|
RESTORATION
Selective Incorporation As mentioned above, the last of ALI was published in 1901. Despite existing as the common law of Ireland for two entire millennia, and finally being partly translated and published in Ancient Law of Ireland Volumes (19---19), the Brehon Laws were ignored in the early 1920s, when Saorstát Éireann and the legislative structure of Government was altered. They were again ignored in Bunreacht na hÉireann, in 1937. While listed in handbooks of justices around the country for years afterwards, they were never used as legal precedent. They warranted more than a passing mention in legal history elective courses in modern Irish Law Schools. Yet, recently, they have been repeatedly raised in Irish legislative debate, imparting a legal precedent on issues such as adoption, negligence, One does find mention of the ancient laws, in the first paragraph
of the Houses of the Oireachtas, The Irish Houses of Pariament, of a
proclamation entitled, The Irish Parliamentary Tradition: Ireland has a tradition of parliamentary government whose roots predate
the written history of the country. The legends and annals of ancient
times give numerous examples of elective chieftainries and kingships
and describe how Irish society was organized along lines that could
reasonably be regarded as 'democratic' today. The legal system of the
time - the Brehon Laws - were clearly grounded on commonsense, practical
arrangements that facilitated people living together in a cooperative
way.
Self Description The description of Irish history and early Irish people contained on the official Republic of Ireland website at History, Prehistory - Department of Foreign Affairs, exhibits a rather simplistic view of both:
One comes away with the idea that the people lived very simply, and
that many of todays issues were not present then. One also gets the
feeling that the purpose and foundation of the laws was to regulate
the classes, and there is little or no effort on the site to explain
the history, or contents of the the laws.
Dunphy v. Bryan
In 1963 a judge in County Kilkenny District Court, heard the case of
Dunphy versus Bryan. [82] One of three pet lambs, which were customarily
fed in defendant's yard, escaped into a public highway and collided
with a motor car, driven without negligence. In an action based on alleged
negligence and breach of duty, it was held that the owner of the motor
car was not entitled to recover damages against the owner of the lamb.
The judge, in his opinion stated:
Modern Parliamentary Debate Ms. Mary Hanafin, T.D. (Dublin) in (Dail Debate 3-12-98) grandly stated
that "Brehon law did not recognize the concept of negligence. A modern
day Fionn MacCumhaill running through the woods would be more likely
to sue the local authority for twigs sticking in his feet rather than
picking them up with his toes. The law of negligence is out of control
and needs to be corralled before we are completely fleeced."
Sadly, the Irish people have already been fleeced for far too long.
Judging from her knowledge of Brehon Law, the fleecing continues. 'Brehon
law' has become an effective catch phrase, batted about like a puc,
for those who cannot possibly know what the laws say, since the great
body has not even been reliably translated. Her statement would appear
to be an a gross misstatement of the ancient law, as evidenced even
in this short poem above.
A legislator with a greater handle on the laws is Mr. Kett, in Seanad
(Senate) Debate on November 5, 1997, discussing spending on the needs
of the handicapped Equality of Disability. the report of the Commission
on the Status of People with Disabilities:
Another speaker, Mr. Glynn in Seanad Debate of March 13, 1998:
Yet, as much as the laws seem to inspire a noble past for certain members, they are just as quickly used to ridicule. Mr. Rabbitte, during the course of attack on Mr. O'Donohue, who was apparently going back a little far in explanation of his action, quipped: "The Minister would go back to the Brehon laws if he was allowed." The implication here of course is that the laws are ancient history, in more ways than one. One wonders where these distinguished Irish speakers have gained their expertise, since Brehon law is not prominent in any Irish primary, secondary or law school. And, as noted, neither are they prominent on the Irish Web Site. The use of them here in parliamentary debate raises a host of interesting questions, primarily dealing with the issue of precedent. They are spoken of in conjunction with Fionn and the Knights of the Red Branch, as if the laws themselves were on par with these mythical heroes, never in fact applying to real people at all. The selective incorporation into debate and official dialogue and publication shows that nobody has sat back and really thought about the core issues of defining, once and for all, what they mean to us as a people and a nation. While the Law Reform Commission would seem an obvious vehicle for such a reexamination, there is no sign of it actually occurring. The 'Struggles' for Honor The Brehon Law Society in New York uses them as a nationalistic namesake, collecting money for NorAid and conducting political activities, such as supporting the historic visa application for Jerry Adams. If the republican nationalists regain the balance of power in the North, will they adhere to Brehon Law principles? Do these laws offer an opportunity for a solution to the problems in the North by requiring that the Irish Republicans obey their tenets, and practice the neighbor and hospitality law principles contained therein? Could these laws form the basis of a platform, requiring and reassuring that all parties to the 'struggle' conduct themselves with honor, that ancient and seemingly long forgotten principle that lies at their core? In