SOURCES OF LAW

Question 1

Primary Sources of Law:

Answer 1

1) Constitution;
2) Legislation;
3) European Union Law;
4) Common Law.

Question 2

1) Common Law:

Answer 2

• The Common Law is typically referred to as “Judge made law” and it works by developing and APPLYING existing principles to novel circumstances!
• It also enjoys BINDING FORCE BY VIRTUE OF THE “Doctrine of Precedent”

Question 3

Primary v Secondary Sources

Answer 3

• Primary Sources: They hold a great power as they are the original and authoritative texts which establish legal principles and rules.
• Secondary Sources: On the contrary, the secondary sources do not enjoy the force of law but have a persuasive nature.

Question 4

2) Legislation:

Answer 4

Legislations are WRITTEN LEGAL RULES created by the only law-making body of the State (as provided by the Article 15.2 of the 1937 Constitution): the OIERACHTAS.

• Legislations can be divided into two categories: primary and secondary legislation.

a) Primary Legislation: primary legislation refers to LAWS PASSED by the legislative body of the government, such as Statutes (Statute of Limitations 1957) and Acts (Road Traffic Act, 1961).

b) Secondary Legislation: secondary legislations, on the other hand, CONSISTS OF RULES and REGULATIONS created by EXECUTIVE AGENCIES.

Question 5

3) The 1937 Constitution:

Answer 5

• The 1937 Constitution can be defined as a fundamental living and breathing document with a dynamic nature, capable of accommodation societal change and modifying the interpretations to maintain its relevance and effectiveness.
• The Constitution sets out how the country should be governed and embarks on accomplishing three core elements:

a) Article 2.3 and 29.8 established that the Irish Law can have “extraterritorial effect”;

b) Article 12 and 37 provides the establishment and distribution of the institutions of the State.

c) Article 38 and 40-44 lay down the crucial freedoms and both numerated and unenumerated rights of every citizen.

• Another important detail about the Constitution is that it CAN ONLY BY AMENDED BY POPULAR REFERENDUM.

Question 6

4) European Union Law:

Answer 6

• The European Union Law is an economic and political body of law which passes laws between the 27 European countries that are its members.
• The institutions of the European Law have the power to make laws and the UE possess its very own BODY OF LAW which is applicable and enforceable on each member state.
• EU enjoys supremacy over conflicting national law!

ENJOYS
SUPREMACY
OVER
CONFLICTING
NATIONAL
LAW

• Ireland became a member of the Union in January of 1972.

Question 7

1) Custom:

Answer 7

• A custom is a habitual practice which by virtue of continuous application and general acquiescence acquires legal force.
• In order for a custom to enjoy the force the law, it must meet two important conditions:

a) It must be reasonable, continuous and clear;

b) It must exist in a particular locality in respect of a particular matter

• The indigenous system of law in Ireland before the arrival of the Anglo-Normans, called Brehon Law, was greatly based on customs.

Question 8

2) Canon Law =

Answer 8

• Canon law was ORIGINATED by the Catholic Church and CODIFIED in the late medieval period.
• Although Canon Law does not enjoy the force of law, its significant impact and influence remains evident in various laws, which is the case of the law of marriage for instance (it mostly derives from Canon Law).

Question 9

3) Commentaries and Scholarly Writing:

Answer 9

• In special scenarios in which the court is faced with novel circumstances and does not have a formal law source or decision to rely on, the court might decide to seek for some professional and qualified legal advice/guidance from scholars and experts.
• Robert Clark and Friel, for instance.

Question 10

4) International Law:

Answer 10

• Finally, international law is the secondary source of law which typically governs the states in their relationships with one another.
• International law includes RULES that affect individual and businesses as well, notably through international human rights treaties and international trade agreements.
• It is also imperative to underscore that the Irish Legal System is DUALIST, which essentially means that in order to become part of national law, an international measure must be specifically incorporated into national law as provided by the Article 19.6 of the Constitution.
• The EUROPEAN CONVENTION ON HUMAN RIGHTS, for instance.