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Property Rights in Celtic Irish Law

Property Rights in Celtic Irish Law

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Published by Ryan Faulk
By Joseph R. Peden, Department of History, Baruch College of the City University of New York
By Joseph R. Peden, Department of History, Baruch College of the City University of New York

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Published by: Ryan Faulk on Nov 08, 2010
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06/02/2012

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PROPERTY RIGHTS IN CELTIC IRISH LAW*
JOSEPH R. PEDEN
Department of History, Baruch College of the City University of New York"The laws which the Irish use are detestable to
God
and so contrary to all laws that they ought notto be called laws.
.
."
Edward l of England
(1277)
"Leviathan in swaddling clothes"
D.
A.
Binchy on the lrish
TuoN,
INTRODUCTION
It is impossible at the present time to presenta systematic, coherent description of theancient Irish law of property. The reasonis that a considerable portion of the sourceshave not been published in modern scien-tific textual editions and translations. Theprincipal sources used repeatedly by historiansin the 19th and early 20th centuries are themulti-volumed editions of the old Irish lawtracts edited and translated by Eugene O'Curryand John O'Donovan and published posthu-mously by other editors between 1864 and 1901.While both these pioneer scholars were compe-tent in their understanding of Middle and earlyModern Irish, the language of the glosses andcommentaries, neither was able to cope toosuccessfully with the archaic and very technicalterminology of the Early lrish texts of the law-the oldest and most valuable strata for under-standing Irish legal concepts and principles.The later editors of the O'Curry.
-
O'Donovantranscriptions and translation were, with oneexception, almost wholly ignorant of the Irishlanguage, and the result was that their footnoteswere misleading and inaccurate, their intro-ductory essays teemed with misinterpretations,and the printed texts themselves were full ofglaring errors.[ll
This
paper
was given at
a
symposium
on
"The Origins andDevelopment of Property Rights" sponsored
by
the Institutefor Humane Studies at the University
of
San Francisco,
17-20
January,
1973.Scientific study of the Irish law tracts had toawait the development of Celtic philology.This was begun in the early 20th century throughthe interest of the German Celticist RudolphThurneysen, the English linguist CharlesPlummer and the Irish historian Eoin Mac-Neill. These three undertook the first reallycompetent study of the difficult Old Irish texts,and more importantly, they trained and en-couraged younger scholars to pursue the verydifficult linguistic, historical and juristic studieswhich would prepare them for further study ofthe law tracts.Unfortunately, many historians not specializ-ing in the study of the ancient Irish law tractshave been unaware of the textual inaccuraciesof the O'Curry
-
O'Donovan translations andhave continued to incorporate their older un-scientific work, and that of their editors, intotheir own work. For example, one of the mostcommonly cited sources for early Irish historyis Patrick Joyce's
A Social History
of
AncientIreland,
first published in 1906 and republishedin 1913 and again as late as 1968. This workis notoriously inaccurate; it has no sense of thefact that a chronology of at least 1000 years isbeing covered during which some changes insocial and legal institutions took place. Joyce'sbook was used between 1914
-
1918 when thegreat French historian P. Boissonade was pre-paring his epochal history of social life andwork in medieval Europe. Thus Boissonadespeaks of "the soil of Ireland (belonging) to184
tribes
or clans.
.
.
the clans held the land in
 
82
JOSEPH
R.
PEDEN
common.
. .
.no man held individual propertysave his household goods, and each held onlythe right of usufruct over his strip of
tribal
domain.
. .
in each
district
of Ireland the freepopulation lived
communistically
in immensewooden buildings
. .
.
.
they lived and fed incommon, seated on long benches, and all thefamilies of the district slept there upon bedsof reeds.
.
.
".
One can see immediately that thewriter is using the words "tribe", "clan","tribal domain", "district" and "population':equivocally, leading to great confusion. Almostevery part of this passage is incorrect or verymisleading.[3]We might ignore Boissonade's errors exceptthey are typical of many other secondarysources including the
Cambridge EconomicHistory,
whose editor Eileen Power, incidentally,translated Boissonade's work into English in1927. Worse yet, this translation was reprintedas a Harper Torchbook in 1964 and circulateswidely in American colleges, perpetuatingerrors dating back more than
60
years.Even when native Irish authors like lawyerDaniel Coghlan attempted to write
a
systematicdescription of land law under the ancient lawtracts, his work was described by a scholarlyreviewer as "inaccurate and unreliable, of little~alue''.[~1Despite nearly
50
years of persistentand rewarding scientific study of the Irish lawtracts by professionally competent philologistsand jurist-historians, a recent historical workappeared which ignores all that has been pub-lished on the'problem of Iristi land law in theancient law tracts, and in a chapter entitled"Celtic Communism" repeats all the inaccura-cies of Joyce[SlUnder these circumstances, conscious of myown lack of knowledge of the Irish language,and keenly aware of the shoals that await thehistorian who is not expert in this highlyspecialized field of study, I have deliberatelyavoided all reliance upon authorities who areno! themselves trained in Irish language andhistory. 1 am not presenting a coherent syste-matic review of the lrish law of property; I ampresenting a review of what the most compe-tent Irish scholars of the last half century havediscovered since they applied modern scientificphilological and historical standards of criti-cism to the ancient Irish law tracts.My survey of the literature indicaies that(1) private ownership of property played
a
crucial and essential role in the legal and social'institutions of ancient Irish society;
(2)
that theIrish law as developed by the professionaljurists-the brehons-outside the institutionsof the State, was able to evolve
an
extremelysophisticated and flexible legal respqnse tochanging social and cultural conditions whilepreserving principles of equity and the pro-tection of property rights;
(3)
that this flexibilityand development can be best seen in the develop-ment of the legal capacity and rights of womenand in the role of the Church in assimilating tonative Irish institutions and law;
(4)
that theEnglish invasion, conquest and colonization inIreland resulted in the gradual imposition ofEnglish feudal concepts and common law whichwere incompatible with the principles of Irishlaw, and resulted in the wholesale destructionof the property rights of the Irish Church andthe lrish people.Irish law is almost wholly the produet of aprofessional class of jurists called
brithim
orbrehons. Originally the Druids and later the
filid
or poets were the keepers of the law, butby historic times jurisprudence was the profes-sional specialization of the brehons who oftenwere members of hereditary brehonic familiesand enjoyed a social and legal status just belowthat of the kings. The brehons survived amongthe native lrish until the very end of a free Irishsociety in the early 17th century. They wereparticularly marked for persecution, along withthe poets and historians, by the English authori-ties. The statutes of Kilkenny (1366) specificallyforbade the English from resorting to thebrehon's law, but they were still being mentionedin English documents of the early 17th ceniury.l61The absence from the function of law-makingof the Irish kings may seem startling.
But
Irish
kings
were not legisiators nor were they normallyinvolved in the adjudication of disputes unlessrequested to do so by the litigants.
A
king wasnot a sovereign; he himself could be sued and a
 
