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the nature of the courts to be set up under the Constitution. The recommendations of this commission resulted in the passing of the

Act, 1924, which provided the basis for the jurisdiction of all courts in the Republic of Ireland. It is no small tribute to the adaptability and acceptability of the common law that no sharp break was made with the pre-existing system.

It was provided by Article 73 of the Constitution of 1922 that, subject to that Constitution and to the extent to which they were not inconsistent therewith, " the laws in force in the Irish Free State (Saorstat Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until

the same or any of them shall have been repealed or amended by enactment of the Oireachtas." A limited and literal construction

of this Article would have interpreted " the laws " carried over

courts have treated the Article as having the effect of carrying over so much of the statute and non-statute law as was not repugnant to the Constitution. " I cannot believe," said Johnston J. in

Performing Rights Society v. Bray U.D.C.,2 "that this great constitutional change brought with it, or was intended to bring with it, a juristic vacuum in any department of national activity.

On the contrary it is plain beyond controversy that the Constitution is based upon the assumption of the existence in the Free State of

a fully developed body of law, regulating all rights and duties within that territory."

When the Supreme Court was set up by the Courts of Justice Act, 1924, there was transferred to it the jurisdiction which at the date of the commencement of that Act was vested in or capable of being exercised by the Irish Court of Appeal or any judges or judge thereof, and it had been provided by Article 66 of the Constitution of 1922 that, save for a right of appeal by special leave to the Judicial Committee of the Privy Council, decisions of the Supreme Court were to be final and conclusive and not subject to review in any other court. This right of appeal was abolished by the Constitution (Amendment No. 22) Act, 1933. Article 50 of the present Constitution, which came into operation on December 29, 1937, provided that, " subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann immediately prior to the date of coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or

1 For conflicting decisions of the American courts as to whether the expression

"the laws of a state " in the Judiciary Act, U.S. St. 1789, c. 20, ? 34. means only the statutes of a state, see Gray, Nature and Sources of Law, 2nd ed.,

amended by enactment of the Oireachtas." The position at present, therefore, is that the statutes which were in force in the territory now within the jurisdiction of the Republic of Ireland on December 6, 1922 (i.e., the date of the coming into operation of the Constitution of 1922), are in full force and effect, save in so far as they have been affected by legislation passed since 1922 or become unconstitutional; and the Supreme Court is the court of final appeal on the question as to whether they have or have not become unconstitutional or been affected by statute law. Such statutes would include

both statutes of pre-Union Irish parliaments and statutes applicable to Ireland which were passed by English parliaments.

The provision that the decisions of the Supreme Court shall In all cases be final and conclusive leaves to that court the last word

as to what non-statutory law was carried over by the 1922 Constitution and as to whether such law is still valid having regard to the provisions of the present Constitution. This involves an initial determination as to what judicial decisions were " laws in force " on December 6, 1922, in the territory now within the jurisdiction of the Republic of Ireland. Article 8 of the Act of Union, 1800, provided that all appeals from the decisions of Irish courts should be finally decided by the House of Lords of the United Kingdom, and the House of Lords remained the court of final appeal for Ireland up to the coming into operation of the 1922 Constitution on December 6, 1922. The Judicature Act (Ireland), 1877, abolished the courts of Common Pleas, Queen's Bench and Exchequer and transferred their jurisdiction to the Supreme Court of Judicature, consisting of a High Court of Justice and a Court of Appeal. By section 88 of the Government of Ireland Act, 1920, the Supreme Court of Judicature in Ireland was abolished, and there were established in its place the Supreme Court of Judicature of Southern Ireland, the Supreme Court of Judicature of Northern Ireland, and

a court having appellate jurisdiction throughout the whole of Ireland called the High Court of Appeal for Ireland. By section 39, the Supreme Court of Judicature of Southern Ireland was to consist of two divisions, one of which, under the name of the High Court of Justice in Southern Ireland, should, in Southern Ireland, have and exercise all such jurisdiction as was then exercised by the High Court of Justice in Ireland and by the judges of that court, and the other of which, under the name of the Court of Appeal in Southern Ireland, should, in Southern Ireland, have and exercise

all such jurisdiction as was then exercised by the Court of Appeal in Ireland. The Government of Ireland Act, 1920, in so far as it

related to the Courts of Judicature, came into force in Southern Ireland on October 1, 1921, by virtue of an Order in Council dated

