The more society develops, the more its members outline new rules and regulations. The link between the law and civilization implies that the number of laws created by people is positively correlated with their social needs. The development of law systems within different societies, dispersed over different continents, resulted in that there are several major legal systems in the world today.
One of such systems is the Common-Law System, “characteristic of the England system, which developed after the Norman Conquest in 1066” (Vago, 2008, p. 13). Such a system has many differences from other dominant legal systems. With Ireland’s legal system is mainly derived from the laws of England, which in turn is characteristic of the common law system, the legal system of Ireland provides interest for analysis.
In that regard, this paper analyzes the legal system in the Republic of Ireland, providing insights into the role of law in Irish society, the role of court, and Irish legislative system.
The Legal System in Ireland
As stated earlier, the modern legal system of Ireland is derived from English common law, which is often described as “the first adventure of the common law” (“History of the Law,” 2010). The establishment of the English common law can be explained in several historical facts. The first of such facts is the full integration of Ireland into the United Kingdom by 1800. Before English rule the dominant legal system in Ireland was Brehon law, which lasted until the 17th century. Being governed by England, it can be stated that the development of the Irish law system was “in tandem with the English” (Sinder, 2001).
Prior to 1800, many British statutes were enacted to deal specifically with Ireland, and thus the legal systems in Ireland were not identical to that of Great Britain. After agreeing to the act of Union in 1800, in which Ireland became a part of the United Kingdom and until Ireland’s independence in 1922, “the governance and legal system of Ireland were ostensibly the same as that of Great Britain.” (Sinder, 2001). Accordingly, even after the independence, many of UK laws were passed into Irish laws, which can be seen through article 73 of the 1922 Constitution (similarly provided in article 50 in 1937 Constitution):
Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas (Lantry, 1998)
The differences between Irish and British legal systems can be seen merely in the fact that Ireland had a written Constitution and court’s power of judicial review. In that regard, the main sources of the Irish law are the Constitution of 1937, legislation, and common law rules. In terms of priorities, common law still constitutes significant areas of the legal system, although the provisions of the Constitution “supersede both the common law and legislative rules” (O’Mahony, 2002, p. 6).
In accordance with the Constitution, justice is administered in public courts established by law, by judges appointed by the president on the advice of the government (Green, 2005). In addition to the three previously outlined institutions, i.e. the president, the government and the courts, the fourth institution established by the Constitution is the Oireachtas (the House of Parliament), the primary legislative force in the Ireland.
The Role of Law in the Society
The Perspectives on Society
Generally, the role of law in society is defined through two conceptions of society, which are consensus and conflict perspective. These conceptions view mainly describe the state of the society, and accordingly the role of law in maintaining such state. The consensus perspective states that the diverse groups in the society live in basic harmony, in which accordingly the law is “a neutral framework for maintaining societal integration” (Vago, 2008, p. 24).
The conflict perspective, on the other hand, views the society as a network of social groups, which come into conflict and compete to have their interests protected and formalized through the law. In that regard, the role of law in such society is considered as “a weapon in social conflict and an instrument of oppression employed by the ruling classes for their benefit” (Vago, 2008, p. 25).
The Irish Perspective
It can be seen that the role of the law in Ireland is more resembling the consensus perspective, with specific historical periods being related more to that of the conflict perspective. The identification of the perspective as well as the identification of the role of law can be apparent through the periods in which the law was established and/or refined. In that regard, taking such critical periods the development of modern Irish law during the twentieth century, many acts enforce the law through the conflict perspective, i.e. serving and protecting the needs of special interests groups.
Examples of such critical periods include the Land Act of 1903, the establishment of Dail courts, The Republic of Ireland Act, and others. Accordingly, the consensus perspective, in which the role of the law in the society is in serving the needs of the citizens, can be outlined, for example, through the developments in the criminal law. The latter was also mixed at times with periods, where conflict perspective was applicable, e.g. periods of tension with “national activists, landless peasant agitators, and victims of famine and extreme poverty” (O’Mahony, 2002, p. 5). In general, it can be stated that the further a state moves away from a troubled history, the more the consensus perspective is applicable, and the more the law serves the needs of the citizens, rather than the interests of special groups.
The Role of Court
The courts can be considered as the main instruments of the administration of justice in Ireland I that regard, the derivation from the common law implies that courts are also the basis for “judge-made”, the reliance on “precedents in deciding cases” (Vago, 2008, p. 13). Generally, the legal system in Ireland emphasizes the power of judicial discretion, as all common-law models, although there are areas in which there is no discretion, e.g. mandatory sentencing (O’Mahony, 2002, p. 351). Judicial discretion is exercised through the judicial power given to established Supreme Court, High Court and courts of local and limited jurisdiction. The hierarchy of courts begins with district courts, trying minor criminal offenses, circuit courts, high court, which has full jurisdiction and determining power, and the Supreme Court, which is the court of final appeal. In addition to the ability to exercise judicial discretion, the power for judicial review is also among the factors distinguishing Irish legal system and English common law.
The Legislative System in Ireland
The legislative process in Ireland can be divided into primary and secondary legislation. The primary legislation is related to the acts of the Oireachtas, where approximately 40 acts are passed each year. Secondary legislation, on the other hand, is mostly made by Government Ministers “under the power conferred to them by acts”, through which almost 500 pieces of subordinate legislation pass each year (Whelan, 2005). The legislative process can be seen through making bills and propositions in Dail Eireann, which are voted and revised by the Seanad. If the bill is approved by the Seanad, it becomes enacted as a law (Oireachtas, 2010).
Conclusion
It can be seen that the legal system in Ireland, despite going through slight modification, mostly resembles the traditional common law model. The independence of Ireland and the period of reforms that the country went through allowed a slight transformation of the legal system in Ireland. The role of the law in modern Ireland is applicable to the consensus perspective, in which the law serves the need of the citizens. In that regard, it can be stated that the legal system in Ireland is unique in many aspects, one of which can be seen in maintaining the tradition of judicial review of legislation. Ireland has a long legal history, demonstrates the development of the legal system through various historical periods.
References
Green, M. (2005). The Irish State – Legal System. Ireland-Information. Web.
History of the Law. (2010). The Courts Service of Ireland. Web.
Lantry, M. (1998). CONSTITUTION OF THE IRISH FREE STATE (SAORSTÁT EIREANN) ACT, 1922. CELT online. Web.
O’Mahony, P. (2002). Criminal justice in Ireland. Dublin: Institute of Public Administration. Office of the Houses of the Oireachtas. (2010). Houses of the Oireachtas. Office of the Houses of the Oireachtas. Web.
Sinder, J. (2001). Irish Legal History: An Overview and Guide to the Sources. American Association of Law Libraries. Web.
Vago, S. (2008). Law and society (9th ed.). Upper Saddle River, N.J.: Prentice Hall.
Whelan, D. (2005). Guide to Irish Law. GlobaLex. Web.