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BREHON LAW PROJECT

Symposium

 

Mansion House, King’s Inns

& Glendalough

 

JANUARY 11TH  - 12TH - 13TH   2002

 

 

FRIDAY 11th JANUARY

Oak Room

Mansion House

6.00 PM              Registration

 

7.00 PM                        VINCENT SALAFIA                  

Brehon Law Project

“An introduction to the Brehon Law Project, and the Brehon Law Review.”

 

 THE HON. MRS. JUSTICE SUSAN DENHAM

                                               Supreme Court of Ireland

Topic T.B.A.

 

8.00 PM                        Presentation of Brehon Law Review

                  

              THE RT. HON. MR. MICHAEL MULCAHY,

LORD MAYOR OF DUBLIN

 

Brehon Law Review is a new electronic law journal, published by Brehon Law Project and hosted by the University College Cork web site.  A presentation to Professor W.N. Osborough of University College Dublin will be made, in recognition of his contributions to the field of Irish legal history, as Legal History Chair of University College Dublin, President of The Irish Legal History Society, as well as author and editor of many fine books and articles.

 

Professor W.N. OSBOROUGH                           

Faculty of Law, University College Dublin 

Return to the challenge: energising enthusiasm for the study of early Irish law.”

 

 

SATURDAY 12th JANUARY

Dining Hall

King's Inns

 

10.00 AM               FERGUS KELLY                    

School of Celtic Studies, Dublin Institute for Advanced Studies

“Hidden crimes: early Irish law on circumstantial evidence.”

10.30 AM               DÁIBHÍ Ó CRÓINÍN                      

Department of History, University College Galway

“To catch a thief: the detection of crime in early Ireland.”

 

11.00 AM                                          Discussion

 

11.10 AM                      NEIL MCLEOD                                 

School of Law, Murdoch University, Perth, Australia

“Compensation for bloodshed.”

11.40 AM                      JACK ANDERSON                          

Faculty of Law, University of Limerick

“Boxing and Brehon Law.”

 

12.10 PM                                Discussion

 

12.20 PM                                Lunch

 

1.30 PM                        DONNCHADH Ó CORRÁIN      

Department of History, University College Cork

“Brehon law and canon law: Synodus II Patricii.”

2.00 PM                JONATHAN M WOODING                  

Department of Theology and Religious Studies, University of Wales

“Taxonomies of exile and peregrinatio in early Irish law.”

 

2.30 PM                           Discussion

 

2.40 PM                        MATTHEW STOUT                        

Department of History, St. Patrick’s College, Drumcondra

“Settlement in early Irish law.”

3.10 PM                        RAIMUND KARL                            

Centre for Advanced Welsh and Celtic Studies

“'My home is my castle': tracing the history of legal concepts in the archaeological record.”

 

3.40 PM                                  Discussion

3.50 PM                       Break

SATURDAY 12th Cont’d

Dining Hall

King's Inns

_________________________

 

4.00 PM                BART JASKI                                      

Department of History, University of Utrecht, Holland

“The Irish versus the English regulation of succession in the sixteenth century.”

 

4.30 PM                           Discussion

 

4.35 PM                SHAUNNAGH DORSETT          

Faculty of Law, Griffith University, Queensland, Australia

“Since time immemorial: native title, common law and the Case of Tanistry.”

5.05 PM                JIM ZION                                             

Chief Solicitor, Navajo Nation

 “How the infidels can save the law.”

 

5.35 PM                                  Discussion

5.45 PM                                  Close

 

8.00 PM                        Symposium Dinner, (location TBA)

 

SEAN MURPHY                      

Centre for Irish Genealogical and Historical Studies, Wicklow 

“Tanistry and succession to Gaelic chiefship today.”

__________________

 

SUNDAY 13th JANUARY

Glendalough, County Wicklow

 

10.30 AM                    Bus departs from Mansion House

 

12.00 AM                    ECUMENICAL SERVICE

                              KELLY ONEILL. President Brehon Law Society, New York City              

1.00 PM                      Lunch in Glendalough Hotel

2.30 PM                     TOUR OF GLENDALOUGH AND HIKE TO RIFERT CHURCH, UPPER LAKE

5.00 PM                     Bus departs from Glendalough Hotel

 

£80.00 advance/£100.00 door.  Students £20.00 / £30.00 Contact: Vincent Salafia  (087) –996-3098 -  uatuathal@yahoo.com 

 

BREHON LAW PROJECT - SYMPSOIUM- 2002

 

Abstracts

__________________________

 

"Settlement in early Irish Law."

-         Matthew Stout

 

Since the early 1980s, research has highlighted the stunning accuracy of the quantifiable aspects of Early Irish law. This paper examines the relationships established between Early Irish Law and aspects of the Early Medieval historic landscape.

