COMMON LAW IRELAND and BREHON LAW


COMMON LAW VERSUS CIVIL LAW

Ireland is a common law jurisdiction, just like the United Kingdom, U.S.A., New Zealand and India. Common Law originated in the United Kingdom. In common law jurisdictions great emphasis is put on judicial precedent (stare decisis). Irish courts are bound by their previous decisions. Lower courts must follow the decisions of higher courts. The Irish situation is different from the United Kingdom in that Ireland has a written Constitution - Bunreacht na h-Eireann. In addition, and much like the United Kingdom, we also have a body of statutes enacted by the legislature (Dáil).

Most other European countries operate a civil law system. France, Germany and Holland, for example, are civil law jurisdictions. In these jurisdictions codified statutes take precedence.

If and when Brexit happens, Ireland and Cyprus will be the only common law jurisdictions left in the European Union.

BREHON LAW

Before common law took hold in Ireland, we had our own system of law. This is known as Brehon law. Brehon law is believed to date back to Celtic times. Brehon law developed over time from customs that had been passed orally from one generation to the next. In or around the 7th century A.D. Brehon laws were written down. A considerable number of brehon law texts survive.

Brehon law was administered by Brehons. Brehons were somewhat like judges but could be more accurately compared to arbitrators. Brehons were direct successors of the druids.

The aim of the brehon was to right a wrong as opposed to imposing punishment. Restitution was the order of the day.

Brehon law was quite progressive. For example, it supported divorce and there was evidence of gender equality. It was not however, an egalitarian system of law. An individual's status was relevant.

Brehon law was a self enforcing system with no prison and no police force. The people had great respect for the system. The primary penalty was compensation. If the wrongdoer failed to pay the compensation ordered then the injured party was entitled to seize property of the wrongdoer and exercise distraint.

If a high ranking individual was the wrongdoer and failed to pay the compensation due, then the wronged party was permitted to fast outside the wrongdoer's house from sunrise to sunset. If the wrongdoer ate during the wronged party's fast, the compensation due doubled.

If after the fast the wrongdoer still did not pay the compensation then the consequence of this was that he forfeited the right to compensation for any offence committed by him.

The decline of the Brehon law system was completed by the 17th century when it was finally fully supplanted by English common law.

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