Irish Law Research Papers - Academia.edu (original) (raw)

Sunday Times 13 July 2014 In Justine McCarthy's article about Joyce McSharry, who was separated from her mother in the Bethany Home in 1951, the solicitor David Phelan of Hayes & Sons disclaimed knowledge of an irregular 'Adoption... more

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- Irish Studies, Single Mothers, Irish Politics, Protestantism

The development of the doctrine of good faith in common law has faced many challenges. This is because the courts have been reluctant at accepting the role of good faith in common law jurisdictions.Directives such as Unfair Contract Terms, Late Payment in Commercial Transactions and Commercial Agents have forced common law courts to recognise the role of good faith in English and Irish law. This essay, in particular, will consider the doctrine of good faith in commercial agency under Council Directive 86/553/EEC. The Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents imply an obligation that commercial agents must act dutifully and in good faith.

- by Ambar Nicole
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- European Law, Commercial Law, Irish Law, Council of Europe

La Cour européenne des droits de l'homme (CEDH) a décidé qu'il n'y avait « pas de droit fondamental à l'avortement » émanant de la Convention européenne et que l'interdiction de l'avortement par la Constitution irlandaise respectait les dispositions de la Convention européenne des droits de l'homme. Invitée par les requérantes à reconnaître l'existence d'un droit autonome à l'avortement, la Cour a dit très clairement précisé que l'article 8 ne saurait s'interpréter comme consacrant un droit à l'avortement. (§ 214)

- by PUPPINCK Gregor
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- Human Rights, Abortion, Irish Law, Maternal and Child Health
- by Nathan Wheeler
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- Law, Vaccines, Irish Law, Parental Rights

"This 1988 LLM thesis examines law reform, the comparative method, and the combination of these two elements. A broad definition of law reform is adopted, to include law reform by legislators and judges, and proposals for law reform from... more

- by Darius Whelan
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- Law, Comparative Law, Courts, Ireland
- by Arturo Sanchez Sanz
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- Religion, History, Ancient History, Sociology

An examination of the research on Irish cybercriminal law as it exists.

- by Paul Johnstone
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- Law, Criminal Law, Cybercrimes, Computer Security

This article considers the dilemma faced by judges in the famous Ryan v Lennon case, arguing that the 'all-or-nothing' nature of their option - under the system of judicial supremacy - undermined their actual capacity to 'save' democracy from itself. It goes on to make a broader case for a more constrained form of judicial review in the Irish system, considering cases like AG v X, Zappone & Gilligan, and Coughlan v Broadcasting Commission along the way.

- by Tom Hickey
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- Constitutional Law, Legal Theory, Comparative Constitutional Law, Judicial review

In response to the European Directive 2011/36/EU (2011), pressure from national and international non-governmental organisations (NGOs) and coinciding with the recommendations of the US State Departments 2012 Anti-trafficking report, in 2013 Ireland's Criminal Law (Human Trafficking) Bill 2008 was amended to include provision to criminalise instances of forced labour and exploitation, by defining the phenomenon in Irish government statute. This dissertation examines the Irish policy framework to interrogate to what extent the inclusion of the ILO definition within current national policy could potentially aid or hinder the efforts of those dealing with the issue of forced labour, those individuals subjected to it and those who inflict it upon others. By doing so, it simultaneously works to assess the implications of the current legislative policy as a whole for addressing the issue of forced labour in Ireland more generally. Using interview data from key actors in the area, the research highlights that not only does the Irish law have to ensure a comprehensive framework allowing successful prosecution of those responsible for forced labour, but it also needs to address the very real needs of the victims to it: needs such as protection measures, immigration status, restitution, protection from further victimisation and persecution, as well as the basic human rights afforded to every individual. Maybe more importantly, and certainly as a first step proceeding any treatment of victims or perpetrators of forced labour, is the issue of identification. Until this is realised as a major obstacle in the development of the eradication of forced labour, those who are trapped within instances of forced labour and severe exploitation occurring in the Irish State will continue to be so.

