Thursday, June 3, 2010

Medieval Ireland: an example of a libertarian legal system

If you’re lucky to be Irish, you’re lucky enough.
— An Irish proverb

A question is often asked: in an anarcho-libertarian society, how would the courts and legislation function? Murray Rothbard addresses this and many other questions in his book, For a New Liberty. But here I will only quote an example of the libertarianism in Irish society that he provides. It is very interesting to me from both political and historical point of view, as well as because I like Irish culture, music, language (I was a member of Gaelic club in college) and history.

* * *
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 Ireland — an 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 justice . . . . There was no trace of State-administered justice."9
        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 a tuath 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."10 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 [p. 232] 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 religions 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:
. . . 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.11
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, [p. 233] 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.12
        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 wars . . . were pitiful brawls and cattle raids by European standards."13 [p. 234]

        Thus, we have indicated that it is perfectly possible, in theory and historically, to have efficient and courteous police, competent and learned judges, and a body of systematic and socially accepted law — and none of these things being furnished by a coercive government. Government — claiming a compulsory monopoly of protection over a geographical area, and extracting its revenues by force — can be separated from the entire field of protection. Government is no more necessary for providing vital protection service than it is necessary for providing anything else. And we have not stressed a crucial fact about government: that its compulsory monopoly over the weapons of coercion has led it, over the centuries, to infinitely more butcheries and infinitely greater tyranny and oppression than any decentralized, private agencies could possibly have done. If we look at the black record of mass murder, exploitation, and tyranny levied on society by governments over the ages, we need not be loath to abandon the Leviathan State and . . . try freedom.

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Mor said...

What a shame that "without the coercive apparatus of the State which can through taxation and conscription mobilize large amounts of arms and manpower" they were too weak to resist the English.

A Suede Ḥossid said...

What a shame hundreds of other states could not resist states stronger than they.

Obviously, there was something wrong with that society: lack of good defense service.

But I would venture a guess that had it had a government, Ireland would be conquered as quickly as Wales or Scotland.

Also, the point of this section and this post was not about defense, but about law and order.

Mor said...

Well, I never said that the point of it was anything else. My point is that all idyllic libertarian societies are doomed to the same sad end

Mor said...

Wales and Scotland are irrelevant. Let's boil this down to a few simple statements. All libertarian societies are defenseless. Some non-libertarian societies are defenseless

A Suede Ḥossid said...

Again, I think you misunderstand the point of the post.

Sure, one could argue that Irish libertarian society was not able to provide for defense against England. It failed in this sense. Now, it has survived for a thousand years before it was brutally conquered (you know who else survived for a thousand years before it was brutally conquered? Roman Empire), but you could say that nobody was really interested in conquering Ireland for all this time (although, one would have to compare desirability of conquering it to desirability of Scotland and Wales — especially considering that they are mountainous regions). Fine.

So, there are a few points:

1) Medieval Ireland did not have market in the modern sense (nobody did). Had it had market, the market would be free, sure, but it didn’t. The argument regarding the defense is that market will provide it.

2) Ireland gained independence not through organizing a government and fighting back against England but through guerrilla warfare.

3) All of this is missing the main point.

a) You can’t really prove a negative empirically (although you can show that it’s logically impossible). Especially with low sample number. For instance, you can’t say: “No planets that has life can have two moons.” Well, in our experience that’s true, but you can’t make a theory or law based on N of 1.

b) On the other hand, if you said: “No star systems except ours have planets”, I could easily disprove you — by showing you another star system that does have planets. Now, whether those planets have moons or life, I don’t know. That star system may not disprove your hypothesis in a), but it does work well to disprove your hypothesis in b).

The same way, if one says: “No civilized, cohesive (and even coherent) society could exist without a government and state”, one could point to Ireland as a counter-example. (One could also point at Iceland, Roman Empire and Britain for examples of private law.)

If one said: “No libertarian society can defend itself against a powerful aggressive neighboring state”, then I agree, Ireland is not a good example (although it’s better example than many states — of all three states that England conquered, it was the one to hold out for longest and the only one to gain independence).

Also, if one said: “No libertarian society ever produced a computer operation system that would rival Microsoft Windows”, I would also not point to medieval Ireland as a counter-example.

A Suede Ḥossid said...

