Libertarian.ie

Historical and case studies

• http://www.libertarian.ie/polycentric_restitutional.html: Legal Theory, Polycentric Law, Restitutional and Restorative Justice.
• http://www.libertarian.ie/ireland.html: Libertarian Commentary on Ireland.

• http://www.hi.is/~bthru/contents.html
  ORDERED ANARCHY, STATE, AND RENT-SEEKING: THE ICELANDIC COMMONWEALTH, 930-1262
  by Birgir T. Runolfsson Solvason
  A Dissertation Submitted to the Faculty of the Graduate School of George Mason University in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy of Economics.
• http://64.233.187.104/search?q=cache:mhMyXNPJVeYJ:www.mises.org/journals/lf/1971/1971_04.pdf
  April 1971
  The Libertarian Forum
  Page 3
  Stateless Societies: Ancient Ireland
  By Joseph R. Peden
  ...the historian, if he but chooses to look and report his findings, knows that many societies have functioned successfully without the existence of the State, its coercive apparatus and monopoly of organized violence. It is my purpose here to present one example of such a society, one that existed for more than a thousand years of recorded history, terminated only by the massive military efforts of a more populous, wealthy and aggressive neighboring State. I will describe for you the millenial - long anarchic society of Celtic Ireland - destroyed after a six-century struggle against the English State in the wake of the military victories, confiscations and genocidal policies of successive English governments in the 17th century.
  
• http://www.mises.org/journals/jls/1_2/1_2_1.pdf
  PROPERTY RIGHTS IN CELTIC IRISH LAW
  JOSEPH R. PEDEN
  Department of History, Baruch College of the City University of New York.
  This paper was given at a symposium on "The Origins and Development of Property Rights" sponsored by the Institute for Humane Studies at the University of San Francisco, 17-20January, 1973.
  http://216.239.59.104/u/Mises?q=cache:GLLkesf1zsYJ:www.mises.org/journals/jls/1_2/1_2_1.pdf+joseph+r.+peden&hl=en&ie=UTF-8
  [non-pdf file of above]
• http://www.mises.org/rothbard/newliberty11.asp
  For a New Liberty
  12 The Public Sector, III: Police, Law, and the Courts
  Murray Rothbard
  Police Protection
  The most remarkable historical example of a society of libertarian law and courts, however, has been neglected by historians until very recently. And this was also a society where not only the courts and the law were largely libertarian, but where they operated within a purely state-less and libertarian society. This was ancient IrelandÑan Ireland which persisted in this libertarian path for roughly a thousand years until its brutal conquest by England in the seventeenth century. And, in contrast to many similarly functioning primitive tribes (such as the Ibos in West Africa, and many European tribes), preconquest Ireland was not in any sense a "primitive" society: it was a highly complex society that was, for centuries, the most advanced, most scholarly, and most civilized in all of Western Europe.
  For a thousand years, then, ancient Celtic Ireland had no State or anything like it. As the leading authority on ancient Irish law has written:

  'There was no legislature, no bailiffs, no police, no public enforcement of justiceÉ. There was no trace of State-administered justice.'

  How then was justice secured? The basic political unit of ancient Ireland was the tuath. All 'freemen' who owned land, all professionals, and all craftsmen, were entitled to become members of a tuath. Each tuath's members formed an annual assembly which decided all common policies, declared war or peace on other tuatha, and elected or deposed their 'kings.' An important point is that, in contrast to primitive tribes, no one was stuck or bound to a given tuath, either because of kinship or of geographical location. Individual members were free to, and often did, secede from atuath and join a competing tuath. Often, two or more tuatha decided to merge into a single, more efficient unit. As Professor Peden states, 'the tuath is thus a body of persons voluntarily united for socially beneficial purposes and the sum total of the landed properties of its members constituted its territorial dimension.' In short, they did not have the modern State with its claim to sovereignty over a given (usually expanding) territorial area, divorced from the landed property rights of its subjects; on the contrary, tuatha were voluntary associations which only comprised the landed properties of its voluntary members. Historically, about 80 to 100 tuatha coexisted at any time throughout Ireland.
  But what of the elected 'king'? Did he constitute a form of State ruler? Chiefly, the king functioned as a religious high priest, presiding over the worship rites of the tuath, which functioned as a voluntary religious, as well as a social and political, organization. As in pagan, pre-Christian, priesthoods, the kingly function was hereditary, this practice carrying over to Christian times. The king was elected by the tuath from within a royal kin-group (the derbfine), which carried the hereditary priestly function. Politically, however, the king had strictly limited functions: he was the military leader of the tuath, and he presided over the tuath assemblies. But he could only conduct war or peace negotiations as agent of the assemblies; and he was in no sense sovereign and had no rights of administering justice over tuath members. He could not legislate, and when he himself was party to a lawsuit, he had to submit his case to an independent judicial arbiter.
  Again, how, then, was law developed and justice maintained? In the first place, the law itself was based on a body of ancient and immemorial custom, passed down as oral and then written tradition through a class of professional jurists called the brehons. The brehons were in no sense public, or governmental, officials; they were simply selected by parties to disputes on the basis of their reputations for wisdom, knowledge of the customary law, and the integrity of their decisions. As Professor Peden states:

  É the professional jurists were consulted by parties to disputes for advice as to what the law was in particular cases, and these same men often acted as arbitrators between suitors. They remained at all times private persons, not public officials; their functioning depended upon their knowledge of the law and the integrity of their judicial reputations.

