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The Brehon Law
by
Michael Ragan
© 1999


Part 1; Origins

Part 2; Law texts

Part 3; Clan and
social classes

Part 4; Women's Rights

Part 5; Professionals

Part 6; Land ownership
and use

Part 7; Property

Part 8; Legal tender

Part 9; Contracts

Part 10; Distraints
and fasting

Part 11; Summation
and appendix

Part 12; Glossary

divider We are fortunate that a large body of ancient Law tracts has managed to survive the ravages of time. These tracts are the most important source of knowledge about the pre-Norman Irish. The information that can be gleaned here can be supplemented by information from other texts and manuscripts, thereby giving us at least a glimpse of the practical side of the Irish, void of the modern neo-pagan mysticism that tends to fabricate a myth of its own.
        You might well ask, "If the Brehon Law was so great, why did the founders of the Republic acclaim their rich legal legacy instead of retaining the English common law? There are a number of reasons. The primary reason was that the English government had waged a very successful centuries long campaign to eradicate the Brehon Law from the Irish consciousness. Secondly, at the time of the founding of the Republic, the archaic tribal nature of the Law, the scarcity of manuscripts and the difficulty in translation provided a truly formidable task.
        Even today, detailed knowledge of the Brehon Law is generally little known to the Irish people. Sure, many books on the subject have been written. But such books were written by scholars for other scholars and not for the common citizen. It is indeed a shame for the old Laws are much more than recordings of ancient legal system. They are a sometimes-detailed look into the minds and hearts of a once rich and still proud culture. Hopefully, the work of individual scholars and organizations such as "The Irish Legal History Society" and "The Irish Texts Society" can continue to encourage and advance the knowledge of Irish Law and thereby help us understand more fully a culture unique in European history.
         The majority of law-texts date only from the early 1120's CE. By this I mean that the date of a manuscript is the date of its writing. However, the text can be and often is of a much earlier period. This is determined on the basis of linguistic and historical considerations. Such text dating can sometimes identify a very narrow range of a few years, while other texts can only be dated to within a century or two. Such analysis by linguistic and legal scholars have thus constructed a picture of a continuous legal system in Ireland from the Old Irish period (c.600-900), through the Middle Irish period (c.900-1200) into what is called the classical Modern Irish period (c.1200-1650). The end of the tradition came with the Cromwellian scourge of Ireland in the 17th century.
       The four texts considered the most important of the early period are Bretha Nemed Toisech, written in the 8th century, the Senchus Mór, written in the beginning of the eighth century, the Cáin Fuitherbe written in 683 and the Collectio Canonum Hibernensis written in the early 8th century. The first three are written in Gaelic while the latter is written in Latin and thus renders it suspect to considerations of non-native tradition. These are the manuscripts upon which most of today's theories about ancient Brehon Law are based. However, the foundation here is shaky for three primary reasons. First of all, the four listed texts are all products of monasteries and obviously reflect the Christian approach to the ancient Law and we will refer to them as Monastery Law in this study. Secondly, they all originated in a relatively localized area, the province of Munster. Therefor they provide a very narrow view of a most complex subject. Finally, we must consider the "creative" talents of the recording Christian clerics who were soldiers in the struggle for the souls of the embattled Irish.
        In their battles for the hearts, souls and wealth of Ireland, the Monk-scholars labored diligently to 'Christianize' Irish culture, including its history. The Annals of the Four Masters is an excellent example. Jewish chronology places the 'beginning', (the Creation) at 3,761BCE. The Christians follow suit with dates varying from then to 4,004 BCE. Irish history indicated a Calendar that began in 4,014 BCE. The real problem though was that the Firbolgs were recorded as coming to Ireland before the Biblical date of the flood. To correct such obvious short-comings, the clerical historians of the Annals threw out existing computations and started over settling on a 5,200 BCE date for creation with the flood occurring 2,242 years later. There were other monasterial creations, but the point is; much of the historical work found in the products of monasteries is strongly laced with fiction. Therefor, we must approach these documents with a healthy dose of critical objectivity.
        Brehon Law fell into two categories; Cain and Urradas. Cain Law was that which applied to all of Ireland. Urradas was local Law. In the event of conflict between the two, Urradas (or local Law) took precedent. Thus each locality and/or Clan might well have its own set of Law. Since the Monasteries functioned as independent "clans," under Brehon Law, their laws were modified to suit the individual Bishop-in-charge. Another point should be brought out. Any system of Law must be dynamic and adapt to the needs of its changing society. Early on, monasteries were small, with minute populations. They existed only at the discretion of the local Clan ruler. Thus, their law would mirror that of the 'host' clan by necessity. In time, as the monasteries, their wealth and populations grew, their increasing independence was reflected in the law. By the 8th century, Canon Law began to infiltrate the texts. A good example of this is reflected in early versions of monastery recorded law. Contention between monastery and clan (or Bishop and King) was settled by the King. Later, contention became a joint responsibility. Finally, when political and economic strength of the monastery was sufficient, contention became the sole responsibility of the Bishop.
        In the case of the Senchus Mor, often referred to as the Patrick's Law, the opening section relates that it was written under Patrick's supervision with 8 others in conference. Of these, two were Bishop's, three were Kings, one a Poet and one a bona fide Brehon. Based on Patrick's supposed involvement, the date for the compilation is given in many references as around 461 CE, as early as 438 in others. However, on the basis of linguistic analysis, the true date for the writing of the text is the early 8th century and its place of writing in the northern midlands. Apparently, the real author(s) were trying to apply legitimacy to their work by crediting it to the long dead Patrick.
       The original law texts written prior to the 8th century are long lost. Successive copies have been made down through time with commentaries and explanations appended or glossed in the margins. As an old fading copy was reproduced, glosses and appended commentaries sometimes worked their way into the body of the text.
        The result is that the manuscripts now existing are somewhat flawed. However, much of the additions can be identified as such through linguistic analysis. The law tracts were written in the oldest known dialect of the Gaelic language, called Bérla Féini. Even as early as the Old Irish period (600-900 CE) the Brehons had to be especially trained in it. So archaic did this dialect become that scholars from the Middle Irish period onward had great difficulty in translation and understanding, as their commentaries and glosses reflect. Additionally, the style of the Bérla Féini is peculiarly cryptic and abrupt. Incomplete sentences abound and catchwords holding specific meaning were sometimes not written down in full, but held in memory by the experts. Thus, it is relatively easy to separate the original text from later additions, thereby enabling fairly accurate dating. Translation is a different matter.
        The collective body of Brehon Law is considerable and all-inclusive of civil, military and criminal law. It regulated social action from the ruler down to the slave and established their rights and privileges. In civil law there were detailed rules for such things as property management, the industries which included building, mills, water courses, brewing, fishing weirs and even bees and honey. There were also laws governing the relationships between landlord and tenant, professional fees, the duties of father and son, duties of foster-parents and foster-children, etc. There were also laws for distress or seizure of goods, for trespass and evidence, etc. In the area of criminal law, offences and their penalties were minutely detailed, Killing (both human and non-human) wounding, theft and all nature of willful damage, accidental injury were listed along with exact compensation required.
        Some of the unique features of early Brehon Law, compared to our modern law, included recognition of personal responsibility scaled to ones position in society, the priority of individuals over property, equal rights between genders, environmental concern and lack of capital punishment. Most importantly, it was a system that required restitution for wrong rather than punishment. The effectiveness of the body of law is reflected in the great respect given it by its citizens. The law was so revered and honored by the people that there were neither courts needed nor police forces required to enforce it.

 
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