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The Irish Legal System: An Introduction

Published online by Cambridge University Press:  08 September 2011

William Binchy
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Abstract

Professor William Binchy provides a summary of the legal system in the Republic of Ireland and reflects on constitutional developments and challenges facing the country, particularly in the light of the recent economic collapse.

Keywords

constitutional lawlegal systemsIreland
Type
The Irish Legal System, Law Libraries and Legal Information
Information
Legal Information Management , Volume 11 , Issue 3 , September 2011 , pp. 151 - 155
Copyright
Copyright © The British and Irish Association of Law Librarians 2011

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References

Footnotes

1 See Doherty, , “The Northern Ireland Peace Process: A Solution to the Problems of an Ethnically Divided Society?” 7 Brown J. of World Aff. 49 (2000)Google Scholar.

2 MacSharry, R. & White, P., The Making of the Celtic Tiger: The Inside Story of Ireland's Boom Economy (Dublin: Mercier Press, 2000)Google Scholar.

3 See Whelan, K., Ireland's Sovereign Debt Crisis (UCD Centre for Economic Research Working Paper Series 2011, WP11/09, May 2011)Google Scholar.

4 See Byrne & McCutcheon on the Irish Legal System (Dublin: Bloomsbury Professional, 5th. ed., by Byrne, McCutcheon, Bruton & Coffey, 2009)Google Scholar.

5 The 1922 Constitution was subject to such easy amendment that legislation inconsistent with it was considered by the courts to have implicitly amended it: see Crowe, “Human Rights, the Irish Constitution and the Courts”, 47 Notre Dame L. 281, at 285–288 (1971). The Statute of Westminster 1931, which might have been considered supportive of national autonomy, actually created difficulties for Irish nationalist theory as the 1922 Constitution did not permit developments inconsistent with the terms of the 1921 Treaty between Britain and Ireland.

6 See Kelly, J., The Irish Constitution (Dublin: Round Hall, 4th ed., by Hogan, G. & Whyte, G., 2004)Google Scholar, Hanafin, “Constitutive Fiction: Postcolonial Constitutionalism in Ireland” 20 Penn. St. Int'l L. Rev. 339 (2002).

7 Cf. Articles 40–44 of the Constitution.

8 Cf. Article 15.4 of the Constitution.

9 Cf. Article 34 of the Constitution.

10 The Constitution speaks in terms of “fundamental rights” rather than “human rights” but it is clear from the most rudimentary textual analysis of Articles 40 to 44 (as well as an historical analysis) that what is envisaged is a compendium of rights inherent in human beings by virtue of their rationality of moral freedom, anterior to positive law. See Grogan, “The Constitution and the Natural Law”, 8 Christus Rex 201 (1954), Costello, , “Natural Law, the Constitution and the Courts”, in Lynch, P. & Meehan, J. eds, Essays in Memory of Alexis Fitzgerald (Dublin: Incorporated Law Society of Ireland, 1987)Google Scholar, 161, Millen, C., The Right to Privacy and Its Natural Law Foundations in the Constitutions of the United States and Ireland (Dublin: Blackhall Publishing, 1999)Google Scholar.

11 Cf. Article 27 of the Constitution. As to whether there are implicit limitations on the amendability of the Irish Constitution, as there are in India, for example, is a matter of lively debate, given sharp focus by the Supreme Court decision of Re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR1; see O'Hanlon, “Natural Rights and the Irish Constitution”, 11 Ir. L. Times (n.s.) 8 (1993), Clarke, “The Constitution and Natural Law: A Reply to Mr. Justice O'Hanlon”, 11 Ir. L. Times (n.s.) 177 (1993), Whyte, “Natural Law and the Constitution”, 14 Ir. L. Times (n.s.) 8 (1996), Twomey, “The Death of Natural Law?” 13 Ir. L. Times (n.s.) 270 (1995), Hanafin, “Reproductive Rights and the Irish Constitution: From the Sanctity of Life to the Sanctity of Autonomy?” 3 Eur. J. of Health L. 179 (1996), Jacobson, “An Unconstitutional Constitution? A Comparative Perspective”, 4 Int'l J. of Constit. L. 460 (2006).

12 European Convention on Human Rights Act 2003, analysed by Egan, “The European Convention on Human Rights Act 2003: A Missed Opportunity for Domestic Human Rights Litigation”, 25 Dublin U.L.J. 230 (2003), O'Connell, , “The ECHR Act 2003: A Critical Perspective”, in Kilkelly, U. ed., ECHR and Irish Law (Dublin: Jordans, 2004), 1Google Scholar, Hogan, “Incorporation of the ECHR: Some Issues of Methodology and Process”, id., 13, Bodnick, “Bringing Ireland up to Par: Incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms”, 26 Fordham Int'l L.J. 396 (2003).

13 See Crotty v An Taoiseach [1987] 1 IR 713, Doyle, O., Constitutional Law: Text, Cases and Materials (Dublin: Clarus Press, 2008)Google Scholar, Chapter 14.

