Private Law in the Emerald Isle https://mises.

org/print/10192

Published on Mises Institute (https://mises.org)

Private Law in the Emerald Isle

Language English

Mises.org Publish Date:

June 8, 2012 - 12:00 AM
Author 1:
Finbar Feehan-Fitzgerald [1]

There have been many notable objections to anarchy over the years, not least, the private production of
security and justice. Even the great Ludwig von Mises rejected the private production of law outright. There are,
nevertheless, innumerable examples of the private production of law; and it is not merely a concept that has
been confined to theory, but has existed, and worked, in practice. For the purpose of this article we shall only
concern ourselves with one: Brehon, or Early Irish law [2].

Brehon law was an ancient Irish legal system that survived until the early 17th century. This native legal system
was fully developed prior to, and continued in spite of, Christian, Danish, and Anglo-Norman invasions of
Ireland — although it was, somewhat, disrupted by each event.

Although the exact date of inception of the legal system is unknown, the existing evidence would suggest that it
was developed during the Bronze Age (2,300 to 900 BC). There is also evidence that would suggest that the
major development of, at least, a rudimentary form of the law took place between the 18th and 13th centuries
BC.

The laws were a civil rather than a criminal code, concerned with the payment of compensation for harm done
and the regulation of property, inheritance, and contracts. The concept of state-administered punishment for
crime was foreign to Ireland's early jurists.

The Brehon Code formed a great body of civil, military, and criminal law. It regulated the various ranks of
society, from the "king" down to the slave, and enumerated their several rights and privileges. There were
minute rules for the management of property, for the several industries — building, brewing, mills,
watercourses, fishing weirs, bees and honey — for distress or seizure of goods, for tithes, trespass, and
evidence. The relations of landlord and tenant, the fees of professional men — doctors, judges, teachers,
builders, artificers — the mutual duties of father and son, of foster parents and foster children, of master and
servant, are all carefully regulated. In that portion corresponding to what is now known as criminal law, the
various offences are minutely distinguished — murder, manslaughter, assaults, wounding, thefts, and all sorts of
willful damage, and accidental injuries from flails, sledgehammers, machines, and weapons of all kinds. And the
amount of compensation is laid down in detail for almost every possible variety of injury.

Brehon law managed to remain the law of the Irish until the Cromwellian onslaught of the 17th century. The
survival of the law for almost three millennia is testament to the sense of honor held by the people it governed.
The laws were laws of users. That is, they attained their authority from public opinion. They were the expression
of the moral power of the people it governed. The moral power was the code of honor reflected throughout
ancient law and wisdom texts. An individual's word was his bond.

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As laws of users, laws could not be changed without public approval. Thus any modification of existing laws or
enactment of new ones could only be achieved in open forum of the assembled people. Hence, although certain
individuals could campaign for a specific law, it took a majority vote of "free" persons to effect enactment. The
Brehon law truly was a law of the people, by the people, and for the people.

It was the historical role of the tuath — the Irish polity — that consisted of all "freemen" who owned land, all
professionals, and all craftsmen to enforce the law. There was an annual assembly of all tuath members that
decided all common policies, declared war or peace on other tuatha, and elected or deposed their "kings." It is
also worth noting that no one was stuck or bound to an individual tuath, and was free to (and often did) secede
from one tuath and join a competing one. Thus tuatha were voluntary associations that were comprised of the
landed properties of their voluntary members. The tuatha were able to guarantee law and order through a
complex system of sureties.

Since law enforcement was not a function of the state or king in the Irish tuath, it was entirely dependent on
each party in an action or suit to provide themselves with sureties who would guarantee that the judgment of the
brehon's court would be honored.

The assessment of a man's property — its character and value — was a crucial aspect of the legal system, for if
he were to participate in the elaborate system of suretyship, which was the basic mechanism by which all law
was enforced, it was also vital to asses an individual's honor price, another essential part of the Irish judicial
system.

The honor price was the payment due to any freeman if his honor rights were injured or impugned in any
fashion by another individual. It might be invoked for the violation of any contact, any act of violence to an
individual's person or that of his dependents, any trespass on his rights or property, or even malicious use of
"satire" without cause that damaged his reputation. Honor price was, therefore, also essential in the workings of
the surety system by which means all judgments of the brehon's court were enforced.

The brehons, although often improperly described as judges, were actually arbitrators and legal advisors to the
ruler. Originally, in pre-Norman times, it was the Rí (king or queen) who passed judgment when necessary,
following recitation of applicable law and advice from the brehon. It was not until late into the 12th century that
legal experts began to be appointed as judges. However, even then it was generally limited to Norman-
dominated areas that such appointments took place. The resident Irish steadfastly refused to give up their old
customs. Not until the 17th century was the Brehon law finally overthrown.

As a result of legal rules very frequently being complicated, and many considerations having to be made, an
outsider could not hope to master the intricacies. Nevertheless, although the field of law was limited, the
brehons had to be extremely careful, for if they were found guilty of giving a false legal opinion, they forfeited
their fee, and the inaccurate brehon was also liable for damages.

