Should Common law justice system be replaced with a system baised on Brehon law?

Belfast

It common law the offence is against the society.
The victim only role is as a witness.

Brehon law is biased on Restorative justice.
The offence is against the Victim and must be compensated.

turgon

Well Im not an expert at law,

But I know that when a man aged 35 has sèx with a girl on the night of her junior cert results, and only gets one year in prison, something gotta be wrong.

No. All should be equal before the law.

SeanW

It sounds like a good idea.

Belfast

Deleted User wrote: »

No. All should be equal before the law.

All people are equal under Brehon law.

brianthebard

Belfast wrote: »

All people are equal under Brehon law.

thats inaccurate to say the least.also debts in brehon are paid in slaves.

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Belfast

brianthebard wrote: »

thats inaccurate to say the least.also debts in brehon are paid in slaves.

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Cattle was more important way of paying for things.

How were people not equal under Brehon Law ?

eoin5

Belfast wrote: »

Cattle was more important way of paying for things.

How were people not equal under Brehon Law ?

It was very class driven, with seperate laws governing each class.

brianthebard

eoin5 wrote: »

It was very class driven, with seperate laws governing each class.

bingo.also the punishments were more or less severe depending on wealth,thereby favouring the upper classes.

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Kama

Accepting that Brehon Law was class-modulated, and scrapping that, can we see principles and practices from Brehon Law that could be happily incorporated into our legal system? Belfast was arguing (I think) for an increase in restorative justice based upon Brehon principles rather than a wholesale imposition of what is presumably a quite outdated system. The honor price seems similar to the little I know of old Scandinavian torts, which were highly bloody...

tolosenc

Brehon law? Like deciding who murdered someone by literally pulling the short straw?

Kama

Comparing it to other systems of law at a similar era might be helpful, before slamming Brehon down. Was there an egalitarian, non-discriminatory system of law operating during the same period?

brianthebard

Kama wrote: »

Comparing it to other systems of law at a similar era might be helpful, before slamming Brehon down. Was there an egalitarian, non-discriminatory system of law operating during the same period?

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turgon

brianthebard wrote: »

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Post of the year 2008.

I think the justice system here is too cosy. It should be tougher. Whether that means what the OP is on about I dont know.

Kama

Depends on your opinion of what tough is tbh.
Restorative justice, which the OP referenced, isn't usually thought of as tougher, its usually viewed as a softer option.

General argument is that an judicially adversarial, punishment based system isn't an ideal way to solve all disputes. Harm was done to the victim, and a harm is inflicted on the offender by the State to to compensate.

Restorative perspectives view this as insufficient, focussing on identifying the harm done, and brininging offenders and victims together to define what amends need to be made.

Think community mediation and arbitration. Obviously not suitable in every case, but if people agree to it I don't see a problem.
Unsure of the relevance to the Brehon system; I know a Canadian judge who uses these methods with American Indian communities, says it was closer to their customs than the Canadian legal system is.

turgon

Restorative justice sounds good in theory. But I dont know if some of these Limerick hard àsses would be willing to kiss and make up. Nor any other drug dealers for that matter.

Belfast

eoin5 wrote: »

It was very class driven, with seperate laws governing each class.

Class was not a part of Brehon law.

Belfast

brianthebard wrote: »

bingo.also the punishments were more or less severe depending on wealth,thereby favouring the upper classes.

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The system was biased on a honour price. The wealthier you were the higher you honour price was.

The higher your Honour price the more compensation you had to pay.

Belfast

turgon wrote: »

Restorative justice sounds good in theory. But I dont know if some of these Limerick hard àsses would be willing to kiss and make up. Nor any other drug dealers for that matter.

I do not think that common a law handles Limerick hard àsses very well either.

Brehon Law is based on a crime against an individual.

Brehon law did not ban people selling drugs to those willing to buy them as far as I know.

Moriarty

Moved over to Humanities.

Kama

Still unsure if the Brehon/restorative link is justified btw.

I don;t know of anyone putting forward a restorative approach as a replacement, but as a parallel system.

While the hardened gangland badass isn't likely to 'kiss and make up', one way of looking at it as a diversionary approach; rather than a seasoned badass, get a baby ganglander, and instead of shunting him through the prison system, which tends to causes recidivism.

One less baby gangbanger, reduced prison system load, possibly reduced future offending. Thats part of the efficiency argument.

