PRECEDENT IN THE IRISH SUPREME COURT
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02216.x |
| Published date | 01 September 1962 |
| Date | 01 September 1962 |
| Author | SEAMUS HENCHY |
PRECEDENT
IN
THE IRlISH SUPREME
COURT
TEE
emergence in modern times as self-governing entities of many
peoples who formerly lived under British rule has brought into
prominence the problems of the courts in these new states in
harmonising their written constitutions with the traditional princi-
ples of the common law. There is,
on
the one hand, the attitude to
be
adopted by the new courts in dealing with the case law evolved
prior
to
independence and,
on
the other, the treatment to be
accorded by the new courts to their
own
decisions. While the
courts
in
each of the new states are likely to approach these prob-
lems
in
their
own
way, the manner in which the court of final
appeal in the Republic of Ireland has dealt with these matters
throws some light
on
the type of seachange the common law
is
likely
to
undergo
in
the twentieth century.
The introduction of the common law into Ireland was a laborious
process which commenced in the twelfth century.
It
was not until
the sixteenth century that the King’s writ ran throughout the
country, and even from then
on
the hostility of sections of the
population to alien rule continued to erupt at intervals. During
the seventeenth and eighteenth centuries British rule in Ireland
alternated between harsh repression and the permission of a sub-
stantial degree of self-government.
A
drastic and ha1 solution was
sought by the Act of Union,
1800,
which decreed the total absorp-
tion of Ireland into the United Kingdom of Great Britain and
Ireland.
All
legislation was henceforth to emanate from West-
minster and the House of Lords was to be the court of fmal appeal.
This integration, however, proved unpalatable. Throughout the
nineteenth century and into the first two decades of the twentieth
century the movements for either Home Rule or complete
republicanism dominated Anglo-Irish relations. Internal British
politics became bedevilled by the Irish question, while in Ireland
conditions degenerated
into
rebellion and guerrilla warfare. Eventu-
ally,
in
1921,
a treaty was signed which resulted in the establishment
in twenty-six of the thirty-two counties
of
Ireland of the Irish Free
State, a state with Dominion status, based
on
a Constitution which
came into force
on
December
6,
1022.
In
1087
that Constitution
was supplanted by the present one, which was enacted by popular
vote, and in
1949
the state became officially designated the Republic
of Ireland and ceased to be a member of the Commonwealth.
The Constitution of
1022
provided for the establishment by
legislation of courts of justice, but preserved the existing courts
until the new courts should have been established by the Oireachtas,
or
parliament.
A
government commission was set up to advise
on
544
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