When Ireland was Stateless

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0:00:07.4 Paul Meany: Today, when I think of Ireland, I think of tea, lots of weird slang and pubs, but not really anarchy, or anything like that. However, for a very long time, almost a millennium, Ireland was a society without a state, or even one dominating legal system. It was what’s called a polycentric legal system, multiple different kinds of competing ideas. I don’t know a huge amount about this tradition, so joining me today, to tell me all about how a stateless society isn’t as crazy as you might think, is Kevin Flanagan, a Director at European Students for Liberty and the founder of the Brehon law Academy, a resource for uncovering the often untold tradition and history of Ireland’s unique system of law.

0:00:45.8 Kevin Flanagan: Thanks, Paul. It’s good to be here.

0:00:48.8 Paul Meany: Murray Rothbard in his book For a New Liberty referred to Ireland and Brehon law as an example of a stateless society built on what he called a polycentric legal system. Is Rothbard right? Should liberalists and anarchists and classical liberals be looking back to a millennium of Ireland’s experience?

0:01:04.7 Kevin Flanagan: Yeah of course, and I love talking about this topic, especially how it relates back to libertarianism. I think this provides real fertile ground for people who are advocating these ideas. To make a case for how this can work in practice, I do have a slight issue with what Murray Rothbard said, that it was the only example. In fact, there’s many examples of this in what I would call pre-​colonial societies, societies that existed, let’s say, before Roman law, so you’ll find this in early Germanic societies as well, you find this in Native American societies, you even find it in some modern societies that have retained that tribal legal structure.

0:01:49.2 Kevin Flanagan: The interesting thing about Ireland and why it provides such an interesting case, is it’s got a lot to do with the written record, and that the written record in Ireland started at a very early period. So we had the advent of St. Patrick around 432 AD, and shortly after that, we started to see the rise of the monastic schools, and the monastic schools had a really deep love of writing that we see still in Ireland to this day. And this is why we have a lot of references and a lot of materials that explain to us how the society might have worked in an ideal sense.

0:02:25.9 Kevin Flanagan: So some of the things that I’m going to talk about are more like ideals and principles that we aspire to in society. Whether they always worked in practice is a different discussion and a bit of a deeper discussion, but ultimately the idea is that law begins and rests and ends with the people, the people who are going out into society, interacting with each other, engaging in commerce, doing business, and then what happens is certain customs… First it’s a habit and a habit becomes a custom when it’s done over a longer period of time, and then that custom becomes a norm, and then eventually the norm becomes a law.

0:03:05.0 Kevin Flanagan: One of the things I loved about the Brehon law when I first started reading about it, was how do you refer to these laws? They always spoke of them in a very lofty, with a high respect and reverence, for the nature of a law. They would talk of the law as being as old as the rocks, or as old as the hills, or as being around since time immemorial. And one of the interesting things about that was that time immemorial just basically meant that they’d been around for as long as anybody alive had been around, so that was around 90 years. Once a custom had been generally practiced and used for 90 years among the people themselves, then it was held to be an expectation in society, a norm, which we would later give the status of a law.

0:03:51.1 Kevin Flanagan: One of the fascinating parts about this was that these laws were being promulgated and more or less created, as I said, by the people themselves. Yes, we had kings and chieftains, and it was a very, I would say, well-​defined social structure in our society, a hierarchy in Irish society, where status was really carefully defined and every profession had grades of status within it, and we can go a little bit deeper into that later on. But the laws themselves were not being issued by the king and handed down onto the people. In fact, the king’s position, his role was as a protector of the laws that were already in place and in practice among the people themselves.

0:04:38.0 Kevin Flanagan: Same with the judges, their role was really to learn the customs that had been established and grown organically among the people themselves and those who were the best at knowing those laws and customs and the best at finding a fair and just outcome to civil disputes as they arose, were the ones who were the best judges.

0:05:01.5 Paul Meany: So really quickly. Let’s take a step back. Brehon law sounds like a completely different system, entirely different to what we’re used to. Can you explain some of the differences between Brehon law and the legal systems that most of us live under today?

