Law vs Common Law
Ireland has a common law legal system. The common law system was imported from England, which gradually supplanted the customary law of the Irish. This process went hand-in-hand with English (and later, British) influence in Ireland. Common law systems make extensive use of statutes, but judicial cases are regarded as the most important source of law, giving judges an active role in developing rules.
In contrast, civil law systems are generally more prescriptive, and codes are used to cover all eventualities, with judges having a more limited role of applying the law to the case at hand. There are around 150 countries that have civil law systems, mostly in continental Europe, and formerly in the colonies of European imperial powers such as Spain and Portugal.
Common law systems typically feature in countries that were former British colonies or protectorates, such as the United States. There are around 80 common law countries. Common law was originally developed through custom, before laws were written down, and is generally uncodified. This means there is no comprehensive compilation of legal rules, and it is largely based on precedent, created by judicial decisions, or case law.
In a civil law system, the judge's role is to establish the facts of the case and apply the provisions of the relevant code. There are more provisions implied in a contract under a civil law system, and less importance is placed on setting out all the terms governing the relationship between the parties to a contract. In a common law system, it is important to set out all the terms in the contract itself.
In Ireland, the courts are bound by the doctrine of stare decisis to apply clear precedents set by higher courts and courts of co-ordinate jurisdiction. The main exception to this rule is that the Supreme Court has declared itself not to be bound by its own previous decisions. The Irish constitution was enacted in 1937 and amendments can only be made by referendum.
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Frequently asked questions
Yes, Ireland is a common law country. Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied.
Common law systems place greater emphasis on previous court decisions than 'civil-law' jurisdictions. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies.
In Ireland, common law was imported from England, supplanting the customary law of the Irish. This was a gradual process that went hand-in-hand with English (and later, British) influence in Ireland. In 1171, King Henry II declared that "the laws of England were by all freely received and confirmed." In 1204, King John authorised the issuing of writs, directing the Irish courts to apply the common law.
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