Belfast

Moriarty wrote: »

Moved over to Humanities.

I puzzled about what the legal system to do with Humanities ?

Sleepy

If this was to run in parallel to the current system I can see it having some merit.

However, if it's to stand alone, how does one measure the restoration required for a murder? The victim is dead and can't be compensated, their family can't be compensated simply because a price can't be put on their grief / loss

johnnyskeleton

Belfast wrote: »

It common law the offence is against the society.
The victim only role is as a witness.

Brehon law is biased on Restorative justice.
The offence is against the Victim and must be compensated.

There are 3 points here:
1) should we replace our modern system of law that has developed over the centuries with a primitive tribal system of justice

Although it is tempting to suggest that the old Irish ways are better than the system imposed by the English, it's an amazing suggestion. Clearly we should not replace any part of our modern legal system with an outdated system, it just doesn't make any sense.

2) is it right that criminal prosections are taken by the state in the name of the people, rather than by the victims of crime themselves

Yes, for a number of reasons:
a) most victims don't have the money to bring a prosecution (they cannot recover costs from the accused)
b) prosecutions are taken to protect society's interests, not just the interests of victims
c) there are a number of victimless crimes or crimes where the victim is not easily identifiable (e.g. drugs)
d) the role of the prosecutor is to present the facts fairly and impartially with a view to convincing the jury of the accused's guilt, I'm not sure the victims of crime can be impartial
e) prosecuting a crime is not just a case of going into court and making your case, there is lots of preparation invloved, mostly directing the gardai to investigate. I'm not sure that having the victims of crime dictate to gardai how they do their job (and in any event, the gardai have to investigate to find the truth not to prosecute someone, so it's unlikely the victims would allow any investigations that could suggest innocence on the accused's part)
f) there are a number of cases where the DPP refuses to prosecute for public policy reasons, which would not be considered by the victims of crime
g) there are a lot of false allegations made, and if the victims were to prosecute these it is unfair the the falsely accused
h) there might be a lot of prosecutions taken where there is no chance of success due to missing proofs etc, which are dropped by the DPP but which would be continued with by the victims
i) there are a lot of cases of mistaken identity where the victims, without any proof, are convinced that someone did it even without any proof

Ultimately, prosecuting crimes requires a high standard of checks and balances, a part of which is the victims views, but it is not the be all and end all of the matter.

3) should there be a system whereby the victims of crime can bring a case against the person who offended against him so that the victim can get retribution?

Yes, in fact there is one. Anyone who is the victim of crime can bring a civil case and if they win they are entitled to get damages from the criminal (if the criminal has any money that is). This is very similar to the primitive legal system's type of retribution and compensation, as it is a monetary award/punishment.

dr_manhattan

I feel kinda two ways about this, easily summed up by johnnyskeleton's reaction:

Although it is tempting to suggest that the old Irish ways are better than the system imposed by the English, it's an amazing suggestion.

Hm, I do agree: the notion of somehow taking a set of laws designed to govern a society that pretty much in no way resembles our own, and trying to make them work in our own society is just silly.

However the fact that we do work - as do most nations - under an essentially imperial judicial system is worthy of note. Because these systems were in fact never really designed to create an equal society but rather fence off an elite while dividing and conquering all other strata, I do believe that they must be constantly under revision and scrutiny in order to prevent them damaging what we're trying to build in terms of a society.

For example, the prison system pretty much accepts and sustains the notion of a criminal underclass and all that implies. As long as we sentence people to jail we have to realise we are recruiting for another system as well as exiling from our own. That would serve us well if we needed slaves, conscript labour or free soldiers.... but we don't do these things anymore.

So we are spending hundreds of thousands a year sending kids to crime college like it or not. After that fact, any attempt we make at rehabilitation or community conciliation or whatever becomes a drop in the ocean.

Clearly we should not replace any part of our modern legal system with an outdated system, it just doesn't make any sense.

Absolutely, and I also have to say that romantic notions of elder day simplicity being more just just *have* to be - if you think it through with any knowledge of human nature - wrong. I bet brehon law stank, just like most feudal, parochial, family run justice systems stank.

However:

If we don't talk about replacing our systems, but rather trying to improve them, there's probably benefit in looking at *all* older systems of justice.

After all, they were for smaller societies. Conciliation was necessary, in order to not fracture society or create outcast societies. You couldn't lock six farmers up and the expect the crops to arrive or to defend the village six men short.

