Centre for Irish Studies Newsletter

 Nuachtlitir Ionad an Léinn Éireannaigh 

Issue 2 Autumn 2005

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Book Review of Subversive Law in Ireland 1879-1920: From Unwritten Law to the Dáil Courts

This is, I think, the crucial claim of Laird’s work, which covers the period from the Land War to the Dail Courts of the Anglo-Irish war.  Although part of the appeal of popular resistance, and not only in Ireland, lies in its extravagant, ritualistic often theatrical use of symbolic forms of protest that express defiance and disaffection from colonial rule or class domination, Laird’s point is that those symbolic elements are not merely symbolic but come to compose materially effective forms of resistance to colonial rule, forming "one of the most substantive threats" that it faced.  To argue this is to demand a serious accounting of forms of popular resistance that are often dismissed or underestimated as mere preludes to more organized, modern political movements guided by nationalism or Marxism, without which they remain inchoate, sporadic and aimless.  And Laird does more than argue this point.  Through extensive and original archival work, which reads the official archive of government papers, administrators’ memoirs and the national and local press, she pieces together a detailed and interpretively imaginative picture of the resistance to British law and its social norms and of the alternative system of codes and sanctions that displaced the institutions that administrators struggled to normalize.  As Laird points out, "alternative law has functioned as a fundamental component of Irish agrarian agitation since at least the emergence of Whiteboyism in the 1760s" and it is notable that the issues around which it has been articulated most clearly have to do with land and tenancy rights. [1]  A series of practices and sanctions emerged from the long-standing concern of agrarian movements to protect tenure and rights of commons, to defend against eviction or exorbitant rents, culminated in the Land War in a set of institutionalized modes of social sanction. The most famous of these was the boycott, but all were able to gain more force than official law itself by virtue of the immediacy and effectiveness of their sanctions.  What the administration thought of as de jure law was in fact to a very great extent displaced by the de facto legitimacy of popular institutions of an increasingly formal kind.

As Laird shows, the effectiveness of this alternative system derived from an accumulation of precedents and of customary practices and sanctions that could be mobilized and virtually codified for the purposes of land agitation in the 1870s and 1880s.  But they could also form the basis for the legitimation and the conduct of more spontaneous if widespread forms of social protest.  One fascinating, and often hilarious, segment of Subversive Law concerns the extensive resistance to the sacred Anglo-Irish rite of hunting that took place in many parts of Ireland in the season of1881-2.  The anti-hunting agitation was in part an expression of the community’s "desire to assert control over the land they occupied and determine the conditions under which others might gain access to it" and in that respect was a popular effort to challenge the property claims of the landlord class.  But it also challenged a whole set of implicit and symbolic rights and rites of which hunting was itself an assertion—exclusive rights to game and to control of natural resources or access to land.  Accordingly the protests included not only blocking the path of the hunt, but counter-symbolic activities as the "people’s hunts" or organized and charitable poaching whose function was to protest traditional landlord prerogatives and which were ritually based on such popular customs as the Stephen’s Day wren hunt.

These protests were the product of clashing understandings of what constituted norms and rights in the context of colonial society and were the signs of deep cultural divisions that had prevented English law from ever attaining legitimacy or the appearance of impartiality.  One chapter, which forms an almost self-contained essay, is a discussion of the impact of the resulting clash of "conflicting systems of control" on Emily Lawless’s Hurrish, a discussion which amply demonstrates how "the novel compels us to rethink theoretical models and premises developed in the study of the metropolitan novel and question an uncritical application of such models to Irish literature".  Laird’s analysis certainly makes one of the most effective cases to date for that proposition and suggests a culturally informed approach that could valuably be extended to other works.  Another richly suggestive question raised throughout the book is that of the Irish attitude to property.  Numerous English as well as Irish commentators, including John Stuart Mill and George Campbell, believed that the Irish maintained through the nineteenth century views of communal property based on older Gaelic laws and customs, notably those codified in the recently translated Brehon laws.  Laird does not attempt to resolve the issue, which was widely debated and not, as she shows, in necessarily predictable ways, but her discussion does show in important ways how such earlier arguments enter into and help to explain the emergence in thinkers like James Connolly of concepts like Celtic Communism which have all too often been dismissed as romantic nostalgia.  As Laird’s work richly demonstrates, whatever the long history of their precedents, notions like the importance of the commons or of popular rights to land tenure are developed as much in the crucible of resistant practice as they are in discursive frameworks, an insight that is, I think, in keeping with Connolly’s own analysis of Irish culture and history.

