Quite frequently in historical writing, one comes across an approach which seeks to reinforce political, social or economic ideals by claiming to observe them in ancient or pre-modern societies. This isn't a new concept, indeed it was common during the middle ages, when any thinker of note looked upon Roman civilisation as superior to what had replaced it, and thus tried to justify any innovation by shrouding it in antiquity, and giving it the validity of tradition, or precedent. It was only with the advent of the Renaissance and the Enlightenemnt when innovators realised they had surpassed classical civilisation did the requirement to coat innovation with antiquity expire.
That said, there are still those who feel that one must validate new legal or social institutions by referring to past precedents. Advocates and detractors of Gay marriage argue over the presence/absence of such an institution in societies which have disappeared for 2,000 years, with little or no thought to its relevance to the functionality of such an instiution.
It seems however that Libertarianism is also searching for such validity by tradition, or an antique coating for their philosophy, or perhaps merely wishing to demonstrate that societies are successful when adopting libertarian principles. Their poster boy is Ireland under Brehon Law and is summarised here http://mises.org/rothbard/newlibertywhole.asp:
Of course the understanding of Medieval Ireland here is quite poor. The assertion for instance that 'no one was stuck or bound to a given tuath, either because of kinship or of geographical location' is quite a preposterous one, considering that the tuath were based upon an agglomeration of kin-groups, and there was little or no possibility of secession from the túath one was born too.
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."
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....
However, I choose here to deal with his stance on the application of Irish law, particularly the statement '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."'
It is inarguable that the laws when first compiled in the 6th and 7th centuries (or according to tradition, under Saint Patrick), envisioned quite a limited role for the tribal king or rí. However, to suggest that the only duty he held was to represent the túath in external matters, be they warlike or peaceful, and he had no role in legislature or the public enforcement orf justice is very much misleading. One of his main roles, for instance, was to enforce legislation during rebellion, invasion or emergency. The Críth Gablach, a well-known tract on Irish status, states when prescribing a kings weekly duties, Sunday is for drinking ale, Monday is for judging, Tuesday is for playing fidchell, Wednesday is for watching hounds hunt, Thursday is for sexual union, Friday is for racing horses, and Saturday is for judging. A king whose duty it is to judge is hardly removed from the public enforcement of justice.
But even if libertarians still find this limited judicial role satisfactory to expounding their political philosophy, there is absolutely no evidence to the claim that it lasted 1,000 years. Indeed, one must remember that the Brehon laws were equally normative and descriptive, they list what they feel should be done in various instances with no evidence that such delimitations of power were observed, and it is highly unlikely that strong kings, who after all were the wealthiest and most powerful men in any túath, felt dutifully bound by their prescriptions. As it was, it was quite difficult, due to their high honour and némed status, to bring a king to account in a civil matter where there was a damaged party, it would probably have been more difficult still to bring him to account on something so intangible. It must also be remembered, that the king himself was the ultimate upholder of the law, there would be little or no authority to appeal to, had he himself disobeyed its provisions.
It is therefore without any surprise that we find numerous instances of these rules being disobeyed (if they were ever adhered to) from historical sources. This was inevitable given the growth in executive power of Irish kings throughout the pre-Norman period. The view that Irish society, often based on later commentaries still discussing earlier material as if it was still relevant, changed little due to the immutability of the legal system during this period is rather an anachronistic one. In reality, kings subverted the law to suit their own ends, as would be expected from any ambitious medieval monarch.
The clearest example that the limited role envisioned by Brehons was ignored is probably to be found in a Middle Irish (9th-12th) speculum princeps, Cert cech ríg co réil ostensibly written for Aed Oirdnide (d. 817), but likely to be written much, only addressed to the same, undoubtedly to give its prescriptions a validity of tradition, similar to what some Libertarian thinkers are doing by using Brehon Law Ireland as an example of a functioning libertarian society.
The poem gives us many examples of the increased Judicial role, and indeed governing role of the Irish king.
The king, as with traditional depictions, must give no false judgement. It's clear however, that this refers not merely to a decision making process, but rather to individuals.
Cen gúbreith do breith • for saith nach for maith
acht in changen fir • 'séd as dír do fhlaith.
Giving no false judgment on the bad nor the good,
but (finding) the true facts, that is fitting for a prince.
The king is told to be equal and fair with those he is meant to judge, regardless of the character of the individuals involved, he is not to rely on prejudice but the true facts of the matter. Similarly in another verse, he is urged not to side with the strong over the weak.
It seems from other verses that criminal disputes were no longer civil matters, and the king was playing an active role in punishing criminals.
Tabair gemeal crúaid • for cimbid do chéin
ar is ferr a lecht • andá a thecht cen reir.