So when you look at the idiocracies that our "developed" peers suggest, everything from the monty python of Asbos to the US three strikes lunacy; plea bargaining, cooperative sentence reductions -

I think there could be considerable benefit from older systems.

After all, we should take care of our fragile peace. Soon we'll have the last unarmed police force on the bloody planet, the way things are looking. And in my opinion,. arming your police is the final stage of a massive failure that starts with being unable to rehabilitate young offenders.

In short, if we can't improve and cheapen our judicial system, we'll be at war with our children in 50 years.

karen3212

Hi Op, do you have a decent link to the Brehon system, so we can see how silly or unsilly it was? i have read a book or two about it before, but some of replies you've received makes me think we are all talking about different laws.

I will be googling, but if you have a decent link, I'd be grateful

Belfast

karen3212 wrote: »

Hi Op, do you have a decent link to the Brehon system, so we can see how silly or unsilly it was? i have read a book or two about it before, but some of replies you've received makes me think we are all talking about different laws.

I will be googling, but if you have a decent link, I'd be grateful

Here are some links on the subject

Irish History - Brehon Law - Part 1 of 11
http://www.youtube.com/watch?v=cN52LnC020g

Brehon Law Project
http://ua_tuathal.tripod.com/testdefault.html

The Brehon Law
http://www.danann.org/library/law/law.html

Early Irish law
http://en.wikipedia.org/wiki/Brehon_Laws#Origins

essay on Brehon law
http://www.woodlandleague.org/info/info/brehonlaw.htm

"Using Old Irish 'Brehon' Law in Pendragon"
http://www.employees.org/~pcorless/pendragon/brehon.txt

Brehon Law Structure of Society
http://13thdruidofavalon.tripod.com/druidplanet/id75.html

LAW IN IRELAND
Laurence Ginnell, B.L., M.P.
http://www.fullbooks.com/The-Glories-of-Ireland2.html

THE BREHON LAWS

A LEGAL HANDBOOK
BY
LAURENCE GINNELL

MDCCCXCIV
http://forum.stirpes.net/law/17823-brehon-law-legal-handbook.html

Sardonicat

Are you are asking if we should have restorative justice?

How can one restore the murder victim, and to whom do you restore whatever it is you are supposed to restore the victim with to?

Rape/Assault, what can be restored?

Possibly in cases of theft or fraud restorative justice would work

But in cases when what has been lost is a life, or dignity, I can't see how it would work.

Not that the system we have now seems to, mind

johnnyskeleton

Sardonicat wrote: »

Are you are asking if we should have restorative justice?

How can one restore the murder victim, and to whom do you restore whatever it is you are supposed to restore the victim with to?

Rape/Assault, what can be restored?

Possibly in cases of theft or fraud restorative justice would work

But in cases when what has been lost is a life, or dignity, I can't see how it would work.

When someone dies in a road traffic accident, the family will often sue for compensation. While the money will obviously not bring the person back, it does help because it a) provides money to help them get their lives back on track and b) marks the wrong and provides some compensation. It is not perfect justice, but it is practical human justice. When people bring civil claims arising from a rape/assault the compensation, while it doesn't make everything right, it does help.

Sardonicat wrote: »

Not that the system we have now seems to, mind

I don't like the way people seem to feel that making a bald assertion that the current criminal justice system doesn't work is a valid statement to make.

Pgibson

The Brehon Laws were wonderful in their day.

Primitive nowadays.

Other laws were equally primitive.

The Vikings obeyed a law which said that they had to die in battle in the sea or else their gods Thor and Wodin would be displeased.

Incidentally:
Thor= Thursday
Woden= Wedensday.

.

Pgibson

Sharp readers will notice that I cannot spell "Wednesday".

Sorry Woden.

I promise not to do it again.

Lest you,Woden or Odin, send your Norse warriors over the seas from Norway
to punish me.

.

catherinesara

brianthebard wrote: »

bingo.also the punishments were more or less severe depending on wealth,thereby favouring the upper classes.

Posted via Mobile Device

Under Brehon Law,The more higher up in rank you were, the more you had to pay. Eric- restitution as it is called.

The very opposite to today in fact.

A priest or bishop for example could be de frocked and demoted, depending on the offence.

Women were also totally equal with men under Brehon Law.

Eric was always paid, and there was a lot less hastle than we have under British law, which we use in Ireland today mostly.

