Law can be a tricky bitch to describe. One can assume the role of explaining what actions are legal or illegal (or lawful and unlawful) and never give a second’s thought to what it actually is that is being applied. There are as many interpretations of what law is or should be as there are legal scholars – no single definition perfectly encapsulates it. This is arguably a broad failing of the English language in that it lacks such terms to make clear the distinction between human-written laws, and divinely ordained Laws but this may ultimately be semantics. As I’ll explain later, languages without this crutch still have core issues in determining law. One can hear tell of the immutable laws of existence like gravity, and would naturally assume that all law must be so clearly defined, yet it isn’t. 

Sometimes it is a matter of personal debate as to what qualifies as law – do traditional customs qualify as law? Do rulings by non-legal courts qualify? What separates such an administrative body’s rulings, from the punishment beatings meted out by paramilitary leaderships? Please don’t just tell me that the former is empowered by law and the latter isn’t – sine non qua.

Some interpretations of law would say that law is the manifestation of Divine Will, or objective morality – usually religiously inspired, but not always. In this case, Law and Morality are not merely inextricably linked, but ultimately mean the same thing. What is portened by God cannot be immoral, and thus ‘law’ (better called Law with a capital l to distinguish it) is not the mere regulation of behaviours between different persons, but are the fundamental rules of existence.

Some scholars try to push back against the universality of Law and claim that God cannot be the source of morality given he could be capricious! “Natural lawyers like Suárez and Grotius, in the seventeenth century, saw this. To them natural law was willed by God, but was willed by him because it is that which is rationally good. It is not good merely because he happens to have willed it. Hence Grotius could conclude that natural law would hold good even if there were no God.” This is a fundamental misunderstanding of the nature of Law and shows the weakness still inherent in other, non-English interpretations of law: the Germans do not suffer the weakness of having one word which describes both Law and law, but possess Rechts and Jus to signify their different qualities. And yet even this understanding that law has two different aspects brings us no closer to defining even what human law is

What separates these ‘secularists’ from the earlier and more substantive corpus of Natural Law is that their attempt to fashion an understanding of law attempts to draw upon moral arguments without the simultaneous belief in objective order. You simply cannot find any formula of words which will satisfy the existence of an objective moral order if you seek to find the basis for it within the material world. Hence, to hold God to an external order upon which to judge him unmakes the entire edifice of God.

One can assume, like John Austin argues, that human law is merely the command theory – that law is whatever the person in charge says it is, and while I am amenable to this, what happens when nobody is clearly in charge? The Irish State throughout the Covid-19 Pandemic has arranged its affairs in such an order as to purposefully blur the lines between what is law, or a guideline, or a (non-legally binding) recommendation. 

When the people are sovereign (as they are in the Irish context), we could assume that the ‘Sovereign’ in Austin’s example is embodied by its elected representatives and Government – the Dáil and the Cabinet. And yet, the Government handed power to its medical advisors. 

Of course the power to act rested with the Government, but through its deliberate muddling of what is law, regulation, or mere advice/recommendations, the ‘Sovereign’ has given its supposed advisors the ability to dictate policy to it. Many, many people do what the CMO and NPHET recommend, even when the Government does not compel such obedience. Who then was the ‘Sovereign’ under Austin’s theory?

Unfortunately most of the criticisms of Austin’s command theory are also deeply lacking in coherency. If we are to take the Concept of Law at face value, Hart interprets Austin in the extreme and issues the infamous highwayman analogy: that if law is simply a command backed by the threat (or use) of force, then is a highwayman on the road who threatens to shoot you unless you hand over your valuables propagating his own law? As a digression – yes he is, but such only functions as law until another can undo its supremacy. What after all were Kings, except the highest level of robber-baron? In the Irish context – the battle for recognition between Republican Courts and British administered Courts proves that ultimately ‘law’ is decided by whomever holds the upper hand with respect to physical conditions, not in legitimacy or heritage or superior morality.

Hart does clear up many of the issues with law – by further breaking human law down into primary law (which governs conduct) and secondary law (which governs the procedures through which law is changed, enforced, enacted etc). But while this is useful – it still does not address the issues brought up by the deliberate obfuscations of law by the Irish State. If we accept customary law to be law; and, if (primary) law is what governs conduct, then are not the promulgation of ‘laws’ (which may not strictly qualify as ‘law’ but are mere recommendations) which affect conduct and which change people’s customs then to be considered law? 

Hart also fails to go the distance in standing up for his own definitions of what is the right way ‘to do’ law: in the ‘Nazi Informer case’ Hart deliberately subjects his definition of law to morality and agrees that retroactive law (which he usually decries as bad) should be employed to punish those who acted ‘lawfully’ under the NSDAP regime. This is understandable if one believes in the connection between law and morality, but is less excusable by one who argues to sever such connections.

There are secularists who attempt to appropriate the connection between law and morality but their arguments are even flakier than Hart’s crumbling backbone; notwithstanding the obvious nonsense of recreants that assume God can be malicious, the intellectual rigour of ‘secular morality’ is sorely lacking. I will say – I do not believe in the existence of God myself, so do not take this wrongly as just the ravings of a zealot raging against secularists.

Fuller’s attempt at imparting a model of secular morality is ultimately tepid: the ‘secular Natural lawyers’ believe law need only be true to its ‘internal morality’ in order to qualify as law. In order to be accepted as law it must be directed towards the general public, that it must be publicly known, that it not be retroactive (or is ‘prospective’, i.e. applies going forward), and that it is coherently written, its effects are clear, it is stable (i.e. does not change capriciously), and that it is practicable (that it isn’t physically impossible to adhere to).