0:05:14.6 Kevin Flanagan: Yeah, of course. So first, let’s look at the word Brehon law, because it sounds unusual to somebody’s ear for the first time. The reason why we call it the Brehon law, this was actually an anglicisation. The Irish word for a judge was brehof. So throughout their history as Ireland became colonised, they anglicised this word to brehon. It’s a little bit of a misnomer to think of it as laws that were made by the brehons, but it was a law that was very… Let’s say it was protected and upheld and studied by a class of individuals who are very learned, who we call brehons, and hence, that’s why we call it the Brehon law.

0:05:57.4 Kevin Flanagan: And as I said a few moments ago, the written record around these laws really starts to begin in… Most of the manuscripts we have remaining are like sixth, seventh and onwards centuries, but we know without a doubt, and we know this from the mythology, we know this from the oral traditions and the folk memory, that the customs themselves were actually in existence for a lot longer than the coming of Christianity, that’s just when we decided to start writing them down. And you know, as a historian, that we tend to favour the written records and we tend to discount the oral traditions because they’re unverifiable, but that’s basically what the Brehon law is. That’s where it comes from. That’s where it gets its name.

0:06:42.2 Kevin Flanagan: And how it differs from modern legal systems, but this is a bit of a bigger discussion. There’s many different features of the Brehon law that would be very different to ours. I think one of the easiest places to start here is to say that there was no distinction in the Brehon law between criminal and civil acts of wrongdoing. In fact, all acts were considered civil wrongs, and in our modern legal system, we tend to treat civil wrongs as a tort, something that can be usually compensated, something that is a harm against an individual.

0:07:19.0 Kevin Flanagan: I’m not… I believe America has a common law jurisdiction as well, and so this would apply there also, but the legal definition of a crime in modern parlance is an act against society at large. In other words, a crime is when you act against the state or the state considers itself to be the injured party, and this is why even if there is a violence offence or a theft against an individual, it is the police and the state who then steps in to administer justice on behalf of that individual. We call this the criminal law in our modern systems. This idea of a third party like the state stepping in and assuming the harm on behalf of the actual injured party would be something that’s completely alien to the early Irish.

0:08:14.2 Kevin Flanagan: If there was an injured party, they were the ones who had to pursue justice, and there could only be an injured party if there was somebody who could stand there and say, “I have been wronged, and this is how I’ve been wronged.” And then the role of the Brehon was more of what we would think of today as a mediator or an arbitrator, rather than a judge who issued sentence, and they had very limited powers. We could say that there was no police force to even enforce the judgments of the Brehon, and there were no police… Sorry, prisons with which to put people into if they decided not to break the law.

0:08:52.8 Kevin Flanagan: So that’s a very interesting thing. It makes you wonder how were these laws even followed then, why would they even… How did they even have any power in society? And a big part of this was because of the community aspect of it. Like I alluded to at the start, this was a polycentric system, so if somebody breached the customs of the society and then refused to make amends for that, there were mechanisms built into the society itself, which would make it very costly for somebody to ignore those judgments. So it was basically in your best interest to follow the judgment of the Brehon if you wanted to continue to act in society, if you wanted to do business and trade and have a reputation, which is also a really important aspect of this law.

0:09:44.6 Kevin Flanagan: So that was probably the first distinction is that their attitude towards the law was one that they didn’t make a distinction between civil and criminal offences. All offences, even if it was an accidental wrongdoing or an intentional wrongdoing, were considered offences against the individual, and all of those offences could be compensated for financially, which is fascinating, because in the more recent times, we have the legal philosopher Richard A. Posner from the Chicago School, who put forward his economic analysis of law. I think it was like in the ’70s. It wasn’t a very long time ago. And at the time, this was considered a groundbreaking approach to the law that all law and the judgment… The opinions of judges and the lawmakers are essentially economically motivated.

0:10:37.3 Kevin Flanagan: Well, this was very much in the minds of the early Irish judges, the early Irish Brehons, as I said, at least from the fifth, sixth, seventh century, but we know a lot earlier than that. So there’s very clear differences in those two, our legal system today and the legal system of the past.

