1. ‘An act concerning the King's Succession’ 25 Hen VIII, c 22 in 1533 and ‘Touching the Succession of the Crown’ 28 Hen VIII, c 7 in 1536.

2. ‘An act of Succession of the King and Queen Anne’ 28 Hen VIII, c 2 (Ir) in 1536 (known as Marriage Act (no 1) 1537 by virtue of the Short titles Act 1962) and ‘Thacte of succession betwixt the kyng and queane Jane’ 28–29 Hen VIII, c.17 (Ir) in 1537 (known as the Marriage (no 2) Act 1537 by virtue of the Statute Law Revision Act 2007). For the sake of clarity, the Irish Succession Acts will be referred as the ‘Marriage Act (no 1) 1537’ and the ‘Marriage Act (no 2) 1537’ throughout. Statute numbers such as ‘28 Hen VII, c 2’ were not labels affixed to the Acts until the 1700s and so the same numbers have been used to describe a number of Irish Acts concerning the taxing of wool.

3. Marriage Act (no 2) 1537.

4. Statute Law Revision Act 2007.

5. Acting on the advice of Wolsey. Scarisbrick, J Henry VIII (London: Yale University Press, 1997)Google Scholar pp 198–240.

6. Antokolskaia, M Harmonisation of Family Law in Europe: A Historical Perspective (Intersentia: Antwerp, 2006)Google Scholar p 88.

7. According to the computation style of the canon law, brother and sister are related in the second degree, niece and uncle in the third, and first cousins in the fourth degree.

8. Canon 97 of the 1917 Canon Law Code changed the basis of affinity to a valid ratified marriage, even if such a marriage was not consummated.

9. Leviticus 18:8, 14, 15, 16 and 18 also prohibit sexual relations between those related by marriage.

10. In 1 Corinthians 5:1 St Paul castigates the Corinthians for tolerating a man living with his father's wife. McAreavey, J The Canon Law of Marriage and the Family (Dublin: Four Courts Press, 1997)Google Scholar p 94.

11. For the biblical arguments advanced see Scarisbrick, above n 5, pp 163–197.

12. Deutoronomy 25:5.

13. GWO Woodward 1485–1603 Reformation and Resurgence, England in the Sixteenth Century, (London: Blandford Press, 1968) chs 5–6.

14. 25 Hen VIII, c 22.

15. 25 Hen VIII, c 22 entitled ‘An Acte for the Establishement of the Kyngs succession’.

16. Starkey, D The Reign of Henry VII Personalities and Politics (London: Vintage Books, 2002)Google Scholar p 76.

17. ‘Provided always that the article in this Act contained concerning prohibitions of marriage within the degrees aforementioned in this Act shall always be taken, interpreted and expounded of such marriages where marriages were solemnized and carnal knowledge was had.’

18. In 1534, ‘An Acte ratifying the oath that every of the Kings Subjects hath taken and shall hereafter be bounde to take for due observation of the acte made for the surety of the succession of the Kings Highness in the Crown of the Realme’, 26 Hen VIII, c 2, 1534 outlined an oath to be taken by all subjects to Henry and his lawful heirs as outlined in the 1533 Act.

19. This ground is very unclear. The Second Succession Act stated that although Henry's marriage to Anne had seemed valid, ‘til now of late that God in this infinite goodness, from whom no secret things can be hid, hath caused to be brought to light evident and open knowledge, as well of certain just true and lawful impediment unknown at the making of the said acts and since that time confessed by Lady Anne.’ It has presumed to have been either due to Anne's precontract with the Earl of Northumberland or because Anne was within the prohibited degrees due to Henry's relationship with her sister. See Bernard, GW ‘the fall of Anne Boleyn’ (1991) 106 English Historical Review 584 CrossRefGoogle Scholar; Walker, G ‘Rethinking the fall of Anne Boleyn’ (2002) 45 Historical Journal 1 CrossRefGoogle Scholar.

20. 28 Hen VIII, c 7, ‘An Act for the establishment of the succession of the Imperial Crown of this Realm.’

21. ‘…the said two acts and every of them and all clauses article and provisions therein contained from the first day of the present parliament shall be repealed annulled and made frustrate and of none effect.’

