Irish Common Law vs Potential Civil Law

GM228

Recently Advocate General ECJ Gerard Hogan stated there would be "very significant pressure” on the state to become part of a homogenous system of civil law over the next 10-15 years that would be “very difficult, if not impossible, for us to stay out of" in light of Brexit.

 https://www.irishtimes.com/news/crime-and-law/brexit-likely-to-tear-ireland-from-common-law-system-judge-1.3851147?mode=amp

It's not the first time he has raised the issue, at last years annual Law Reform Commission conference he stated "Ireland could become an EU Louisiana, swamped by surrounding states" referring to the fact Louisiana is the only US state to operate on a civil law basis (for civil matters) whilst all the other states and their criminal law are common law, however they seem to have no issues especially when integrating their civil law with Federal common law so where is this proposed pressure to come from?

This is in contrast to Mr. Justice Clarke's comments last year on the issue when speaking at Fordham University, New York. Whilst admitting there could be problems he also stated being the only English speaking common law country in the EU could offer significant advantages for Ireland for dealing with commercial contract disputes for example and so could be a good thing to remain common law.

So my question is if Ireland were to go down the cicil law route as suggested by Gerard Hogan what would it mean for the legal system here and it's interaction with the EUs civil order, how would it be implemented and what effect would it have on existing common law judgements, powers, duties and offences? Would 100s of years of judgements become obsolete in modern cases as case law and precedent would pretty much be non applicable.

For example would existing common law offences need to be fully codified into statute or is a "all existing common law offences shall remain" type of provision enough to work in a civil law society? Take our most serious offence - murder, which is a common law offence, if it needs to be fully codified will it create difficulties and challenges or can it be left as is. Would statute need to prescribe the actus reus of murder? Can a new civil law legal system rely on historical common law provisions or would it need written statute for everything historically aswell as going forward. Could we even adopt a hybrid civil/common law system like in Louisiana?

I must say as someone who enjoys researching the common law (especially the historical side) and the evolving of law through the courts I can see a conversion creating a much more boring legal scene at somestage in the future to anyone with a similar passion.

I suppose the real question is such a possibility just some scaremongering or is it a very real possibility?

P.S. for anyone interested Mr. Justice Clarke's papers on the common law post Brexit from when he spoke in New York are available below:-

Ireland as a Common Law Port after Brexit

The potential impact of Brexit on selected aspects of private international law

Mr. Incognito

I cannot see it happening any time soon.

It is such a different system of law that an enormously radical overhaul would be required and I dont think there woulld be any political will to force us to conform as we are such a small country.

Peregrinus

Be interesting to read Hogan's paper, if it were published, but I'm not convinced by the basic thesis that we will come under pressure to migrate to a civil law system. The EU has accommodated common-law Member States for 45 years now, and this doesn't seen to cause a fundamental problem at the interface between domestic and EU law, or between the domestic courts and the ECJ. And I don't see why the withdrawal of the UK should mean that what has worked for Ireland up to now will cease to work. He may have covered his reasons for thinking this in the paper, but they re not covered in the newspaper report.

Marcusm

The amount of commercial work expected by the major firms if Ireland can be the forum conveniens for international contracts within the EU would mean that this would be strongly resisted. For derivatives alone, Irish law is becoming more significant in the post Brexit era.

Anteayer

I respect his opinion, but I disagree with it. The notion that you could change an entire legal system at a whim like that seems rather unlikely to ever happen and I cannot really see what the advantage would be to either Ireland or the European Union.

It would be an absolutely gargantuan task to achieve that kind of change and it doesn't seem to have many benefits.

While European systems are based on a general concept of civil law, they are not identical. There are actually huge variations in how things operate from country to country and also some systems, notably in Scandinavia, share a lot of similarities with Common Law, including a reliance on judicial interpretation, precedent and judge made law.

Cyprus is also a Common Law jurisdiction and Malta uses a hybrid system that has aspects of both civil law and British common law traditions.

Also most Common Law systems have some degree of codification and influences of concepts that are taken from Civil Code systems and code systems often have influences of Common Law practice too. There have been serious pushes toward codification in areas of criminal law, and if you look at something like mandatory sentencing in the UK, that's absolutely straight out of Civil Law, not Common Law practice.

Scots Law is also a very definite hybrid of Civil Code and Common Law.

The European Courts themselves could be classified as a mixed system as they place a lot of emphasis on precedence and judicial decision making, in part because the European Union lacks a very active legislature so a somewhat more Common Law based system works and allows more flexibility to interact with very complex and often incompatible legal systems at national level. Europe has a rapidly growing body of what is effectively a form of European Common Law in the ECJ bank of decisions and their use as precedent. It's quite a distinct system, but it's most definitely somewhat hybrid.

If you look at both the United States and Canada, both have a situation where the two systems coexist. In Canada, Québec's legal system has its origins in French civil code and in the USA Louisiana's operates a code based system that has influences of French and Spanish law.
In both instances, they operate within the structure of federal legal systems that are based on Common Law, yet they get on fine.


My view of it is that the Irish legal system will just continue to evolve but I can't see a massive switch from one system to the other.

Also, there is most definitely a big advantage for us to have a legal system that's quite similar to the English Law and not a million miles away from American systems, as it really places us in a very good space, within the EU, as a base for anglophone companies who are used to those kinds of systems.

I just think perhaps we're looking at a future with more of a gentle evolution, rather than a replacement.

If the UK does leave the EU, I think it's very important that Irish legal professionals, the judiciary and legislators start to look at the systems that are closest to ours and those are probably in Scandinavia. There's a lot could be done on cooperation and exchange of ideas.

GM228

Apologies for reviving an old thread, but given the context and brief discussion the original thread was appropriate.

Peregrinus wrote: »

Be interesting to read Hogan's paper

Stumbled across this recently Peregrinus and thought you may be interested:-

https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/hubs/Irish_Hub/Advocate_General_Gerard_Hogan_New_Directions_for_the_Irish_Legal_System_after_Brexit.pdf

It seems to have been published just after we had this discussion and makes an interesting read.

Victor

I'm thinking effort would be better focused on consolidation and general modernisation and provide certainty via that route.

GM228

Victor wrote: »

I'm thinking effort would be better focused on consolidation and general modernisation and provide certainty via that route.

Agreed, and something the LRC has looked at in recent years and issued their report on a few months ago:-

https://publications.lawreform.ie/Portal/External/en-GB/RecordView/Index/61655