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Brehon Law Defined
The term Brehon Law is the popular name given to the body of indigenous law of Ireland and Scotland before the conquest. It is named after the primary practitioners of the law in Ireland, the Brehons, or 'brithemuin' who were akin to judges or jurists, but in practice more akin to a mediator. Brehons continued the druidic tradition after the druids fell from garce. Imagine a legal system which respected individuals first, and property second; a system that revered the sanctity of contract and wherein the environment was of paramount importance; women had equal property rights to men and could divorce; where one owed a duty of hospitality and protection to strangers. Imagine also a legal system of self-help that needed no court or police force to enforce it, since it was respected so by its citizens. These were some of the principles and attributes of Brehon Law, existing in Ireland from the Celtic settlement, before Christ, up until the seventeenth century and the reign of Queen Elizabeth. Pre-Celtic Settlement While Irish history is a story of successive settlements and invasions, no other culture had such a profound effect as that of the Celts. Very little remains of the prehistoric peoples that preceded their arrival and every succeeding group, even the Anglo Saxons, to a large extent, was assimilated, serving to color, rather than undermine the Celtic tradition. Fact and fiction merge in trying to put a face on the pre-Celtic peoples The Celts The Celts are the people who spoke and still speak languages of Indo-European origin, though it is argued that the Celtic race itself no longer exists. With the recession of the Ice Age, Europe grew temperate, and gradually became populated. Indo-European warriors pushed westward across the steppes of Eurasia, into Bohemia, through what is now the Czech Republic and the Hungary. They flourished as an identifiable culture beginning around 700 BC. Celtic influences reached England around sixth century BC, characterized by techniques of ironworking with the resulting improved weapons and agricultural implements which gave greater efficiency to warfare and land use, making the settlers far superior to the indigenous peoples, of whom little is known. Between the third and first century BC they came to Ireland, where they settled and flourished. From 43-85 AD the Romans invaded Britain, which remained occupied for 360 years. However, as the Celtic nature of the Britons was displaced, it flourished in Ireland, where the Romans never conquered. Bardic Schools Out of the Celtic tradition developed a singularly important aspect of Irish life, the bardic school, that was to have a direct impact on daily life in Ireland for about 1,500 years. "The studies of the students in the bardic schools were chiefly: history, law, language, genealogy and literature. The history was that of Ireland, the law was that of Ireland, namely the Brehon Law system; the literature was that of Ireland - and through the medium of the native language were all subjects taught. The time their foundation is unknown, for the bardic order existed in prehistoric times and their position in society is well established in the earliest tradition. [Professor Bergin, 'Bardic Poetry' Ivernian Journal, April-June, 1913, v, 19. They were thus pre-Christain. I pagan days, Druid and poet were perhaps one. Even after they were Christianized, the some vestiges of the of Druid cult survived in them, as the pagan sensibility did, until modern times. When the schools did at last become Christian, they did not become monastic; and they are not to be confused with the famous monkish schools. The Bardic Schools were lay, officered by laymen; and existed side by side with the great schools of the clerics. The bardic schools, as a separate institution to ecclesiastical schools, lasted until the smashing of the Irish intelligentsia in the seventeenth century. From these schools, the poets, the historians, the Brehons, doctors, and other professional people graduated. The education in these 'lay' schools ran parallel to education in the monastic or ecclesiastical schools. Ireland, unlike most of her neighbors, such as England, therefore had an educational tradition outside the church. In a largely oral tradition, the poets composed verse for laws, genealogy, calendars of saints and even for history; since students more easily memorized poetry than prose. Sources describe the school building as being an ordinary house or hut - the central figure, the chief 'File' (poet), the head Ollamh (professor), was indeed the school: where he went, the school went. Usually the poet was attached to one of the local kings. The Golden Age Irish Brehon Law was an independent indigenous system of advanced jurisprudence that had fully matured by the eighth century. The law of the Irish Celts derived from a complex set of customs and practices, handed down orally from generation to generation. In the fifth century they were written down for the first time, in great manuscripts that were used by the Brehons and Ollamhs of the ancient bardic and law schools. The Brehon Laws, as we find them today, may be attributed to the Irish Golden Age. "The fierce and restless quality which had made the pagan Irish the terror of Europe, seems to have emptied itself into the love of learning and the love of God: and it is the peculiar distinction of Irish medieval scholarship and the salvation of literature in Europe that the one in no way conflicted with the other." [52] While the first part may well be true, there was, in the long run, a conflict between love of God and learning. The advanced nature of the relationship and the well preserved evidence and accounts of that relationship are peculiar to Ireland. This land was for centuries the intellectual capital of Europe and saved many of her greatest literary and artistic treasures from the fires of the marauders. It is Ironic, that later, when the marauders finally threatened Ireland, that her treasures were hidden abroad in Europe, where a great many remain unclaimed, along with the ones that survived even in Ireland. (see Untilled Fields of Irish History, Ellis)
