Many of the most important principles of law are common law principles. Contract law, restitution, the law of civil wrongs, personal property are almost entirely common-law based.
In higher court cases, where points of law are contested and argued, the Courts may focus on a handful of cases that are relevant to the particular situation. In these cases, previous Court decisions and reasoned judgments are reviewed.
Where a decision of a higher or equivalent Court is available on the exact point of principle, it is binding and should be applied. However, in many cases, even where the facts appear similar to previous cases, there may be some element of discretion as to what facts the Judges find to be relevant and accordingly apply. Matters of interpretation arise in relation to the application of the law to the facts.
In the majority of cases, no new precedents or law is established. In practice, the overwhelming majority of cases before the High Court do not involve new points of law. They involve the application of established principles to the facts.
In practice, the Courts do not look to justify the existence of the basic principles of law and common law in cases on each occasion where they are applied. The Courts take judicial notice of the basic principles of law which are accepted without argument.
The rules of equity were originally more flexible than common law rules. Equity developed as a buffer to the strictness of the common law courts. However, over time the rules of precedent and judicial practice in equitable cases became similar to the principles and methods in common law cases.
Up until 1877, there were separate common law and equitable Courts in England and Ireland. There were separate sets of Law Reports and precedents dealing with the common law and equitable sides of the Courts.
However, the broad legal principles of reasoning and building on existing cases and principles applied. In 1873 the English common law and equity Courts were merged and the same happened in Ireland in 1877.
In some areas, common law principles have been reflected and consolidated in a Statute. This has recently occurred in the area of land law where many common law principles together with many older Statutes were updated, modernised and restated in a single Statute.
A number of very important commercial law areas were consolidated into co-defined Statutes at the end of the 19th century. The Sale of Goods Act, Partnership Act, Bills of Exchange Act and Marine Insurance Act largely stated common law principle.
Courts interpret legislation in the context of disputes in much the same way as they interpret common law principles as reflected in existing cases. In this way, the Court’s interpretation of particular Statutes itself becomes a precedent interpretation of that law.
Classic Legal Texts
Although common law theoretically rests on hundreds and thousands of legal precedents, in practice many of the basic principles have been well stated in legal texts running back over a number of centuries.
One of the earliest authoritative writings on the common law was Blackstone\’s Laws of England. This four-volume set was famously carried by migrants to the New World and was very influential in the early establishment of common law in the present-day United States and Canada.
Many of the basic principles of law as carried to the United States in the 17th and 18th centuries were so well established that they laid the basis of almost identical common law principles in England, Ireland and most of North America.
There has been significant reform in relation to many archaic aspects of the law and Court procedure. However many of the basic principles, particularly those relevant to business, are of very old vintage throughout the common law and English speaking world.
Influence of Texts
The influence of leading texts is an important source of consolidating and restating common law principles. In England and Wales, certain textbooks in particular areas have achieved pre-eminence as the leading of works on their particular field. Some textbooks are aimed at law students words whereas others are practitioners textbooks used by solicitors and in particular barristers in leading cases.
Although practitioners and established legal texts are in practice a key source of law, the Courts are reluctant to cite and quote them as direct authority. In formal terms, the underlying case law and principle must rest where necessary on English and where available Irish case law.
Practitioner and Students Texts
The leading practitioner textbooks are updated very frequently to reflect the incremental changes, modifications or extended applications of legal principles that have occurred since the previous edition or supplement.
The common law library in the UK publishes many of the leading textbooks in particular areas. They include the following:
- Chitty on Contracts;
- Clerk and Lindsell on Tort;
- Lindsay on Partnership;
- Bowstead on Agency;.
- Gately on Libel;
- Charlesworth and Percy on Negligence;
- Goff and Jones on Restitution.
In addition to the common law areas, there are leading established textbooks on statutorily based areas including:
- Palmer on Company law;
- Copinger and Skone James on Copyright;
- Kerly on Trademarks
In addition to the practitioners’ texts, a number of leading students’ texts have developed over the principal legal areas. Forty years ago there were very few comprehensive texts on Irish law. UK texts were in practice and continue to be used with appropriate modifications and allowance made for differences in Irish Statutes, the influence of the Constitution and particular instances where Irish case law varied from the UK principles.
Over the last 40 years, the Irish legal publication position has changed radically so that there are now some 300 to 400 published legal works available. There is not the same distinction between practitioners’ texts and students’ texts, as is found in the larger UK markets.