Although its precise normative content is famously elusive, the role that is played by the principle of human dignity in international human rights law is relatively clear: it is consistently stated to be the principle from which the human rights of the individual derive. However, in the realm of national constitutional law, the principle can sometimes be used in a rather more haphazard fashion, such that it can be difficult to pin down even its role in the constitutional order, not to mention its normative content. Ireland is a case in point. The Irish Constitution of 1937 was one of the earliest to invoke human dignity as a foundational principle, but case law interpreting and applying that principle has cast dignity in a variety of roles, and as a result has failed to develop in a coherent fashion. This paper will examine the various guises in which human dignity has appeared in Irish constitutional case law,and consider which examples demonstrate the added value that human dignity can bring to constitutional adjudication.

- by Conor O'Mahony
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- Constitutional Law, Irish Constitutional Law, Irish Law, Dignity

Abstract: This article examines the legal evidence on treaty law in early medieval Ireland, focusing on fragments from the lost law text Bretha Cairdi (Treaty Judgements) and the short text Slan n-aitire cairde (The Immunity of a Hostage-Surety in a Treaty). It aims to examine the ways in which jurists faced cross-border violence and to look at how law was used to forge a political alliance in extending legal allowances and duties beyond the frontier, and so permit designated enforcers from both sides to collaborate in the quest for legal satisfaction and social stability.

- by Jaqueline Bemmer
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- Celtic Studies, Legal History, Irish Law
- by Frank W Harris
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- Irish Studies, Early Medieval Ireland, Gaelic Ireland, Irish History

At present, if people with mental disorders appear before the criminal courts in Ireland, unless they are unfit for trial or not guilty by reason of insanity, the system governing their case will be the general one which applies to all criminal cases. In recent decades, a number of other common law jurisdictions have begun to set up mental health courts as a means of diverting some people with mental disorders from the criminal justice system and into more appropriate treatment. This article begins with a review of the background to mental health courts, focusing on the concept of diversion from the criminal justice system and the role of Therapeutic Jurisprudence theory as an inspiration for the establishment of mental health courts. The main features of mental health courts are identified and the features of those in existence in the United States are contrasted with those in Canada and England and Wales. Some of the main arguments against the use of these courts will be discussed, including the contentions that defendants' participation may not be truly voluntary and that their due process rights are not adequately protected. The question of whether a mental health court should be established in Ireland is considered.

- by Darius Whelan
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- Law, Criminal Law, Mental Health Courts, Problem Solving Courts

While climate litigation is on the rise, there is need for legal nuance on the issues negotiated in courts.There is a tendency to adopt a knee-jerk normative position on human rights or separation of powers without appreciating how such doctrines are debated, or the political informants of such debates. Further, climate cases have varied afterlives – they may well influence legal doctrine in general within the jurisdictions where they are decided, and travel transnationally to influence climate cases in other jurisdictions. For this reason, the way decisions are reached deserve our attention more than the decisions themselves.
One of the cases that has received global attention is the Irish Supreme Court judgement of Friends of the Irish Environment v Ireland. The plaintiffs challenged the National Mitigation Plan developed under the Climate Change and Low Carbon Development Act 2015 for non-compliance with constitutional law, international law and human rights. The High Court found for the government, and on leapfrog appeal, the Supreme Court unanimously reversed the decision and quashed the Climate Plan. After the Supreme Court decision, a parliamentary process had been instituted, which led to the 2021 Climate Amendment Act. Both the High Court and Supreme Court judgments sparked critique, with the Supreme Court judgment receiving more favourable commentary owing to its decision on behalf of the plaintiffs.
In this paper, I suggest that notwithstanding the final decisions, the High Court judgement might provide more ammunition for future climate litigation, while the Supreme Court judgement narrows the scope not only of climate-related claims, but also standing of NGOs in rights-based litigation in general. Having said that, the way the Supreme Court reasoned might have been the most effective way to spur climate action in Ireland as it facilitated a constitutional collaboration among political actors. With respect to the transnational sphere of climate litigation, the contribution of the judgement is the intelligibility-specificity property of climate regulation, where such regulation should be both specific enough and clear for the citizenry to follow.

