IRISH TRADITIONS TO REVIVE – LAWS OF OLDE
Indigenous Irish people have detested inequality since records began…they even had an extensive legal system to prove it. We take a fascinating look at Brehon law and how it was applied to everyday life in medieval Ireland and beyond.
Our modern laws in Ireland keep lawyers’ noses deep in legal texts for a lot of their time. In an ideal world, these laws exist to protect the average citizen from the perils of meeting criminals who want to roll them for their trainers or maim the bejapers out of them in some way.
But where did these laws come from? Our modern laws are now a giant law stew based on a recipe of legal ingredients from European, local Irish and British extraction. But is had been spiced up with some canon law too, which has had its influence over the centuries.
What a lot of Irish people don’t realise though, is that indigenous Irish law, before it was disturbed by invaders and competing ideas, dates back to beyond when we even thought humans needed laws. Called Brehon law, this system was enforced by the people themselves, without needing a ‘police’ force. Though we don’t have an exact date for the birth of Brehon law, there is some evidence of it being used during the bronze age (2,300 to 0900 BC). In fact, Celtic Irish law is considered by many to be the oldest, most complicated, most egalitarian and most extensive of mediaeval European legal systems. For centuries, it was recorded via vocal tradition. That is, the Brehons, who were arbitrators, remembered the laws in poems and needed to recite all of them to be fully qualified. This took years of training and was seen as a special position in society. The position of a Brehon (or Brithem in Irish) had evolved from the job undertaken by Celtic druids. Many people think of Brehons as judges, but this isn’t quite the right position description. Their role was closer to that of an arbitrator. Their task was to preserve and interpret existing laws, and apply that to the myriad of situations in society that needed some mediation.
Thinking of applying for the job? Not anyone could become a Brehon. It was a long hard road and you had to have a damn good memory. And this was in the days before fish oil capsules could help you with rote-learning exercises. To make the grade, the potential legal expert had to go through a rigorous, well-defined disciplined course of study. After the course, the candidate would then have to pass an exam (at first orally as there was no writing) given by already practicing Brehons. But if you did pass, you were set for life. The queen or king gave Brehons land and sheep, so they could have an income during times of peace! Nice! And being a Brehon came with good social standing. In ancient times, the Brehon was seen as a mysterious person who the Gods kept watch over. It was said that if a Brehon failed to act with truth and justice, great blotches would appear on his or her cheeks (yes women could be Brehons too). The traditional badge of office was a torque, worn around the neck. If the Brehon did not act as an agent of truth, the torque would tighten when a false statement was made. It would only loosen once the truth was again told. An example of this torque, which could take many different forms, was worn by a well-known Brehon, who was the son of a Munster King. His name was Moraann, and he wore a ‘sín’ or chain of gold which was his Brehon torque. There are no reports, however, of it strangling him.
The laws themselves inside the Brehon ideology are unique in Europe. Brehon law was a system which peddled the doctrine of the equality of man. This legal system was symptomatic of a society which can be seen as a deeply humane and highly cultured. In fact Ireland’s very unique and mind-bogglingly advanced system of law has only one comparison on earth in its complexity and its humanity. The Brehon law system is the second oldest recorded law system only after Sanskrit.
The elements that make Brehon law so different to other laws systems across time is the emphasis on fines rather than violent punishment. Indeed, Brehon law actively shunned capital punishment. Death as a punishment was only resorted to if the criminal had committed a heinous murder and could not be brought to task by means. However this was rarely the outcome. Instead, the family of the murderer would be imposed with a very heavy life-changing fine, like the confiscation of their lands and animal stock and future earnings. The murderer could even be given to the aggrieved family for use as a slave. So not only did the threat of very serious fines keep people in line, the guilt of disturbing your family’s fortunes, possibly for eternity, was the biggest threat of all. You’d want to hope no one in your family becomes an axe-wielding maniac or you could find yourself sleeping in a ditch with no sheep. Forever.