0:11:00.5 Paul Meany: When you say Ireland is a stateless society, what exactly do you mean by that? Today, Ireland is nothing like what you’ve described. It’s pretty alien and remote idea obscured by history and almost lost to time. So what exactly did it mean that Ireland was a stateless society with what you call a polycentric legal system? How did these high-​minded intellectual terms translate from ideal to reality?

0:11:24.0 Kevin Flanagan: We need to take kind of a wider perspective on Ireland at the time then, and when we think of Ireland today, we’re thinking of it as a nation, actually, sadly still split into two territories of Northern Ireland and the Republic of Ireland, but in the past, it was made up of many, many petty kingdoms. And every clan had its own piece of territory, its own land, and these family units, which sort of functioned like our modern companies, to be honest, they joined together with other family units into wider associations and their land was joined together, and this more or less was their principality. It was their kingdom. It was their territory.

0:12:06.2 Kevin Flanagan: So the polycentric aspect of it was that from territory to territory, you could have slight deviations in how these laws were in practice. There were essentially two bodies of law, if you want to call it that. We had what was known as the Oireachtas, and we had the Cáin law, and if my memory serves me correctly, the Oireachtas would have been the universal law that was over the whole of the island, whereas the Cáin law would have been more related to the local customs and practices. The Oireachtas, therefore, would be dealing with things that are actually unlawful everywhere in the world.

0:12:46.4 Kevin Flanagan: When we talk about natural law, this is what we’re getting here, that fundamentally, you don’t cause harm, you don’t steal from people, you honour your contract, you don’t cause injury, and if in the event through accident or design that you do that, you make amends for it and the law is there to help victims to get amends for that. Whereas the Cáin law would be, make account of the maybe not such a high level of natural law, like harm, loss or injury, but the more kind of subtleties, the interaction between neighbours and so long that might differ from essentially, from culture to culture within the island.

0:13:23.5 Kevin Flanagan: If we look at it today from our perspective, looking back, we see it as more of a homogenous culture, but they didn’t necessarily see that themselves, they were their own clan, they were their own people, united by a common language, yes, united by a common law and a common blood stock, the genetics, what we call the Gaels, but within their family of the Gaels, there were many, as I said, kingdoms, principalities, tribes, chieftains and so on.

0:13:50.5 Paul Meany: So this sounds like a brilliant system with some really human and genuine libertarian and anti-​authoritarian attitudes, but the thing that makes me question Brehon law, how can you have a stateless society with a king from the period that Brehon law was dominant from 400 to the 1700s AD, kings had the power to tax their subjects, create new and often arbitrary laws, as well as mint coins and regulate trade. So were Irish kings different or were they just like their continental counterparts?

0:14:18.9 Kevin Flanagan: That’s a great question, and there’s quite a lot to unpack in this because it’s very different from what we’re used to today. First of all, I should say that when I use the word king, we really need to divorce it from the idea of the continental monarchies, European traditional monarchies. The Irish word for the king was a ri or a taoiseach, which is still what’s used today for the prime minister of Ireland, the taoiseach, which means a chieftain. They did not have the power to mint coins, they didn’t have the power to impose laws on people, they were subjected the same law actually as the people. That’s a simple answer.

0:15:00.4 Kevin Flanagan: In practice then, the kings did have a role in the administration of the law, they were the ones who kept the Brehon, they would provide for a Brehon to have their court’s judge, so to speak, and because the king was helping to administer the justice of the land, he would be entitled to a portion of the case, okay, a small fee for the king. So using words like, and I’ve done this myself because it just catches the attention to say that it was a libertarian system, or as I called it before, ancient Irish anarchy. To be fair, these are kind of misnomers because the Irish were not using these words themselves, it wasn’t like they were aspiring to be libertarian, they weren’t defending liberty like we need to today, they were just living their lives in a way that seemed practical and made sense.

0:15:52.3 Kevin Flanagan: And many aspects of this would be features that we look to today, and like in our libertarian discourse, there are also aspects of it that would seem quite socialist. For example, there was a common ownership of land that was divided among the tribe periodically, there were also certain social safety nets built into the tribe to make sure that the people who were less fortunate were being taken care of. And this comes back to what was the real one on the king. In historical times, they had a very ceremonial position and almost like priests, but there is a saying from the Council of Cormac, who was one of our most celebrated high kings, and he says, “never a forgetting of the needs of the folk, never did chieftain have feast when the people hunger.”