While the Anglo-Norman invasion marks the first outright attack on Irish law, the groundwork for this act was laid fifteen years earlier, in 1155, with the Bull of Pope Adrian IV Empowering Henry II to Conquer Ireland. This was a decreee, made by the only English Pope, instructing Henry to take posession of Ireland. The bull was given under the pretense of Christianizing Ireland, and initiating reform. However, Ireland was already Christian, and church reforms were already underway. According to Lord Littlejohn, in his History of Henry II, "Upon the whole, therefore, this bull, like many before and many since, was the mere effect of a league between the papal and regal powers, to abet and assist each other's usurpations; nor is it easy to say whether more disturbance to the world, and more iniquity, have arisen from their acting conjointly, or from the opposition which the former has made to the latter! In this instance the best, or indeed the sole excuse for the proceedings of either, was the savage state of the Irish, to whom it might be beneficial to be conquered, and broken thereby to the salutary discipline of civil order and good laws." The Anglo-Norman (or Cambro-Norman) Invasion of Ireland led by Strongbow, in 1170, marked the first violent assault on Irish law. By taking over parts of Ireland, including the area around the port of Dublin, suddenly there were two competing legal systems, manifest in the battle for territory. As the Normans extended their influence, English law slowly became more important in Ireland. In 1171 King Henry II is said to have held a Council near Waterford, "where the laws of England were by all freely received and confirmed," but it is more likely that the English laws were only gradually accepted during the course of the following century. By 1300 English law applied in most of Ireland, and some 30 years later the policy of leaving the native Irish to be governed by Brehon law was reversed.[The Avalon Project at Yale] The Windsor Treaty The Windsor Treaty of 1175, negotiated by Saint Laurence O'Toole, between Rory O'Connor, the last High King of Ireland and Henry II of England, was a momentary reprieve, recognizing the legitimacy of the native law and order, yet dividing the island in two, as it has remained in various forms ever since. It lasted for two years, until the arrival of Henry's son, This reversal of English Policy culminated with the Statute of Kilkenny in 1367, which was a violent condemnation of the Irish and their laws. The statute was also the obvious predesessor of the Penal Laws. The Statute is also interesting in that it forbade March/Marcher Law, another lost form of legislation that was the legal basis for the Welsh Marcher Lords, and gave them almost unlimited power. By this time, however, the Irish were beginning to regroup, with the object of repelling the Norman invaders. Consequently, the influence of English law went into gradual decline. By 1500 English law extended only to the area around Dublin known as the Pale. The rest of Ireland had returned to Brehon law. Military Conquest Although the British tried to eradicate the Laws, first by force, then by fiction. The Irish, although aided by the Spanish at the Battle of Kinsale, in 1601, suffered decisive military loss to the British. Political and military might opened the door for the English hegemony in Ireland, but the it was the English common law system, displacing the Brehon Laws, which converted Ireland into a permanent colony. This was accomplished in great part by Sir John Davies, Attorney General of Ireland from 1606-19, the man who ironically spoke the words: There is no nation
of people under the sun that doth love equal and Legal Conquest The military victory of 1601 enabled English jurists and administrators to accomplish a variety of reforms that encompassed defeat and breakup, not only of political forms of organization and landholding, but also the Catholic religion and those elements of the social polity that adhered to it. This marked the crest of the wave of one of the most systematic, prolonged and crippling acts of 'ethnic cleansing' ever visited upon a modern people. Davis invoked the 'powers of conquest' to justify the eradication of the native Irish laws, treating them as little more than a barbarous and lewd custom. For many years after the England gained a foothold in Ireland, the conqueror made it a criminal offense if found in possession of a document written in the Irish language. All sorts of devices, therefore, were resorted to for the purpose of concealing them, but most were discovere, burned or destroyed. The Rule of Recognition One of the legal justifications for the subjugation of the native Irish law was a principle called the Rule of Recognition. The question of the recognition of the law of another people first arose in The Case of Tanistry (1608), where the validity of the Irish (Brehon) customary law of inheritance was raised. (Ireland did not adhere to primogeniture) The Case of Tanistry, 80 Eng. Rep. 516, 520 (K.B. 1608) The court ruled that the indigenous laws of a country survive British rule, "if they are reasonable, certain, of immemorial usage and compatible with crown sovereignty." The custom did not survive the test. It is interesting to note that the English experimented with native policy in Scotland and Ireland contemporaneously with their colonization of America. The Rule was refined in Calvin's Case, wherein Lord Coke ruled that the laws of a conquered Christian nation survive, but those of an "infidel" nation do not. Again, Ireland failed the test. (Calvin's Case, 77 Eng. Rep. 377, 398) It wasn't until the case of Omichund v. Barker, that this Rule came into disrepute. Here the chief justice rejected Coke's view as being contrary to scripture, common sense and humanity. (Omichund v. Barker, 125 Eng. Rep. 1310, 1312 (Ch. 1744)
The authority of the Brehon Laws continued until the power of the Irish chieftains was broken at the close of the reign of Queen Elizabeth, and all the Irish were received into the King's immediate protection by the Proclamation of James I in 1603. This Proclamation, followed by the complete division of into counties and the administration of the English laws throughout the entire country, terminated at once the necessity for and the authority of the ancient Irish laws. The wars of Cromwell, the policy pursued by King Charles II, at the Restoration, and the results of the Revolution of 1688, prevented any revival of the Irish laws: and before the end of the seventeenth century the whole race of Brehons and Ollamhs of the Irish laws appears to become extinct. [32] Penal Laws Although the penal laws of Ireland were passed by a Protestant Parliament and aimed at depriving Catholics of their faith, such laws were not the outcome of religious motives only. They often came from a desire to possess the lands of the Irish, from impatience at their long resistance, from the contempt of a ruling for a subject race.