The Brehon laws were a civil rather than a criminal code. But they weren’t just concerned with the payment of compensation for harm done. The Brehon laws also covered inheritance issues, property issues, marriage rights, and the rights and duties that went with social status – defining carefully the relationships between lords and their clients and serfs and what responsibilities were expected from each side. Little space was given to the unfree, which reflects the lack of dependence upon slaves as opposed to other societies, such as Ancient Rome.
In this way, Brehon law was quite progressive. It recognised divorce and almost equal rights between the genders. This was different to a lot of other places on earth during the Dark Ages especially, where women’s rights seemed to have dried up and turned into ashes blowing in the wind. Brehon Law, like a lot of indigenous systems, also showed great concern for the environment and nature.
This is a copy from a page of the Senchus Mór. In the year 438 A.D. a collection of the pagan laws was made at the request of St. Patrick. King Laegaire appointed a committee of nine learned and eminent persons, including himself and St. Patrick, to revise them. At the end of three years these nine produced a new code, from which everything that clashed with the Christian doctrine had been carefully excluded. This was the Senchus Mór.
AREAS OF BREHON LAW
Women and Marriage
During the early era – the ‘Irish Dark Ages’ which lasted from about 200 BCE to 400 CE, when the earliest Irish laws were made, women had few legal rights. However, there was a general improvement in the status of women after these times. By the eighth century Irish society under Brehon Law, although male-dominated, allowed women greater freedom, independence and rights to property than in many other European societies of the time. In the later tracts of the documented Brehon Law, men and women held their property separately. The marriage laws were very complex. For example, there were scores of ways of combining households and properties and then dividing the property when disputes arose. Divorce was provided for on a number of grounds (e.g. impotence or homosexuality on the husband’s part), after which property was divided according to what contribution each spouse had made to the household. According to Brehon Law of the time, a husband was legally permitted to hit his wife to ‘correct’ her, but if the blow left a mark she was entitled to the equivalent of her bride-price in compensation and could, if she wished, divorce him. Property of a household could not be disposed of without the consent of both spouses.
Brehon law was often at odds with Irish canon law. Brehon law allowed men to take more than one wife at a time. Brehon law also allowed divorce, among other actions that canon law expressly forbids. By the eighth century Irish society under Brehon Law, although male-dominated, allowed women greater freedom, independence and rights to property than in many other European societies of the time. In the later tracts of the documented Brehon Law, men and women held their property separately.
Although early Irish law recognized a distinction between intentional and unintentional injury, any type of injury was still normally unlawful and requiring compensation. An injurer was responsible for paying a fine. The legal text Bretha Déin Chécht goes into considerable detail in describing the fines based on the location of the wound, the severity, and in some cases the type!
According to that text, the payment was decided by a physician after nine days. Bretha Déin Chécht describes that the wound was measured according to how many grains of a certain plant fit in the wound. The higher status one was, the smaller the grain used. Thus, there are nine grains mentioned in the text, from a grain of wheat to a bean. If the wound did not heal, and thus the physical blemish was a problem for the victim’s honor, further payments were required!
If it seemed that the patient would recover but still needed nursing, the injurer was responsible for that. This was known as sick maintenance, rendering variously crólige, folog n-othrusa, folog, or othrus in different texts. Bretha Crólige goes into great detail about this process, describing how the injurer had to find a suitable location and move the victim. Then the injurer had to pay for food for the victim and a retinue—which could be considerable depending on the victim’s rank. The injurer also had to provide someone to fulfill the victim’s duties while he was incapacitated. He also had to pay a fine for the missed opportunity for procreation if appropriate.
Early Ireland has the distinction of being one of the first areas to shun capital punishment. While a murderer might be killed for his/her crime, this was the option of last resort. Instead the murderer typically had to pay two fines. One is the fixed éraic, that is a “body fine”, and the other is the Log nEnech, an honor price that varied according to the status of the victim. Should the murderer be unable to pay by himself, his family was normally responsible for paying any amount the murderer could not pay. Should the family be either unable or unwilling to pay, the victim’s family took custody of the murderer. At this point, the victim’s family had three options. They could await payment, sell the murderer into slavery, or kill the murderer. Even then, the monetary possibilities may have discouraged capital punishment in some cases. Another situation where the murderer could be killed was when the murderer was at large and the fines had not been paid. The victim’s family apparently was responsible to launch a blood feud.