These ‘eight desiderata’ are all well meaning and no doubt they are the sound basis for how law should be applied – but they do not give the law any morality themselves. One could fulfill all those obligations to meet the internal morality of law, and still be used immorally. One could announce that anyone caught within the territory with blue eyes after a certain date would be punishable by death and it would qualify as law. You can quibble about this breaking the first desiderata in being ‘specific’, but then so would any policies enacted by the State which have prerequisites like an old-age pension, licensing for alcohol, height or fitness requirements for the military, ad nauseam.

And unfortunately Fuller, like Hart, also buckles at the first sign of pressure – and agrees that retroactivity be applied in the case of the ‘Nazi informer.’

There are other interpretations of law like ‘realism’ or (god-forbid) Marxism but these interpretations do not fundamentally address the concept of what law is. American realism is the argument that law is whatever is applied, and could be reasonably called an adjunct to Austin’s command theory; that law is whatever is applied (commanded) by the judiciary (sovereign). Scandinavian realism is even more boring and is just the autistic outworkings of the ‘rationalist’ interpretation of law. Marxism’s contribution of what law is consists of whinging about the ‘Bonapartist class’ and how law is a made up construct of bourgeois trickery, and can safely be discarded.

As Nationalists, we require a conceptualisation that recognises the positive applications of law (that law is what legitimate authority says it is); the good traits to which law should broadly adhere (the eight desiderata); and also understand how morality, law, and national character are all aspects of the same organic whole.

There are precursors in both Germanic legal thought and Gaelic legal history – the existence of Brehon Law necessarily overcame political diffusion and centered around the collective rights of the Gaelic race: that order’s replacement by a debased Anglo alternative did not in the first instance replace the mentality of the Gaels.

To those German theorists, what we deem to be law is merely whatever the national-consciousness determines to be law at the time. Law and how one interacts with the legal system are inherited customs – both that our inherited customs have the force of law, but also that our obedience to such law is predicated upon those self-same customs being accepted into the volksgeist or national-will.

The Gaelic race is one of the few races on this earth which maintains an unspoken raciality: the Irish people move with cultural supermajorities and maintain a political system with abnormal political cleavages that defies ‘traditional’ categorisation. Loyalty to the tribe is prized above all else – to dissent is to threaten the cogency of the Clann/ráth. This sense of racial solidarity is the pillar upon which we base our proposed legal order.

The chief characteristics of the Gaelic order are as follows: that legitimate authority can only derive from within the Gaelic race; that which excludes the Gael or which enables others over him should not be considered law; that only law which can be enforced should be considered law; that the morality of law must draw from racial loyalty and with inspiration from the historic font of Gaelic feeling, a racial-religious feeling. 

Obedience to authority must be one founded upon the racial character of the authority. The Gael does not and should not be under any moral compunction to follow the orders of foreigners, subversives, or Planters. The authority which is ostensibly ‘Irish’ but which partakes in the wanton fancies of foreigners, or that which enables the foreign over the Gael, must not be considered legitimate authority. Institutions which seem Gaelic in character must continue to focus on the betterment of the Gael above all else.

Authority must also be unwavering in its commitment to the exsanguination of any other moral, religious or legal order, than that which the Gael recognises. Ireland is entitled to the loyalty of all Irishmen and women. She competes with no institution, ideology or belief.

Law should follow those eight requirements as laid out by Fuller but the abrogation of these does not unmake law if the circumstances require such to be set aside: law and morality must be considered intrinsically linked, and thus what is moral and what is legal must be considered one and the same. 

To pre-empt those who would argue that making clear the racial nature of law is the mere transposition of “right-wing Anglo-Loyalism” or some other nonsense, we can directly quote examples from Gaelic legal sources.

“As to strangers and foreigners, lunatics, infants and idiots, and bondmen, it is not unlawful not to allow them to levy their suit, or not permit them to to take distress, where in their own behalf, or the behalf of others, until they bring a native along with them(…)” Seanċas Ṁor 7 Aṫgaḃail

The above section relates to the legal rights of foreigners and those who would (in today’s world) be made Wards of the Court under Common Law where they (lacking parents/guardians) would not be in a position to vindicate their rights – foreigners are quite essentially disallowed from invoking legal recourse against the Gael.

We are not arguing that one should ‘return’ to all the trappings of our historic legal system – it has not had the time to develop and adapt to the contours of fate – a truly Irish system of law requires that we understand our lineage and apply such principles to the modern world

In strict summary – law is the command of the most powerful in society, yet its moral force is drawn from continued fidelity to the immeasurable grandeur of the Irish Nation. It requires the active participation in civic and legal life of Nationalists with a coherent understanding of what our law is to be (the exclusive domain of the Gaels), not merely to be the beneficiaries of those forced to engage with the legal orders of the Anglo-Normans (whether in the North or South).

“The influences that mould a nation are infinite, and cannot be clearly grasped by the human mind. We can only hope to trace them in the broadest outline. Of what English legislation has done to undo Ireland I have a lively appreciation, but that matter does not come within the scope of this article. I have confined myself to an inquiry into the effects of causes which it is within Ireland’s power, and within her power alone, to remove. The only hope that I see for Ireland is that she may set to work to create what does not exist now, what mere political independence, a parliament in College Green, or the humiliation of British arms, will not necessarily bestow—to create a nation.” DP Moran, ‘The Battle of Two Civilisations’

In fashioning an argument for a Gaelic legal order, we must concern ourselves not so much with the daily functioning – it matters not whether a Judge is addressed as ‘Justice’ or as ‘Brehon’, what matters is that it follows the broad principles outlined above (that it flow from legitimate, racial, moral authority), and that it is but one more instrument which we can bring to bear to restore the authentic Irish Nation to primacy on this island. To do so requires the exsanguination of the pale spectre of Free Statery and West Brittery.

Posted by Peadar O’Shaughnessy

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