0:16:45.5 Kevin Flanagan: So this wasn’t mandated in the sense that this was a redistribution policy that was mandated by the government. It was a question of virtue, and a question of… Your nobility actually was defined not by how much you had, but how would you could afford to give others, and this was kind of embedded into the cultural mindset. And because of this cultural mindset, this is why a lot of these things that I’m talking about worked. It would be maybe very hard to re-​establish these ideals today, because it was, as I said, a polycentric system, it was to build something that was embedded into the culture itself.

0:17:23.6 Kevin Flanagan: Now, on the libertarian nature of the king, nobody had the divine right to rule like we have in the primogeniture of the European continental systems, that the first-​born son of the King, regardless if he was a madman, a child or a fool, had the right to rule because he was the first-​born son of the king. In early Ireland was not the case. The chieftain was elected, selected from all of the eligible clansmen. Everybody who was of the right age, who had the right kind of dignity, the person who the family and the clan, the warrior clan, decided were the best representatives for them, a man who was a leader in times of peace and war.

0:18:11.5 Kevin Flanagan: And there’s like a lot of mythology tied into this. They said that when there was a just king, the cows would be full of milk, the orchard would be full of fruit and things like this, so it’s tied into the mythology and the kind of relationship that people had to the land itself. But if he went against the customs of the people or he started to become tyrannical in his leadership, they could just withdraw their support for him, because he was only in power because he had the support of the people, who were armed most of the time and I just want to say, like at the start of this as I said I’m talking about the ideals. In practice, of course, there was feuds, there were struggles for power and things like this, but the ideal of society was that no man had the right to rule over others, and the king himself was to be bound by the same laws and customs that the people were bound by.

0:19:06.9 Paul Meany: In some ways, Brehon law sounds like a very progressive system. Today in America, because of protest over police brutality, ideas of police and prison abolition, formerly only researched by academics, have come to the forefront. Many might disagree with defunding the police or abolishing prisons, but Ireland and Brehon law shows us a world that existed without police and without prisons, but with peace. At the same time, though, Brehon law is quite an old system, rooted in a very particular culture. So was Brehon law similarly progressive for the ideas of egalitarianism or is it quite strictly hierarchical?

0:19:41.6 Kevin Flanagan: Yeah, and I really appreciate this question. It’s seems kind of weird when we talk about something so old as being progressive, right. But yeah, you’re absolutely right, there were no prisons, there was no police force to enforce the laws, it was done through, let’s say, cultural norms, like ostracised was one punishment, people losing their status, which I’ll get to right now. But the Irish were also the very first ecologists. The modern green movement wouldn’t have a patch on the attitudes that the Irish had to nature and the land in the past, where it was, for example, a crime to fell a sacred tree, or to take from the forest that which you did not need except for your sustenance.

0:20:24.5 Kevin Flanagan: And so that’s a topic for another day, I think. But when you first look at the Brehon laws or where people talk about them, they always say things that… They gloss over it with kind of rose-​coloured glasses, and they say everybody was free, everybody was equal. The women had the same status as men, and that is… Would be lovely, but it just wasn’t the case in practice. And all of the legal manuscripts will show us this. It was an incredibly hierarchical society, and some people might shudder at the thought of that.

0:20:57.3 Kevin Flanagan: My view on that is the only thing worse than an unjust hierarchy is having a hierarchy and not acknowledging it. And acknowledging the hierarchy allows for the robust type of legal system that we’re talking about. So, as I said before, there were grades within society. You had the actually the bonded people, the people who were chattel, slaves in a sense, who didn’t have real freedom, they were… Their substance and their life was dependent upon the people who were their masters, let’s say. And this could not be conflated and should not be conflated with the horrendous slavery that happens in the American context. It wasn’t that type at all. It was in a sense if those people were not in that servitude, they would probably have starved and died. So there was a sense of this here, where it was, your status was determined by the actual circumstances in your life.