No prisons either.

And under British law, it is legal for the victim to be punished, as that has not been removed yet from the old statute book.

Also, under modern law - not justice- a victim is labelled a complainant.

And so called experts have been teaching our judges that women and children ENJOY being raped and abused, so this may explain why we see so little justice in this area.

And those elite believe in a patriarchal society where their God rules.

And some religions thank God every day for not being born a woman.

Paedophilia is close to being legalised in Germany already, so then shortly, anyone can be raped or sexually abused and there will be no justice, because society is being conditioned to believe that women and children actually asked to be raped, by leading the poor man on, and he has urges which must be satisfied.

No wonder the prosecution rate in rape and sexual abuse is so low. 5%

lostexpectation

johnnyskeleton wrote: »

T
2) is it right that criminal prosections are taken by the state in the name of the people, rather than by the victims of crime themselves

Yes, for a number of reasons:
a) most victims don't have the money to bring a prosecution (they cannot recover costs from the accused)
b) prosecutions are taken to protect society's interests, not just the interests of victims
c) there are a number of victimless crimes or crimes where the victim is not easily identifiable (e.g. drugs)
d) the role of the prosecutor is to present the facts fairly and impartially with a view to convincing the jury of the accused's guilt, I'm not sure the victims of crime can be impartial
e) prosecuting a crime is not just a case of going into court and making your case, there is lots of preparation invloved, mostly directing the gardai to investigate. I'm not sure that having the victims of crime dictate to gardai how they do their job (and in any event, the gardai have to investigate to find the truth not to prosecute someone, so it's unlikely the victims would allow any investigations that could suggest innocence on the accused's part)
f) there are a number of cases where the DPP refuses to prosecute for public policy reasons, which would not be considered by the victims of crime
g) there are a lot of false allegations made, and if the victims were to prosecute these it is unfair the the falsely accused
h) there might be a lot of prosecutions taken where there is no chance of success due to missing proofs etc, which are dropped by the DPP but which would be continued with by the victims
i) there are a lot of cases of mistaken identity where the victims, without any proof, are convinced that someone did it even without any proof

Ultimately, prosecuting crimes requires a high standard of checks and balances, a part of which is the victims views, but it is not the be all and end all of the matter.

3) should there be a system whereby the victims of crime can bring a case against the person who offended against him so that the victim can get retribution?

Yes, in fact there is one. Anyone who is the victim of crime can bring a civil case and if they win they are entitled to get damages from the criminal (if the criminal has any money that is). This is very similar to the primitive legal system's type of retribution and compensation, as it is a monetary award/punishment.

i don't think he was suggesting the the victims prosecute the case themselves.

metrovelvet

johnnyskeleton wrote: »

I don't like the way people seem to feel that making a bald assertion that the current criminal justice system doesn't work is a valid statement to make.

Well, I guess people say that because there is so much crime. I think people expect the law, or its punishments to act both as deterrant and rehabilitator, which it clearly does not do.

One of the many questions to ask is how to identify what is appropriate to expect from the criminal justice system outside of depriving the criminal of his or her freedoms in proportion to the crime committed.

johnnyskeleton

catherinesara wrote: »

Under Brehon Law,The more higher up in rank you were, the more you had to pay. Eric- restitution as it is called.

The very opposite to today in fact.

Well no, the same applies today, in that criminals who come from a wealthy background are often more severely punished than someone from a deprived background who might not have had the chances that the other person would have.

catherinesara wrote: »

A priest or bishop for example could be de frocked and demoted, depending on the offence.

The modern Irish state is separate from religion, and therefore it is not in the state's power to defrock a priest.

catherinesara wrote: »

Women were also totally equal with men under Brehon Law.

Are you suggesting they are not under modern Irish law? You will need to elaborate.

catherinesara wrote: »

Eric was always paid, and there was a lot less hastle than we have under British law, which we use in Ireland today mostly.

I'm sure you had the same people dragging their feeet about paying it as we do in the civil courts today.

catherinesara wrote: »

And under British law, it is legal for the victim to be punished, as that has not been removed yet from the old statute book.

WHAT?

catherinesara wrote: »

Also, under modern law - not justice- a victim is labelled a complainant.

A person who makes a complaint about a criminal offence is a complainant, and the person the complaint is made against is the accused. When the accused is convicted he/she is called the offender, and the complainant is called the victim or injured party. But calling a complainant a victim is presuming guilt.

