Legal System in Ireland - Assignment

Added on - 28 May 2020

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Running head: IRISH LEGAL SYSTEMIrish Legal SystemName of the StudentName of the UniversityAuthor Note
1IRISH LEGAL SYSTEMQuestion 1Doctrine of precedentThe law of Ireland is based on common law, statutes and derives its principles from theConstitution. The constitution of Ireland is called Bunreacht na hEireann. The Constitution ofIreland is written and the form of governance in Ireland is democracy. The word precedent isalso known asstare decisisin legal parlance by virtue of which the previous judgments of thecourts are binding on future courts (O’Neill 2016). The judicial decisions are binding on certaincourts. The powers rest with the Court to invalidate any legislation which is unconstitutional andviolates the basic tenets of the Constitution. The Irish legal system has a very flexible take onprecedents and applies them prospectively. By virtue of being a country following common lawprinciples, the judiciary is bound to follow precedents (Morgan 2017). The legal system allowsthat case laws can be a valid source of precedence and that other courts are bound by previousjudgments. The termstare decisismeans to stand by the decision, which is, the lower courts haveto follow the principle of law that has been enforced by an apex court (Mhuirthile, Sullivan andThornton 2016). There are two parts to a court decision- theratio decidendiand theobiterdictum, out of which the ratio decidendi is binding (Delgado and Stefancic 2017). There hasalways been difficulty in ascertaining the enforceability of a ratio decidendi. Ratio decidendi isthe reason or the rationale behind reaching a conclusion and the principle of reasoning is bindingon the lower courts to follow. The decisions of the higher courts are binding on the lower courtand this is enshrined in article 34.4 of the Constitution. There are landmark judgments thatbuttress the provision of precedence as found in article 34.4. In understanding the principle ofratio decidendi it is important to understand the principle in the light of hierarchy of courtsbecause the orders of the lower courts are not enforceable on higher courts but the principle
2IRISH LEGAL SYSTEMbehind the order has a persuasive value (Steiner 2017). The dissenting judgments only have apersuasive value and they are not binding.Irish Shell v Elm Motors[1984] I.R 200 is a landmarkjudgment that upheld the significance of precedence. Costello J held that the lower courts are notbound to follow the decisions and judgments of the higher courts but if they are dissenting andnot following the orders, there should be valid ground for rejecting the orders of the highercourts (Dahlquist 2016). This principle held by Costello was rejected by McCarthy wherein heheld that the Irish Courts were not a continuation of British Courts but were merely following theguidelines and legal framework. The same logic was held in the case of Sparebank v Beirne (No2) [1989] ILRM 57. The Court held that judgments prior to 1992 were binding on the courtunless the Supreme Court had valid reasons to move away from them and reject their principles.Question 2The Legal Aid Board deals with giving aid and advice to people related to representationin court or legal advice by solicitors. The aid is given to people who satisfy the Board that theircase has merit and that they do not have the finances to support themselves (MacKinnon 2017).Under Irish law every citizen is protected by constitutional rights and in cases when aconstitutional remedy against any wrong applies to a person and that person does not have thefinancial backing to pay for legal representation, the State is duty bound to provide legal help byway of legal representation (Aleksandrovet al.2015). This was done in keeping track with theobservation of the Supreme Court where it was decided that a defendant shall be put on equalfooting with the prosecution and his rights shall not be infringed because he does not have thefinancial means to represent himself. This rule shall be applied only when there lies aconstitutional remedy and it is not an absolute constitutional right. The Criminal legal aid is freeand is provided by the Criminal Justice (Legal Aid) Act 1962 (Doran and Leonard 2016). The
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