Thursday, July 04, 2013

A Great Quote on Irish Law

I have just been reading a piece by the late D.A. Binchy, a leading 20th century scholar of early Irish law. One of the puzzles of that legal system is the presence of both elaborate institutions for private law enforcement and repeated references to kings (of very small kingdoms called tuaths) with courts and royal judges. An explanation offered by one modern scholar is that our legal sources were written during a time of transition, a shift from an almost entirely private legal system to a partly public one. Binchy's view, however, is that the king's court and judge were concerned with only a narrow set of issues related to the king, such as treason, with all conflicts between other people settled privately. 

In which context he writes:
“You may well ask at this state: If there was really such a lack of the organs of government—no legislature, no bailiffs or police, no public enforcement of justice—how was an ordered existence possible at all? Surely in that case there can have been no such thing as law and order, only arbitrary violence and the strong hand? Well, this was the conclusion reached by a fair-minded, scholarly (though I think sub-consciously prejudiced) historian, the late Goddard Henry Orpen, who held that prior to the coming of the Normans anarchy reigned in Ireland. This view was hotly challenged by Macneil, as those of you have read his great work “Phases of Irish History” will remember. It has always seemed to me that these two eminent scholars, despite their violent collision, started out from precisely the same suppressed premise: that law and order were impossible in any society where the State had not substantially the same functions as in the late Victorian era in which they both grew up! Orpen’s study of the Irish evidence convinced him that the Irish kings had nothing like these functions; hence, he concluded, Gaelic Ireland was anarchical. MacNeill, tacitly admitting the same suppressed premise, sought to disprove Orpen’s facts and to show that in each tuath law was promulgated, applied and enforced by the king’s authority. I disagree completely with MacNeill in this, but I dissent just as emphatically from Orpen’s conclusion. If comparative legal history teaches us anything, it is that legal order has in fact obtained among communities where, as in ancient Ireland, the State exists only in embryo. ...

Indeed, the main interest of Irish law for the student of early institutions is that it shows how a legal system based, not on State sanctions, but on the power of traditional custom, formulated and applied by a learned professional caste, could function and command obedience. Of course there was often lawlessness, particularly in times of revolt and disputed succession, but even in our modern society, with its public sanctions, laws are constantly broken—otherwise how would lawyers make a living? Far more important than the threat of State enforcement in the minds of a small, rural and patriarchal community was the veneration due to hallowed ancestral tradition. 

… And in the absence of state backing [the Irish jurists] showed remarkable ingenuity in devising methods of procedure which would compel the average citizen of the tuath to keep to the rules. Perhaps, indeed, their very success hindered the evolution of public justice by diminishing the need for it.”
I disagree only with the sentence in the quote that I have italicized. It does not seem to have occurred to Binchy that if the private legal system contained "methods of procedure which would compel the average citizen ... to keep to the rules," then it may not have been dependent on the veneration due to hallowed ancestral tradition. 

A point of some interest to those of us who support anarchy, but not chaos, in a modern context.


Tibor said...

This sounds really interesting. Could you please tell me the name of the book this is from? Thank you.

P.S.: Please make the articles in bigger font next time. Your usual font is ok, but this was really small, I had to adjust the font size (it is easy with the mousewheel, but a nuisance anyway).

David Friedman said...

The quote is from a piece by Binchy in Early Irish Society, Myles Dillon ed..

Old Odd Jobs said...

Fascinating. Thank you sir!

Tibor said...

David: Thank you and also thank you for enlarging the font :)

Eric Rasmusen said...

Many people think that if the law isn't written down, the society must not have the rule of law. Conversely (?), they think that if the law *is* written down, the society must have the rule of law.