22. ‘It is to be understood that if it chance any man to know carnally any Woman, that then all and singular persons being in a degree of consanguinity or affinity (as is above writted) to any of the parties so carnally offending shall be deemed and adjudged to be within the cases and limites of the said prohibitions of marriage’.

23. 28 Hen VIII, c 16, ‘An Acte for the release of suche as have obtained pretended licenses and dispensations from the See of Rome’.

24. 32 Hen VIII, c 38, ‘Concerning precontract and the degrees of consanguinity’.

25. ‘…cousyn germaynes and so to fourth and fourth degree carnall knowlege of anny of the same kynne or affinitie bifore in suche outwarde degrees which elys were laufull and be not prohibited by Goddis lawe’.

26. ‘By this Act we declare all persons to be lawful that be not prohibited by God's Law’.

27. Dudley Edwards, R ‘The Irish reformation Parliament of Henry VIII 1546–37’ in Moody, T (ed) Historical Studies VI (London: Routledge, 1968)Google Scholar p 64.

28. 28 Hen VIII, c 2 (Ir), ‘An Act of Succession of the King and Queen Anne’.

29. Ellis, S ‘Thomas Cromwell and Ireland 1532–1540’ (1980) 23 Historical Journal 497 CrossRefGoogle Scholar.

30. Dudley Edwards, above n 27, p 66.

31. Ibid.

32. Meriton, G (ed) An Exact Abridgment of All the Publick Printed Irish Statutes now in Force from the Third Year of the Reign of King Edward the Second to the End of the Last Session of Parliament, in the Tenth Year of His Present Majesty's Reign King William the Third (Dublin: Andrew Crook, 1700)Google Scholar.

33. 33 Hen VIII, c 6 (Ir), ‘An Act for Marriages’.

34. [J Hooker]In this volume are contained all the Statutes from the Tenth yere of King Henre the sext to the xiiii yere of…Elizabeth made…in Ireland (London: Richard Tottle, 1572).

35. Short Titles Act 1962; Statute Law Revision (Pre-Union Irish Statutes) Act 1962; and O'Shea v Ireland[2006] IEHC 305.

36. Connelly, P Statute Rolls of the Irish Parliament Richard III–Henry VIII (Dublin: Four Courts Press, 2002)Google Scholar.

37. Statute Law Revision Act 2007.

38. Quinn, DB ‘Government printing and publication of the Irish Statute in the sixteenth century’ (1943/1944) 49 Proceedings of the Royal Irish Academy 45 Google Scholar at 49.

39. Ibid.

40. SP Hen VIII, III, 398; SP 60.10.239.

41. SP Hen VIII, III, 419; SP 60.10.262.

42. Quinn, above n 38, at 50.

43. Cal SP Ire 1509–1573, at 196, para 18.

44. Quinn, above n 38, at 49–55.

45. Cal SP Ire 1509–1573, at 453–454.

46. [Hooker], above n 34.

47. Including: Meriton, G (ed) An Exact Abridgment of all the Publick Printed Irish Statutes Now in Force from the Third Year of the Reign of King Edward the Second to the End of the Last Sessions of Parliament in the Tenth Year of His Present Majesty's Reign King William the Third (Dublin: Thomas Hume, 1724)Google Scholar; A Collection of all the Statutes Now in Ufe to the Reigns of Our late Moft Gracious Sovereign Lord and Lady, King William and Queen Mary, of Ever Bleffed Memory (Dublin: Andrew Crooke, 1723); Hunt, E (ed) An Abridgment of all the Statutes in Ireland in the Reign of King George the I in Force and in Use (Dublin: E Dobson, 1728)Google Scholar; R Bolton The Statutes of Ireland Beginning the Third Yere of K Edward the Second and Continuing until the End of the Parliament, Begun in the Eleventh Yeare of…King James, and Ended in the Thirteenth Yere… (Dublin, 1621); F Vesey The Statutes at Large. Passed in the Parliaments held in Ireland from the Third Year of Edward the Second AD 1310 to the First Year of George the Third AD 1761 Inclusive (Dublin, 1765).