14 See O'Flaherty, “Brian Walsh 1918–1998”, 17 Ir. L. Times (n.s.) 300 (1999).

15 Byrne v Ireland [1972] IR 241.

16 Meskell v Coras Iompair Eireann [1973] Ir 121. The Supreme Court subsequently weakened the effect of this decision by channeling claims for compensation for violations of constitutional rights into the tort system, save where the particular tort is “basically ineffective” in vindicating the right in question: Hanrahan v Merck Sharp & Dohme (Ireland) Ltd. [1988] ILRM 629. See further Hogan, G. & Morgan, D., Administrative Law in Ireland (4th ed., 2010)Google Scholar, paras. 18.63–18.109.

17 This is possible because of the manner in which Article 40.3 is drafted. Under sub-section (1), the State guarantees in its laws to respect, defend and vindicate “the personal rights of the citizen”. Sub-section (2) provides that the State “shall, in particular” by its laws protect and vindicate “the life, person, good name and property rights of every citizen” (emphasis added).

18 Ryan v Attorney General [1965] IR 294, State (c) v Frawley [1976] IR 365, State (Richardson) v Governor of Mountjoy Prison [1987] IR 131.

19 Ryan v Attorney General [1965] IR 294.

20 McGee v Attorney General [1974] IR 284, Norris v Attorney General [1984] IR 36, Kennedy v Ireland [1987] IR 587, Herrity v Independent Newspapers [2008] IEHC 249.

21 The State (M) v Attorney General [1979] IR 73. See further Kelly, op. cit., fn. Supra, paras. 7.3.177–7.3.182.

22 Murtagh Properties v Cleary [1972] IR 330.

23 See the Preamble of the Constitution, Binchy, , “Dignity As a Constitutional Concept”, in Carolan, E. & Doyle, O. eds., The Irish Constitution: Governance and Values (Dublin: Thomson Round Hall, 2008), 327Google Scholar.

24 See Sinnott v Minister for Education [2001] 2 IR 545, T.D. v Minister for Education [2001] 4 IR 259, Kieran, “T.D. Re-Considered: Constituting a New Approach to Enforcement of Rights”, 7 Trinity College L. Rev. 62 (2004), Lawlor, “The Conscience of the Nation: Socio-Economic Rights and the Irish Constitution”, 5 University College Dublin L. Rev. 34 (2005), Mullally, “Substantive Equality and Positive Duties in Ireland”, 23 S. Afr. J. on Human Rts 291 (2007), McGrattan, “The Constitutional Vindication of Socio-Economic Rights: A Catholic Perspective”, 7 University College Dublin L. Rev. 29 (2007).

25 See North Western Health Board v H.W. and C.W. [2001] 3 IR 622, critically analysed by Byrne, R. & Binchy, W., Annual Review of Irish Law 2001 (Dublin: Round Hall, 2002), 316–338Google Scholar, N. v Health Services Executive [2006] IESC 60.

26 [2006] IESC 60. See Kelly, “Baby Ann's Constitutional Rights”, 10 Ir. J. of Fam. L. 3 (2007).

27 See Purtill v Athlone Urban District Council [1968] IR 205, McNamara v Electricity Supply Board [1975] IR 1.

28 See the Occupies' Liability Act 1995, a measure introduced to placate a strong farmers' lobby, concerned about their theoretical exposure to liability to ungracious trespassers and recreational users who might be injured while on their land.

29 Weir Rodgers v SF Trust Ltd. [2005] IESC 2.

30 Moynihan v Moynihan [1975] IR 192.

31 O'Keeffe v Hickey [2008] IESC 72.

32 Bazley v Curry 174 DLR (4th) 45 (S.C.C., 1999), Jacobi v Griffiths 174 DLR (4th) 71 (S.C.C., 1999).

33 Lister v Hickey Hall Ltd., [2002] 1 AC 215.

34 Shortt v Commissioner of An Garda Siochana [2007] IESC 9. Hardiman J elaborated on his philosophical approach extrajudicially in “Weasel Words and Doubtful Meanings: A Study in the Language of ‘Law Reform’”, 2007 (2) Judicial Studies Inst. J. 1.

35 Judicial salaries in Ireland were second highest in the world in 2004/2005: Choi, Gulati & Posner, “Are Judges Overpaid? A Skeptical Response to the Judicial Salary Debate”, 1 J. of Legal Analysis 47, at 61 (2009). (British judicial salaries took first place).

36 Article 35.5 of the Constitution.

37 “One in Five Judges Yet to Pay Voluntary Pension Levy”, Irish Times, 1 January 2010.

38 Lally, “Coalition Plans to Cut Judges' Salaries”, Irish Times, 7 March 2011.

39 An international study published by the Charities Aid Foundation found that Irish people ranked 16th happiest out of 153 countries: Smyth, “Irish Among Most Charitable and Happiest in the World, Study Finds”, Irish Times, 9 September 2010.