In most of the key areas, there are now at least one and, in most cases, several leading textbooks. The textbooks in many of the leading areas have been updated from time to time to reflect statute and case law changes.
The Irish textbooks may set out a common law position, but as reflected in the Irish cases. In many cases, the difference between England and Wales and Irish common law is very small.
Influence of the Irish Constitution
In many cases, the Irish precedents follow the English precedents. However, the adoption of a written Constitution in 1922 and in particular 1937 together with its strong human rights principles and the principles of judicial review of laws have led to significant differences in some cases between English and Irish common law.
Irish constitutional law is an area which has no parallel in England and Wales. The Irish courts have in some cases looked at US constitutional law in applying the human rights provisions. They have also looked at the European Convention on Human Rights and the body of law that has grown up around its interpretation emanating from the European Court of Human Rights and other sources.
The Constitution has had a significant effect in the law dealing with the administration, for example, in relation to licensing, administrative decisions affecting the citizen and so on. The influence of the Constitution and fair procedures has led to a similar but distinct body of law and principles to that applying in England and Wales.
Irish Common Law in Areas I
Irish Contract law principles have tended to follow England and Wales law very closely. Many of the key principles of contract law may be illustrated in Irish cases. However, the differences between England and Wales common law are minimal and the influence of England and Wales case law is very significant.
In the early of civil wrongs, the Constitution has had some impact. In particular, the rights-based aspects of the Constitution has been invoked in some cases to protect various rights and interests that are protected by the law of civil wrong.
In some cases, Irish Courts have allowed for new civil wrongs where necessary to protect constitutional rights. The extent to which this occurs is more limited than first appeared possible.
The laws on restitution in Ireland show some divergence with those in England and Wales. Much of the difference derives from a greater willingness on the Irish Courts’ part dating back over 150 years to allow equitable principles to prevail in respect of harsh bargains and unfair dealing.
Irish Common Law in Areas II
Irish property law diverged radically from England and Wales properly law in 1925. Many of the basic principles were reformed and modified in England Wales in 1925. A good deal of the recent 2009 landlord forms reflect principles of the 1925 legislation although modified and modernised to suit the Irish context.
In many areas, the influence of England and Wales legal precedents on property law remain significant. At certain points for both historical and Statute reasons the Irish common law is different and the English precedents are of no avail.
The law of trust was similarly reformed in England and Wales in 1925. The broad principles of law as reflected in England and Wales would apply and English transferee cases would be significant precedents. However, as with land law, some of the fundamental principles were reformed in the 1920s. As with land law England and Wales cases and precedents are often relevant but in many cases must be considered in the context of the England and Wales law reforms.
Irish Statute Law and UK Statute Law I
Many areas of law are based on Statutes and the interpretation of Statutes as reflected in cases. In some of the key commercial areas, the basic Statutes in England and Wales are in fact the same Statutes passed by the former parliament of the United Kingdom of Great Britain and Ireland. This includes the following important Acts:
- The Sale of Goods Act.
- Partnership Act.
- Bill of Sales Act.
- Bill of Exchanges Act.
- Marine Insurance Act.
Although the legislation has been amended differently in each jurisdiction many of the key principles remain. Therefore, in England and Wales precedents and cases on interpretation of the legislation are of key importance.
Irish Statute Law and UK Statute Law II
In other areas, the present Irish legislation is A direct successor of common United Kingdom legislation shared with England and Wales. In other cases of the legislation Irish legislation was influenced by United Kingdom legislation or both are based on common European Union legislation. Accordingly many of the Statutes in the following areas contain either identical wording or are a selection of similar principles in respect to legislation:
- Companies Act.
- Copyright Act.
- Trademark Act.
- Patent Act.
For the above reasons, the England and Wales cases on the interpretation of this legislation are influential in Ireland.
The leading Irish textbooks include the following:
- Property Law – Wiley and Lyall.
- Civil Wrongs – McMahon and Binchy
- Contract Law – McDermott and Clark.
- Company Law – Keane, Courtney.
- Constitutional Law – Casey, Kelly, Ford
- Administrative Law – Hogan and Morgan
- Partnership Law – Twomey.
In addition to general texts on major areas, there are numerous textbooks on smaller subcategories of law. These have sought to review and apply the Irish case laws to the areas concerned.
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