83
ROPERTY RIGHTS IN CELTIC IRISH
LAW
special brehon was assigned to hear cases towhich the king was a party. He was subject tothe law as any other freeman. The Irish polity,the
tuath,
was, one distinguished modem scholarput it, "the state in swaddling clothes". It exis-ted only in "embryo". "There was no legis-lature, no bailiffs or police, no public enforce-ment of justice
. . .
here was no trace of State-administered justice". Certain mythologicalkings like Cormac mac Airt were reputed to beIawgivms and judges, but turn out to
be
euheme-
rized
Celtic deities. When the
kings
appear
in
theenforcement of justice, they do so through thesystem of suretyship which was utilized toguarantee the enforcement of contracts and thedecisions of the brehon's courts. Or they appearas representatives of the assembly of freemen tocontract on their behalf with other
fuafha
orchurchmen. Irish law is essentially brehon'slaw-and the absence of the State in its creationand development is one of the chief reasons forits importance as an object of our scrutiny.171The bulk of the lrish law tracts were com-mitted to writing in the late seventh and earlyeighth centuries, and though influenced some-what by the impact of Christianity, they arebasically reflective of the social and legal prin-ciples, practices and procedures of pagan Irishsociety. In the early ninth century, the oldesttexts were being glossed because the originalmeaning was no longer certain, or practice hadin fact undergone developmental change. Bythe 10th century elaborate commentaries werebeing added which indicate that the texts wereeither so obscure to the new generation as tobe inexplicable, or change had become somarked that the commentaries often contradictthe text itself. Part of this confusion was due tothe very archaic and technical language of theearliest texts and the subsequent change in theIrish language from what we call now Old Irishto Middle Irish. If we recall the marked dif-ferences between the English of Chaucer andthat of Shakespeare, we will understand thedifficulties of the brehon jurists over a compar-able period of time.181To complicate matters further, the earliestIrish texts reflect the existence of several dif-ferent schools of law, each producing its ownparticular code or tract. While all the tractsare recognizably Irish in character,they doreflect local, perhaps regional differences; ifthe evidence were fuller, several local schoolsmight be identified. As of now it appears thata northern and a southern regional affinitycan be detected. The fact that in later historicaltimes certain families of brehons were associated
with
specific
tuatha
or regions suggests that localvariations in specific procedures and penaltieswere almost inevitable.But from the tenthcentury, the legal fiction arose that the lrish lawwas a unity and all contradictions were to beexplained away by the commentaries.Themultiple and competing law systems of the earlyperiod were now subjected to homogenizationto produce what was considered to be a uni-form law for the whole island. And this fiction,like the equally unhistorical claim that therewas a single High-King of Ireland-the Kingasseeiated with Tara-retained its hold onhistorians down to the application of moderntextual criticism in the 20th cent~ry.[~lThe conversion of the Irish to Christianitybegun in the fifth century was bound to affectprofoundly Irish life and institutions. TheChristian church was already very Romanizedin its institutional and cultural conceptions. Itwas urban-oriented and, thanks to St. Augustine,had reconciled itself to the Roman conceptionof the State as part of the natural (if sinful)order of the world. In Ireland RomanizedChristians found a wholly rural-oriented societywith a barely embryonic conception ~f the State,and a well-develope4 legal tradition in whichlaw making was the special function of essen-tially private persons-a professional class ofjurisconsults and arbitrators known as thebrehons. Law and order, and the adjustment ofconflicting interests, were achieved through thegiving of sureties rather than State-monopolizedcoercion. The Church could not depend uponthe lrish kings to compel their people to convertto Christianity nor could they use the State toimpose Christian law on an unwilling popu-lation. Significantly, the conversion of thelrish was undertaken without State-directedcompulsion and not a single martyrdom isassociated with the Church's triumphantsuccess.
f'0l
Without the instrumentality of the State to

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