 

The main topics discussed will be the composition of the typical cattle herd as identified from animal bone deposits; house size and methods of house construction as revealed from archaeological excavations; the size, morphology and distribution of ringforts; and the size of the tír cumaile in relationship to stocking rates.

 

It will be shown that archaeological excavation and distribution analysis provides critical insights into the often obscure references in Early Irish Law.  In turn, this invaluable historical source sheds light on many field-based findings. This multi-disciplinary approach to studying historic settlement enhances the value of conclusions based on archaeological or historical evidence alone.

__________________________

 

"'Return to the challenge': energising enthusiasm for the study of early Irish law."

-         W.N. Osborough

-

This paper is a re-examination of teaching early Irish law, the topic addressed at the Brehon Law Project Symposium 2001, with his paper "On teaching early Irish Law."  This is a return to the same problem, albeit from a rather different angle.

__________________________

 

"Compensation for Bloodshed."

-         Neil McLeod

 

This paper will draw comparisons between the medieval Irish and English laws on personal injuries and homicide. The purpose of the comparison will be to show that Brehon Law developed a number of important and sophisticated legal principles many hundreds of years before they finally

emerged in the English common law. We will be looking particularly at the concepts of accident, mistake, self-defence, negligence and attempt.

__________________________

"'To Catch a Thief': The Detection of Crime in Early Ireland."

-         Dáibhí Ó'Croinín 

-

I will look at non-legal, 'alternative' methods of crime detection apparently practised in Early Medieval Ireland. My principal source of information is a difficult Latin text from the seventh (?) century preserved in a Munich manuscript with Old Irish (and Brittonic) glosses. I will be discussing the background of this material in Roman Late Antiquity, and its application in Early Ireland.

 

 

"Since Time Immemorial: Native Title, Common Law and the Case of Tanistry"

-         Shaunnagh Dorsett

 

How are we to understand the legal entity of native title? What is the shape of native title doctrine? What is its relationship to the common law? It is only now that ten years have passed since the Australian High Court decision in which native title was recognised, that we are beginning to fully grapple with these questions.

This paper represents one attempt to provide an answer to such questions. As such, this article offers a doctrinal description of the relationship between native title and the common law, through a technical account of common law jurisdiction. For the purposes of this paper I will define jurisdiction as a site of authority, or the place from which a decision is enunciated. In general, I am interested in the way in which the common law asserts jurisdiction in order to supplant other sites of adjudication and authority. In particular, I am interested in the way in which the common law technology of jurisdiction provides one way of understanding the link between native title and the

common law. 

 

In order to understand the current formulation of the doctrine of native title, it is necessary to examine the principles and techniques of the common law through which it has been constructed. After all, it is important to remember that native title is not really a descriptor of indigenous relationships to country but a category of white law and thus can only be understood within the confines of that law.

The particular juristic tradition of the common law has been formed over time through an accretion of principles and techniques. At the level of jurisdiction and technique, in particular, I would contend that the common law's modus operandi is still bound to its origins, and its technique for asserting jurisdiction over another jurisdiction has not fundamentally changed since the 1600s.

 

In this story, the lynchpin is the Case of Tanistry, as it is the link between the early exercises of jurisdiction by the common law in a domestic setting, and the eventual recognition of native title. It is perhaps the first case to consider how the common law confronted and attempted to supplant a foreign legal system in (arguably the first) colonial context. Further, and importantly, in that case, the rules on recognition of common law custom in an English domestic setting are transferred to the recognition of custom.

__________________________

 

"'For conscience's sake'. The Irish versus the English regulation of

succession in the sixteenth century."

-         Bart Jaski

 

This paper is concerned with the choice Irish lords had to make between the Irish or English regulation of succession in the last part of the sixteenth century. The policy of surrender-and-regrant required them to follow the English rules, but a few well-documented examples show that several Irish lords either tried to settle for a compromise or changed their mind more than once. The documents of this period give not only a good impression how Irish lords defined the current Irish regulation of succession, but also testify of the practical problems of their attempts to regulate the order of succession and division of inheritance for the future. This is related to the reason why

the English wanted to abolish what they called the 'custom of tanistry'.

 

 

"Hidden crimes: early Irish law on circumstantial evidence"

-         Fergus Kelly

 

In this paper I will deal with the ways in which early Irish (brehon) law dealt with crimes committed in the absence of witnesses. The main source of information on this topic is a text from about the eighth century on circumstantial evidence.

__________________________

 

"Tanistry and succession to Gaelic chiefship today."

-         Sean Murphy

The paper will commence with a review of scholarly publications dealing with the subject of succession to kingships and chiefships in Gaelic Ireland. It will be noted again that Kelly states that the subject of succession is 'essentially political rather than legal', and that it does not appear to have been prescribed in detail in the Brehon Laws. A common view is that the system of 'Tanistry' provided for a decision on succession to be made collectively by the 'derbfine' or male descendants of a common great-grandfather. In reality, it would appear that seniority in the dominant kingroup, political skill and military strength were all in play in deciding succession.