- by Joseph McMillan
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- Heraldry, Irish Law
- by Sean Patrick Donlan and +1
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- Comparative Law, Irish Law, Statutory Interpretation

"Following Dennis Tito's flight to space aboard the Russian Soyuz capsule in 2001, suborbital has become a new form of commercial activity. Fueled by an eager public and decreasing prices, the industry is rapidly expanding. Because the current space law regime was originally designed for governmental exploration, it is inadequate to handle the range of legal challenges emerging from this private commercial activity. This article therefore suggests that the current legal regime is incapable of sustaining the space tourism industry and that there is an urgent need for a new international convention. "

- by Yanal Abul Failat
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- Law, International Law, International Space Law, Irish Law

The right to work has attracted great attention in legal and philosophical circles in recent years in Europe and elsewhere. This paper contributes to discussions concerning the philosophical justification for the right to work, and its legal existence and scope, by providing an Irish perspective. The paper first provides a philosophical justification for the existence of the right to work which is consistent with the Irish Constitutional order through the lens of a republican conception of freedom as non-domination. It then analyses the 'right to earn a livelihood', the right to work in Irish law in detail. I argue that the right to work emerged as a response to dominant trade unions, but has since developed into a residual liberalisation tool for professions and areas of heavily regulated economic activity. I suggest that, in the context of the growing institutionalisation of employment and labour law, the right to earn a livelihood will nonetheless continue to perform this residual role in emerging areas of relevance and dispute.

- by Dáire McCormack-George
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- Constitutional Law, Republicanism, Labour Law, Irish Law

This essay traces the published roots of the components of Irish begrudgery in early Irish literature (Táin Bó Cúailnge and other ancient Irish myths) and Brehon legal tracts (such as the Senchus Mór and The Book of Aicill). First, the power of language in a predominantly oral culture is explored through examples like cursing and the peculiarly Irish type of satirist. A brief explanation of the functioning and history of Brehon law is provided, and the connections between Brehon law, literature and begrudgery are considered. Begrudgery is then tied to Nietzsche's theory of ressentiment as both are distinguished primarily by a concern and involvement with power. While the elimination of Brehon law cannot be linked directly to the rise in begrudgery, the two events emerged from the same historical conditions. It was British colonialism that removed Brehon law from Irish society, just as the long colonial period offered a perfect environment for a sentiment like begrudgery to flourish as a widespread social phenomenon. So, while the apparatuses of begrudgery existed well before the English invasion, and although examples of early begrudgers can be found in ancient Irish literature, it was the colonial period that gave birth to modern Irish begrudgery.

- by Stephen Graf
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- Irish Studies, Irish Literature, Colonialism, British and Irish History

In 2011, Warren Buffett wrote an article in the New York Times entitled "Stop Coddling The Super-Rich" in which he expressed his distaste for the legislative schemes which he argues facilitate the avoidance of tax. The aim of this paper is to trace the origins of tax avoidance from the 1930s to the present day, and to analyse whether or not Mr Buffett's words ring true in the United Kingdom and Ireland,

- by John Mallon Jnr
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- Business, Law, Tax Law, Corporate Law

In Irish constitutional law, popular sovereignty has been interpreted as guaranteeing the people an unfettered power of constitutional amendment. This article argues that the Irish jurisprudence of popular sovereignty appeals interchangeably to two rather disparate and contradictory historical concepts of sovereignty-one which understands the sovereign as a supreme political authority, and another as a more passive, abstract entity that approximates to " constituent power ". Accordingly, it argues that the doctrine of unfettered constitutional amendability relies on an account of sovereignty that is theoretically and historically incoherent.

- by Eoin Daly
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- Constitutional Law, Political Theory, Sovereignty, Comparative Constitutional Law

This article aims to critically analyse the new offence of Coercive Control in Ireland which is designed to combat the prevelence of domestic violence. This is done by comparing the Irish legislation to the equivalent English offence and... more

- by Darragh Sheehy
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- Criminal Law, Criminal Justice, Constitutional Law, Domestic Violence

Articles are subject to full peer-review. Please send abstracts of 250 to 400 words, outlines and expressions of interest for 8.000 to 10.000 words papers, as well as biographic information of 50 to 100 words by 31 January 2016 to the Guest Editor: Dieter Reinisch (dieter.reinisch@eui.eu) and to the General Editor: Fiorenzo Fantaccini (ffantaccini@unifi.it). Successful candidates will be informed in February 2016. The deadline for submission of manuscripts is 1 September 2016. Informal enquiries to the editor about possible paper submissions are welcome and should be addressed to the contacts above. The 7th issue of Studi irlandesi. A Journal of Irish Studies which will be published in late June 2017.

