Sources of Law

GM228

Was thinking of sources of law and trying to put them into a sort of hierarchical order.

Usually it's regarded as something like:-

Constitution
Legislative
Common Law/Case Law
EU Law

But surely it should be something like this:-

Constitution
Common Law/Case Law
Legislative/EU Law/ECJ Case Law
ECHR Case Law
Historic/Custom Law ?
Natural Law ?


I would personally put Common Law/Case Law higher than legislation as although legislation can revoke certain common law provisions for example common law can ultimeately shape and overrule legislation.

I would also put EU law and legislation on an equal footing as most EU law leads to the implementation of legislation and infact can over ride national legislation in certain matters in our courts under the principles of Direct Effect or even Vertical Direct Effect for the likes of EU Directives, so in effect could EU law actually be considered a higher form of law than national legislation.

Next and more importantly does Natural Law, Historical/Custom Law (Brehon etc), Equity Law and International Law actually have any place in the hierarchy or even ICJ and ICC judgements? Not certain about the others but surely International Law technically does not actually have any place due to our Dualist state, if it did it would be simply via legislation and how International Law is implemented.

Mr. Incognito

1. EU
2. constitution
3. legislation / Case law

A first year law student learns this.

GM228

Mr. Incognito wrote: »

1. EU
2. constitution
3. legislation / Case law

A first year law student learns this.

Indeed it is 1st year stuff but never once have I seen EU law shown as the primary source of law in any course/degree.

It's usually taught as:-

Constitution
Legislative
Common Law/Case Law
EU Law

But I'm interested in an accurate hierarchy taking into account all sources of law and how they can be ranked especially taking into account their application.

Jawgap

GM228 wrote: »

Indeed it is 1st year stuff but never once have I seen EU law shown as the primary source of law in any course/degree.

It's usually taught as:-

Constitution
Legislative
Common Law/Case Law
EU Law

But I'm interested in an accurate hierarchy taking into account all sources of law and how they can be ranked especially taking into account their application.

The Precedence Principle puts EU law at the top of the tree - IIRC, we're required to interpret national laws in a way that is consistent with EU law (where an issue of EU competency is being dealt with, but that's most things these days).

GM228

Jawgap wrote: »

The Precedence Principle puts EU law at the top of the tree - IIRC, we're required to interpret national laws in a way that is consistent with EU law (where an issue of EU competency is being dealt with, but that's most things these days).

The Precedence Principle basically only means that national law can't conflict with EU law, that where there is a conflict that EU law must be used rather than national law, it would only apply where a conflict arises so I'm not sure if that is enough to put EU law at the top spot above the constitution, but it is why I said EU law and national law should be at least equal and that EU law would possibly be above national law - also remember most EU laws have to be adjusted to respect national constituions.

Jawgap

GM228 wrote: »

The Precedence Principle basically only means that national law can't conflict with EU law, that where there is a conflict that EU law must be used rather than national law, it would only apply where a conflict arises so I'm not sure if that is enough to put EU law at the top spot above the constitution, but it is why I said EU law and national law should be at least equal and that EU law would possibly be above national law - also remember most EU laws have to be adjusted to respect national constituions.

Well it's a bit more subtle than that......it's not that a domestic law cannot conflict with an EU law, it places a duty on MSs not to apply a national rule which contradicts to European law.....

Precedence of European law

According to the precedence principle, European law is superior to the national laws of Member States. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law.
The precedence principle guarantees the superiority of European law over national laws. It is a fundamental principle of European law. As with the direct effect principle, it is not inscribed in the Treaties, but has been enshrined by the Court of Justice of the European Union (CJEU).

The precedence of European law over national laws is absolute [their emphasis]. Therefore, it applies to all European acts with a binding force, whether emanating from primary or secondary legislation.

In addition, all national acts are subject to this principle, irrespective of their nature: acts, regulations, decisions, ordinances, circulars, etc), irrespective of whether they are issued by the executive or legislative powers of a Member State. The judiciary is also subject to the precedence principle. Member State case-law should also respect EU case-law.

The Court of Justice has ruled that national constitutions should also be subject to the precedence principle. It is therefore a matter for national judges not to apply the provisions of a constitution which contradict European law.

GM228

Jawgap wrote: »

Well it's a bit more subtle than that......it's not that a domestic law cannot conflict with an EU law, it places a duty on MSs not to apply a national rule which contradicts to European law.....

Precedence of European law

Regarding constitutions I believe that both Germany and Ireland have had an issue with the Precedence Principle, if memory serves me correctly both countries have ruled that the principle does not apply to their constitutions.

SPUC vs Grogan [1989] IR 753 comes to mind in which the Supreme Court ruled that it didn't apply to our constitution as the CJEU didn't have the authority to make such a decision. I can't remember the specifics of the case but I believe the court held the constitution granted the EU the rights to govern therefore Irish courts had the power to decide how far that power could stretch. I don't believe the CJEU ever had an issue with the Irish decision (or at least it's never been referred back to them) so I'd assume it's a valid ruling.

Mr. Incognito

GM228 wrote: »

Indeed it is 1st year stuff but never once have I seen EU law shown as the primary source of law in any course/degree.

It's usually taught as:-

Constitution
Legislative
Common Law/Case Law
EU Law

Get a better / course degree.

Anyone teaching it in that order is wrong.

Legislatation and Case Law are on equal footing as the Courts job is to interpret and apply legislation.