0:22:00.0 Kevin Flanagan: So the very first grade are freemen, were the free farmers who didn’t own land. You were free, but you didn’t have a lot of property. The next grade above that would have been the freemen who had some property. And then the grade above that again would be the learned classes. So this is where we get to the judges, the poets, also the keepers of houses, the hospitallers, and things like this. Then the next grade we get into what were called the Nemedian. And nemed is the Irish word for the nobility. So we have the noble classes, and then above the noble classes, you have the chieftain of the tribe. And the chieftain of the tribe was under the chieftain of the province. And the chieftain of the province was under the chieftain of the province, and the chieftain of the province was under the chieftain of all of Ireland, who we call the high King.

0:22:48.2 Kevin Flanagan: Now, this is the idea, this is the kind of how the Brehons thought society should work in an ideal sense. But as I said, in practice, we see that this wasn’t always the case. And each one of these grades was paying homage and it’s in… Like rent. They’re paying rent either for the capital that they had borrowed, the land that they had borrowed, and they’re paying it to the chieftain above them. Now, what’s interesting about this, it sounds at first that I’m talking about something like a caste system. What’s very different about the system in Ireland was that you had upward and downward social mobility. Which meant that if you started off as a freeman with little or no property, and through your genius and ingenuity and your industry, you managed to acquire property, you managed to grow your cattle, grow your herd of cattle, acquire more land, through the very circumstances of that fact, the fact that you had wealth, you were automatically then starting to move into the next grade.

0:23:53.3 Kevin Flanagan: And if that wealth could be sustained for three generations, the third generation would rightly have the status of this next grade. Now, the inverse of that was, if you were born into a noble family and inherited wealth and you squandered that wealth through gambling or mismanagement or recklessness, you could easily lose your status, because status was not something that was issued to you by the state, it was something that was a characteristic, a virtue of your characteristics, the true characteristics of your life. So it was defined by your wealth, your blood, in the sense that what was your father and grandfather, what status did they have, and your own industry and genius.

0:24:38.0 Kevin Flanagan: So it was a very hierarchical system, but it was because of that hierarchy, if I can make this point, that allowed for a more just administration of the law. That just sounds very strange from what we’re used to today, but the reason why it could be more just was because those of a higher status were held to a higher degree of expectability within society. A nobleman who committed a crime would be fined a higher amount, a higher portion, than a poor person who committed the same crime, because they were deemed by virtue of the status to know better and to set a better example in society.

0:25:17.5 Paul Meany: There are countries today, like Finland, where if you get a speeding ticket, the amount you pay is based off your income. So there was a famous story years ago of a CEO who paid a huge fine of something like 50,000 Euro. You mentioned that Brehon law did not punish the way we think of today, instead criminals paid back their victims pursuing what you call restorative justice. But what if there was some really rich and evil noble who had money to spare, and just wanted to murder and torture people? And also this brings up with the question, in such a hierarchical society, how did those at the bottom pursue justice from their so-​called betters?

0:25:50.2 Kevin Flanagan: Yeah, that’s a great question, and I’ve gotten asked this question a few times. Like, what if have you had some sadistic billionaire who’s like, you know, I’ll pay the bill and they get to harm people. So again, I would come back to it, and it is kind of like a short answer, that the cultural norms of the day would make it like too costly. Not just financially, but in terms of reputation and in the time back then, reputation was everything, status, or sorry should I say, title, was dependent upon reputation, it wasn’t he the way around. And we know that we have many people of high title within our societies today, we have judges, we have politicians who do not live up to the high standards of society, but the fact that they have a title, that’s enough.

0:26:35.6 Kevin Flanagan: In the past, the reputation made the title, so I wasn’t aware of that situation in Finland, I must look into that because that’s very interesting, it sounds a lot like how the system might have worked back then. But there were other social safety nets built in. You had an honour price and the honour price could be removed from you if you were like a repeat offender, let’s say, and to have your honour price removed was very shameful. You have to bear in mind as well this was so tied into the family unit that you were not… You were an individual acting in society, yes, but the consequences of your actions had a direct impact on your entire kin, so your company of your kin would suffer, if you want to use like, the value of that clan would suffer in the eyes of others.