Translated Texts What we know, from the fragmentary portion of original texts that have been translated, the substantive law is broad and dense. Every facet of life, from names to beekeeping, from practice of medicine down to the very blades of grass they walked on were regulated. The accessible texts are roughly divided as follows:
National and Territorial Law One of the difficult issues in analyzing the laws is deciding what was national and what was locally decided. This is very similar to the concept of federal versus state law in America. Daibhi O Croinin addresses this issue: Binchy and others have chastised early lawyers for propagating a 'fiction of uniformity' in their presentation of the laws by showing a wilful disregard for the evidence of their own experience, preferring instead to conceal its constant changes under the veneer of pseudo-archaism. (Binchy 1938 p. 128; cf Binchy 1941, p.2.) The charge raises another closely related question with regard to the laws: the difficulty of establishing what is divergent interpretation on part of the lawyers, and what is contemporary regional variation. But the criticism - though justified to a certain extent - nevertheless glosses over an important fact: law tracts of different authorship and provenance, and doubtless also of different regions, all use the same Old Irish technical terms (see Thurneysen 1930 pp 353-408 (p. 379), where he gives a list of terms (aidbsen, aire coisrig, aire fine, ansruth, muire, muiredach) which all apparently have the same meaning and sem to represent regional variations of one legal concept.) and treat of the same institutions and customs, even they do not always handle them in the same way.
Kings One of the issues it turned on was the institution of kingship. While some tracts talk of a strong national king, and the division of the island into five provinces, it is fairly evident that by the historical period, marked with the earliest texts, that Ireland was divided into about 150 'tuaths', somewhat reminiscent of Maciavelli's Italy in 'The Prince'. Tommy Makem, the traditional Irish musician, has been quoted as as saying there is evidence that the Brehon Laws in fact formed the foundation of the Magna Carta. There may be some truth to this, since the Brehon Laws certainly were ancient at the time of this early Anglo-Saxon document. If we look at the Magna Carta as a basic limitation on the Kings executive power to legislate and directly affect the judiciary, then the precedent was certainly present in the Brehon Laws. Ireland employed many mechanisms to keep the national and to an extent local law, out of reach of the political leaders. Finally, if we note the singnators to the Magna Carta, were often Irish landowners, such as descendants of Marcher Lords who invaded Ireland, the it is not such a great leap of logic at all.
Hospitality and Neighbor Law
Criminal Law Irish law treated all felonies and misdemeanors as civil offenses (or torts, to use modern terminology), i.e., wrongs for which the law prescribed compensation in the form of damages. There was no concept of criminal law, and therefore none of the objects of modern criminal law, such as punishment and retribution, deterrence of would-be wrongdoers or reform of wrongdoers. There is no evidence that the early Irish thought in those terms, and therefore the liability men incurred by wrongdoing was strictly a damage liability, not a punishment or penal liability. There were no crimes against society as such, (with the exception of the betrayal of the tuath to an enemy), only injuries done by individuals to other individuals. One of the targets for the assassination of Irish law by Anglo-Saxons
was the pecuniary fine which was imposed sometimes on the individual
author of a homicide, sometimes on his tribe, the Eric fine. (similar
to the Wehr Geld of the Germans). It represented as evidence of the
slight value attached by these races to human life. Here (it is said)
is a mere money compensation for killing an enemy. But this is a misapprehension
of the amount of the punishment inflicted. If we had learned that a
man who tools the life of another was deprived of the whole of his land
we should, I suppose, have been of opinion that the punishment was at
all events not trivial. But one of the new ideas which we owe to the
ancient Irish law, the Brehon law, is an adequate conception which we
for the first time gain of the importance to mankind of moveable property.