48. Quinn, above n 38, at 73–79.

49. Vesey, above n 47.

50. Authority The Irish Statutes: 3 Edward II to the Union AD 1310–1800 (Dublin: Roundhall Press, 1995)Google Scholar.

51. Osborough, WN ‘The legislation of the pre-union Irish parliament’ in Studies in Irish Legal History (Dublin: Four Courts Press, 1999)Google Scholar.

52. Statute Law Revision Act (Pre-Union Irish Statutes) Act 1962: Statute Law Revision (Pre-1922) Act 2005.

53. Herbert Wood ‘the public records of Ireland before and after 1922’ (1930) 12 Transactions of the Royal Historical Society 17 Google Scholar.

54. Ibid, at 25–26.

55. A list of the documents moved can be found in the Public Records (Ireland) Act 30 & 31 Vict, c 70 (1867).

56. HF Berry (ed) Statutes and Ordinances, and Acts of the Parliament of Ireland King John to Henry V, 1907; HF Berry (ed) Statute Rolls of the Parliament of Ireland, Reign of King Henry VI, 1910; HF Berry (ed) Statute Rolls of the Parliament of Ireland First to the Twelfth Years of the Reign of King Edward the Fourth, 1914.

57. Wood, above n 53, at 33–49.

58. Evidence as to the materials lost can be found in Wood, H A Guide to the Records Deposited in the Public Record Office of Ireland (Dublin: HMSO, 1919)Google Scholar.

59. The destruction is detailed by Wood, above n 53.

60. National Archives of Ireland, NAI ch 1/1.

61. Quinn, above n 38, at 78.

62. JF Morrissey (ed) Statute Rolls of the Parliament of Ireland, Twelfth and Thirteenth to the Twenty-First and Twenty-Second Years of the Reign of King Edward the Fourth (Dublin, 1939).

63. O'Shea v Ireland[2006] IEHC 305.

64. The other two Succession Acts are mentioned in the Statute Law Revision (Pre-Union Irish Statutes) Act 1962

65. Quinn, DB ‘the bills and statutes of the Irish parliaments of Henry Vi and Henry Viii’ (1941) 10 Analecta Hibernica 71 Google Scholar.

66. The three Acts appear on Sch One to the Statute Law Revision Act 2007 as pre-union statutes still in force.

67. 2 & 3 Edw VI, c 23 (1548) ‘An Act for the repeal of a Statute touching Precontract’.

68. 1 Mary 2, c 1 (1553), ‘An act declaring the Queen Highness to have been born in a most just and lawful matrimony, and also repealing all Acts of Parliament and Sentences of Divorce had and made to the contrary’.

69. ‘every such Clauses article branches and matters contained and expressed in the forsaid Act of Parliament made in the XXVIII year of the reign of the said late King your father, or in any other Acte or Actes of Parliament, as whereby your highness is named or declared to be against the word of God or by any means unlawful, shall be and be void and of no force nor effect, to all intents construction and purposes as if the same Sentence of or Acts of Parliament had never been made’.

70. 1 & 2 Philip and Mary, c 8, ‘An Act repealing all Statutes Article and Provisions made against the See Apostolick of Rome since the XXth yere of King Henry the Eighth and also for the establishment of all Spiritual and Ecclesiastical Possession and Herediaments conveyed to the Layity’.

71. 1 & 2 Philip and Mary, c 8.

72. 1 Eliz c 1 (1558), ‘An Act restoring to the Crown Jurisdiction over the State Ecclesiastical and Spiritual and abolishing all Foreign Power repugnant to same’.

73. R v Didbin, ex parte Thompson[1910] P 57.

74. (1677) Vaughan 302; 124 Eng Rep 1085.

75. See above n 23.

76. (1677) Vaughan 302; 124 Eng Rep 1085, at [325].

77. (1861) IX HLC, 193; 11 Eng Rep 703, at 230.

