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Module Title: Introduction to the Irish Legal System

Module Code: 6N8395

Assignment Title: Origins of the Irish Legal System

Lecturer Name: John McLaughlin

Student Names: Lorena de Jesus Barros

Student Nos.: 2017176

Assignment Due Date: 15/10/2017

Academic Year: Year 1 Year 2 Year 3

DECLARATION
I, the above named student, confirm that by submitting, or causing the attached assignment to be submitted,
to CCT, I have not plagiarised any other persons work in this assignment and except where appropriately
acknowledged, this assignment is my own work, has been expressed in my own words, and has not
previously been submitted for assessment.
Origins of the Irish Legal System

Lorena Jesus Barros


ID:2017176

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Table of Contents

Introduction .................................................................................................................................. 3
Part A - Development of the Irish Legal System.................................................................... 4
Part B - Sources of Law............................................................................................................. 5
Part C - Irish Court System ....................................................................................................... 9
Conclusion ................................................................................................................................. 11
References ................................................................................................................................ 12

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Introduction

This assignment will talk about the development of the Irish Legal System. It will
talk about its beginnings, under the modern Irish legal system, and the sources
of law from which it draws upon.

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Part A - Development of the Irish Legal System

Established in the Celtic period until the end of the 17th century, Brehon Law
used the customs of the society to administer the behaviour and penalties applied
to that society. Passed from generation to generation, the law had its first
manuscript in the 7th century AD as (Byrne et al., 2014).

According to (Donovan, 2010) the Brehon Law had as justice representatives of


justice known as brehons and allowed the treatment of cases of civil and military
nature.

After the Anglo-Norman invasion led by the Earl of Pembroke, followed by


advances in English law in various parts of the Irish territory through the
Proclamation of King James I. In this time the Brehon Law began its gradual
decline, seen the English law being was adopted everywhere land of Ireland, as
researchers made in (Doolan, 2011).

After the invasion of Normans in 1066 (Byrne et al., 2014) began the process of
introduction the Common Law. The Common Law is based on past case
judgments, through previous precedence cases.

According to (Doolan, 2011) Common Law in Ireland, has passed through the
years by process of development, which favoured the great stay of this law for
the formation of the Irish Legal System. The accumulation of cases allowed a
large bank of information to analyse the cases.

After the rebellion of 1782 (Act of Union 1800), according to (Doolan, 2011) the
legal integration of Ireland to the United Kingdom occurred. For 120 years these
two countries shared the same status.

With the general elections of December 1918, the document entitled "Constitution
of Dail Eireann", the Irish Independence of Easter 1916 was constituted.
Although it has no legality and no constitutional status, it has important historical
relevance as evidenced in (Doolan, 2011 ).

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The creation of the Constitution of 1922 was consolidated after the creation of
the Irish Government in 1920 and the partition of Ireland into South and Northern
Ireland, followed by the separation of parliaments and institutions, allowing South
Ireland to create a free State, but still of British domination. (Doolan, 2011).

Still, in (Doolan, 2011), it is possible to verify features of discontent caused by the


Constitution of 1922. Thus was created the Constitution of 1937 approved in a
popular plebiscite.

(Cork, 2017) The Constitution of 1937 or State Ireland, determines the formation
of 4 institutions:

The President
The Oireachtas (Parliament)
The Government
The Courts

Over time the Constitution has undergone corrections to adapt to international


agreements, including to join the EU in 1973.

Part B - Sources of Law

(Byrne et al., 2014) explains that is of fundamental importance to understand the


origins of the laws composing the Irish System of laws, to understand the relation
between them, to apply for each case to be analysed.

Thus the Irish Legal System presents itself composed of 4 main forces:

a. Common Law

As shown by (Donovan, 2010), the Common Law was introduced in Ireland after
the invasion of the Normans, when King John decreed that the common law
should be applied over all Irish territory. Being in 1331 the new law system had
been efficiently adopted in all Irish territory.

The developed in Celtic lands over the years, through of the trials of cases
allowed the consolidation of the importance of this law as (Doolan, 2011).

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Based on (Byrne et al., 2014), Common Law became an inflexible resource for
the solution of some cases. As a result, Lord Chancellor started creating more
flexible laws, which allowed the emergence of Equity.

In (Donovan, 2010) discusses that existence of conflicts between Equity and the
Common Law. The Equity acts in private law, each case is reviewed by person,
thus breaking the law of the common law.

Currently, Equity has a distinct body of laws that are applied integrated into the
same system as the Common Law in Ireland as described by (Donovan, 2010).

b. Constitution

As (Donovan, 2010), the Constitution is an element of fundamental importance


to the State.

Instituted after the Declaration of the Irish Free State, the Constitution of 1922,
which features British royalist, remained until 1937.

According to (Byrne et al., 2014), the Constitution of 1937 was an essential


landmark after the Independence of Ireland, reaffirming the breaking of the British
characteristics. The new Constitution was loyally representative of the people of
Ireland.

The 1937 Constitution consists of a preamble and 63 articles that describe the
rights to be adopted by the people. The preamble has a historical reference of
religious, political and economic characteristics according to the time of its
creation.

