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Origins of the Irish Legal System
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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).
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).
(Cork, 2017) The Constitution of 1937 or State Ireland, determines the formation
of 4 institutions:
The President
The Oireachtas (Parliament)
The Government
The Courts
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
Instituted after the Declaration of the Irish Free State, the Constitution of 1922,
which features British royalist, remained until 1937.
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.
Article 20 to 27-Legislation
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Article 30 to 33-Other constitutional organs
Still, in (Donovan, 2010) it can be observed that over time the changes suffered
by the Constitution have as main instruments motivators:
The Constitution introduces the original Irish language version (Gaelic) and a
version translated into English, as (Ireland, 2017)
Division of Powers
-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.
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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.
(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
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.
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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.
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].
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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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