78. Item 25 Parker Articles to be enquired of in the visitation of the moste Reuerend father in God, Matthew, by the sufferaunce of God Archebyshop of Canterbury, Primate of all Englande, and Metropolitane in the yeare of oure Lorde God, M D LXIII. Imprinted at London: By R Wolfe, Anno domini M D LXIII [1563] outlines plans to publish the table. An early version of the table is found in Parker An admonition to all such as shall intend heereafter [sic] to enter the state of matrimonie godly, and agreeably to lawes. First, that they contract not with such persons as be hereafter expressed (London: printed for T Adams [c 1600]).

79. Leviticus itself is only addressed to men. Women are prohibited from engaging in sexual relations with close relatives by implication.

80. Church of England Constitutio[ns] and canons ecclesiasticall treated vpon by the Bishop of London, president of the conuocation for the prouince of Canterbury, and the rest of the bishops and clergie of the said prouince: and agreed vpon with the Kings Maiesties licence in their synode begun at London anno Dom. 1603. And in the yeere of the raigne of our soueraigne Lord Iames by the grace of God King of England, France and Ireland the first, and of Scotland the 37. And now published for the due obseruation of them by his Maiesties authoritie, vnder the great Seale of England (London: R Barker, 1604).

81. See for example, The book of common prayer and administration of the sacraments and other rites and ceremonies of the Church according to the Church of England : together with the Psalter, or Psalms of David, pointed as they are to be sung or said in churches : and the form and manner of making, ordaining, and consecrating of bishops, priests and deacons (London: C Bill, 1700).

82. Parsons Case T 2 Ja, Ro 1032 and Mans 33 Eliz Moore, 907; S C Cro Eliz 228, 4 Leon 16 where a prohibition was granted for a wife's sisters daughter. Co Litt 235 b.

83. 2 Inst 683.

84. (1668) Vaughan; 124 Eng Rep 1039.

85. Ibid, at [215].

86. Ibid, at [218].

87. Ibid, at [220].

88. Hill, above n 74.

89. Ibid, at [320].

90. Ibid, at [328].

91. Ibid, at [310].

92. 5 & 6 W 4, c 54.

93. (1846) 11 QB 205; 116 Eng Rep 452.

94. Ibid, at [232].

95. Ibid, at [233].

96. Ibid.

97. Ibid, at [243]–[244].

98. (1847) 11 QB 173; 116 Eng Rep 441.

99. (1861) IX HLC, 193; 11 Eng Rep 703.

100. Wing v Taylor (1861) 2 Siv and Tr 278; 164 Eng Rep 1002.

101. Ibid, at 297.

102. Ibid, at 294.

103. Ibid, at 298–299.

104. No Just Cause: Affinity (London: CIO Publishing, 1984) p 48, fn 12.

105. Cretney, SM Family Law in the Twentieth Century: A History (Oxford: OUP, 2004)Google Scholar pp 48–57.

106. For a man his: deceased wife's brother's daughter, deceased wife's sister's daughter, father's deceased brother's wife, mother's deceased brother's wife, deceased wife's father's sister, deceased wife's mother's sister, brother's deceased son's wife, sister's deceased son's wife.

107. See for example Official report HL, vol 45, col 819, 28 June 1921; Hansard HC Deb, vol 203, col 797, 4 March 1927; Hansard HL Deb, vol 71, col 1233, 23 July 1928.

108. [1900] 2 ch 488.

109. Ibid.

110. Coke's 2nd Inst, pp 683, 488.

111. Evidence of Mrs BJ Johnston to the Joint Select Committee on Consolidation Bills 19 July 1949, BPP 1948/1949, vol 6 at 26–27, paras [200]–[220] where there is a discussion of where the degrees came from.

112. The Marriage Enabling Act 1960 permitted marriage between a man and a woman who is the sister, aunt or niece of a former wife or was formerly the wife of his brother, uncle or nephew. Thus a man no longer had to wait until his former spouse had died to marry these relatives. The Marriage (Prohibited Degrees of Relationship) Act 1986 allowed a man to marry a woman who is the daughter or granddaughter of a former spouse, the former spouse of his father or grandfather if both the parties have attained the age of 21 at the time of the marriage and the younger party has not at any time before attaining the age of 18 been a child of the family in relation to the other party. The Act also permitted marriage between a man and his wife's grandmother, or grandson's spouse.