Early Ireland practiced partitive inheritance whereby each of the sons received equal portions. Early Irish law typically did not distinguish between legitimate and illegitimate children, so any recognised sons, even those of concubines, received a portion. On the other hand, disobedient sons were automatically excluded. So you learned not to be naughty!
Brehon Law Over Time
Modern-day Irish people will never know for sure when the beginnings of Brehon law were laid down. What we do know is that the native legal system was fully developed long before the invasions of Christians, the Danish or Anglo-Normans. The Brehon laws were influenced by each of these events, but as a whole stayed intact. But there are a few clues to its lifespan. A number of legal terms have been used in the period before the Celtic Languages split up because they are preserved in both Old Irish and in the Welsh legal texts. This language split started to happen about 900BC, so there is at least that evidence to prove that it was in use from an early point.
The Brehon Laws were often under attack by outside forces. The first main contender for influence was the arrival of Saint Patrick. Brehon law was often at odds with Irish canon law. Brehon law allowed men to take more than one wife at a time (they cited the authority of the Old Testament, the cheeky buggers). Brehon law also allowed divorce, among other actions that canon law expressly forbids.
Depsite these differences, the early Coptic Christian monastic sects which came to Ireland in the fifth and sixth centuries were fascinated by Brehon Law. They made it their project to document it. They brought with them skills that the indigenous people didn’t have: writing. The monks transcribed the laws from the poets called “Na Filidh” who were said to hold the laws in their hearts. Or in their memory banks. These poets recited the laws in four-line stanzas, and the monks wrote them down. The monks must have had a busy time recording these laws, for Brehon law is famous for being very complicated and very specific and intense, covering every eventuality that could ever happen. But thank goodness these monks were so busy doing this, because scholars have found over 100 distinct texts, ranging from complete texts through various degrees of partial preservation.
The Brehon system is thought to have had a lifespan of about 3 millennia, so the durability of the Brehon Law system is staggering. The reason for its unparalleled longevity was the sense of honour held by the people whom it governed. The laws were an expression of the moral power of the people. Its use over such a span of time shows the great respect the Irish people held for justice and law.
The most serious threat to Brehon law was the Norman invasion of 1169, which came with English ‘common’ law, and this was enforced in areas that the English controlled. Thankfully after the dust settled, indigenous people went back to their Irish ways and used Brehon law, which saw a resurgence in the 13th century, and survived into Early Modern Ireland.
The End of Brehon Law
Brehon Law was finally extinguished during the Cromwellian onslaught. The beginning of the 17th Century saw English ‘common’ law prevail in Ireland and the Irish laws were outlawed and declared barbarous. These ‘barbarous’ laws had stopped the English from implanting its feudal system in Ireland. Having a new legal system was a bitter pill to swallow for the Indigenous Irish. The concept of state-administered punishment for crime was foreign to Ireland’s early jurists, and it was met with resistance. So parliament went so far as to declare it an act of treason for English settlers to defer to Brehon law. In defiance of such bans, English settlers who lived outside the pale adopted the Irish customs, manner of dress and even eventually Brehon law. Nevertheless, the Brehon Laws could never be adopted on an official basis by the English-controlled government. Although, some modernised concepts of Brehon law have been readopted in the laws of the Republic of Ireland.
Brehon law wasn’t so much a legal system as a way of life. Common law, brought in by the English, places material objects (property, goods, manmade objects, profits, etc) over and above living entities. Brehon law placed people, life and nature before property. Maybe it is time to revisit Brehon Law, and see what we can do to revive some elements of it. The world might end up a better place. Although it probably isn’t a good idea to have a murderer as your personal slave.
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