Sources of Law

Nature of Law

Law refers to the collection of rules making up the legal system as a whole.  Rules differ radically in their nature and purpose.  Some rules prohibit specific behaviour.  Breach is punishable under the law.

Other rules facilitate business and commerce, such as company law and the law of contract which enforces agreements. Other rules create rights of redress for wrongs which can be enforced between individuals, but with which, the State is not concerned.

There are rules which deal with the relationship between the individual and the State. The Constitution confers rights that cannot be overridden by other law, even that passed by the Oireachtas. There is a vast range of legislation which confers powers on central and local government and regulates numerous areas of business and everyday life.

Common Law

The two principal sources of law in Ireland are the common law and Statute law; legislation.  Common law is Judge-made law. It has developed incrementally in a pragmatic way. It exists as principles of law which have been developed by Courts over the centuries.

The common law was developed initially in England, after the Norman Conquest. The basic principles of civil wrongs, contracts, land law, agency, merchant and commercial law evolved as common law principles,  laid down by judges.  Over time, much common law has been consolidated or replaced by Statute law. However, the common law remains of great importance.

Common law is used in two senses.  In one sense, it refers to all judge-made law. In this sense, it encompasses both common law and equity.    In another sense, common law is used in contrast to “equity”, which is a separate system which grew up together with common law.

Common law and equity have merged.  Common law rules are more rigid and prescriptive than the rules of equity, which allows much more in terms of discretion and justice.  The meaning of common law depends on the context.

Equity

The common law courts were distinct from the courts of equity.  The courts of equity were initially presided over by a cleric, with a canon law training and background.  The Chancellor, who presided, had more discretion in relation to the merits of the cases, than the common law judge.  However, over time, equity became more rigid and became a distinct body of law and principles.

Until 1877, the equity and common law courts were entirely separate and there could be conflicting results in the same case.  Ultimately, the courts of equity could grant injunctions preventing enforcement of common law rights.  Equity had precedence in practice. In 1877 the rules of common law and equity were merged.  All courts apply common law and equitable principles.  The legislation declared that in the event of a conflict, the equitable rules were to prevail.

In practice, equity plays a predominant role in certain areas such as land law, trusts and certain types of remedies and property rights.  The remedies of the injunctions, specific performance, rectification, rescission and declaration are so-called equitable remedies.  See our separate chapters in relation to equitable remedies. They are more flexible and may be more effective, than the general common law remedy of damages (compensation).

Even today, the High Court divides its list between common law and Chancery lists.  Certain types of claims in the Circuit Court are commenced by an Equity Civil Bill.

Statute Law

Statute law is that made by the Oireachtas and its predecessor parliaments. Delegated legislation is made by the Government and other bodies as statutory instruments, rules or orders under the authority of a statute.

Courts interpret Statutes with reference to previous court decisions on the same provisions.  Therefore previous cases interpreting the relevant statute has equicalent status to common law precedent.

Constitution

The Irish Constitution is of overriding legal effect.  It was introduced in 1937 and replaced the 1922 Constitution.  The 1922 Constitution was a product of the Anglo-Irish Treaty. By the mid-1930s, it had been dismantled and undermined for various reasons.

The 1937 Constitution embraced the broad structure of government and many of the human rights principles of the 1922 Constitution. Critically, and unlike the 1922 Constitution which for its life could be amended by the Oireachtas, the 1937 Constitution may only be amended by a referendum of the people.

Any laws, either common law or statute law, which are inconsistent with the Irish Constitution are void.  The High Court and Supreme Court have powers to declare laws void as inconsistent with the Constitution.  Numerous laws have been held to be void, particularly, since the 1960s.

A significant feature of the Constitution is its emphasis so called on constitutional justice and due process in governmental activities.  This requires the implication into Statutes and Governmental activity, which impact on the fundamental rights of citizens (such as liberty, reputation and property), of minimum requirements of legality and fair procedures.  An enormous body of so-called administrative law or public law has developed within the last fifty years.

European Union

Ireland joined the European Union in 1973.  By virtue of an amendment of the Irish Constitution, European Union laws have supremacy over conflicting Irish law.  The European Union has powers to make laws in specific areas.  These areas are largely of economic and social concern. The European Union has sought to broaden its remit over time and its areas of competence have expanded over time, through a number of amending treaties.

In 1986, the Supreme Court decided that any amendment of the European Treaty going beyond the scope of the previously approved treaties would require amendment of the Irish Constitution, by referendum.  As a consequence, most changes to Europe Union Treaties have been put to a referendum in Ireland.

A vast amount of legislation emanates from the European Union every year.  Some legislation (Regulations) applies directly.  Most EU legislation (Directives) must be translated into Irish law.  This is usually done by way of a statutory instrument (i.e. ministerial order) made under special legislation, the European Communities Act.

Categories of Law

Laws may be categorised or divided into a number of different ways.  One common division is to contrast public law and private law.  Public law concerns dealings between individuals and the State.  Included under this broad category are criminal law, constitutional law and so-called administrative law.

Private law concerns dealings between private parties.  This includes laws in relation to civil wrongs, contract and the ownership of property, movable and immovable.  Statute law has provided for companies, partnerships, agents, business relationships and relationships with employees. These laws facilitate private relationships and commerce.

Private matters and family matters are embraced in laws relating to Wills, probate, family law, matrimonial status.  Administrative and regulatory law cover regulatory matters and dealings with the State.

Application by the Courts

Courts are established under the Constitution and are wholly independent of the Government and executive. In most cases, cases are heard by a judge alone who decides both the facts and the law.  In most cases, there is a right of appeal.  In the District Court and Circuit Court, the appeal is a full rehearing to the next higher Court up.  In the High Court, there is not a full hearing but a review of the case based on the transcript of the evidence.  The Supreme Court decides matters, largely on points of law.

A fundamental aspect of the law is that it is applied in individual cases or disputes, by the courts. The law is applied by the court to the particular dispute in hand, and an order is made which determines the rights of the parties on the basis of the facts as presented and proved.

The court hears the case based on the rules of evidence and procedure, determines the facts and applies the law. The court interprets and applies common law or statute law to the facts of the case as it determines them. In theory, the process is mechanical and involves the application of existing law and precedent.

In practice, there may be very considerable discretion for the Courts in the manner in which they interpret the facts and apply the law to them.  In many instances, the law is expressed in a very general and open way. An example is the duty of care in negligence.  There may be significant room for subjective appraisal and disagreement as to the correct outcome of a particular case.

The law concerns the principles that the courts apply to particular facts The may be differences of opinion as to the exact formulation and expression of the law, on a particular point. There is further scope for discretion and judgment in the manner in which law is applied to the facts.  There may be different views as to what constitutes the facts or the relevant facts.

Criminal v Civil

There is a fundamental difference between criminal law and private law.  In most private law matters the parties may decide to agree and settle the matter in dispute.  Criminal law involves the interests of the State. Private parties may not agree, for example, not to prosecute, in return for money or otherwise.

Activities and conduct is lawful unless specifically declared unlawful.  In the area of criminal law, in particular, the law must clearly declare offences. Ignorance of the law is usually no defence in a civil or criminal matter.  The law applies irrespective of the parties‘ of knowledge of the law.

Procedural Law

There are special rules dealing with the ways in which laws are enforced.  The laws of evidence deal with the matters which a court may consider.

Civil and criminal procedure deals with the manner in which cases are heard and decided by the courts.  There are laws relating to the enforcement of judgments which deals with the manner in which court orders are enforced.