  Furthermore, the brehons had no connection whatsoever with the individual tuatha or with their kings. They were completely private, national in scope, and were used by disputants throughout Ireland. Moreover, and this is a vital point, in contrast to the system of private Roman lawyers, the brehon was all there was; there were no other judges, no 'public' judges of any kind, in ancient Ireland.
  It was the brehons who were schooled in the law, and who added glosses and applications to the law to fit changing conditions. Furthermore, there was no monopoly, in any sense, of the brehon jurists; instead, several competing schools of jurisprudence existed and competed for the custom of the Irish people. How were the decisions of the brehons enforced? Through an elaborate, voluntarily developed system of 'insurance,' or sureties. Men were linked together by a variety of surety relationships by which they guaran?teed one another for the righting of wrongs, and for the enforcement of justice and the decisions of the brehons. In short, the brehons themselves were not involved in the enforcement of decisions, which rested again with private individuals linked through sureties. There were various types of surety. For example, the surety would guarantee with his own property the payment of a debt, and then join the plaintiff in enforcing a debt judgment if the debtor refused to pay. In that case, the debtor would have to pay double damages: one to the original cred?itor, and another as compensation to his surety. And this system applied to all offences, aggressions and assaults as well as commercial contracts; in short, it applied to all cases of what we would call 'civil' and 'criminal' law. All criminals were considered to be 'debtors' who owed restitution and compensation to their victims, who thus became their 'creditors.' The victim would gather his sureties around him and pro?ceed to apprehend the criminal or to proclaim his suit publicly and demand that the defendant submit to adjudication of their dispute with the brehons. The criminal might then send his own sureties to negotiate a settlement or agree to submit the dispute to the brehons. If he did not do so, he was considered an 'outlaw' by the entire community; he could no longer enforce any claim of his own in the courts, and he was treated to the opprobrium of the entire community.
  There were occasional 'wars,' to be sure, in the thousand years of Celtic Ireland, but they were minor brawls, negligible compared to the devastating wars that racked the rest of Europe. As Professor Peden points out,

  'without the coercive apparatus of the State which can through taxation and conscription mobilize large amounts of arms and manpower, the Irish were unable to sustain any large scale military force in the field for any length of time. Irish warsÉ were pitiful brawls and cattle raids by European standards.'

