Analysis: the 1920s' legal system was innovative in its use of female judges and evoking Brehon laws in cases concerning single mothers

The Dáil courts, also known as the Republican courts, were an important component of the counter-state established in Ireland following the success of Sinn Féin in the 1918 General Election. These courts were in operation from 1920 to 1924 and most active during the War of Independence. Mirroring the tiered British system, they consisted of a supreme court, circuit courts, a district court in every parliamentary constituency, and a local court in every Roman Catholic parish. In addition, there were special courts that dealt solely with land.

Ken Loach's 2006 film The Wind that Shakes the Barley is set in Ireland during the War of Independence and the Civil War and offers one of the few visual representations of this alternative legal system. Those familiar with the film may remember that the Dáil court case it depicts is presided over by a female judge.

But how accurate is The Wind that Shakes the Barley in this regard? While most Dáil court hearings were judged by men, women were indeed appointed as Dáil court judges. No formal training in the official legal system was deemed necessary for judges operating in the lower courts of this 'illegal' legal system. Thus those presided over these courts were for the most part laypeople elected by the local Sinn Féin Club.

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Kathleen Clarke, Maud Gonne MacBride and Hanna Sheehy-Skeffington were amongst the women who availed of the opportunity to be parish court judges. As these courts were the most active tier of the Dáil court system, such women played a key role in what could be considered the legal front of the War of Independence.

Some participants in the Dáil courts published accounts of their experiences. In 1940, James Creed Meredith submitted an article to the Journal of the Statistical and Social Inquiry Society of Ireland in which he alluded to another interesting aspect of women's relationship with these courts. Meredith had held the position of King’s Counsel under the official legal system before transferring his loyalties to the Dáil courts and being appointed President of its supreme court.

The Dáil court judge with the most experience of official law, Meredith was also one of the strongest exponents of the incorporation of the Brehon laws into the Dáil court system. The guidelines drawn up for the use of Dáil court judges, published in 1921 and titled Judiciary, stated that while the common law of England was to be retained, reference could be made in court to 'the early Irish Law Codes or any commentary upon them in so far as they may be applicable to modern conditions.’

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From RTÉ Radio 1's History Show, Heather Laird discusses the Dáil court system 

In the article, Meredith recalled that he had presided over a case in 1920 involving a single mother seeking monetary support from the father of her child. Proclaiming common law retrograde in such matters and giving his judgement in accordance with what he deemed to be the spirit of the Brehon laws, he awarded the woman a sum of money in compensation for the expenses she had accrued looking after the child. According to Meredith, this case was tried in Co Cork and 'subsequently followed uniformly in the Republican Courts.’

While the Dáil courts replicated the official legal system in much of their operations, they were innovative in their use of female judges and their evocation of the Brehon laws in cases concerning single mothers. The inhumane treatment of single mothers and their children in post-revolutionary Ireland has been well-documented in recent years, but less attention has been paid to the effective removal of women from the operations of the law.

Debates on women’s participation in the legal system set up in the aftermath of the establishment of the Free State are very revealing in this regard. Women like Sheehy-Skeffington, who had been assigned roles of considerable responsibility in Dáil courts, now found themselves having to make a case for the inclusion of women as jurors. The Juries Amendment Act of 1924 retained women on the jurors’ list, but allowed individual women to opt out.

It would take over 40 years for the legal system in independent Ireland to come close to matching the level of involvement of women in the Dáil courts

Sheehy-Skeffington pointed out in a 1925 letter to the Irish Independent that the situation in actuality was far more restrictive. Women who did not claim exemption, she claimed, were asked to ‘stand by’ and then not included in the final jury selection. ‘The fact is that no women are allowed to serve on juries and for nearly two years an elaborate system of camouflage has gone on by which the authorities themselves connive at the breaking of the law which allows women to serve as part of their rights as citizens.’  

A later 1927 act was a more accurate reflection of the situation on the ground in that it exempted women from jury service, but allowed individual women to opt in. Such measures and the mindset they represented were a betrayal of the women who presided over Dáil court sittings. It would take over 40 years for the legal system in independent Ireland to come close to matching the level of involvement of women in the Dáil courts.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