The durability of the law was quite astounding. Existing in Ireland long before the Common Era, it remained the
favored system by the Irish and Normans alike until the 17th century and the reign of Queen Elizabeth. This
was despite the fact that English writers were always strong in their condemnation of the Brehon law, and a
number of acts of Parliament were taken against it. Parliament even went so far as to declare it an act of
treason for English settlers to use it. In defiance of such bans, English who lived outside the pale — the English-
dominated area — adopted Brehon law.

The reason for the durability of the Brehon law was the people themselves. The entire existing body of literature
of Ireland shows the great respect the Irish people held for justice and law, and an abhorrence for unjust
decisions. As a leading authority on Irish law has written, "There was no legislature, no bailiffs, no police, no
public enforcement of justice.… There was no trace of State-administrated justice."1 And as late as the
beginning of the 17th century, Sir John Davies, the attorney general for James I stated, "There is no nation of
people under the sunne that doth love equall and indifferent justice better than the Irish."2

Nevertheless, although the system was operated privately, one may be left wondering if the system was
libertarian, or even sympathetic to capitalist principles. The answer to this question is most certainly yes.

Ownership of property in Ireland was generally absolute, save for some negligible limitations.

The fact that property rights were supreme was reflected in the fact that individuals were differentiated by a
class system based on the quantity of property accumulated, and that the only way individuals could ascend
through the class system was through accumulation of property.

Although Irish society under the Brehon Laws was male-dominated, women had greater freedom,
independence, and rights to property than in other European societies of the time. Men and women held their
property separately in marriage.

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It is quite plain that the women were absolutely equal to men in property matters. A woman was free to wed
whomever she chose. Neither husband nor wife could sell, barter, or make contract for the property of the other.
Either could divorce the other. Upon divorce, property was divided by the same ratio as was held by each when
wed.

Considering all these facts, one might then be excused to ask "why, then, did Ireland never experience an
industrial revolution?" The answer to this question is quite complex, and to a large extent unknown. Although
we have a wealth of knowledge on factors affecting the economy just prior to and subsequent to the collapse of
the Brehon system, there is a serious lack of research and knowledge of factors affecting the economy prior to
this era. For the time being, the best we can do is content ourselves with an explanation of why the Irish
economy was failing after the 16th century.

The reasons for this are, of course, manifold, and beyond the scope of this article, but some of the main
reasons may be noted briefly below.

First, it is worth noting that the island was subject to almost constant warfare since the Silkin Thomas Rebellion
of 1534. From 1534 to 1919 there were 15 rebellions. These wars were often devastating; and the Irish
Confederate War of 1641 to 1653 alone saw a reduction of population of almost 50 percent by some estimates.
It was after this war that the Brehon legal system began to collapse. Property rights were obliterated; and the
property of the native Irish was confiscated and ownership transferred to British settlers and sympathizers.

If this were not enough, a strict set of laws — known as the penal laws — were introduced in 1695 by the British
government and were not finally repealed until the 1820s. These laws were imposed in an attempt to force Irish
Catholics to convert to Protestantism; however, their effects were not merely confined to religion, and in
actuality had profound economic effects.

These laws banned Catholics from (a) having a gun; (b) being professionals (except medical); (c) being involved in
politics; (d) owning land; (e) receiving education (except for that in the Protestant faith); or (f) owning a horse over £5
value. They have been referred to [3] as

a machine of wise and elaborate contrivance, as well fitted for the oppression, impoverishment and
degradation of a people, and the debasement in them of human nature itself, as ever proceeded
from the perverted ingenuity of man.3

In light of these facts it could hardly be surprising that Ireland's economy failed to flourish and develop on a par
with the rest of Europe during these times. However, one still wonders why Ireland did not enjoy phenomenal
economic growth prior to these events. Was there some deficiency in how property rights were delineated that
prevented the massive accumulation of capital? The issue is ripe for further research.

1. Quoted in the best introduction to ancient, anarchistic Irish institutions, Joseph R. Peden, "Property Rights in Celtic Irish Law," ournal
of Libertarian Studies I (Spring 1977), p. 83; see also pp. 81–95. For a summary, see Peden, "Stateless Societies: Ancient Ireland,"
The Libertarian Forum (April 1971), pp. 3–4.
2. ichael Ragan, "The Brehon Law [4]," 1999.
3. Edmund Burke, quoted in John Savage, Fenian Heroes and Martyrs (1869).

Topics: Free Markets [5]

Legal System [6]
World History [7]

Source URL: https://mises.org/library/private-law-emerald-isle

Links
[1] https://mises.org/profile/finbar-feehan-fitzgerald
[2] http://wiki.mises.org/wiki/Brehon_Law
[3] http://www.dublincastle.ie/HistoryEducation/History/Chapter9OppressionandDispossession/
[4] http://www.danann.org/library/law/breh2.html
[5] https://mises.org/topics/free-markets
[6] https://mises.org/topics/legal-system
[7] https://mises.org/topics/world-history

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