• http://www.newadvent.org/cathen/02753a.htm
  The Brehon Laws
  Brehon law is the usual term for Irish native law, as administered in Ireland down to almost the middle of the seventeenth century, and in fact amongst the native Irish until the final consummation of the English conquest. It derives its name from the Irish word Breitheamh (genitive Breitheamhan, pronounced Brehoon or Brehon) which means a judge. ...
  Broadly speaking, the country was governed by a ruling class called "Kings", of different grades, the highest being the King of Ireland, and next to these were the nobles or princes called in Irish Flaith (pronounced like flah or floih). In all there were, including kings and flaiths, nominally at least, seven different kinds of aires (arras), or nobles, and provision was carefully made that a wealthy farmer, or peasant grown rich through cattle, could, if he possessed twice the wealth of the lowest of the seven, and had held it for certain generations, become an aire, or noble, of the seventh, or lowest degree. Thus wealth and descent were carefully balanced over against each other. "He is an inferior chief whose father is not a chief", says the law. But it took care at the same time not to close to anyone the avenues to chieftainship. Under ancient Irish law the land did not belong to the king or the chief or the landlord, but to the tribe, and the lowest of the free-tribesmen had as much an inalienable right to his share as had the chief himself. In process of time parts of the tribal territory appear to have become alienated to subtribes or families, and the chief, who always exercised certain administrative duties with respect to the land, appears to have had certain specific portions of the tribal land allotted to himself for his own use, and for the maintenance of his household and relatives. He was in no sense, however, what is now known as a landlord, although the whole tendency of later times was to increase his power at the expense of his tribe and vassals.
• http://www.alia.ie/tirnanog/sochis/iv.html
  Brian WalshÕs web introduction to PG JoyceÕs A Smaller Social History of Ancient Ireland (1908)
  A SMALLER SOCIAL HISTORY of ANCIENT IRELAND
  TREATING OF The Government, Military System, and Law ; Religion, Learning, and Art ; Trades, Industries, and Commerce ; Manners, Customs, and Domestic Life, of the Ancient Irish People
  BY P.W. JOYCE, M.A., LL.D., T.C.D.; M.R.I.A.
  One of the Commissioners for the Publication of the Ancient Laws of Ireland President of the Royal Society of Antiquaries, Ireland
  with 213 illustrations SECOND EDITION LONGMANS, GREEN, AND CO. London, New York, and Bombay Dublin : M.H. Gill & Son, Ltd. 1908
  Chapter IV - The Brehon Laws
  1. The Brehons
• http://www.1911encyclopedia.org/B/BR/BREHON_LAWS.htm
  "BREHON LAWS."
  LoveToKnow 1911 Online Encyclopedia. © 2003, 2004 LoveToKnow.
  http://93.1911encyclopedia.org/B/BR/BREHON_LAWS.htm
  BREHON LAWS, the English but incorrect appellation of the ancient laws of Ireland, the proper name for which is Feineachas, meaning the laws of the Feine or Feini (fainyeh), who were the free Gaelic farmers. Dlighthe Feine is another name for the laws, with the same meaning. Laws of universal application which could be administered only by duly qualified judges were called Cain law, while minor laws administered by nobles and magistrates were called Urradhus law. Regular courts and judges existed in Ireland from prehistoric times. The AngloIrish word Brehon is derived from the Gaelic word Bret hem (= judge).
• http://szabo.best.vwh.net/brehon.html
  Brehon Law
  Copyright (c) 1998 by Nick Szabo
  permission to redistribute without alteration hereby granted
  The Brehons were travelling judges and lawyers who had undergone extensive training. Like ancient Germanic law, a tort-like system of fines replaced criminal law, and the entire legal system was, relative to continental and modern legal systems, decentralized and competitive both in terms of both adjudication and enforcement. "Kings" were often more powerful than other persons both in their ability to hire Brehons and their ability to enforce Brehon edicts (or defy them). The law also recognized different classes of law based on property ownership -- the most commonly applied class of law being the "Fenechas", the law of the free tillers. However, the system did not have a legislative nor executive branch. The system was very much intermingled with sacred ritual. ...
  Rather than being assumed any time significant mutual business promises were made (as in English and Continental law), the ability to invoke physical enforcement was an optional part of the contract and had to be an explicit part of the agreement to have force of law. This may have greatly reduced invocation of and dependence on physical force to incentivize remedy, which may be more efficient in a decentralized and competitive law system.
• http://cornellia.fws1.com/brehon_law_basics.htm
  Brehon Law Basics
  We should start with a quick look at the basics of the law. The basic regional unit was the tuath and this seems to also be the basic legal unit since Irish Law distinguishes between the deorad (outsider) and the aurrad (person of legal standing within the tuath). Basically stated, the outsider has no legal rights within the tuath and can be killed, maimed or treated in any manner without these acts being considered as legal offences IF there is no treaty between the tribe the outsider came from and the one where he is about to be maimed, killed, or treated badly. He would have legal standing only if there was a treaty between the two tribes.
• http://www.dervala.net/archives/000443.html
  dervala.net
  September 01, 2003
  More Brehon Law
  Ireland had an extraordinarily sophisticated canon of ancient law, the oldest in Europe and among the oldest in the world. From the first century AD on it was passed down orally in verse by the bards. In 431, the High King and St. Patrick called a committee of nine learned men, including themselves, to collect and codify existing laws. They worked for three years, removing anything not in keeping with Christianity, and wrote them down in archaic Irish on vellum manuscripts. This was the Senchus M—r, the first written compilation of the Brehon Code.
• http://www.droitsweb.com/Druids/brehon.html
  The Brehon Laws
  [Author: L. MacDonald DALRIADA MAGAZINE 1993]
  Ireland is extremely unique and privileged to have preserved as part of her heritage a large body of ancient law tracts, known collectively as 'Fenechas', the law of the Feine (Freemen), or more commonly, the Brehon Law. These laws are probably the oldest in Europe; they were in origin the laws of a pastoral people whose status was measured in the ownership of cattle, and whose legal fines were assessed in units of 'sets' (one set was half the value of a milk cow). This ancient legal system was very comprehensive in both its range and technicality even before the ninth century; there were few areas of life that could not be encompassed in some way into the great body of the law. The laws were originally composed in poetical verse and handed down by the Filid. In later times they were written down and several important law books have been preserved and translated, among them the Senchus Mor, the Book of Acaill, and the Uraiccecht Becc (Small Primer). It must be stated, however, that some of the translations are open to debate, for the original manuscripts were written in an archaic language which could easily have been misinterpreted. The scholars who were working on these manuscripts were aware of this fact, but sadly did not have the opportunity to finish their task before their deaths.
• http://draeconin.com/database/brehon2.htm
  The Brehon Laws
  by DOUGLAS HYDE
  Version II
  IRISH CRIMINAL LAW
  There seems to have been no hard and fast line drawn between civil and criminal offences in the Brehon law. They were both sued for in the same way before a Brehon, who heard the case argued, and either acquitted or else found guilty and assessed the fine. In the case of a crime committed by an individual all the sept were liable. If the offence were one against the person, and the criminal happened to die, then the liability of the sept was wiped out, for, according to the maxim, "the crime dies with the criminal". If, however, the offence had been one causing damage to property or causing material loss, then the sept remained still liable for it, even after the death of the criminal. This regulation resulted in every member of the sept having a direct interest in suppressing crime.
• http://www.draeconin.com/database/brehon1.htm
  The Brehon Laws
  Version I
  The above is Chapter IV, an exerpt from "A (much) Smaller Social History of Ancient Ireland" by P.W. Joyce. Full text at Tir Na Nog.
  Five ways of holding Land
  Within historic times the following were the rules of land tenure, as set forth chiefly in the Brehon Laws, and also in some important points by early English writers. The tribe (or aggregate or tribes), under the rule of one king or chief held permanently a definite district of the country. The tribe was divided, as already described, into smaller groups-clans or septs - each of which, being governed by a sub-chief under the chief of the tribe, was a sort of miniature of the whole tribe ; and each clan was permanently settled down on a separate portion of the land, which was considered as their separate property, and which was not interfered with by any other clans or septs of the tribe. The land was held by individuals in some one of five different ways.
  1. The chief, whether of tribe or of the sept, had a portion as mensal land, for life or for as long as he remained chief.
  2. Another portion was held as private property by persons who had come, in various ways, to own the land.
  3. Persons held, as tenants, portions of the lands belonging to those who owned it as private property, or portions of the mensal land of the chief - much like tenants of the present day: these paid what was equivalent to rent - always in kind. The term was commonly seven years, and they might sublet to under-tenants.
  4. The rest of the arable land, which was called the Tribe-land - equivalent to the folc or folk land of England - forming by far the largest part of the territory, belonged to the people in general, the several subdivisions of it to the several septs, no part being private property. This was occupied by the free members of the sept, who were owners for the time being, each of his own farm. Every free man had a right to his share - a right never questioned. Those who occupied the tribe-land did not hold for any fixed term, for the land of the sept was liable to gavelkind (below) or redistribution from time to time - once every three or four years. Yet they were not tenants at will, for they could not be disturbed till the time of gavelling; even then each man kept his crops and got compensation for unexhausted improvements; and although he gave up one farm, he always got another.
  5. The non-arable or waste land - mountain, forest, bog, etc.-was Commons-land. This was not appropriated by individuals; but every free man had a right to use it for grazing, for procuring fuel, or for the chase. There was no need of subdividing the commons by fences, for the cattle of all grazed over it without distinction. This custom still exists in many places all through Ireland...
  Descent of Land
  In Ireland the land descended in three different ways.
  