0:27:23.4 Kevin Flanagan: So there were social mechanisms for this. Another thing then is how does a person of a lot lower status get justice against a person who is a lot more wealthy and a lot more powerful? And Paul, you’d be well aware of the H Block hunger strikers, Bobby Sands, I believe it was the anniversary of his death not so long ago. Well, they were hunger striking for justice. This is something that was very ancient as well in the Brehon laws and how it was called trust good, and what would happen is, the person of the lower status would go and sit outside the house of the person of the higher status, and they would fast from dawn till dusk.

0:28:03.7 Kevin Flanagan: And what this is doing, it’s sending a signal out to society that I’m trying to get justice from this person, and how the law dealt with that, what was the mechanism for actually putting real pressure on that person? If the person of lower status fulfilled the requirement of trust good, the amount of the fine that would be required to pay of the higher status person would increase and the risk of their… The loss of their honour price would increase. So for every day that that person denied the poorer person justice, they stood to lose more and more, we would say financially, but it was also reputation as well.

0:28:41.9 Paul Meany: Trust the Irish to create a legal system based entirely on social shaming. It really is our culture down to a T.

0:28:49.9 Kevin Flanagan: Yeah. [chuckle] Oh, man, I know. I know [0:28:53.0] ____ idea. Yeah, you’re right. It’s so true, you can even see it today, and this is why I think in many respects the Brehon law didn’t die, because we still have this aspect of our culture. But we also have hospitality, the land of a thousand welcomes. Well, it was illegal not to be hospitable in early Ireland, so we still have kind of remnants of this in our cultural mindset, yeah.

0:29:17.0 Paul Meany: So this Brehon law system sounds like a brilliant idea that was quite humane. Looking at it today, we might be a little unimpressed, but for most of human history, you have to remember that the vast majority of legal and criminal justice systems were quite brutal, filled with all kinds of torture, violence and mutilation. There was also numerous capital offences in places like England, where all the way up till the 1800s you could be killed for property crimes. So if this system was so much more humane and reasonable, why did it die out? Why did it ever peter out and become a distant memory, if it was so effective?

0:29:48.5 Kevin Flanagan: Well, you know you’re opening up a can of worms, two Irish men talking, you know you’re opening up a can of worms with that. This was not something that was voluntarily given up by the people, and there’s a big span of history we’re talking about here. We started up off 432 AD, we’re going all the way up to the 1700s, and there’s a lot going on in that time period, you know. If we go back to the early Anglo-​Normans invaders, after a period of time, there was a statute issued, the name of the monarch at the time escapes me, but it was called the statutes of Kilkenny. And this statute was issued against the Anglo-​Norman settlers who had set up home… Colonisers, settlers, whichever you want to say it, who had set up home in Ireland.

0:30:40.6 Kevin Flanagan: But what happened is they’d been here for so long that they started to adopt the manners and dress and customs of the native Irish, who are always described as barbaric, as savages and to de-​humanise them and to therefore legitimise the Anglo-​Norman conquest. One has to ask the question, why would these Normans who were coming from more or less noble stock, abandon the course of the common law and move instead to the course of the Brehon law? And I think you’re hitting on the key point there. It was because they had this humane aspect to it. The English writers talked about, at the time, talked about how disgusting the Irish law was because when somebody had killed another person, he could get away with just paying a fine and not be hanged for it. So they had a very different view.

0:31:33.0 Kevin Flanagan: And also, we should just point out, at this point in the history, there was no Protestant church, there was no Church of England, they were all Catholic, so something very different, something different, caused this very deep differences between these two people. And I posit that that was a difference, a clash, if you will, of the legal systems. So they were not voluntarily giving up, it took hundreds of years and for a long time, like the English had their base in the Pale and in Dublin and Wicklow, Waterford and Kilkenny and those areas, but the rest of the island continued as it was very much under the Brehon laws, very much with their native customs, until we got up to around the 1600s, when we have the later plantations that were happening, and they were very brutal, very, very brutal.

0:32:24.7 Kevin Flanagan: This is where we have the to hell or Barbados idea, where Irishmen who were fighting for their country… This is before the IRA and everything, this was hundreds of years before that, were being exported to places like Barbados to do penal servitude, to Australia and… The population was already being kind of decimated at the time, but when you had the chieftains surrendering to the English king, through a system that was called surrender and re-​grant, this… It’s a big topic so I’ll just try and give the brief insight here. They basically would surrender their lands and titles, the native titles and lands that they had to the English king and have them re-​granted to them under the English title of nobility of an earl or a lord or something like that.