113. Children Act 1975 s 108 (1) Sch 3. Added adopted mothers and fathers and adopted children.

114. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

115. B and L v UK[2006] 1 FLR 35; [2005] FCR 353 (ECHR).

116. The Marriage Act of 1949, s 1 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986.

117. Most states had at some time restricted marriage between relationships of affinity and 21 Contracting States still maintained either conditional or absolute prohibitions.

118. Since the 1980s, all three Bills put forward had been passed.

119. Civil Partnership Act 2004, c 33 Sch 27, para 17.

120. Faloon, WH The Marriage Law of Ireland: with an Introduction and Notes (Dublin: Hodges Figgis, 1881)Google Scholar.

121. Civil Registration Act 2004.

122. The Marriages (Ireland) Act 1844.

123. Registration of Marriages (Ireland) Act 1863, 26 & 27 Vict, c 90 required registration of marriages but legally prescribed formalities were not introduced until the Marriages Act 1972 and standard preliminaries for all marriages were only brought in until the Family Law Act 1995.

124. See further the 1917 Code of Canon Law and the 1983 Code of Canon Law.

125. Such as the notorious Joseph Wood, Maxwell v Maxwell (1832) Milward 290.

126. In 1870 this jurisdiction passed to the Irish High Court.

127. Irish Ecclesiastical Law was slightly different to law of the English Ecclesiastical courts but the provisions relating to the prohibited degrees were identical. Constitutions and Canons Ecclesiastical, Treated Upon by the Archbishops and Bishops, and the Rest of the Clergy of Ireland and Agreed Upon by Royal Licence at the Synods Held in Dublin A.D. 1634 and 1711 (Dublin: 1864). Canon 47 is identical in effect to canon 99 and makes explicit reference to Archbishop Parker's table. ‘No person shall marry within the degrees prohibited by the laws of God and expressed in a table set forth by authority in England, in the year of our Lord 1563. All marriages so made and contracted shall be adjudged incestuous and unlawful, and consequently shall be dissolved as void from the beginning…’

128. O'Connor v M'Cann (1829) Milward 204–216, where a marriage was challenged on the basis that it was in violation of 19 Geo 11, c 13.

129. Ibid.

130. Cobbe v Garston (1841) Milward 547.

131. This test was endorsed by the Temporal Courts in Q v Millis (1843) 10 Cl & Fin; 8 ER 844.

132. For example 19 Geo II, c 13 ‘An Act for annulling all marriages to be celebrated by any Popish Priest between Protestant and Protestant or between Protestant and Papist’; Smith's Case (1841) Armagh Summer Assizes Cases on the North Eastern Circuit 287.

133. Queen v Burke (1843) 5 Ir Law Rep 549 (Irish QB) at 557.

134. Ibid, at 553. Compton J considered the matter uncontroversial citing J Comyns Digest of the Laws of England (London: 1762) at 550, which refers to the table; and Bacon, M New Abridgment of Law (London: A Strahan, 1832)Google Scholar at 293.

135. (1843) Tullamore Spring Assizes, at 731.

136. 5 & 6 Will IV, c 54.

137. Maddern, above n 135, at 735.

138. Ibid, at 736.

139. Burke, above n 133.

140. The couple had instead applied for the wrong dispensation from a vicar-general holding themselves out as a great-grandchild and great-great-grandchild of the same ancestors.

141. Burke, above n 133, at 553.

142. Ibid, at 556.

143. The Civil Registration Act 2004, s 2 states merely that a marriage is considered void if it ‘would be void by virtue of the Marriage Act 1835 as amended by the Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921’.

144. The Civil Partnership and certain rights and obligations of Cohabitants Act 2010.

145. Law Reform Commission Report on Nullity of Marriage (LRC 9-1984).

146. Interdepartmental Committee on Reform of Marriage Law Discussion Paper no 5 (2004) available at http://www.groireland.ie/docs/marriagelaw_discussion_paper_no5.pdf.

147. Law Reform Commission above n 145, pp 45–47.

148. Casey, JP Constitutional Law in Ireland (Dublin: Roundhall, 3rd edn, 2000)Google Scholar; Mee, J ‘Marriage, Civil Partnership and the prohibited degrees of relationship’ (2009) 27 ILT 259 Google Scholar.

