Confluences of Law and History reviewed by Stephen Collins
Published in Studies: An Irish Quarterly Review, 2025.
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Abstract

, Legal history may not have the wide appeal as political or military history but in many ways its impact on the world we live in is equally profound. As we are discovering with Trump’s rule in the United States, the overturning [End Page 628] of legal norms signals a profound change in society and could even mark the end of American democracy was we know it., A range of different events from the Home Rule Bill of 1912 to the Civil War were commemorated during our Decade of Centenaries. The essays in this volume, arising from events organised by the Irish Legal History Society, were designed to mark key developments in the legal history of the country from the seventeenth century up to the end of the twentieth century., In their introduction, the editors emphasise that the society’s mission is to encourage the publication of original scholarship in the field of legal history. The chapters in the book make use of a wide range of unpublished primary sources from Ireland and further afield and make a serious contribution to our understanding of the country’s past., One of the most interesting contributions is that by senior counsel Bláthna Ruane, who examines why the treaty of December 1921 establishing an independent Irish state was actually entitled ‘Articles of Agreement for a Treaty between Great Britain and Ireland’. During the nineteenth and early twentieth centuries, efforts to establish a separate parliament for Ireland had been treated as an internal constitutional matter to be dealt with by the British Parliament. The three Home Rule Bills were debated at length in the British Parliament and hammered out and amended in the ordinary way of legislation., The approach adopted in the negotiations that brought the War of Independence to a conclusion was very different, with a change in the legal form of the settlement adopted, namely a treaty. According to constitutional practice in the UK, Parliament had no formal role in treaty making as that power was vested in the government through the crown., For Sinn Fein the term ‘treaty’ signified a view of Ireland’s legal status as being an independent republic rather than a region of the United Kingdom aiming for a form of devolution. On the British side, there were serious reservations that calling a potential settlement a treaty before negotiations even started would imply acceptance that Ireland was already an independent state. Even if the talks broke down, Sinn Féin would be able to argue that Britain’s willingness to negotiate towards a treaty implied acceptance that independence was inevitable., Lloyd George’s letter to de Valera setting out the offer of talks was debated by the cabinet with arguments over whether the word ‘pact’ rather than ‘treaty’ should be used. It was argued by some ministers that the use of [End Page 629] the word ‘treaty’ would ‘furnish a precedent fraught with danger, involving recognition of an existing Irish republic’., After assurances by the attorney general that there was no essential difference between a treaty and a pact, and passionate pleading by Lloyd George, the cabinet finally agreed that the words ‘in the form of a Treaty’ could be used. In his argument, the prime minister referred to South Africa, Scotland, Sarsfield, and the Treaty of Limerick., Lloyd George’s adoption of the formula enabled the negotiations to get off the ground, and it also provided him with a rationale for avoiding having to subject any agreement to detailed scrutiny by the houses of Parliament. When agreement was ultimately arrived at, it was presented to Parliament on a take-it-or-leave-it basis, and there was no opportunity for MPs or lords to attempt to amend the terms., There was some confusion in the immediate aftermath of the signing in Downing Street because the title on the Irish delegation’s version did not refer to a treaty but to articles of agreement. The British side subsequently clarified this to ‘Articles of Agreement for a Treaty between Great Britain and Ireland’. This left a level of ambiguity, suggesting that the treaty was not yet in existence until it was ratified by both sides., In the event...