0:33:15.1 Kevin Flanagan: And there’s a whole other conversation there about the legal nature of why that happened. And it was actually Ulster in the north of Ireland that was the last to fall. And the customs in Ulster were existing right up until the turn of the 1600s, the Battle of Kinsale and the Flight of the Earls. This was when the last of the Irish chieftains were kind of defeated and they fled Ireland, they went to the continent, to Spain and to Italy to try and muster up support from their Catholic brethren to come back to Ireland. They always wanted to come back and to fight again and to try to reclaim the Gaelic way of life and the native customs. But sadly, we know that that never happened.

0:34:00.2 Kevin Flanagan: And what followed thereafter was very oppressive, brutal penal laws in Ireland where Catholics were completely mistreated, second-​class citizens, couldn’t inherit wealth, weren’t allowed to speak their language, would be for killed for doing so. It’s a very dark period of history, and that period of history explains why so few of us, Paul, are able to speak the tongue, the native tongue of our ancestors, why so few of us even know about this legal system, why so few of us know about the ancient poets and their amazing use of the Irish and then the English language. There’s a reason why we become disconnected from that very, as you say, progressive and humane and even ecological way of life, and it wasn’t voluntarily, it was done at the bottom of the sword. And that’s a very dark and sad period of Irish history.

0:35:01.7 Paul Meany: The more I read more I realize that Brehon law isn’t just a cool historical idea, it’s a serious way to challenge the way we view justice, society and the state. I was even reading that some Native Americans reference Brehon law in land disputes with the American government. Taking Brehon law out of the realm of historical interest, how do you feel Brehon law can be best studied, adopted and apply today? What are some of its principles that we ought to adopt?

0:35:25.4 Kevin Flanagan: Well, I’m really glad that you heard that about the native people using Brehon law and referring to it, and part of the reason for that was, as I said at the start, it was written down, so they have a reference, whereas a lot of these cultures it was an oral tradition, and our system doesn’t work well with oral traditions. I have a degree in law, I’ve studied law, and I have a degree in law and society. And when I was studying the law, I graduated in 2013, there was this buzzword being thrown around a lot like “restorative justice, restorative justice”, like it was a new thing that they had just discovered, where in actual fact, this was the natural order of things in all, pretty much all human society before you had the colonialism, you had empire, you had the state centralised and nature of law.

0:36:15.9 Kevin Flanagan: So there are a couple of things that I’d pull down of this that I think… Okay, they’re ideals and I’m not sure what steps we would need to take to get to that. But starting with restorative justice, I think focusing on restitution over retribution. And I’m happy to say Northern Ireland, in the Department of Justice, they do have a restorative justice department. And I was speaking to a woman who’s worked there for, I think she said 20 years, something like that, it’s mostly dealing with youth crime and it’s as an alternative to jail. So that’s creeping in there, it’s being talked about, it’s being talked about in academic circles.

0:36:51.8 Kevin Flanagan: And the very basic principle of restorative justice is what can we do to put the victim into the position they were in before the offence took place? And you can’t always fix things like exactly, but the Brehons felt like to get as close as you can to fixing it. The ideal here was, can the two parties to the suit shake hands at the end of it, even if they don’t have to be friends, they don’t have to be allies, but can you walk away feeling that justice has been served? And we read time and time again in the Irish laws that, even if the judgment was against yourself, if you were the wrongdoer, even if the judgment was against yourself, you would be glad of the judgment because you felt in your heart, and we all know what that feels like, you felt that it was fair. So that’s something that’s just more of a cultural thing that we can start to think about and just think in our dealings with people, how do we resolve disputes in a way that we can put out the hand of peace at the end of it.

0:37:52.0 Paul Meany: I wonder if a big part of the respect for the judgments that were made was because under Brehon law, defendants got to decide on their own judge. I don’t know much about the law or going to court or anything like that, but in my opinion, it sounds like a great idea to be able to decide who your judge is. After all, you have really no clue who they are, and they don’t really know much about you either.

