Systems of Laws
Ireland as a sovereign jurisdiction has a distinct body of law. For the most part, Irish law in this context refers to the law of the Republic of Ireland. Northern Ireland is a separate legal jurisdiction. The United Kingdom comprises several distinct jurisdictions namely England and Wales (single jurisdiction), Scotland (separate) and Northern Ireland (separate).
Irish laws apply generally to matters or transactions within the State. It is a fundamental principle that criminal law only applies to acts within the State. There has been some reform of this principle in recent years particularly in connection with terrorist offences, child pornography, sexual offences, etc.
Conflicts of law otherwise known as private international law deal with rules as to which country’s laws may apply. It is possible to some extent for private parties to decide that the law of a particular country’s states have the power to hear disputes. It is subject to certain limitations particularly those to protect consumers and there being a minimum connection.
Parties, particularly in a commercial context, are allowed a considerable degree of flexibility in relation to which country’s laws apply. There are many overriding rules. For example, a country’s land law will always apply to property within the jurisdiction. See our separate guide on conflicts of laws. In practice, there are broad similarities between the laws of many countries.
Similarity of Laws
There are a number of factors which tend to make broad similarities between laws. At the most basic level international commerce, family and human experience/affairs have tended to provide for certain common factors of this which are of necessity are found in the laws of most jurisdictions.
The concept of private property rights over property, enforceability of contracts, civil wrongs, restitution arise from basic societal needs. Many legal systems perform broadly similar solutions to deal with the issue.
International commerce over the last 250 years has had a broadly harmonising effect. The law merchant has induced similar riles in the areas of commerce, sale of goods, international sale of goods, negotiable instruments, agency and business law matters. Conventions and other instruments have tended to harmonise rules in the interests of international trade and commerce
Common Law and Civil Law
There are two broadly predominant systems of law. The common law has developed from English common law and is found throughout most of the English speaking world. The decisions of one common law Court’s jurisdiction are influential in the courts of the others.
Common law is found in following: Republic of Ireland, Northern Ireland, England and Wales, South Africa, New Zealand, Australia, Singapore, Hong Kong and almost all Canadian provinces and almost all the United States are common law jurisdictions.
The United States is made up of 50 states with their own separate jurisdictions and legal systems. The English common law was carried to the United States, most famously through Blackstone’s Commentaries and has developed as independent systems in those jurisdictions for many hundred years (indeed before US independence). However, despite the length of time since the divergence the basic principles of common law is remarkably similar in these jurisdictions to that prevailing in Ireland and the United Kingdom.
The basic principles of contract, tort, agency, property, criminal law, merchant law are very similar. Of course in each jurisdiction laws had been changed by legislation over time. The countries have been influenced by their own Constitution and their own particular needs.
Ireland was part of the United Kingdom until 1922. The island of Ireland was a separate jurisdiction. It had its owns system of courts. Legislaiton passed by earleir (pre1801) parliaments continued to apply until amended and the UK parliament often passed legilslation specifically for Ireland. Each of the Irish Free State and Northerin IReland suceeded to this legal jurisdiction.
England and Wales is a single jurisdiction. The Welsh assembly does have limited powers but they would not be sufficient to make a significant difference in the legal system. Northern Ireland is and always has been a separate jurisdictions. The Northern Ireland assembly has very significant lawmaking powers, not unlike those of US the states.
Scotland has always had quite a distinct legal system which is not common law based. It is based more on the Continental and so called Roman law system. However, its system is based on the common United Kingdom Statute and the fact that its highest Court is the House of Lords (now the Supreme Court of the United Kingdom) has meant that is laws are broadly similar to those in England and Wales although the terminology and concepts may differ.
Relationship with UK Laws
Republic of Ireland and England and Wales common law are virtually indistinguishable on many important subjects. It is of course the case that legislation has diverged. However, as set out below Irish or UK legislation may be itself similar or identical.
Because of the greater population and extensive available law reports, Irish cases frequently follow England and Wales precedents. They are not legally binding in the same way as a superior Irish Court decision but are persuasive.