Capitale, cattle, capital, a long descended term, was the imperatively
required implement for the cultivation of land, at a time when land
was plentiful and perhaps common and undivided. The necessity imposed
on the family or tribe of a man who had taken a life of paying a portion
of this jealously guarded subject of ownership to another of the ancient
groups was not a slight but an exceedingly heavy penalty. (Yale. The
Avalon Project) Copyright Law There are reports that Brehon Law contains the first copyright law
in the western world. Colmcille in Tirconnell, supposedly copied the
gospel book of the holy Finian, and without permission. This caused
a war, resulting in his banishment from Ireland, he did. The judgement
remains--"To every cow its calf, and to every book its copy."
Enforcement The ancient law contrasts with modern legal positivism, which is the prevailing system of the civilized world. The essential idea of modern law is entirely absent from them, if by law we mean a command given by some one possessing authority to do or to forbear doing, under pains and penalties. There appears to be, in fact, no sanction laid down in the Brehon law against those who violated its maxims, nor did the State provide any such. This was in fact the great inherent weakness in Irish jurisprudence; one inseparable from tribal organization, which lacked the controlling hand of a strong central government. If the litigant chose to disregard the Brehons judgment there was no machinery of the law set in motion to enforce him to accept it. The only executive authority in ancient Ireland, which lay behind the decision of the judge, was the traditional obedience and the good sense of the people. The public appears to have seen to it that the decision of the Brehon was carried out. This seems to have been indeed the very essence of democratic government with no executive authority behind it but the will of the people, and it appears to have trained a law-abiding and intelligent public.
PRIMARY TEXTS The Great
Tradition
Affirmation of Irish Law Saint Patrick succeeded so completely in his conversion of Ireland
because he destroyed no ancient custom that was not essentially pagan.
Irish society remained essentially unchanged except that priests took
the place of druids. The Druids became Filid or Brehon. "Brehon Law
has a democratic sanction throughout. The mind of the average man stood
at the back of it, serving so well to cure the wrong- doer through his
mind." Most of the Brehon Laws derive their names not from the individuals
who promulgated them, but either from the subjects treated or else from
some particular locality connected with the composition of the work.
"They are essentially digests rather than codes, compilations in fact,
of learned lawyers." The Senchus Mor embodies community, even tribal
values of ancient origin, which both contrast and compare with modern
law and jurisprudence.
Some idea of the difficulty of this undertaking may be had when one
realizes that the text appeared in Old Irish, a dialect which had become
obsolete centuries before, and that the best Irish dictionaries then
in existence did not enable one to understand the language, which was
in fact entirely unintelligible to one who knew only modern Irish. The
deliberately obscure and extremely technical language contributed to
the problem of translation. This problem may have been compounded by
the fact that the Irish literati were reputed to have a secret language
of their own, called Berla na Feini or Berla na Filid. Even in the fifth
century the "law" language, called the Berla Feini, was already archaic
and shows just how old the Brehon system was at that time."
The Legal Tracts
Besides the substantive laws found in great books such as the Senchus Mor, various other legal tracts were written. Chieftains commissioned them to proclaim the wisdom and just nature of the chieftain himself and some modern scholars have asserted that they may be seen as a form of propaganda. [64] Now, it seems, scholars dispute this. Others, written by the Church, seemed to reflect a similar ideological agenda. Some were comprehensive of local law, while others mentioned some of the laws that existed, and some proposed. The question of whether people practiced all the laws remains a source of dispute. The dichotomy between practice and ideology, common in the Gaels, led to their eventual downfall. Crith Gabhlach, one of the finest examples of these legal tracts, dates from around the Sixth Century. Volume IV of ALI includes miscellaneous tracts, such as, On Taking Lawful Possession, The succession to Land, Judgments of Co-Tenancy, Bee Judgments, Right of Water, Divisions of Land. The tract which retains its Irish title of Crith Gabhlach, from which Binchy separated the poem in this paper, gives a detailed description of the several social ranks and organizations of Irish tribes.*** [Pen.230] Most of the extant texts seem to have been composed in writing somewhere between 650 and 750 AD [70] But even within a tract that is itself dateable to the Eighth Century, old passages frequently lurk side by side with later bits; for example this poem we read, at the end of Crith Gablach. Today, at the close of the twentieth century, we still find a vast amount of the laws without translation, never having been read by modern people. The culmination of gloss, obscure language, destruction of texts, and the passage of time and the entrenchment of English common law leave our legal and literary Holy Grail as distant and obscure as ever. TABLE
OF CONTENTS
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