Mention of Connolly leads me to the final chapter of Subversive Law,  "Theories of Resistance", which is a sustained critique of Subaltern Studies and postcolonial theory and what Laird terms "the damaging implications" of their "constricted notions of resistance and subalternity."  The critique is forceful by virtue of Laird’s intimate and scrupulous knowledge of the theory and practice of subaltern historiography and, unlike many criticisms of both subaltern and postcolonial theory, is distinguished by being sympathetic to the overall projects of both.  The thrust of her argument is that, in jettisoning a progressive adherence to modern modes of both historiography and political mobilization, subaltern theory fails to offer any viable means either for the subaltern to exit the disabling condition of subalternity (though in fact both Dipesh Chakrabarty and Gayatri Spivak have argued that, paradoxically, it is impossible "not to not want" that exit to take place) or for the subaltern to offer a sustained and substantive resistance to the state.  By the same token, "the persistence of the non-modern [in subaltern formations] is not enough on its own to counter capitalism."  In effect, she argues, subaltern historiography (including my own work) consigns the marginal formations of society to a condition of perpetual marginality, to "the vision of an unreformed/unreformable state going about its business more or less unaffected by fragmentary elements that often only have to be there to be resistant."  Accordingly, political independence itself, it is charged, might as well not have taken place or been struggled for.  There will be great rejoicing in the courts of revisionism at this prospect.

There are, of course, numerous points of detail on which I would have to disagree with this account of either subaltern historiography’s implications or of my own, and by implication, Irish postcolonialism generally, and it would be good to have space to do so fully.  Failing that, let me commence where Laird ends, with her own claim that her work provides "a credible alternative to approaches currently predominant in postcolonial studies...the Marxist perspective."  The problem is that Laird’s own powerful and finely researched analysis scarcely adheres at all to what most readers would recognize as Marxist analysis.  There is little discussion of economically determined social relations, except in the most general framework of landlord versus tenant conflict and, later, conflicts between "strong farmers" and landless labourers.  There is little at all on the vexed question of the "colonial mode of production" and how it might be relevant to Irish conditions.  There is little to suggest that what occurs in rural Ireland in the period she discusses is actually "revolutionary" in the Marxist sense, although what occurs is indeed a considerable transfer of ownership in the land.  To the contrary, the over-arching tale is one of what Mary Kotsonouris (with whose work on the Dail courts Laird’s penultimate chapters is in tune) has dubbed "retreat from revolution".  In a sense, then, Laird’s actual work, against the grain of the theoretical reflections of her conclusion, confirms the general problematic that subaltern and postcolonial theory has been working, if not every detail of its conclusions.  The trajectory of anti-colonial struggle, in Ireland as elsewhere, is shaped and dominated by a state-oriented nationalism that aims to contain and reduce the multiple forms of subaltern dissidence, generally in the name of well-regulated property relations or, in other terms, control of the means of production.  Postcolonial theory, coming to the problem of ongoing emancipation from a perspective informed by the new nation state’s arrest of decolonization, tries to prise the story of popular resistance and recalcitrance from its occlusion, not in order to celebrate a condition of eternal marginality or to declare the irrelevance of the independence struggle, but to trace the possibilities for alternative social imaginaries that have not been captured by the state.  Over and again, those popular initiatives are, as Laird’s work shows, suppressed or recuperated into elite-dominated forms of struggle or organization, but it is no less true that they provide continual evidence of the limits of domination.  Such histories demand the rethinking of the terms and ends of Marxist as of standard nationalist and revisonist narratives, and in this respect are in tune with Frantz Fanon’s overall analysis, which Laird invokes, of anti-colonial resistance and its postcolonial fates.   Above all, they are in tune with his insight in the concluding pages of The Wretched of the Earth, that decolonization demands something other than an imitation of the European state and its institutions.  To the history and to the imagination of that endeavour, Heather Laird’s Subversive Law in Ireland makes in the end a magnificent and indispensable contribution.

[1] It is worth noting, however, that Nassau Senior in 1843 associated the "combinations" of urban workers with the agrarian movements in Ireland as equivalent instances of "establishing a rival law with rules and sanctions of its own."  See Nassau Senior, "Ireland", Edinburgh Review, January 1844, p. 200.  He clearly grasped, as many British commentators on Ireland did, the existence and the extent of the "alternative system" that Laird describes.  It would be interesting to see an extension of Laird’s work to the operation of urban organizations of labour in nineteenth century Ireland.

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