Kara Sears
The Irish Courts System exists in a 'common law' jurisdiction, which is shared with other English-speaking countries like the UK, USA, Canada, Australia, and New Zealand, as well as some non-English speaking countries like India. Common law involves courts deciding cases by following the principles laid down in earlier cases and written judgments. The Irish common law system originates from the English legal system, which was imported to Ireland and gradually supplanted Irish customary law. This process occurred alongside the increasing influence of England (and later, Britain) in Ireland.
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What You'll Learn
The doctrine of stare decisis
Common law in Ireland was imported from England, replacing Irish customary law. This was a gradual process that occurred alongside English (and later British) influence in Ireland.
The influence of Irish common law extends beyond its borders. Occasionally, Irish cases on similar common law principles or legislation are persuasive in England, Wales, and Northern Ireland. While judgments from these jurisdictions are not binding on Irish courts, they hold persuasive value and are often followed due to the development of common law.
It is worth noting that post-independence judgments from British courts and judgments from American, Commonwealth, and some Northern Irish courts are of persuasive value only and do not bind Irish courts.
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The influence of UK law
The dominance of English law was solidified during Oliver Cromwell's military campaign from 1649 to 1652, which resulted in the resettlement of many Irish landowners and the imposition of Penal Laws targeting Catholics. Ireland is often referred to as "the first adventure of the common law", reflecting the early and profound influence of English legal principles.
Post-independence, judgments of UK courts continue to hold persuasive value in Ireland, particularly those of England and Northern Ireland. While not binding, these judgments are highly influential and are often followed due to the development of common law. The higher population and London's status as an international legal centre have resulted in a significant number of UK legal precedents in key common law areas.
Additionally, leading UK practitioners' textbooks are highly influential in Ireland. Over the last 40 years, substantial texts on Irish law have been published, covering important common law areas. These textbooks guide legal practitioners and contribute to the evolution of Irish common law.
The European Communities Act of 1972 further shaped Ireland's legal landscape by incorporating EU treaties and measures into Irish law. This Act, along with Ireland's membership in the European Union, led to the cession of national sovereignty and the subordination of national law to European law.
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The Irish court system
The Irish legal system is divided into two branches: the civil side and the criminal side, each with its own specialised courts. The civil courts hear cases involving disputes between individuals, organisations or the state. Criminal courts deal with criminal cases, which are prosecutions brought by the state against people accused of crimes. The seriousness of the crime determines which court will hear the case.
The Irish courts are bound by the doctrine of stare decisis to apply clear precedents set by higher courts. The main exception to this rule is that the Supreme Court has declared itself not to be bound by its own previous decisions. While the doctrine clearly means that the present High Court is bound by decisions of the present Supreme Court, it is unclear whether the decisions of previous courts of final appeal, such as the British House of Lords, bind the present High Court. Post-independence judgments of the British courts, and all judgments of American and Commonwealth courts, are of persuasive value only and do not bind the courts of Ireland. However, judgments of higher courts in England and Northern Ireland are highly persuasive and will nearly always be followed as a reflection of the development of common law.
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The Irish Constitution
Articles 1-39 define the functions of the State and its agencies, establishing the branches or organs of government, the courts, and setting out how those institutions should be run. It also establishes a separation of powers, dividing the authorities of the State into three separate law-making entities: the Government, the Judiciary, and the Legislature.
Articles 40-44 provide for the fundamental rights of Irish citizens, which are confirmed and protected by the Constitution. These rights include specific articles on education, religion, and the family, which affect how education is organised.
Common law in Ireland involves courts deciding cases by following the principles laid down in earlier cases and written judgments, also known as 'judicial precedent'. The decisions of higher courts are binding on lower courts, and the number of legal cases with written decisions that become legal precedents is minimal. The judgments of higher courts in England, Wales, and Northern Ireland are not binding on Irish courts but are highly persuasive and will nearly always be followed.
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The pre-1922 era
Ireland's legal system has three main sources of law: Constitutional, Statute, and the Common Law. The Common Law is a body of legal rules that 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 when the facts of a case are substantially the same.
Before 1877, there were two distinct sets of courts and systems of law in Ireland. The common law courts applied more rigid rules and had less discretion in their mode of operation. The courts of equity existed side-by-side with common law courts, dealing with particular areas such as land law and trusts. The Supreme Court of Judicature Act of 1873 and its Irish counterpart in 1877 merged the administration of common law and equity to create a unified court system.
Ireland's common law rules share a common ancestry with common law in England, Northern Ireland, and most US states. In most areas, Irish common law is identical or almost identical to Northern Irish and English common law. The spread of English common law to Ireland is described as the "first adventure of the common law". Prior to English rule, Ireland had its own indigenous system of law dating from Celtic times, known as the Brehon law, which survived until the 17th century.
In 1172, Hugh De Lacy was appointed First Justiciar of Ireland. In 1204, King John authorised the issuing of writs, directing the Irish Courts to apply the common law. The first recorded appointment of an Anglo-Norman Judge came in 1221. English law declined in influence during the 14th and 15th centuries, and England sought to re-assert the supremacy of its Parliament and of English law over any Irish Parliament or Irish legislation by enacting the Statutes of Kilkenny in 1366.
After the kingdoms of Ireland and Great Britain were united in 1800, the Parliament of the United Kingdom made laws for Ireland. This continued in the south until 1922. The Irish Free State was established in 1922, in the wake of the War of Independence. The 1922 Constitution was amended numerous times up to 1936, to the point where all vestiges of the Treaty had effectively been erased. Pre-1922 statute and common law remain in force to the extent that they are consistent with the Constitution.
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Frequently asked questions
Common law in Ireland is a legal system that originates from the English legal system. It is shared with other English-speaking countries, such as the UK, USA, Canada, Australia and New Zealand, and some non-English speaking countries like India.
Common law involves Irish courts deciding cases by following the principles laid down in previous cases and written judgments. The decisions of higher courts are binding on lower courts.
The sources of common law in Ireland include previous court decisions, written judgments, and legal precedents. Leading UK practitioners' textbooks are also influential in Ireland.
The evolution of common law in Ireland has been influenced by various factors, including the assimilation of English common law, the influence of Irish common-law precedents in other jurisdictions, and the development of new legal principles.
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