Irish Law and Lawyers in Modern Folk Tradition

Folklore, April, 2002 by Miceal Ross

By Eanna Hickey. Dublin: Four Courts Press, 1999. 208 pp. IR35 [pounds sterling] (hbk). ISBN 1-85182-460-X

The author was personal legal assistant to the Chief Justice of the Irish Supreme Court and the book is published in association with the Legal History Society of Ireland. I have read it several times and am delighted to be able to recommend it unreservedly. For folklorists, it is heartening to find someone--whose training in legal precision is at the other end of the spectrum from oral tradition--so sensitive to the values of folk "fluidity." "The basic rule of legal interpretation ... is ... what is said is presumed to be what was meant ... In a folk narrative ... the true meaning of a story is often found in what is not said. Once I accepted this, it became clear that folklore had some interesting things to say about the law; and that the folklore of law could tell us some interesting thing about Irish people." His book is a brilliant demonstration of this thesis and well worth the 28 [pounds sterling] sterling it costs at present rates of exchange.

Hickey shares with folklorist Carl-Herman Tillhagen the view that much maligned folklore rejuvenates history. He endorses Richard Dorson's claim that, like sociology, it enables students of the law to think holistically. The abstract mathematical nature of the law can produce an ivory tower where lawyers spend their time arguing over points of procedure and where cases are decided on technicalities "without reference to what ordinary people would consider the `real issues.'" Lawyers can forget that society has many other ways of resolving conflicts and that in close communities, relationships may be valued more than justice. I second this view. My experience of working in English jails is that they are not socially effective; so I welcome the growing international demand for "restorative justice." New Zealand, with its Maori traditions, has successfully pioneered this approach, which involves the community in restoring the situation disturbed by the offence. This is very much in the spirit of Hickey's study, which stops short of the present day.

In this connection, he is very insightful when he looks at what happens when a legal system is imposed from outside on an unwilling population and based on values and conceptions of justice alien to the natives. Brehon law, the ancient Irish system, lost out with the fall of the last of the Irish leaders in the seventeenth century. He quotes parallels with India, where again the same imperial power aimed at "civilising the backward" without regard to local custom. In such a situation, practices which the conquerors deplore are acceptable to the conquered because law is only one among many weapons in the struggle for position. He quotes the use of false charges of rape by otherwise upright girls in the eighteenth century to speed up the proposal of marriage and the unselfconscious use of bribery and perjury in situations where all the cards are in the hands of a possibly corrupt establishment. This was also true of England in the sixteenth and seventeenth centuries.

The breakdown of community tends to shift religion from being external to being internal, as Mary Douglas shows in the case of the Navajo. In Ireland, it produced the devotional revolution of the late nineteenth century, a development anticipated in England by the work of Wesley. It brought with it new attitudes to the law. The colonial thesis helps Hickey to throw light on the disparate reports of visitors to Ireland. Some portrayed the Irish as abject, cowering creatures terrified of the law and anxious to distance themselves for the remotest contact with it; others marvelled at the eagerness of the poor to turn to litigation. Many of these poor fancied themselves as legal experts able to run rings around the court. The presence of these loveable rogues drew crowds to enjoy their banter and rapid-fire wit. Yet again, going to court might be only part of an ongoing feud where "legal action was never likely to produce a final solution to the dispute, but was merely another device to annoy and frustrate one's enemies." In these cases, the law would be used to heighten tensions rather than to resolve them. It would provide a platform to say things to others in the community.

Some years ago, when a plasterer I employed told me that his grandfather had been a local brehon, I thought that I had stumbled on a survival of the old Gaelic system. Two farmers in a dispute might decide to "leave it to McClancy," he said. Hickey's book shows clearly that such practices were part of a widespread system of customary courts, arbitrations, clerical interventions, and truth-telling ordeals used to preserve peace in the community. For example, if sheep grazing on commonage lost their markings, quick traditional methods were to hand to allocate the animals and so avoid the creaky slowness of the law. Hickey details the various methods used to ensure that the truth was being told, such as swearing on relics or skulls, drinking water from special wells, suspects being led to a murdered corpse to see if it would bleed, or in ancient Ireland, putting Iodh Mhorainn around one's neck. This halter of the lawgiver Morann would choke liars. In my own work on St Martin, I came across a reference to Bro Mhartainn, the millstone of Martin, which would crush liars. After the verdict had been reached by the community, a variety of methods were traditionally available to ensure compliance. If all else failed, recourse might be had to clerical condemnation, "rough music," or boycott, a word coined in Ireland's Land War.