Do you prefer common or civil law systems?

Commotion Ocean

Ireland, being a common law country, laws are not really "made" rather they are based on precedents.

Judges are also bound by sentencing norms and can only really sentence around this.

Some countries have minimum and maximum sentences set out with mandatory sentencing for certain crimes.

I don't like the way that people are tried by a jury of their peers (lay people) and they and they alone decide on guilt. You could have a case where a young girl falsely accuses a man of raping her and the jury, out of emotion, will almost always believe the girl, you could have similar circumstances where a traveller is discriminated against by the jury or not-well-liked politician.

Could Ireland ever possible change to common law? What would be involved in doing so if, in the slim chance there ever appeared to be a popular appetite for this?

Probably a silly thread from a rookie poster here.

Fred Swanson

This post has been deleted.

RayCun

dfeo wrote: »

You could have a case where a young girl falsely accuses a man of raping her and the jury, out of emotion, will almost always believe the girl.

Don't think that's very accurate.

And law is not entirely based on precedent. Laws are written by the Dail. Things are made illegal or made legal when new laws are passed, it is not all made up by the courts.

Fred Swanson

This post has been deleted.

ohnonotgmail

Fred Swanson wrote: »

This post has been deleted.

While this is true the OP said

Ireland, being a common law country, laws are not really "made" rather they are based on precedents.

which is not true.

Peregrinus

dfeo wrote: »

Ireland, being a common law country, laws are not really "made" rather they are based on precedents.

Judges are also bound by sentencing norms and can only really sentence around this.

Some countries have minimum and maximum sentences set out with mandatory sentencing for certain crimes.

This has nothing to do with the common law/civil law distinction. We already have maximum sentences set by law. There are a few offences for which minimum sentences are set by law - e.g. mandatory diqualification for drink-driving - and there could be more, if we thought it was a good idea.

dfeo wrote: »

I don't like the way that people are tried by a jury of their peers (lay people) and they and they alone decide on guilt. You could have a case where a young girl falsely accuses a man of raping her and the jury, out of emotion, will almost always believe the girl, you could have similar circumstances where a traveller is discriminated against by the jury or not-well-liked politician.

Again, if you think it’s a good idea, you can legislate for non-jury trials in a common law system.

dfeo wrote: »

Could Ireland ever possible change to common law? What would be involved in doing so if, in the slim chance there ever appeared to be a popular appetite for this?

Your concerns mainly seem to revolve around the criminal legal system. Switching from a common law system to a civil law system would be a much, much bigger (and more disruptive) step than is needed to address your concerns.

feargale

Changing from one legal system to another has happened successfully, but only by way of a very slow and gradual process. South Africa, Guyana and Sri Lanka are former Dutch colonies which were once governed by the Roman Dutch system. Today all three are mainly subject to the Common Law system. The outstanding exception is South African commercial law which remains largely Roman Dutch, but even this is being eroded.
OP has a point about juries. Many juries are excellent, taking their duties seriously and coming to wise conclusions. However in recent times a few jurors have spilled the beans on radio etc. about what can go on in the jury-room, and their stories have not been pretty e.g. one domineering individual, or worse. Juries get praise heaped on them when they do a good job, but we don't hear so much about the botched jobs. Also, juries are more and more disproportionately composed of disadvantaged people, the unemployed etc. for the simple reason that some others will do their damnedest to escape jury service. You may say it serves their fellow posh right, but a jury is supposed to be representative of the community. A three judge court at all levels would be better.

4ensic15

feargale wrote: »

A three judge court at all levels would be better.

A three judge court would be far worse. Three individuals who come from a small segment of the community, with a lot in common socially and educationally would not be anywhere as good as a jury chosen randomly among the community. In England they have taken strong measures to force people to do their jury service with no ifs or buts. This leads to juries being composed of a better mix of the population.

RayCun

RayCun wrote: »

And law is not entirely based on precedent.

Precedent is important in the interpretation of law, but it is always subject to new law (and the constitution)
Judges may interpret an existing law to mean X, and later judges will follow that precedent.
The Dail can then amend the existing law to say "this does not mean X, this means Y". Later judges can't then appeal to precedent to say the law means X.

