Le Francophone.

L' Outil d' Information de la Diaspora Francophone minoritaire en République d' Irlande.

23 août 2009

Essay Title: Write an essay on two sources of law within Irish Legal System

Introduction

Primary and secondary sources of law constitute fundamental genesis of law within Irish legal system. From these sources are drawn ingredients, principles which pervade to the establishment of a body of rules that governs the state and guarantees the implementation of a fair legal system. In additional to this, superior and inferior sources are vital tools of reference towards legal practitioners. They facilitate them to locate the suitable legal instrument in which they can rely on for the administration of reasonable justice when conflicts occur.

This essay aims to examine two selected sources of law within Irish Legal System in each category mentioned above. In the following lines it would essential to consider, the background of each source of law, the features it bears and its position in relation to the modern Irish Legal System 

Body

The Oxford Dictionary Law defines common law, as part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs. For the sake of conquest of more territories Normand crossed the border and invaded Ireland in 1170 thus, they brought with them the common law. The British colonist brought and set up a new legal system in order to dominate the native Irish citizens and have full control over the nation. Despite, the imposition of a new legal system by the British, the existed system did not disappear and was still in use in some part of the country as the colonizer occupation was mainly based in the Pale, eastern part the actual Dublin.

As examined by Raymond Byrne and McCutcheon in Irish legal System, common law was the only legal instrument used by judges for conviction or acquaintance of individuals in early days of Irish history. The verdicts taken by Judges were based on the doctrine of precedent. These case reference procedures constituted an entity of rules which cannot be altered by any laws emanating from others origins; this privilege enjoyed by the common law duels in the modern Irish law. Byrne & Mccutcheon: Irish Legal System: Sources of Law, p7

Nevertheless, common law has feature of being flexible; and had recognised the existed customary law known as Brehon Law.

Moreover Common law remains an important source law within Irish legal system. 

Bunreacht Na hÉireann is defined as the law of the land, which has been adopted by the people in 1937 after a referendum. It represents the Irish values, their Identity and respond to their aspirations. Furthermore, it is based on fundamental principles which protect every single individual right.  Irish Constitution establishment put an end to the existence of British Legal System which endured for several decades. This new Constitution was desperately needed because the1922 Constitution of Irish Free State contained lots of provisions which were not pertaining to the issues of national interest. In additional to this, the concept of nationalism was not perceived in the same manner by the Irish Nationalists. The 1937 Irish Constitution clarified those divergences and the unclear details left by the precedent Constitution. 

According to Andrei Marmor constitutional documents main features are as follows: supremacy, longevity, rigidity, moral content, generality and abstraction (Andrei Marmor: Interpretation and Legal Theory, Chap. 9, p141)

Considering this description of Andrei Marmor in regards to the Irish Constitution it appears plausible that Bunreacht Na hÉireann enjoys most of these characteristics.

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The supremacy of the Irish Constitution is expressed in fact that it has put into place a well coordinated and ordered legal system where all laws of the Republic must refer to. Therefore, all others judiciary bodies recognise the Irish Constitution as the basic law of the state. Laws with provenance from any others sources have to confer their constitutionality to the Constitution provisions.  Any laws which infringe the provisions of Constitution cannot pass and is declared unacceptable and illegal.

Added to this, its longevity is well established, since its adoption by people after a referendum in 1937 the Irish Constitution is in existence and continues to canalise the judiciary apparatus of this nation throughout the current generation and those to come.

The Constitution of Ireland is reputable of being rigid because it is amendable only by a popular referendum.  Since its establishment in 1937 it has been amended 27 times from 1939 where the first amending act passed until 2004 for the last amending act. (Constitution of Ireland: Amending acts, pp iv-xiii).

With light of the Constitution amendments frequency it appears that Bunreacht Na hÉireann is difficult to amend.

“The more difficult it is to amend the Constitution, the more rigid it is” (Andrei Marmor: Interpretation and Legal Theory, Chap. 9, p141)

The Constitution of Ireland satisfies to moral content and generality in fact that it has set up a separation of powers. The Executive, the Legislation and the Judiciary represent the 3 main organs of the Republic. These tripartite organs function on basis of autonomy which creates stability and good working of the state apparatus. Also, human and civil rights of citizens are respected as stipulated in articles 44-45 of the Constitution.

And finally, the Constitution of Ireland is a written Constitution, different from the British Constitution which is unwritten. Under that written shape the Constitution of Ireland is available to every citizen for consultation; its accessibility is made easier by the fact that it has been written in both languages: English and Irish.

The simplest definition of canon law is the church law. In the beginning it was composed of a numbers of canons, but later on it was assorted by the late medieval era. Generally speaking, Canon law subsists away from the state law and does not possess the force of law. Nevertheless, in some cases legal dispositions in relation to marriage law have been formulated as their canon law corresponding. (Raymond Byrne & McCutcheon: Irish Legal System: Sources of Law, p7).

Ireland is a country of strong belief in Catholicism. Its traditions reflect that. Obviously, the law of the church had to be involved in the governance of the nation and restore order when the law it is breached.  This involvement of the church law is clearly stated in the Preamble of Bunreacht Na hÉireann:

[In the Name of Most Holy Trinity, from Whom is all authority and to whom, as our final end, all actions f both of men and states must be referred, we the people of Éire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial……..]

The Custom law served as law prior the implementation of the England common law in Ireland. Both laws co-existed for centuries until the beginning of the 17th Century, where Custom was absorbed by Common Law. Even though it was absorbed, custom law was granted recognition by the common law and kept on playing its part. Also custom has to fulfil certain criteria such as being certain, reasonable and continuous in order to obtain legal power. Furthermore, its field of action and existence was subject to restrictions. (Byrne & Mccutcheon: Irish Legal System: Sources of Law, p7). 

Custom Law played a considerable role in establishing justice between Irish Native in conflict. Its incorporation in common law of that time has arguably to be considered as a means used by the Settlers to have full control of whole nation: geographically and legally.

Conclusion

The examination of Superior and Inferior selected sources of law within Irish Legal System throughout this essay has demonstrated that the Irish Laws emanate from diverse origins which have particular historical backgrounds; vital features; and occupy a specific place in Irish Law. The judicial ingredients produced by these sources make the Irish Legal System one of the well established and structured legal systems at the present time. 

Posté par lefrancophone à 23:57 - My 1 BA essays, 2008-2009 NUIG. - Commentaires [0] - Rétroliens [0] - Permalien [#]

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