0:38:11.4 Kevin Flanagan: And that’s a perfect segue to the next point I was going to make, actually, there was a reason why you could choose your judge. We don’t even know our judges, they don’t even know us. So there was this idea, like how can somebody who doesn’t know your judge you? So it wasn’t that you necessarily had a personal close relationship with your judge, but it was the person who was being claimed against could choose the judge. So if I had a dispute with you, you had caused me harm, and I say, “I’m taking you to law,” you could say, “Okay, well, I’m going to pick the judge.”

0:38:43.1 Kevin Flanagan: Now, I’ve been asked before, would that not create an incentive in judge to favour the defendants? Well, this is how these built-​in mechanisms of the natural, or sorry, the customary law worked. The judge, the status of a judge, or the best judge was the one who could assess the details of the case, and based on the customs and his knowledge of the law, come up with a judgment that they called the true judgment. There was a feeling that there was a true answer to all disputes, there was a correct judgment, and we even have mythology of the collar of Moran, the collar of truth, it was called.

0:39:22.5 Kevin Flanagan: A judge called Moran would wear his collar, and it was believed if he uttered a false judgement, the collar would tighten around his neck and choke him until the true judgment was said. We have other cases in the mythology of a bad judge, a man who gave a bad judgment breaking out into blisters and boils on his skin so that the people would visibly see that this was an unjust judgment. There is also a story about Cormac mac Airt, the King Cormac who mentioned previously, when he was a boy, and when he was a young boy before he became king, there was a dispute between the Queen, our Queen, and a sheep herder, a female sheep herder, called Bernaid.

0:40:04.9 Kevin Flanagan: What happened was, her sheep had gotten into the Queen’s crops, very expensive crops that were used for dyeing wool, and started to eat the crops. And her husband, who was the king, and kings often fulfilled his role of a Brehon in the same sense that we talk of the judgment of King Solomon, we would talk of a king needing the have the judgment of the Brehon. And he gave his determination of the case, which was, the sheep has eaten the crops, so as forfeiture, you must give your sheep to the queen, as payment for the crops.

0:40:37.8 Kevin Flanagan: Now, upon hearing this, this young boy, who was destined to be a future king, said, “This is a false judgment”, to the crowd, he said, “this is a false judgment”. He said, “As the crops grow from the land, so does the wool grow on the sheep. So the fleece of the sheep, should be given as the payment, rather than the whole sheep, rather than to deprive that woman of her livelihood”. And the people looked, and they can feel it. You know when you hear that story, you can go, oh, you can feel something there. There’s something that tweaks your heart a little bit. And the people around said, “that is surely the judgment of a king”.

0:41:18.9 Kevin Flanagan: The judges were not, like we have today, appointed by the state, appointed for political reasons, very true in the case of America and the Supreme Court. They stood out and they rose up among their people, because they were the best at recognising fairness and delivering what we call the true judgment. They were actually in competition with each other. There was a judicial market opening, if you will. And the one who gave the bad judgment, he wouldn’t be a judge for a very long time, because it comes back to the notion of reputation that I spoke about.

0:41:51.5 Kevin Flanagan: One other aspect in the way the judges worked, was that they were actually liable themselves for giving a false judgment. If I was a Brehon and I was going to hear a dispute, I’d have to put up a portion of my wealth, I think it was a twelfth of the value that was being disputed, as kind of like an indemnity bond. And if I gave the false judgment, the two parties to the suit got to take this indemnity bond and they’d split it between them, and they would go and find another judge. Not only did I stand to lose financially, I stood to lose reputationally and, as I said, that was everything. So you had built into the mechanism of justice, these self-​regulating principles that ensured that justice was being done, and if you were a bad judge, you were no longer a judge in the eyes of the people.

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0:42:51.9 Paul Meany: Thanks [0:42:52.4] ____ for listening. I hope you enjoyed this podcast. And if you did, you can subscribe on Apple Podcasts, Spotify, or wherever you listen. Portraits of Liberty is written and hosted by me, Paul Meany, and produced by Landry Ayres. You can also visit lib​er​tar​i​an​ism​.org to find more shows like this. I hope to see you next time.