Put harsh gyves on a prisoner from afar,
for his death is preferable to his escaping without leave.
Gremel crúaid i coiss • is riag rúad ria ais
cuithe salach sug • carcar cú ri clais.
A hard fetter on the foot, and a red cross (?) i) on the back,
a filthy pit, ooze, a prison with its back to a ditch.
Cech merlech borb boeth • a erlech collúath
fot shúil condech brod • diangabthar crod úad.
Let every violent wanton rebel(recte: thief) be put to death at once;
may a thorn get into your eye, if cattle be taken
Intí táraill gait • nochanalaind duit
mad dia fagba a dín • i tig ríg no cluic.
If any man has committed theft, it is not honorable for you
if he get shelter in palace or sanctuary.
These versus show that it was indeed considered the duty of the king to not only pursue criminals but also to punish them, be that by imprisonment or by executing them. Criminal acts, despite the legal stipulations were no longer considered to be a matter for civil cases alone.
Likewise the king was expected to have in ensuring that those within his country were acting peacefully:
Na gnáthaig in túaith • acht tláthaig in tír
atlaige in mes • sé do les a ri.
Be not familiar with the people, but pacify the country;
offer thanksgiving for the mast; such, king, is your
Further evidence for the expansion of the Kings role is to be found in his ability to levy taxes and tribute, something which was not a perogative of the ideal king in the law tracts.
Do chís is do cháin • do thabach co crúaid
dlegair sin do rig • eter tír is túaith.
Levy strictly your rent and tribute;
such is due to the king both of a country and of a tribe.
Indeed, the poet is at pains to emphasise, with use of the verb dligid- is due to, the tax-levying ability of the king. Crúaid here, strictly, is not to be confused with harshly, indeed the poet forbids the taxes from being exorbitant on he who cannot afford to pay.
Na cuindig do cís • for duine nád fóel
is ferr úad alleth • andá a meth mar óen.
Do not demand tribute of a man who cannot bear it;
better get a moiety from him that that they both
However, this is not true charity but pure pragmatism, a meth mar óen- they both perish, refers to both the cís- the tax and the individual who should be paying it. Taxation, however, could indeed be unfair or arbitrary.
cid ail cincopáil • bid cáin ar na gáib.
whether it be pleasing or not, have a tax on spears (?).
If the translation is correct, it's almost reminiscent of 17th and 18th century British window taxation.
The king was also expecting to be in possession of a standing army, with the ability to call on them as he wills, something rather anathema to a libertarian viewpoint. This of course, meant the king did no longer have to rely on the prescriptions of military service outlined in the laws which would have expanded his ability to act or to undermine those laws elsewhere.
Amsaigi Ailig uill • alloss chlaidib chaim
dot chomet co gúr• bit fort chul do gaill.
Let the mercenaries of great Ailech, with the curved sword,
protect you keenly; let your foreign mercenaries be at
Of course, the king also had to provide for those troops, and the poet here recommends that he billet them upon the populace.
Dena ingeilt ois • narbat timtheirc tais
dena coinmed crúiaid • do shluaig ar cech aiss.
Practise pasturage during cessations (?) ; forage mercilessly;
make a stern billeting of your troops on every side.
10 Cid bráthair do ríg • ó gebthar a giall
acht rothechta thech • na sóer nech ar biad.
Even the brother of a king, whose hostage has been accepted,
provided he possess a dwelling, exempt no man from
Every house was expected to provide food to the king's army, and the king was expected to billet his hosts on both his own side and the side of his enemy. Hardly the example of a free society which upholds libertarian principles.
What this poem does show is that far from lasting 1,000 years, the libertarian nature of Irish society did not even last four hundred, if indeed it wasn't a figment of the imagination of early Irish judges, or a reflection on the conditions in which they lived. The needs of power hungry monarchs had rode roughshod over the rights prescribed in Irish legal texts. Therefore, far from being an adequate example of a successful libertarian society, the Brehon system shows that in Ireland at least, it was the ultimately a failure.
But was it ever designed to succeed? Such limited roles for monarchs weren't visionary or ideological, but were pragmatic for the time they were written. The Irish legal tracts in the early period, as did many European legal tracts, preferred civil law resolutions over criminal law resolutions because there was no higher legal authority to adequately enforce those laws. It was a legal necessity. They did not wish to exclude authority, it was simply that there was no true strong authority to exclude. Thus when the king's authority increased, naturally he was going to have a more involved role in the implementation of justice and legislation, and private law was transformed into public law, civil into criminal.
The poem, Cert Cech Ríg co Réil is to edited and translated by Tadhg O'Donoghue in 'Cert Cech Rígh co Réil' in Miscellany presented to Kuno Meyer 258-277, edited by Carl Marstrandar and Osborne Bergin.