149. The only precedent for this decision was an ex tempore High Court order by Smyth J in 2001 declaring a marriage between a woman and her deceased aunt's husband to be valid. ‘Marriage case judgment reserved’Irish Times 26 May 2001; ‘Woman told her marriage 29 years ago was lawful’Irish Times 28 June 2001.

150. The Deceased Wife's Sister's Marriage Act 1907 Act as amended by Deceased's Brother's Widow's Marriage Act 1921. ‘Notwithstanding anything contained in the Act or the Matrimonial Causes Act 1857, it shall not be lawful for a man to marry the sister of his divorced wife or his wife by whom he has been divorced, during the lifetime of such wife or the divorced wife or the wife of his brother who has divorced his brother during the lifetime of such a brother’.

151. O'Shea v Ireland[2006] IEHC 305, at 5.

152. Ibid.

153. Ibid, at 29.

154. Ibid, at 12.

155. Harding, M ‘To affinity and beyond’ in Boele-Woelki, K and Sverdrup, T European Challenges in Contemporary Family Law (Antwerp: Intersentia, 2008)Google Scholar.

156. See further Mee, above n 149.

157. Unlike in English law no ancillary reliefs are available in Irish law after a marriage has been declared void. Shatter, AJ Shatter's Family Law (Dublin: Butterworths, 4th edn, 1997)Google Scholar at [5.158].

158. Dudley Edwards, above n 27, at 71.

159. Dudley Edwards, R and Moody, TW ‘the history of Poynings Law part 1’ (1941) 2 Irish Historical Studies 415 Google Scholar at 418–419.

160. Norris v Attorney General[1984] IR 36.

161. Such Acts have been passed before by the Irish State eg ‘The Lourdes Marriage Act’, The Marriages Act 1972, s 2.

162. See remarks by S Costello Seanad Debates vol 124, cols 929–931, in relation to the Larceny Act.

163. The Act of Union 1800 was not removed until the Statute Law Revision Act 1965. Haughey Dáil Eireann Debates vol 197, cols 461–469.

164. Statute Law (Ireland) Revision Act 1872 (35 & 36 Vict, c 98); Statute Law Revision (Ireland) Act 1878 (41 & 42 Vict, c 57); Statute Law Revision (Ireland) Act 1879 (42 & 43 Vict, c 24).

165. Statute Law Revision (Pre-Union Irish Statutes) Act 1962, Statute Law Revision Act 1983.

166. Upon the recommendations of the Review Group on the Law Office of the State, Donelan, E ‘Recent developments in statute law revision in Ireland’ (2001) 22 Statute Law Review 1 CrossRefGoogle Scholar.

167. Explantory memorandum, Statute Law Revision Bill 2007, p 1.

168. http://www.attorneygeneral.ie/slru/pre_ind_project.html.

169. Above n 68 and n 70.

170. Quinn, above n 65.

171. Coke Litt 81b Lib 2, s 108 puts forward an imprecise doctrine of non-user but it is submitted that this is an interpretative device.

172. Desuetude has recently been accepted by the courts of West Virginia State v Donley 607 S E 2d 474, at 479–480 (W Va, 2004) Committee on Legal Ethics v Printz 416 S E 2d 720 (W Va,1992). In 1995 the Supreme Court of India introduced the doctrine of desuetude into their law The Municipal Corporation for City of Pune and Anr v Bharat Forge 1995 SCC (3), JT 1995 (3) 312.

173. W Blackstone Commentaries on the Laws of England vol 1 (1765) pp 76–77.

174. Ibid.

175. This was also the justification under Roman law. Erskine, J Principles of the Law of Scotland (Edinburgh: Green & Sons, 21st edn, 1911)Google Scholar p 7; Stair The Institution of the Law of Scotland vol 1 (Edinburgh: 4th edn, 1826), 11. This philosophy was also taken by the members of the German Historical School such as Savigny who considered desuetude to be a form of creation of law stemming from the Volksgeist.