Except for certain differences in some statutory aspects, the Irish law of contract, civil wrongs, restitution, personal property, tort, agency are almost identical. Because of the fact that the countries formerly had a single parliament and the fact that present or predecessor legislation was identical or similar in areas such as the sale of goods, partnership law, bills of exchange law are almost identical in Ireland and England and Wales.
The similarity in laws between the Republic of Ireland and Northern Ireland is considerable. Even when Ireland was part of the United Kingdom it was a single separate jurisdiction. Much UK legislation was passed specifically for Ireland. For this reason, the Republic of Ireland has a shared common law and statutory heritage with Northern Ireland.
In addition to the above-mentioned areas of similarity with English law, areas such as aand law, property law, trust and equity are very similar in the Republic of Ireland to Northern Ireland. The Republic of Ireland has recently reformed land law significantly and it is likely that Northern Ireland will follow suit with similar reform.
UK Legislation and Laws
The United Kingdom and Ireland have very similar legislation n many kea areas. Much 19th-century legislation in key areas is still outstanding including Sale of Goods Act, Bill of Exchange Act, Bill of Sales (mortgages and certain transfers of personal property) are almost identical. There have been some amendments in each jurisdiction but the broad principles and many of the exact provisions remain identical.
The systems of national and local government regulation and judicial review in the Republic of Ireland follows a similar pattern to that in Northern Ireland, England and Wales.
Even where Ireland does not have common legislation with England, Wales and Northern Ireland the Irish legislation may be based broadly on UK legislation. For many years the obvious source of replication of regulation was the United Kingdom. In addition, much law reform occurred as a result of modification or updating of earlier legislation which was either common or identical to United Kingdom legislation applying both in Ireland and England and Wales.
Good examples also when anomalies have emerged from time to time in common law amending Acts have been passed. A peculiar aspect is that in some cases anomalies have emerged in common law which have been reversed by legislation in the United Kingdom but which may remain in Ireland because they have not been specifically reversed.
EU and ECHR
A very significant source of harmonisation is the European Union and the European Convention on Human Rights. The ECHR provides basic principles of law in relation to the dealings between individuals and the State. It has direct effect in the IReland and the United Kingdom, altough in different terms
Most profound of all in terms of harmonisation has been the European Union. See our separate sections on the chapters on the European Union. European Union has harmonised a very vast amount of laws throughout Europe. Notwithstanding the different legal systems, a business dealing internationally is entitled to rely upon harmonised rules across a wide range of issues.
In some cases, there are direct European Union law which apply. In other cases, directives provide States must have minimum elements of commonality in their rules.
Basic Structures of Statew
A common feature of nearly all jurisdictions in the world is the so called separation of powers which is embodied in the Irish Constitution. This is the broad principle that laws are made by a parliament representative of the people. A government or executive implements those laws and is in effective control or government of the State.
Individual disputes are held before an independent judiciary or Court. Their decisions are implemented by the executive through the civil power of the police and other executing officers such as bailiffs, sheriffs.
Continental systems are often referred to as civil law systems. The continental European systems have a quite distinct basis and origin to common law.
A feature is that much of the key areas equivalent to those comprised in common law such as contract, torts, land law, restitution, agency are comprised in code. Most of these are heavily influenced by Roman law. The most famous code is the Napoleonic code which is still the basic element of the French civil code. Napoleonic code involves a detailed study of previous laws and customs and the embodiment of civil responsibilities into a code of rules.
In France, the Code Civile is supplemented by codes dealing with more modern areas such as commercial law, labour law, taxation, etc. A further feature of civil law jurisdictions is a distinction of a separate public law.
Public law deals with the relations between the State and the individual. There are separate codes and courts dealing with administrative law.
The German code has a separate later origin and is more detailed. The same broad principles are found. Spain and Italy each have broadly similar codes to the Code Civiel dealing with civil law obligations supplemented by codes dealing with areas such as commercial law, penal law, taxation, commerce, etc.
A feature of the continental codes is that in theory,, there is less judge made law. The Courts apply the law with reference to the civil code with much less regard to previous cases and precedents.
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