September 27, 1921. Section 1 (1) of the Irish Free State (Conse- quential Provisions) Act, 1922, which received the Royal Assent on December 5, 1922, provided that, " subject to the provisions of the First Schedule to this Act, the Government of Ireland Act,

question as to their repugnancy to the Constitution, decisions of the House of Lords between 1800 and 1922 are binding on the Supreme Court. In Exham v. Beamish 9 Gavan Duffy J., as he then was, said: " As a matter of practice, we constantly refer to judgments in the English courts and such judgments, as every lawyer will recognise, have often proved to be of great service to us; but let us be clear. In my opinion, when Saorstat Eireann, and afterwards Eire, continued the laws in force, they did not make binding on their courts anything short of law. In my opinion, judicial decisions in Ireland before the Treaty, and English decisions which were followed here, are binding upon this court only when they represent a law so well settled or pronounced by so weighty a

juristic authority that they may fairly be regarded, in a system built up upon the principle of stare decisis, as having become established as part of the law of the land before the Treaty; and to bind, they must, of course, not be inconsistent with the Constitu-

striking change effected by the present Constitution is the break with the positivist character of the common law which had been

developed in comparatively modern times. It was but a corollary of juridical positivism that the House of Lords, as the court of final appeal, should, in 1898 in London Street Tramways v. London County Council,'3 decide that it was bound by its previous decisions, and ever since hold that any of its decisions should, unless given per incuriam, be treated as binding law, be it ever so erroneous or unjust, until an omnipotent legislature should think fit to change it. The Irish Constitution rejects such a basis for law. Its Preamble makes clear that the Constitution and the laws which owe their

force to the Constitution derive, under God, from the people and are directed to the promotion of the common good. If a judicial decision rejects the divine law or has not as its object the common

good, it has not the character of law. This idea is no strange addition to the common law; it is as old as Coke. Sir William Black-

stone writes: " For it is an established rule to abide by former

precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver

with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain,

and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from,

according to his private sentiments, he being sworn to determine,

not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a

new law, but to maintain and expound the old one. Yet this rule admits of exceptions where the former determination is most

evidently contrary to reason; much more if it be clearly contrary to the divine law. But in such cases the subsequent judges do not

pretend to make a new law, but to vindicate the old from misrepre- sentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad

law, but that it was not law; that is, that it is not the established

custom of the realm, as has been erroneously determined." 14 Black- stone's statement in this passage that judges do not make law and

that their decisions are only evidence of the pre-existing customary law is but a fiction to hide the fact that judges occasionally do make law, but his views on the invalidity of a bad precedent stem from

a deep-seated tradition of the common law. The judicial function becomes an empty formalism when a judge, on the grounds that he is bound by a previous decision of the same court, opens his judg- ment with the following words: " I am unable to adduce any

reason to show that the decision which I am about to pronounce is right." 15 It would seem to be even more at variance with reason

15Buckley L.J. in Olympia Oil t Cake Co. Ltd. v. Produce Brokers Ltd. (1915) 112 L.T. 744 at p. 750. Commentaries,

for the Supreme Court to consider itself bound to acccpt auto- matically as law decisions of the House of Lords which rest on a conception of law different from that enshrined in the Constitution. As Murnaghan J. said in Tilson's case, " the archaic law of England rapidly disintegrating under modern conditions need not be a guide for the fundamental principles of a modern state.

a proper method of construing a new constitution of a modern state to make an approach in the light of legal survivals of an earlier law." 16

The Judicature Act (Ireland), 1877, allowed appeals from decisions of the Court of Appeal of the Supreme Court of Judicature in Ireland to the House of Lords. Consequently, decisions of the House of Lords in pari materia were binding on the Court of Appeal. At the date of coming into operation of the 1922 Constitution such decisions of the House of Lords might amount to res judicatae between the parties, but it does not follow of necessity that they were " laws in force " on that date. Various decisions

were given by the House of Lords in the early part of the nineteenth century which the House later declared not to have been the law.

Lord Brougham L.C. in 1840 said that the judges, " in deciding important questions, should adopt the course, when they have gone wrong, of at once, in an open and manly way, retracing their steps, rather than persist in their error." 17 In 1852, Lord St. Leonards, addressing the House of Lords, said: " You are not bound by any rule of law which you may lay down, if upon a subsequent occasion you should find reason to differ from that rule; that is, that this House, like every court of justice, possesses an inherent power to correct an error into which it may have fallen." 18 It was not until

1898, in London Street Tramways v. London County Council," that the House of Lords finally decided that it was bound by its own decisions; and it has so held ever since. But there is nothing

to prevent the House of Lords from reversing its decision in the London Street Tramways case and giving itself freedom to review its earlier decisions, and in recent times criticism of the London Street Tramways doctrine has been growing.20 It would be unfortunate if the position arose that the House of Lords found itself free to reject a decision of its own given before 1922 while the Supreme Court felt itself bound to follow such a decision on the ground that

20See Lord Wright [1944] C.L.J. 118-145; A. L. Goodhart [1945] C.L.J. 349365; Lord Cooper, 63 Harvard L.R. at p. 472; Glanville Williams, Salmond's

Jurisprudence, 11th ed., pp. 175-188; Paton, Jurisprudence, 2nd ed., p. 165; W. Friedmann, 31 Can.B.R. 723-751; C. J. Hamson [1958] C.L.J. 177;

R. Cross, Precedent in English Law, pp. 255-258; Lord Denning, From Precedent to Precedent (the Romanes Lecture for 1959); Lord Reid in

Scruttons v. Midland Silicones [1962] 1 All E.R. 1 at p. 11; G. Dworkin,

"Stare Decisis in the House of Lords," 25 M.L.R. 163-178. For a suggested modification of the House of Lords practice, see Lord Denning in London Transport Executive v. Betts [1959] A.C. 213 at p. 247.