the end, isn't that what the struggle is for? Real Solutions for Real Problems With the arrival of 'Post-Catholic' Ireland, as it has now been termed, manifest in the legislation such as legalization of abortion and family planning, the marriage of church and state that had occurred in Bunreacht na hEireann (Constitution of Ireland), is now itself facing divorce. The recent flood of scandal, including priests with children, sexual molestation, and generations of unmarried mothers forced into indentured servitude and unmarked graves, have brought the Irish people to finally question everything, openly. Bad law has corrupted good people. Ireland is now faced with this monumental identity crisis as she faces all the pressing legal issues, common to all modern states, as well as armed conflict in the North. None of these issues can be entirely separated, all stemming from a common source, the rule of law. Faced with the effects of bad law, the natural conclusion is that good law will have the reverse effect of improving the quality of life, and preventing tragedy. Scholars from abroad come to Ireland to talk about how they are inspired by the Brehon laws, focusing on topics such as 'restorative justice (or victim's rights), and use them in formulating legislation abroad. Yet, the Irish Law Reform Commission, the first major effort at reform in decades, seems to completely ignore the vast legal heritage right there under it's nose. This heritage amounts to a DNA map of the very soul of it's citizens, a people who are rapidly switching from the age old survival mode, into a mood of celebration, that they have and will overcome. The first modern public study of Brehon Law occurred five years ago in a remote corner of the West of Ireland. The weekend long conference called 'The Burren Law School was hosted by The Burren College of Art. Speakers consisted of historians and members of the legal profession, for the most part. Little notice was taken by the public, it seemed. Yet, only a few years later, in Spring 2000 there will be a Brehon Law School weekend conference with speakers including; ex-Senator George Mitchell, (who may actually be viewed as playing the role of Brehon in the current peace process); President of Ireland, Mary McAleese; Johnny Cochoran, the famous American litigaor; The President of the Incorporated Law Society of Ireland (The Irish Bar); Louise Arbor, Chief Prosecutor of the War Crimes Tribunal; and Tony Benn, Member of the British Parliament. They will walk the ancient pathways of the Brehons in the early morning, and talk till late at night about the ancient mysteries as well as present calamities. This collection of speakers indicates the relevancy of the Brehon Laws, and their possible application to the problems of today. A Tiger, Like Any Other While there are no valid excuses, there are many explanations for the
current obscurity of the Brehon laws; the difficulty in their translation,
the tribal and archaic nature of many of the laws, the scarcity of manuscripts.
Ultimately, it may be attributed to the successful campaign of the English
government to completely erase these laws from Irish consciousness and
where they were not erased, to convince the Irish that these were without
legal, literary or social value. Scholars have written some scholarly
works, which were read by other scholars, yet the Brehon Laws have not
re-entered the Irish legal, political, or educational systems, nor the
Irish consciousness as a whole. These laws are a vital part of our heritage
and their story cries out to be told, in primary and secondary schools,
in law schools and universities and on the tongues of a the children
of the so-called Celtic Tiger. Without these laws, it is just a tiger,
like any other. Still the questions and issues are moot until we have
read the laws themselves. Then people will be free to finally answer
these questions for themselves.
CONCLUSION Until Binchy published the great corpus of the ancient law existing on vellum manuscript, they lay in scattered collections unpublished, and without translation, more than a century after its rediscovery. To this day, there has been little effort on the part of the Irish government, its people or its literati to change this. Perhaps it's time everybody got to read them, since it appears the Irish people have already been fleeced for far too long. A reexamination of the Brehon Laws would do a lot more than clarify
liability for domestic farm animals. There are many lessons to be learned
from these laws. The very fact that they functioned as a self-help system,
resorting to a Brehon only as a last resort speaks of a society that
not only knows the law but enforces it and obeys it. If Ireland does
not want to find itself as litigious as America, it should consider
changing it. The more the people are taught to go straight to court
with a problem, the less responsible they become as individuals.
Naturally, many of the laws may not applicable in modern society. On the other hand, their basic premise may hold the key to future law. A model that needs no police force, and no central political authority, is the exact concept that is needed to formulate a set of rules for global network governance, or an Internet code of conduct that everyone can agree on. Most of all though, it is strange that the Irish people would have nothing to learn from a system of law that governed them for two entire millennia. The true history of laws rewrites Irish history, itself so badly rewritten by those who sought to destroy it. What cannot be incorporated into the current laws of Ireland could be a valuable addition to the syllabi of higher education as great literature. Yet all of this discussion is moot until we decide they are in fact worth translating and reading.
TABLE OF CONTENTS
|
