The Rule Of Law

Question 1

By which ways do legal rules differ from other rules?

Answer 1

1: force of law. 2: the function the law performs. 3: the form that law takes.

Question 2

Explain the force of law

Answer 2

Legal rules are enforceable in ways that social rules are not. The fact that there are consequences to breaking the law shows us that the law serves several important functions that “often could not be performed (at all or as well) by other kinds of rules.”

Question 3

Explain the function/ purpose of law

Answer 3

The law performs a number of important functions. These are:
 The maintenance of public order and safety;
 The protection of individual rights and liberties;
 The organisation and control of the political sphere;
 The regulation of economic activity;
 The regulation of human relationships;
 The preservation of a moral order; and
 The regulation of international relations.

Question 4

Talk about why law’s form is different from social rules’ form.

Answer 4

Social rules tend to be unwritten and are come from a wide variety of sources including parents, family, school, religion. On the other hand, legal rules are written and come from a very limited set of institutional sources, namely legislatures (both national and international) and courts.

Question 5

What are the primary sources of law? Describe them

Answer 5

1. The constitution
   Is the highest-ranking domestic source of law and takes precedence over all other inferior sources
2. Legislation
   Article 15.2.1° provides: “[t]he sole and exclusive power of making laws for the State is hereby
   vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
   See too Article 15.4.2°: “[e]very law enacted by the Oireachtas which is in any respect
   repugnant to this Constitution or any provision thereof, shall, but to the extent only of such
   repugnancy, be invalid.”
3. Common law/case law
4. European Union law
   In certain limited areas of competence, it is the highest-ranking source of law in Ireland. Article 29.4.6° states:
   [n]o provision of this Constitution invalidates laws enacted, acts done or measures
   adopted by the State, before, on or after the entry into force of the Treaty of Lisbon,
   that are necessitated by the obligations of membership of the European Union.

Question 6

Which are the secondary sources of law?

Answer 6

1. International law
   Governs legal relations between States. It consists of a variety of sources, including customary international law, treaties and decisions of international judicial bodies. The Irish legal system is a dualist system.
2. Academic commentary

Question 7

Define the rule of law

Answer 7

A definition of what is meant by the phrase “the rule of law” is not provided in any of the
domestic primary sources of Irish law. However a definition is provided in Article 2 of
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16
December 2020.

It includes
the principles of legality implying a transparent, accountable, democratic and
pluralistic law-making process; legal certainty; prohibition of arbitrariness of the
executive powers; effective judicial protection, including access to justice, by
independent and impartial courts, also as regards fundamental rights; separation
of powers; and non-discrimination and equality before the law.

Question 8

Which are the four principles of the rule of law, identified by Irish academics Hogan and Morgan?

Answer 8

1. the principle of legality;
2. all persons, including Government and public officials, are subject to law;
3. the legality of State action is to be determined by an independent judiciary; (art. 35.2) and
4. law must be “public and precise”, so that all those affected by the law must know what
   they can or cannot do.

Question 9

Briefly explain the principle of legality by Hogan and Morgan

Answer 9

There are two key components:
(a) a hierarchy of laws, courts and sources; and
(b) accountability. we establish three powers and separate them: the legislative, the executive,
and the judiciary. In Ireland this separation of powers is enshrined in Article 6 of the
Constitution:
1. All powers of government, legislative, executive and judicial, derive, under God, from
the people, whose right it is to designate the rulers of the State and, in final appeal, to
decide all questions of national policy, according to the requirements of the common
good.
2. These powers of government are exercisable only by or on the authority of the organs
of State enshrined by this Constitution