Brehon Law

Brehon law (sometimes called Irish law or Irish vernacular law) was the law of Ireland from the earliest historical period to the English invasion in 1169. From then until its abolition by English statute in the early seventeenth century, it was the law of the parts of Ireland controlled by Gaelic and gaelicized lords, though at that point it was heavily influenced by English law. The term brehon derives from Old-Irish brithem, meaning "judge." Though the earliest law texts belong to the seventh century (and possibly before), they are preserved in manuscripts from the twelfth to the seventeenth centuries. These contain three kinds of legal material: the ancient text in Old Irish, often written in large letters; glosses or explanations of terms, later than the original texts, written between the lines and in margins; and lengthy commentaries by later legal scholars, some being legal tracts in their own right. The earliest texts occur in different contemporary styles: nonstanzaic verse, highly ornate prose, and concise technical unornamented prose. There was an unbroken literary transmission of legal materials within a professional class of jurists for over a millennium.

Pagan and Christian Elements

Irish law draws on two main sources: law inherited from the pre-Christian past, and Christian law-making of the early Middle Ages, mostly in Latin; the balance between these has been keenly debated by scholars. Irish shares important legal concepts and terminology with Brittonic (Welsh and Breton). Examples are Irish macc, Welsh mach, "surety, guarantor"; Irish dedm, Welsh deddf, "enacted law, ordinance"; Irish athgabál, Welsh adauayl, Breton adgabael, "distraint" (the seizure of property to discharge a debt); and Irish enech and Welsh wyneb, both meaning "face" and a person's honor in the sense of social worth. These examples show that the Irish and the Welsh share a legal culture that goes back to remote Celtic times, not later than 500 b.c.e. Irish lawyers of the Middle Ages were keenly aware of a pagan past.

By the time of the first records Irish law, however, had been profoundly influenced by Christianity. In the sixth and seventh centuries the laws were written down in the standard Old Irish developed and taught in the Christian schools. Law was not merely written: it was developed as the Christian law of a Christian people. Cáin Fhuithirbe, datable to 678 to 683 c.e., states explicitly: ro dílsiged le dub in díchubus, "that which is contrary to [Christian] conscience has been made forfeit by ink." The church took over the inherited legal culture and drew on its own laws to enrich it. For example, Córus bésgnai, a tract on the relationship of the church with lay society, provides a developed concept of pastoral care. A most notable achievement of the Middle Ages was the elaboration of Irish Church law in Latin. The contemporary canon law collection, the Hibernensis, is a compilation by Ruben (d. 725) of Dairinis (near Lis-more) and Cú Chuimne (d. 747) of Iona, drawing on a rich earlier archive of canons, writings of the Fathers, councils, and synods. Some canons (for example, about heiresses) are so close to the vernacular laws that the two legal traditions seem to be merging, drawing on common sources and shared personnel. The Hibernensis is a remarkable undertaking—nothing less than an attempt to draw up, outside a Roman environment, a comprehensive legal framework for all aspects of Christian life. Brehon law is no less ambitious. Though some historians speak of the survival of pagan law schools and of lay legal culture, there is little evidence for either. In fact, nearly all the lawyers mentioned in the Irish annals between the early ninth and the twelfth centuries are clerics, and often church superiors, poets, or historians as well. Lay legal schools occur some time after the twelfth-century reform of the Irish Church when the church's legal and literary schools ceased to function, and Irish law was cultivated by hereditary legal families, notably, the MacEgans, O'Davorens, MacClancys, and O'Dorans.

The Legal Collections

The largest collection is Senchas már of the eighth century from Northern Ireland, possibly Armagh: some twenty-five tracts on private distraint, pledges, foster-age, kindred, clientship, relations of lord and dependent, marriage, personal injuries, public liability, theft, title to real estate, law of neighborhood (trespass and liability), honor-price, and the contractual obligations of clergy and laity. Other tracts deal with legal and court procedure, suretyship, contract, and much else. There are other collections, notably Bretha nemed from Munster Province, which contains valuable texts on the poets and the learned classes and on the relationship of clergy to society.

Historical Evidence

These tracts offer a contemporary profile of society. Unlike Roman law people were not equal before the law in Ireland. It was class based in that a person's legal entitlements depended on social position, birth, and wealth, but social mobility was possible. Honor-price was the legal expression of that status. Compensations for offenses against persons were calculated as a fraction or multiple of their honor-price, and dependents had a fraction of the honor-price of those they depended on. For example, a man's wife, son, or daughter normally had half his honor-price; his concubine, a quarter. Important law tracts, such as the Miadshlechta, Uraicecht becc, and Críth gablach, deal with class and social structure. Críth gablach (c. 700) is a minute analysis of class structure, ranging from the lowest level of commoner through the nobles' grades to the highest level of kings, and is a unique piece of sociological analysis from the European Middle Ages.

The medico-legal tracts Bretha crólige and Bretha Déin Chécht deal with personal injuries and the liabilities of the injurer. Injured persons are brought to their homes and are looked after by their families for nine days. If they die within this period, the injurer must pay the full penalties for homicide. If they survive but are disabled or disfigured, the injurer must pay compensation. If they need further medical attention, they must be taken to the safe houses of third parties and nursed under strict conditions of care and quiet. The injurer must pay the physician, supply food (specified in detail) for the injured and their visitors, and provide substitutes to carry out the work of the injured. Bretha Déin Chécht deals expertly with the compensations for various kinds of physical injuries. The penalties vary with the person's class and the nature of the injury, and the physician's fee is half of the fine for major injuries and a third for minor ones.

Apart from unusual circumstances and councils of notables, the king had little role in framing law, and courts other than the king's lacked compulsory jurisdiction. As judge, the king sat with his royal judge. However, justice was mainly private, and law the province of a professional class of lawyers who developed a sophisticated system of sureties and guarantors that made their judgments effective. Irish law avoided capital punishment and provided a refined set of legal norms and procedures that sought to resolve conflict by arbitration. These principles include highly developed concepts in regard to evidence, witnesses, and legal proof, and take intentionality as well as act into account in arriving at judgment.

SEE ALSO Hiberno-Latin Culture; Early Medieval Ireland and Christianity; Kings and Kingdoms from 400 to 800 c.e.; Legal Change in the Sixteenth and Seventeenth Centuries; Primary Documents: From A Discovery of the True Causes Why Ireland Was Never Entirely Subdued (1612)

Bibliography

Binchy, Daniel A. "The Linguistic and Historical Value of the Irish Law Tracts." Proceedings of the British Academy 29 (1943): 195–227.

Binchy, Daniel A., ed. Críth gablach. 1941.

Binchy, Daniel A., ed. Corpus iuris hibernici. 6 vols. 1978.

Breatnach, Liam. "The Original Extent of the Senchas már." Ériu 47 (1996): 1–43.

Charles-Edwards, T. M. Early Irish and Welsh Kinship. 1993.

Jenkins, Dafydd, ed. Celtic Law Papers. 1973.

Kelly, Fergus. A Guide to Early Irish Law. 1988.

McLeod, Neil, ed. and trans. Early Irish Contract Law. 1992.

Ó Corráin, Donnchadh. "Irish Vernacular Law and the Old Testament." In Ireland and Christendom: The Bible and the Missions, edited by Próinséas Ní Chatháin and Michael Richter, 1987.

Ó Corráin, Donnchadh, Liam Breatnach, and Aidan Breen. "The Laws of the Irish." Peritia 3 (1984): 382–438.

Wasserschleben, Herrmann. Die irische Kanonensammlung. 2d edition, 1885.

Donnchadh Ó Corráin