The same with interpretations of the constitution. Once the supreme court has ruled that the constitution means X, other courts will follow that precedent. If the constitution is changed, the precedent may no longer be valid.

plodder

feargale wrote: »

Changing from one legal system to another has happened successfully, but only by way of a very slow and gradual process. South Africa, Guyana and Sri Lanka are former Dutch colonies which were once governed by the Roman Dutch system. Today all three are mainly subject to the Common Law system. The outstanding exception is South African commercial law which remains largely Roman Dutch, but even this is being eroded.
OP has a point about juries. Many juries are excellent, taking their duties seriously and coming to wise conclusions. However in recent times a few jurors have spilled the beans on radio etc. about what can go on in the jury-room, and their stories have not been pretty e.g. one domineering individual, or worse. Juries get praise heaped on them when they do a good job, but we don't hear so much about the botched jobs. Also, juries are more and more disproportionately composed of disadvantaged people, the unemployed etc. for the simple reason that some others will do their damnedest to escape jury service. You may say it serves their fellow posh right, but a jury is supposed to be representative of the community. A three judge court at all levels would be better.

I disagree with you about juries. Look at the amount of abuse that judges get over sentencing decisions. It is very rare to hear a jury being criticised no matter how controversial the outcome. And surely if juries are mostly unemployed or retirees, then those would be the groups who would benefit from bias, if it occurs.

Mr. Incognito

dfeo wrote: »

Ireland, being a common law country, laws are not really "made" rather they are based on precedents.

Judges are also bound by sentencing norms and can only really sentence around this.

Some countries have minimum and maximum sentences set out with mandatory sentencing for certain crimes.

I don't like the way that people are tried by a jury of their peers (lay people) and they and they alone decide on guilt. You could have a case where a young girl falsely accuses a man of raping her and the jury, out of emotion, will almost always believe the girl, you could have similar circumstances where a traveller is discriminated against by the jury or not-well-liked politician.

Could Ireland ever possible change to common law? What would be involved in doing so if, in the slim chance there ever appeared to be a popular appetite for this?

Probably a silly thread from a rookie poster here.

I don't think you understand the fundamental differences in the two systems.

For starters Ireland doesnt need to change to a Common Law System. It is a common law system.

In Common Law Countries, the Legislature (Oireachtas) makes the law.

The judges job is to apply it and interpret the law where there is ambiguity. A Judge should not be in conflict where there is no ambiguity. It is up for lawyers for both sides to present their cases and the judge is the final arbitrator.

He sets precedents and interprets legislation in particular scenarios which can be subjective. Where there is no precedent and no legislation they may apply equitable principles or apply the law on Contract for example which is set out by case after case interpretiting various clauses.

Every once in a while the legislature sits down and codifies areas of law. Such as the Criminal Law Act, the Land and Conveyancing Reform Act etc. These usually follow the seminal case law on the issue but not always.

In Civil Law Jurisdictions, the law is set out in cannons or codes. The Judge is the "keeper" of the law so to speak and dominates the court.

The reality is that in the modern world the two systems can overlap (and so in the European Courts) as Legislature becomes more powerful and sets laws in nuanced areas.

Commotion Ocean

Mr. Incognito wrote: »

For starters Ireland doesnt need to change to a Common Law System. It is a common law system.

My mistake, I meant to say change to a civil system, like Germany etc.

Denny_Crane

OP, I think you're confusing a few issues.

Common Law v Civil Law - two different legal systems, however I would submit it's more of a spectrum than a binary in relation to how laws are made and interpreted. Ireland is closer to the civil end in my opinion given the constitution prohibits Judges 'legislating from the bench'.

Criminal Law v Civil Law - a distinction in both common and civil law jurisdictions. Note this is different meaning to the same term.

What I think you're actually driving at is the Adversarial v Inquisitorial style of legal proceeding process. The latter tends to be used in Civil Law countries however there is huge use of the adversarial system in the Criminal law side of Civil Law legal systems as it has a number of advantages in regard to vindicating the rights of the accused.

Case management by Judges in civil cases in Ireland does happen apparently - a feature of Civil Law country's legal processes but not so much in Common Law jurisdictions.

Ireland would never convert to a Civil legal system, the cost to the state is huge. Ireland has one of the cheapest, per capita, legal systems in Europe according to Clarke J.