01.Sources_of_law.pdf

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System that recognises case law as
capable of setting legal precedent
Decisions made by judges on new areas
of law effectively become law (case law)
Case law considered nearly as important
as legislation, but in case of conflict,
legislation prevails
Case law created when existing law is silent
on the matter or where the legislation is
unclear/ambiguous
Decisions have two
parts
Ratio dicidendi
- reason/rational for deciding
(the part that forms the precedent)
Obiter dictum
- something said by the way
Consistency
: the same principle are applied resulting in a set of
consistent decisions, ensuring a just legal system
Case law
(
common law
legal system
)
Advantages
Certainty
: gives people an idea of how their issues will likely be
resolved
Efficiency
: enables judges to make new laws in reaction to
circumstances, much faster than having to wait for the legislature
Inflexibility
: unnecessarily forces courts to follow previous
decisions
Disadvantages
Case law must be applied by lower
courts in future dates:
doctrine of
binding precedent
Enacted by the Oireachtas & implemented in the
form of Acts, given effect once it has been approved
by the Dail, Seanad and signed by the President
Unfairness
: precedent created may be unfair but must be
followed until a higher court overrules it
Unclear
: binding decisions may be unclear/ambiguous
Vast numbers
: many decisions become case law and there is
possibility of two conflicting precedents
Public Acts
(
matters affecting
general public
)
Private Acts
(
relate to particular
individuals/institutions
)
Sources
of law
Primary
Legislation
The Oireachtas has the power to delegate creation of legislation to
another body (e.g. government minister, public/local body)
Does not have to be approved by the Dail, but can be annulled by it
Orders
: instructions, e.g. an order adding a prohibited substance
to the Misuse of Drugs Act 1997
Rules
: establishing guidelines in relation to practice and
procedure, e.g. the Rules of Superior Courts
Can be classified as
Principal Acts
: create new laws, e.g.
Companies Act 2014
Amending Acts
: amend/rationalise existing laws, e.g.
Misuse of Drugs Amendment Act 2015
Consolidation Act
bring together provisions
previously contained in a number of different acts, e.g.
The Safety, Health and Welfare at Work Act 2005
Codifying Acts
: give statutory
expression to common law rules,
e.g.
Defamation Act 2009
Classification based
on the function
Enables a large volume of
complex law to exist in one
area of law
Lack of publicity surrounding
the implementation of the
delegated legislation - public
can remain unaware of
changes in law
Secondary/
Delegated
Legislation
Forms of secondary
legislation
Statutory Instruments
: laws enacted to give effect to
a provision contained in the principal Act, e.g. the
smoking ban introduced to give effect to the provisions
of the Public Health (Tobacco) Act 2002
Bye-laws
: enacted by local authorities/independent
subordinate bodies, have limited local jurisdiction, often
govern membership or permissible behaviour
Disadvantages
Allows experts in the area of
the legislation to be involved
in making legislation
Advantages
Enables legislation to be
passed more quickly
Regulations
: law explaining provisions contained in
legislation, e.g. Maternity Protection (Protection of
Mothers who are Breastfeeding) Regulations 2004 which
explain legal obligations on employers established in the
Maternity Protection (Amendment) Act 2004

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