 

There will be an examination of the survival of certain chiefly titles after the final suppression of Gaelic independence by the English in the early seventeenth century. The phenomenon of revival of chiefships during the Gaelic renaissance of the late nineteenth and early twentieth centuries will also be considered. On the grounds that it is the only practical system, there will be support for the decision in the early 1940s by Edward MacLysaght, the first Chief Herald of Ireland, to institute 'courtesy recognition' and to determine succession on the basis of primogenitural or senior descent from the last duly inaugurated chief.

The neglect of MacLysaght's standards by his successors and the consequent MacCarthy Mór Hoax will be considered, and it will be shown that efforts to revive 'Tanistry' have been based on fantasy at best, fabrication at worst. The system of recognition of chiefs in Scotland will receive attention, in addition to the possibility of female succession. In conclusion, it will be noted that the Attorney General is currently considering ways out of the morass of bogus and questionable chiefs recognised by the Office of the Chief Herald, and while points of law both Brehon and modern must figure in his deliberations, it will be argued that the key issue at stake is integrity of pedigree or simple genealogical truth. 

 __________________________

 

"'My home is my castle'; tracing the history of legal concepts in the archaeological record."

-         Raimund Karl

-

Tracing legal concepts in the archaeological record might look like an attempt of squaring the circle, and squares and circles is what we will have to consider here. The most prominent feature of Irish Early Medieval settlements, better known as ringforts, is a circular enclosure, which can clearly be identified as the boundary deliminating the farmyard or courtyard, mentioned in Early Irish legal texts on farm layout. There are numerous things that are associated with this enclosure. However, what will concern us are only the two interrelated concepts of hospitality and legal protection.

 

That these two concepts date back to the common Celtic period seems to be quite commonly accepted, because there are linguistic or historical hints. However, by looking at the custom of enclosing settlements with a fence, we can try to trace these two concepts even more precisely back in time. Enclosures very similar to those that make up the Irish ringforts seem to be a common feature in parts of the Atlantic fringe from the late Bronze Age onwards. Examples can be found in southern Scotland, England, Wales, Brittany and western Spain. For the rest of what has been called "Celtic Europe", however, we have to actually square the circle: Fenced (enclosed) settlements are common in this area as well, they are, however, rectangular rather than circular. Examples can be found in the oppida of the late Iron Age, but can also be documented for at least as early as the Hallstatt culture in central.

This in itself would not make a connection between enclosure and legal concept especially likely, but there is more evidence that needs to be considered. Feasting equipment, the increase in southern trade, a well developed road network and extensive travel, burials of neonates in settlement contexts and the construction of enclosed burials and sanctuaries, but also the similar equation between fenced, enclosed area and "Hausfrieden" (legal protection) in the early German laws all hint at the existence of very similar concepts as those expressed in the Early Irish laws, thus allowing us to trace these legal concepts back to at least about 800 BC, to the Hallstatt culture in central and western Europe. As such, even though it does not provide us with a clear window, the Earliest Irish tradition at least can function as a twisted mirror to allow us a view on the Iron Age.

__________________________

 

"Taxonomies of Exile and Peregrinatio in Early Irish Law."

- Jonathan M Wooding

The laws relating to exile and sea-waif in early Irish law were amongst the most dynamic of early Irish legal texts: subject to constant pressure for updating as Ireland came increasingly into trade and contact with outside groups, as well as responding to a monastic vision of travel and exile

(peregrinatio). This perhaps accounts for the fact that such fundamental texts as Muirbretha (sea judgements) were not preserved in their early form, but have only survived as fragments embedded in later compilations. This paper will consider distinctions and categories in texts concerning

exile and sea-waif and examine some references to them in sources outside of the corpus of Irish law.

__________________________

"Boxing and the Brehon Laws."

- Jack Anderson

Recently the debate on the legality of boxing intensified with the hospitalisation of English boxer Paul Ingle after an IBF featherweight title fight in Sheffield. Surgeons had to deliberately induce a coma in order to remove a blood clot on Ingle's brain. His recovery will be slow, painful and tragically incomplete. In the aftermath of the bout, the British Medical Association revived its campaign to proscribe boxing. Indeed, this year a Labour MP aims to introduce a bill into the British parliament prohibiting blows to the head in boxing. Apparently, the bill will also introduce the possibility that where an opponent seriously injures a boxer in the ring, the victor may be charged with assault. Whatever about the merits of such a bill and the boxing debate in general the aim of this brief paper is to suggest that modern English criminal law can learn from Brehon law's attitude to violence in sport and in particular in early Irish law's attitude towards a sport such as boxing. 

                                                                                                                       

 

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