Also, it’s a little upsetting that the only thing that you can say in response to an example of intricate system of stateless jurisprudence, legislature and policing is “yeah, too bad they were conquered though”. Imagine, lehavdil, if you gave you a paper about the system of government in the First Temple E"Y, and the only thing I’d say in response was: “Yeah, too bad the Babylonians conquered them though”.

Anyway, here is my question: the minirchist libertarianism states (no pun intended) that the only function of the government should be internal and external defense (police and national army), as well as courts of law and legislature. Some people add to this roads. You would add to this welfare and charity. Fine.

After reading the example with Ireland (and the rest of that chapter of Rothabard’s book) and ignoring the roads and charity for a second, would you now say that the it’s feasible to have the society in which the only role of the government would be the national defense (let’s imagine we could somehow prevent the government from taking over other functions, like US government did) and not police, courts, and legislature? The super-minirchist system, if you will...

Mor said...

Sure, minirchy is feasible. I don't happen to believe that it is the most ethical option of them all.
But I thought that our question was: is anarchy feasible? And Rothbard himself (at least here) admits that it is not.
The Beis Hamikdash was destroyed because we sinned, not because the government set-up was doomed to fail in the first place. If it was destroyed because the government was bad, and I was showing you a paper about that government in order to convince you that that system was the best governmental system out there, then yes, it would be quite legitimate for you to make that dismissive comment.

A Suede Ḥossid said...

Rothbard would certainly be the last person to agree that anarchy is not feasible. Where did you see him “admit” that?

The point of this post is that anarchy is not feasible just like the point of a post about Second-Temple E"Y would be that theocracy is not feasible. Imagine someone says: “Theocracy is not feasible, because a theocratic society could not create a stable system of law and order. Furthermore, it could not defend itself against foreign aggressors.” In response to the first point, I bring an example of First-Temple E"Y. The person answers: “Yes, but too bad they were conquered by Babylonians.” Well, I wasn’t addressing the second argument at all. My point was to show that theocracy (or anarchy in my post) could very well provide a stable society with law and order. Yes, this particular theocratic (or anarchic) society did not provide good defense system, but that doesn’t mean that no such society could.

(Yes, I know that E"Y depended on Hashem for defense. But it really does not matter. Furthermore, you can make this argument if you already believe in Torah or accept the rational arguments towards its validity. Just looking at the bare facts, without interpretation of Judaism, E"Y simply didn’t have as strong armies as the aggressor — just like the other conquered nations. On the other hand, one could even say that this is a further argument against E"Y–style theocracy: “I’d rather live in a country whose national defense is dependent on its realistic defense capabilities rather than on most people being tzaddikim, since achieving the first is more probable than the second, as history shows.” Again, one could argue about this back-and-forth, since countries relying on physical protection also failed — to which someone could answer that “some such countries failed, but all theocratic societies failed”, etc., etc.)

A Suede Ḥossid said...

My very simple point is that I am not addressing all the aspects of feasibility of anarchic society in a single post. In some posts I am talking about law-and-order, in some about economics, in some about education, in some about roads, etc. You can’t answer to a post about feasibility of education in anarchic society: “Yeah, but how will they bring kids to school on school buses, if there are no government roads, huh? And who will defend the kinderlach against criminals?”

Mor said...

Rothbard:without the coercive apparatus of the State which can through taxation and conscription mobilize large amounts of arms and manpower...
Anarchist - def. - a person who is right even when he is wrong

A Suede Ḥossid said...

You’re assuming that in order to defend one’s country it’s absolutely necessary to mobilize huge armies.

But also, yes, Irish couldn’t do that. They didn’t have market providing for protection service. Mostly because for centuries it was not needed, and when the need came, since there was no market, there was no versatility to create this service.

Just like with the potato fiasco.

Mor said...

But that is not the readon that Rothbard gives. Rothbard clearly states that you need a central government to mobilize an army.

A Suede Ḥossid said...

a) To mobilize large, standing armies necessary for prolonged conquests.
b) In the other section, Rothbard talks about guerrilla warfare as a good opposition to a conquest.
c) I don’t think Rothbard in particular gives a good address of the issue of armies in general. For better treatment, see the second essay here (p. 39). Also see appropriate sections here (“The Myth of National Defense” by Hans-Hermann Hoope).

I continue to stress that the point here has nothing at all to do with defense.

Mor said...

Thank you for answering the question. I will look into it.

e said...

this was an interesting post.

A Suede Ḥossid said...

Ah! Finally! Thank you.