  1. as private property.-When a man had land understood to be his own, it would naturally pass to his heirs; or he might if he wished divide it among them during his life - a thing that was sometimes done.
  2. The land held by the chief as mensal estate descended, not to his heir, but to the person who succeeded him in the chiefship. This is what is known as descent by Tanistry.
  3. by Gavelkind.-When a tenant who held a part of the tribe-land died, his farm did not go to his children: but the whole of the land belonging to the fine or sept was redivided or gavelled among all the male adult members of the sept - including the dead man's adult sons. The domain of the chief, and all land that was private property, were exempt. The redistribution by gavelkind on each occasion extended to the clan or sept - not beyond. Davies complains, with justice, that this custom prevented the tenants from making permanent improvements.
  The two customs of Tanistry and Gavelkind formerly prevailed all over Europe, and continued in Russia till a very recent period : and Gavelkind, in a modified form, still exists in Rent. They were abolished and made illegal in Ireland in the reign of James I.; after which land descended to the next heir according to English law.
• http://www.utulsa.edu/law/classes/rice/Jurisprudence/Extra_Reading/Maine_Early_Hist_Institutions.htm
  Lectures on the Early History of Institutions (1875)
  Henry Sumner Maine
  John Murray Ltd. London, 1875.
  Lecture 2:
  The Ancient Irish Law
  I quite agree with one of the Editors that, in the ancient Irish Law of Civil Wrong, there is a singularly close approach to modern doctrines on the subject of Contributory Negligence; and I have found it possible to extract from the quaint texts of the Book of Aicill some extremely sensible rulings on the difficult subject of the Measure of Damages, for which it would be vain to study the writings of Lord Coke, though these last are relatively of much later date.