What is unjust about that? It is merely descriptive.

catherinesara wrote: »

And so called experts have been teaching our judges that women and children ENJOY being raped and abused, so this may explain why we see so little justice in this area.

WHAT?

catherinesara wrote: »

And those elite believe in a patriarchal society where their God rules.

And some religions thank God every day for not being born a woman.

WHAT?

catherinesara wrote: »

Paedophilia is close to being legalised in Germany already,

WHAT?

catherinesara wrote: »

so then shortly, anyone can be raped or sexually abused and there will be no justice, because society is being conditioned to believe that women and children actually asked to be raped, by leading the poor man on, and he has urges which must be satisfied.

WHAT?

catherinesara wrote: »

No wonder the prosecution rate in rape and sexual abuse is so low. 5%

Generally, all cases where there is sufficient evidence and the assailant is identified and capable of being tried, there will be a prosecution. The falling off happens more at the reporting/detection stage rather than at the point where prosecution is considered. It is hard to know why so many complaints of rape do not make it to the decision to prosecute without seeing the individual files, but unless you believe the gardai are deliberately suppressing complaints, it would seem logical to assume that a lot of the complaints of rape are, on further investigation, found to be false or without merit.

johnnyskeleton

lostexpectation wrote: »

i don't think he was suggesting the the victims prosecute the case themselves.

Not directly, but restorative justice is in the nature of a modern civil action where one side has to prove allegations against the other.

johnnyskeleton

metrovelvet wrote: »

Well, I guess people say that because there is so much crime. I think people expect the law, or its punishments to act both as deterrant and rehabilitator, which it clearly does not do.

Compared to other countries, there isn't that much crime. The law can never be an absolute deterrent, because a lot of people commit crimes not expecting to be caught, and often commit them in the heat of the moment without thinking of the consequences. The law functions well, the problem as I see it is that the media are painting the laws and the courts as somehow being responsible for any amount of crime. Obviously the courts are an easy target, in that it is easy to say X judge is an idiot who only cares about criminals and not victims, but it is much harder to say I want to pay more taxes to pay for more gardai.

metrovelvet wrote: »

One of the many questions to ask is how to identify what is appropriate to expect from the criminal justice system outside of depriving the criminal of his or her freedoms in proportion to the crime committed.

Detection is the main area of concern. If every crime was detected but resulted in a fairly lenient sentence, it would be a much better deterrence than if only a small amount of crimes were detected (as now) but heavy sentences were handed out. Yet somehow people seem to think that if there are heavier sentences then crime will just magically go away.

Sorry for the rant, I think we agree more than disagree, but I don't think this bald assertion that the current system is failing is helpful.

Phototoxin

It was very class driven, with seperate laws governing each class.

rich person = better legal defence = class system

Paedophilia is close to being legalised in Germany already, so then shortly, anyone can be raped or sexually abused and there will be no justice, because society is being conditioned to believe that women and children actually asked to be raped, by leading the poor man on, and he has urges which must be satisfied.

link ?

No wonder the prosecution rate in rape and sexual abuse is so low. 5%

is that society, the police, the 25% of lies to accuse a bloke, crying rape after a drunken night out ?

Originally Posted by catherinesara View Post
And so called experts have been teaching our judges that women and children ENJOY being raped and abused, so this may explain why we see so little justice in this area.

reference ?
In addition if I were on the jury and Dr Shaggalot is an expert and saying this I would find it difficult to believe.

Originally Posted by catherinesara View Post
so then shortly, anyone can be raped or sexually abused and there will be no justice, because society is being conditioned to believe that women and children actually asked to be raped, by leading the poor man on, and he has urges which must be satisfied.

this is what we call in common parlance, the feminazi agenda. Read something like the rape investigation handbook.

Stones85

turgon wrote: »

Well Im not an expert at law,

But I know that when a man aged 35 has sèx with a girl on the night of her junior cert results, and only gets one year in prison, something gotta be wrong.

Thats a bit sweeping, all sorts of circumstances could be at play here.
firstly why 35? Why not 17, 19, 21 or 25?

Secondly, what if this 35 year old man met this girl in an over 18 establishment? Surely he is right to assume she is over 18? Or should all men of all ages I.D the girl in the bar or club before they talk to her?

So who is to blame? the girl? the man? the bar/club? her parents for letting her out?


Sorry for going way off topic....:o