176. Henriques, MP ‘Desuetude and declaratory judgment: a new challenge to obsolete laws’ (1990) 76 Virginia Law Review 1057 CrossRefGoogle Scholar, at 1068; Note ‘Desuetude’ (2006) 119 Harvard Law Review 2213; Diamond, A ‘Repeal and desuetude of statutes’ (1975) 29 Current Legal Problems 107 CrossRefGoogle Scholar, at 117.

177. In this sense desuetude has been accepted in Irish law; State (Feeley) v O'Dea[1986] IR 687.

178. Brown v Magistrates of Edinburgh 1931 SLT 456, at 458.

179. R v London County Council[1931] 2 KB 215, at 226.

180. Legislation ‘the elimination of obsolete statute’ (1930) 43 Harvard Law Review 1302 CrossRefGoogle Scholar, at 1304–1305; Chipman Gray, J The Nature and Sources of Law (New York: Columbia University Press, 1948)Google Scholar p 193.

181. Bonfield, AE ‘the abrogation of penal statutes by non-enforcement’ (1964) 49 Iowa Law Review 389 Google Scholar, at 409 argues that the English acceptance of the durability of enacted law is a modified Austinian approach where law is seen as a command from the sovereign. As the absolute sovereign in the English system is the Queen in Parliament English law will take no notice of the will of the people except as expressed in an Act of Parliament.

182. Hogan, GW ‘Statutory interpretation – the doctrine of desuetude’ (1987) 9 DULJ 136 Google Scholar.

183. Note ‘Desuetude’ (2006) 119 Harvard Law Review 2213, at 2217–2218.

184. Ibid, at 2226.

185. Ibid, at 2228. To some extent Statute Review Projects fill the gap. However, it is difficult to argue that the decision to retain or repeal Acts which are presented to Parliament in a list without the full text of the Act could be said to be a proper emanation of the will of Parliament.

186. Henriques, above n 176, at 1070.

187. Hogan, above n 182, at 142–143.

188. Above n 183, at 2229.

189. Diamond, above n 176.

190. Above n 183, at 2216.

191. Ibid, at 2228; Note ‘Legislation’ (19291930) 43 Harvard Law Review 1302.

192. Above n 183, at 2215.

193. Note ‘Judicial abrogation of the obsolete statute: a comparative study’ (1951) 64 Harvard Law Review 1181, at 1184.

194. Philip, JR ‘Some reflections of desuetude’ (1931) 43 Juridical Review 260 Google Scholar, at 265.

195. Ibid, at 267.

196. See below n 200.

197. Hogan, n 182, at 145.

198. [1984] ILRM 161.

199. Ibid, at 169.

200. In State (Feeley) v O'Dea[1986] IR 687, Keane J held that s 8 of the Petty Sessions (Ireland) Act could not be applied as it belonged a ‘vanished world’ and was inoperable in modern circumstances. Another Act that has been held to be inoperable due to huge changes in factual circumstances is s 6 of the Trade Union Act Amendment Act 1875; Irish and Transport General Workers' Union v Transport and General Workers Union[1936] IR 471. Such cases tell us little about the doctrine of desuetude as they merely concern statutes that were impossible to enforce in modern times.

201. Hogan, above n 182, at 141.

202. Above n 172.

203. As Art 73 of the 1922 Constitution had done for pre-1922 legislation.

204. State (Quinn) v Ryan[1965] IR 70, at 125.

205. Ryan v Att Gen[1965] IR 294, at 313.

206. Art 34.3.2 and Art 34.4.4. expressly grant the courts the power to pronounce on the constitutionality of statutes. Art 26 gives the courts a priori power for referred Bills.

207. Philip, above n 194, at 266; Johnstone v Stotts (1802) 4 Pat Appeal 274; Hogan, above n 182.

208. 6 Edw VII, c 38.

209. Bonfield, above n 181; Brown v Magistrates of Edinburgh 1931 SLT 456, at 457–459.

210. [1913] Sess Cas 1959, at 1070.

211. The object of the Act was to prepare the way for a revised edition of the statutes and not to solve legal difficulties or to effect any substantive change in the law. Accordingly, the Act repealed expressly and specifically certain enactments which had ceased to be in force or had become unnecessary. Above n 171.