Should judges make laws? In virtually every recent legal breakthrough, change happened not because of enlightened legislators in Dail Eireann but because judges or courts were pricked into action by individual cases. The Josephine Airey case, the X Case, laws governing homosexuality and contraception, access rights of fathers - each shows how judicial decisions force-feed political action. Politicians are supposed to be legislators but in a country where popularity governs political careers, innovative law-making may not always be smart.
"What is right is not often popular," reasons Dick Spring TD, himself no mean advocate. "The late Mr Justice Niall McCarthy gave out to politicians for not taking up their responsibility but judges often have no choice - they must deal with issues presented to them in court within a finite period of time."
So this weekend, Spring will share his 18 years' experience as a legislator with the Burren Law School's Brehon Law Conference in Ballyvaughan, Co Clare. He'll probably bring his golf clubs too.
None of the bewigged, haw-haw procedure of the law courts at the Burren. It's informal and community-based, as much a gambol for interested punters as a chance to test the mettle of legal eagles such as Supreme Court judge, Hugh O'Flaherty, or journalist and recent Bar graduate Vincent Browne. "In the Brehon law system, lawyers were as much part of the community as the carpenter or the candlestick-maker," says founder Brian Sheridan, who dreamed up the concept four years ago when he noticed a monument to the O'Davoren legal dynasty in Ballyvaughan.
`I was intrigued - it's not very often you see a monument to lawyers." Sheridan works for Cork's Legal Aid Board and is a member of the Bar Council. Founding a safe-house conference like this one in Newtown Castle, seat of Burren chieftains, the O'Lochlainns, meant that all the jibes and innuendo bubbling up under the surface could be aired and debated for all to see.
"The courts are in a way a barometer of social change," he believes. "So it's natural that a large element of the impetus for new legislation comes from them because they are in a way the market place but you need a balance between them and the legislature." That was, in a roundabout way, the Brehon ethos. Brehon law operated for hundreds of years, becoming formalised in written texts dating from the sixth century, then working alternately hand-in-glove or directly contrary to Norman law, and finally being abolished after the Elizabethan conquest in the 16th century. Lawyers, like the O'Davorens, were trained in dynastic schools with some sent on to Oxford, Bologna or Paris to gain specialised knowledge. Often, they were farmers too. Law-makers and judges belonged to the same profession, with ever-more powerful kings increasingly exercising a legislative role. They charged a fee of one twelfth the total value involved in each case. Brehon law was fundamentally practical and usually quite specific - regulations covered subjects such as what to do if your wife denied you sex because she claimed to be menstruating or how to sue your husband if he had accused you wrongly. Only with the work of the late Prof Daniel Binchy did the extent and intent of Brehon law start to be acknowledged as a rich resource for scholars, as well as an instructive commentary on the social and cultural concerns of the times.
"This is the biggest set of texts of vernacular laws produced anywhere in Europe - torts, contracts, land law - including trespass, the beloved subject of the Irish farmer," says Prof Donncha O Corrain of UCC, who will deliver three lectures on the topic to which he has devoted years of pioneering research.
"The church got involved because it has always been interested in property," he explains. "They were particularly keen on punishment and we have a few examples in the annals of fellows being hanged who had outraged them." One law Prof O Corrain studied identified the appropriate sentence for such offences. " `The blood of a bishop or of an abbot of high status or of a scribe, which is poured out upon the ground, if it needs a bandage he who shed the blood should be hanged or pay a compensation of seven bond maids'." The manuscripts weren't always valued. Nineteenth-century gentlemen considered them of antiquarian interest at best and some were sold to collectors outside Ireland. A text called Egerton 88, for example, was compiled between 1563 and 1569 by Domhnall O'Davoren and his students in the Burren, as a lexicon of Brehon law and of texts and tracts from the eighth century. That manuscript is now distributed in London and Copenhagen, some leaves owned by the British Museum and others by the Danish Royal family. But Brehon has gone techno: Egerton 88 is available for inspection on microfiche at Newtown Castle.
"Brehon-like laws still operate in some Eastern European countries," Sheridan says. "Countries with a feudal system - Uzbekistan, for example."
O Corrain tells Brehon law stories like other folk tell gags. "What happens when your neighbours claim the right to honey from your bees because your bees are grazing on their land?" I dunno. "You have to pay them honey," he explains. "And how can you tell whose land they have grazed?" The story gets complicated. Apparently, bees graze on a pollen source until it is all used up.
But you can identify the source for sure - their little legs are stained the exact same colour as the pollen they pilfered. Pure simple.
The fifth Burren Law School, Brehon Law Conference runs from Friday to Sunday in Newtown Castle, Ballyvaughan. This year's theme is "Law-making in Ireland: legislature and judiciary." For in- formation, tel: 065-77200/77091