- by Dieter Reinisch and +1
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- Irish Studies, Irish Literature, Resistance (Social), Irish Politics

There is evidently uncertainty in the Superior Courts concerning the interaction between the Immigration Act 2004 and the executive power of the State to operate and regulate residency permission schemes for non-Irish nationals. This article will explore the Superior Courts treatment of S.4 and S.5 of the 2004 Act, contrasting the approach of the High Court with the Supreme Court. While the Supreme Court has not yet definitively ruled on the interaction between the s.4 and s.5 of the Immigration Act 2004 and Ministerial discretion, there have been hints in both Bode v Minister for Justice and Sulaimon v Minister for Justice that these sections do not delimit the extent of said discretion. It will be demonstrated below that these cases suggest that the Supreme Court has adopted the premise that the Minister for Justice has inherent power to consider and determine an application for residency, independent of any statutory scheme. In contrast it appears that the High Court, typified in the recent case of Hussein v Minister for Justice , has taken the view that the arrangements governing entitlement to remain within the State derive from ss.4 and 5 of the Immigration Ac 2004 and thus limit the Ministers discretion to refuse residency permission to non-nationals.

- by Conor Casey
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- Constitutional Law, Legal Theory, Immigration Law, Irish Law

An early draft of a paper that appeared in the Irish Criminal Law Journal on the case of McFarlane v Ireland and the issue of delay in the Irish legal system.

Historians are slaves to the keepers of documents. At best, we can only present a small part of the past and use our skills to interpolate (guess) the missing pieces of the puzzle. This is why history is both frustrating and such fun. A carefully constructed theory can be exploded by a scrap of paper. In Massacre in West Cork I had to rewrite entire chapters after I found the Dunmanway Diary in the Military Archives and the release of Michael O'Donoghue's Bureau of Military History statement. Though unsuccessful in this case, I was seeking information about the 'Activities of named paid informants against Irish Secret Societies 1892 [sic]-1910.The article both outlines the difficulties of research inside the sensitive parts of a state's anatomy and gives hope that the culture of excessive secrecy can eventually be overcome . The views expressed are my own personal observations on the outcome and I interested parties to comment o this draft.

- by Barry Keane
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- History, Irish Studies, Irish Politics, Northern Irish Politics

This paper concentrates on fitness for trial in the District Court and deals with the topic under two main headings: firstly, how does the District Court determine fitness for trial and secondly, the consequences of a finding of unfitness for trial. Ireland's Criminal Law (Insanity) Act 2006 introduced significant reforms to this area of law, and the implications for the District Court are reviewed.

- by Darius Whelan
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- Law, Criminal Law, Mental health law, Mental Health and the Law

Local authorities exercise a wide range of powers that can have a significant effect on the fundamental and constitutional rights of individuals. The traditional means by which a citizen can challenge a local authority decision is through the courts via judicial review. However, local government in Ireland has changed in recent year with the advent of New Public Management and increasingly adopts a corporate approach. These developments in how local authorities operate have not, however, been matched by developments in administrative law. The traditional, hierarchical conception of law, with the courts at the centre, cannot easily accommodate these new ways of working, which poses the question-'does judicial review practically control the actions of local authorities for the average citizen by giving them recourse to justice?' This paper explores that question. It examines how judicial review operates in practice, highlighting some of the barriers faced by individuals in getting access to justice and explores the question of what impact judicial review actually has on local authorities. It concludes by looking at some of the alternatives that might be considered to judicial review as a mechanism by which members of the public can challenge decisions of local authorities.

- by Diarmaid O'Sullivan
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- Judicial review, Irish Law, Public Administration and Policy