Sources of Irish Law

lopppy

Preparing an essay to answer an exam question on the written and unwritten sources of Irish law..


Am I correct in saying that the Constitution, national legislation and EU legislation are the written sources while judicial precedent is an unwritten source?

Croc

lopppy wrote: »

Preparing an essay to answer an exam question on the written and unwritten sources of Irish law..


Am I correct in saying that the Constitution, national legislation and EU legislation are the written sources while judicial precedent is an unwritten source?

Common Law

benmad

try the straw man

lopppy

Erm, anyone else?!

jblack

lopppy wrote: »

Preparing an essay to answer an exam question on the written and unwritten sources of Irish law..


Am I correct in saying that the Constitution, national legislation and EU legislation are the written sources while judicial precedent is an unwritten source?

Primary Sources

Binding:

EU
Constitution. (the only three democratic countries in the world without a written constitutional document are England&Wales, Israel and New Zealand.
Primary Legislation
Delegated legislation (statutory instruments etc. rule making but not by the Oireachtas)
Caselaw - as we are a common law jurisdiction - looking at stare decisis of cases.

then Secondary (informative where there is no primary source).

Caselaw outside Ireland - heavy reliance to a degree on English and Welsh (not UK) law. Then other commonwealth jurisdiction and then further afield.

Textbooks. Not binding but can be persuasive. Interestingly the old rule that the author must be dead was abolished in Berstein v Skyviews.

Reports of Oireachtas proceedings that lead to enactment of legslation (see pepper v Hart)

Custom


That should get you started.

Carawaystick

Has Scotland a written constitution? did you mean the ukgbnI?

Also the secret rulings of foreign quangos like the ecb may need to be considered

Hunchback

primary sources: common law, EU law, legislation, the constitution
secondary sources: customary law, canon law, international law, intellectual writings

nuac

CKonetheonlyone wrote: »

primary sources: common law, EU law, legislation, the constitution
secondary sources: customary law, canon law, international law, intellectual writings

CK ? customary law? perhaps if you can prove a particular custom in a specific area of law?

canon law? should only apply within the RC church

intellectual writings - depends on the writer. to be used with caution.

you should include case law.

jblack

Carawaystick wrote: »

did you mean the ukgbnI?

A

No.

England Wales are distinct from Scotland, NI and other territories of UK.

In fact Scottish law is a heterogeneous mix of common law and code.

Hunchback

nuac wrote: »

CK ? customary law? perhaps if you can prove a particular custom in a specific area of law?

canon law? should only apply within the RC church

intellectual writings - depends on the writer. to be used with caution.

you should include case law.

sorry, i should have stated i'm only a novice at his, a first year myself.
also, i was taught for the purposes of an exam question that the writings of, for example, Blackstone were sometimes referred to in the absence of case law, and whilst this is to be used with caution still merit a mention?
but yes, custom can be a secondary source of law, in regard to a consistant and long standing practice in relation to a specific activity in a specific location, for example fishing rights of a local community at a certain time of year.
canon law does apply only in the RC church, but has moulded many aspects of family law and as such warrants mention ( or so i have been taught )
and case law, yes i forgot that one

jblack

CKonetheonlyone wrote: »

but yes, custom can be a secondary source of law, in regard to a consistant and long standing practice in relation to a specific activity in a specific location, for example fishing rights of a local community at a certain time of year.

By way of bye-law (delegated legislation) and prescription (easments etc) perhaps.

Can you give an example of custom alone giving rise to a positive rule of law not captured by statute or precedent?

nuac

Blackstone OK, but not every intellectual writing in every legal magazine can be relied on as an authority.

Drop the Canon Law - Family law is complicated enough already - also to study it properly you need Latin.

Good luck with your studies. Keep it simple.

Hunchback

jblack wrote: »

By way of bye-law (delegated legislation) and prescription (easments etc) perhaps.

Can you give an example of custom alone giving rise to a positive rule of law not captured by statute or precedent?

sorry, i am at a loss i have reviewed the notes given to me by my lecturer and it goes into no more detail than merely to mention custom, in the level of detail i previously laid out, and also mentions canon law, again for the reasons i laid out.
no mention of either in byrne and mccutcheon though (core text-book for the subject)

sorry op for temporarily derailing your thread :cool:

jblack

Never apologise for contributing.

It's good to have some proper discussion rather than scrolling through threads about FE-1s or "my landlord wont fix the toilet - can I please have some free advice".

nuac

I am loathe to criticise your lecturer, but talking to First Years about Canon Law is liable to confuse.

Don't get hung up on notes - read as widely as you can and make your own notes from what you read.

There was a book c 20 years ago - Glanville Williams Learning the Law. I remember getting it for my daughter who was starting lectures at the time. Well worth reading.

RandolphEsq

A judge's personal lifestyle habits will also influence how he decides to interpret and apply the law.