Donavan, briefly describes how divided the articles of the Constitution:

Article 11-1 to The nation and the State

Article 12 to 14-The President

Article 15 to 19-The national Parlament

Article 20 to 27-Legislation

Article 28 to 29-The Government

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Article 30 to 33-Other constitutional organs

Article 34 to 39-The Courts

Article 40 to 44 Fundamental rights

Article 45 Directive principals of social policy

Article 46 to 63-Amendment of the Constitution

Still, in (Donovan, 2010) it can be observed that over time the changes suffered
by the Constitution have as main instruments motivators:

1. The Northern Ireland


2. The European Union
3. International humans rights developments
4. Socio-economic change
5. Working experience of the Constitution
6. Outmoding of some provisions of the Constitution; and
7. Inaccuracies in the text the Constitution

The Constitution introduces the original Irish language version (Gaelic) and a
version translated into English, as (Ireland, 2017)

Division of Powers

According to (Bunreacht na hireann, 1937) the Constitution of 1937, the powers


are presented in 3 parts: Legislature, judiciary and Executive.

-Executive Power is exercised by the State through the President, and the body
of a maximum of 15 Ministers, including the Prime Minister and the Deputy
Minister elected through direct election.

-Judicial Power exercised by the Courts, has the function of judge acts according
to the law.

-Legislative Power branch also is known as Oireachtas, is represented by the


national Parliament, which is composed of President and two houses: a House
of representatives called the Dial Eireann and a Senate called the Seanad.

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c. Legislature

By (Byrne et al., 2014), the creation of the body of Irish law has arisen on the
need to amend Common Law. The Constitution is the primary instrument for the
creation of laws in Ireland.

Still in (Byrne et al., 2014) is possible to verify that the National Parliament, using
the rights established in the Constitution, creates the body of laws called Acts of
The Oireachtas.

(Donovan, 2010) point to relevant features for consideration of law. Among them
is the methodology based on Common Law and the need for publication and
accessibility of the law.

Thus (Donovan, 2010) describes the laws are classified according to the following
guidelines:

1. Substantive Law is the part of the law that describes the rights and
duties. Being this law divided into public law (Constitutional, Criminal
Administrative Law) and private law (Law of Torts, Contract Law and
Property Law including their respective subdivisions according to
(Donovan, 2010)).
2. Procedural is the part that describes the practices and processes to be
treated for cuts. Subdivided into Law of evidence and Criminal and Civil
Procedure Law.

d. Law of European Union

As (Bunreacht na hireann, 1937) The State of Ireland became a member of the


European Community in 1973.

(Donovan, 2010) reaffirms that the law of the European Community is the law has
force of law in the state in case of conflict with some other source. This means
that any law or measure imposed by the EU must be complied with by Ireland.

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Part C - Irish Court System

The Irish courts system until 1922 had British features.

In accordance to (Bunreacht na hireann, 1937) the Courts have their own rules,
which are created by Rules Committee.

(Donovan, 2010) highlights the formation of a new court system was made
possible after the creation of the Irish Free State, according to the Constitution of
1922.

The current court system established by the Constitution of 1937 has its structure
as described below:

(Donovan, 2010), explains the system hierarchy and how the courts relate to one
another.

Still, in (Donovan, 2010) explains that the system of Courts as Constitution must
obey the doctrine of precedent or stare decisis. This doctrine highlights the
hierarchy between the courts.

As shown in (Ireland T. S., 2017) it is possible to observe that the jurisdiction is


limited according to the type of the case.

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Comparison for the case analysis criterion between Ireland and Brazil.

According to the analysis of the sources of Common Law and Civil Law, it is
possible to make a comparison in the form of action by the jurisdiction of each
country.

In Ireland according to the system based on the Common Law, the cases for
cases of assassination, will have their judgment carried out from the analysis in
precedents, that is, the judges have great importance for the decision of the
penalty, acting as arbiters.

In turn, in Brazil, which has the Civil Law for the treatment of all judicial cases,
has as its source the analysis of the judgments has as main document the
Constitution and laws, and judges have the purpose to analyze and judge
according to these sources, not using of previous cases.

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Conclusion

According to what was researched, after the separation of Ireland from the United
Kingdom, it was possible to verify an evolutionary process of Irish characteristics
from the creation of the Constitution of 1937.
This 1937 Constitution reaffirmed Ireland as a state free from English domination,
its powers clearly defined.
In this sense, it is worth mentioning that the Irish Legal System started to build its
own laws, but maintained as a regime based on the Common Law.

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References

Byrne, R., McCutcheon P., Bruton, C. and Coffey, G.,2014. Byrne and
McCutcheon on the Irish Legal System. 6th ed. Dublin: Bloomsbury
Professional.

Doolan, B.,2007. Principles of Irish Law, 7th ed. Dublin: Gill and Macmillan
Ltd.

Donovan, D.,2010. The Irish Legal System. Dublin: Thomson


Reuters(Professional) Ireland Ltd.

The Courts Service of Ireland,2014. The History of Law [Online] Available


at:http://www.courts.ie/Courts.ie/Library3.nsf/pagecurrent/EA59D61A0CD9C
5A680257FC3005B5422?opendocument [Accessed 13 October 2017].

The Supreme Court of Ireland,2017. The Legal System. [Online] Available at:
http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/A22A8
ED6C188A8D380257DA400532052/$FILE/Structure%20of%20Ireland's%20
Courts.pdf [Accessed 13 October 2017].

The Supreme Court of Ireland,2017. 1937 Bunreacht na hireann.[Online]


Available
at:http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/28C
D6947F5021BCB802580A6005D1F09/$FILE/Constitution%20of%20Ireland.
pdf [Accessed 13 October 2017].

The Supreme Court of Ireland,2017. The Legal System.[Online] Available at:


http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/pagecurrent/D5F7
8352A387D74480257315005A419E?opendocument&l=en [Accessed 13
October 2017].

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University College Cork,2017. The Irish Irish Constitution. Cork.[Online]
Available at: https://www.ucc.ie/law/irishlaw/constitution/, [Accessed 13
October 2017]

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