Police, Courts, and Prisons
Part 4 – Medieval Ireland
I recommend reading Parts 1 through 3 before reading this essay.
The state did not exist in medieval Ireland and the role of kings was extremely limited – no taxing powers, they did not make laws, and their role in law-enforcement was the same as everyone else. Customary law prevailed in Ireland for centuries. Economist/historian Murray Rothbard explains:
. . . 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. . . .
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 guaranteed 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 creditor, 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 proceed 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.
As with Iceland and the Anglo-Saxons, restitution was of primary importance in Ireland. Law enforcement was the responsibility of private individuals, which they facilitated through reciprocal institutional arrangements similar to those of the Anglo-Saxons.
Those unfamiliar with the history of law may find it inconceivable that law-making and law enforcement could occur outside the framework of government. However, laws have always been made – or discovered – by people. Therefore, the question is which people should make the laws. When laws are made by people operating within the institutional framework of authoritarian governments, history shows the overwhelming tendency is for a small minority of people to be favoured at the expense of the masses (discussed in Parts 9 and 12). This is an inevitable outcome of the coercive nature of authoritarian law, and the government warns us “do not take the law into your own hands.”
In contrast, under customary law, laws were not enacted by specific people. Laws were discovered, not made. Through experience, people discovered that peaceful, prosperous, vibrant communities were impossible unless everyone observed certain rules of conduct – do not kill, assault, or steal. Surely, more than 99% of the people would acknowledge the necessity for such ‘laws.’ Thus, the discovery of law goes hand in hand with this ‘virtually unanimous acceptance.’ Once again – and this is important – this stands in direct contrast to the coercive imposition of authoritarian laws which are not widely accepted by the people (Parts 9 and 12).
Thus, under customary law, laws were obeyed not because of written documentation of the law, but because everyone understood the law – everyone understood what constituted good behaviour. In early Irish history, written records were not maintained, yet the law was enforced. It was perfectly sensible that ‘the law was in the hands of the victim’, who would initiate pursuit and prosecution, assisted by his sureties. Think of it another way – sureties would not assist the victim unless the specific type of offence was widely disapproved of by the people in the community. This is how people get the laws they want, and are prepared to enforce. Conversely, under authoritarian law, most murders, rapes, and robberies are NOT solved.
STATUS OF WOMEN
The extent to which we can legitimately consider ourselves civilized has much to do with our process of lawmaking. Speaking of medieval Ireland, Murray Rothbard observed: “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.” Similarly, consider the treatment of women in medieval Ireland:
A fair test of the sophistication of any legal system might be to examine the extent to which women enjoy legal capacity and property rights. By this standard, Irish law in the 8th century may have had more sophistication than English law in the days of Queen Victoria.
The early law tracts found it necessary to mention that a husband has the right to rescind any contract made by his wife in his absence, even if she had found sureties to support it. The contract was deemed invalid, and the sureties as well. But the clear implication is that women were in fact making contracts in their husband’s name in his absence, and the jurist who composed the tract must have been under some pressure to acknowledge the practice, for he specified that such an invalid contract could be validated if the husband neglected to repudiate it within 15 days of his return home or of his being notified of its existence.
Throughout the medieval period, both Irish clerical and foreign commentators frequently denounced the Irish for their failure to suppress sexual promiscuity and adhere to the marriage laws of the Church and “civilized” societies. It is most unlikely that the Irish were more promiscuous than other peoples; but it was their unique practice of continuing to separate canon law from civil law that seemed so scandalous to other Europeans.
Similarly, the Irish law recognized the right of divorce. A man might repudiate his wife for dishonoring him, doing him some injury or willful abortion. But, incredibly, the wife could initiate a divorce action against her husband! She could charge consanguinity, incurable infirmity, sterility, cruelty evidenced by lasting injury, slanderous remarks as to her character, abandonment for another woman, willful neglect in supplying the necessities of life, or abandonment by reason of his entering a monastery. None of the above except consanguinity was grounds for annulment in canon law. There were also some eleven categories of legal separation with respective property rights and obligations regarding the care of children and distribution of property.
The Irish law recognized rights of maintenance and support which vary in degree and amount according to the character of the sexual union. For example, in a marriage of mutual portions the cost of “fostering” or rearing a child is shared equally by the parents; but if the child is born of a bondwoman, or as a result of rape, or in secret, the father is responsible solely for its rearing costs.
The Irish historical record should give pause to those who believe women would be vulnerable vis-a-vis men in the absence of authoritarian laws addressing such issues as divorce, alimony, child support etc. In fact, under authoritarian law, a lot of despicable, irresponsible men shirk their responsibilities with impunity. There are two reasons for this – lack of resources and lack of incentives.
LACK OF RESOURCES and LACK OF INCENTIVES
Authoritarian governments create thousands of laws, and even if taxes were doubled, they still would not have enough resources to enforce even half of these laws. Thus, governments enforce laws selectively, and political influence determines which laws are enforced. As Bruce Benson wrote: “A person’s chances of police protection correspond closely to his position in the “geography of political power.” Much more attention is paid to the robbery of an important political figure than to the murder of an out-of-work, uneducated member of a racial minority.”
Remember, authoritarian laws are created by authoritarian governments. Thousands of laws are coercively imposed. Most of these laws have not been widely accepted by the people. This should be obvious. If the laws were widely accepted, they would not have to be forcefully imposed. Most authoritarian laws favour special interest groups (Parts 9 and 12), including the government itself, and these laws are the primary focus of law enforcement.
In contrast, the government lacks the incentive to enforce other laws sufficiently enough to gain full compliance. This includes laws pertaining to divorce, alimony, and child support. Ex-wives and their children are not a special interest group, which puts deadbeat dads in the driver’s seat. This would be an unbelievable state of affairs in medieval Ireland, where the law was not in the hands of a government but in the hands of the woman who was wronged. She would simply gather her sureties around her, and they would enforce the law. They had sufficient incentive, and sufficient resources.
In reference to the brehons of medieval Ireland, Joseph Peden wrote: “Their power rested upon the free consent of the community in choosing them as arbitrators in disputes; and this made equity and justice more likely than in royal courts where the interests of the State and its rulers are paramount.” Unfortunately, “The invasion and conquest of Ireland, the work of over 400 years before it was completed, was eventually fatal to the Irish system of law and the culture and civilization it expressed.”
 Ibid., p 287
 Ibid. (source provided by Peden: D. A. Binchy, ed. Studies in Early Irish Law (Dublin, 1936). This is the most complete study of the status of women in Irish law and the product of a seminar conducted by Rudolph Thurneysen, the distinguished Celticist. See here D. A. Binchy, “The Legal Capacity of Women in Regard to Contracts,” SEIL, pp. 207 -234, especially 211 -216)
 Ibid. (source provided by Peden: August Knoch, “Die Eheschudung in alter Irischen Recht,” Studies in Early Irish Law, 235-268
 Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) p 133 [additional source provided by Benson: Neely, Why Courts Don’t Work, p 131]