Posted by: L | July 18, 2007

Murray Rothbard: a libertarian society….

“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 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:

… 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, 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

More from Murray Rothbard, “For a New Liberty,” Chapter 11, at the Mises site.

 

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Responses

  1. […] = ”; digg_topic = ”; Powered by Gregarious (42)Lila Rajiva recently posted a recommended excerpt from Rothbard’s book For a New Liberty in which he discusses the stateless polycentric legal […]

  2. Lawyers are all members of the monopolistic Bar – a closed shop. Where is the free market? Freedom is choosing the lawyer who will milk you the least?

    Lawyers routinely end up with the land or other material wealth. Liberty??? Truath is the contemporary county courthouse.

    Did the professional jurists, the learned brehons, have black robes?

  3. Yes – that’s a point. But this isn’t an endorsement of all the details of Rothbard’s example…it’s just one instance of a more libertarian society than ours which was also, apparently, less dangerous to itself or others..

  4. With all due respect, the tuath is not a courthouse, but a territorial unit – similar to an “intentional community”, a cooperative land trust or incorporated members club that held land and key resources; remember that we are talking about a system that was mostly destroyed about four centuries ago, and so did not have time to evolve as much as it could have; however, it was already considerably advanced in jursiprudence (e.g. it had concepts of manslaughter vs. murder when the common law system treated both equally).

    Thanks for the post – see also:

    http://libertarian.ie/historical_cases.html

  5. Thanks very much. Lots of good information there.


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