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Early Irish law, also called Brehon law (from the old Irish word breithim meaning judge), comprised the statutes which governed everyday life in Early Medieval Ireland. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence from the 13th until the 17th century, over the majority of the island, and survived into Early Modern Ireland in parallel with English law. Early Irish law was often mixed with Christian influence and juristic innovation. These secular laws existed in parallel, and occasionally in conflict, with
canon law Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...
throughout the early Christian period. The laws were a civil rather than a
criminal In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
code, concerned with the payment of compensation for harm done and the regulation of property, inheritance and contracts; the concept of state-administered punishment for crime was foreign to Ireland's early jurists. They show Ireland in the early
medieval In the history of Europe, the Middle Ages or medieval period lasted approximately from the 5th to the late 15th centuries, similarly to the post-classical period of World history (field), global history. It began with the fall of the West ...
period to have been a hierarchical society, taking great care to define social status, and the rights and duties that went with it, according to property, and the relationships between lords and their clients and serfs. The secular legal texts of Ireland were edited by D. A. Binchy in his six-volume '' Corpus Iuris Hibernici''. The oldest surviving law tracts were first written down in the seventh century and compiled in the eighth century.


Origins

Early Irish law consisted of the accumulated decisions of the
Brehon Brehon (, ) is a term for a historical arbitration, mediative, and judicial role in Gaelic culture. Brehons were part of the system of Early Irish law, which was also simply called " Brehon law". Brehons were judges, close in importance to the ...
s, or judges, guided entirely by an oral tradition. Some of these laws were recorded in writing by Christian clerics. The earliest theory to be recorded is contained in the Prologue to the . According to that text, after a difficult case involving St. Patrick, the Saint supervised the mixing of native Irish law and the law of the church. A representative of every group came and recited the laws related to that group, and they were written down and collected into the , excepting that any law that conflicted with church law was replaced. The story also tells how the law transitioned from the keeping of the
poets A poet is a person who studies and creates poetry. Poets may describe themselves as such or be described as such by others. A poet may simply be the creator (thought, thinker, songwriter, writer, or author) who creates (composes) poems (oral t ...
, whose speech was "dark" and incomprehensible, to the keeping of each group who had an interest in it. The story is extremely dubious as not only is it written many centuries after the events it depicts, but it also incorrectly dates the collection of the to the time of St. Patrick while scholars have been able to determine that it was collected during the 8th century, at least three centuries after the time of St. Patrick. Some of the ideas in the tale may be correct, and it has been suggested by modern historians that the Irish jurists were an offshoot from the poetic class that had preserved the laws. According to the
Annals of Ulster The ''Annals of Ulster'' () are annals of History of Ireland, medieval Ireland. The entries span the years from 431 AD to 1540 AD. The entries up to 1489 AD were compiled in the late 15th century by the scribe Ruaidhrí Ó Luin� ...
, the was written in AD 438. For some time, especially through the work of D. A. Binchy, the laws were held to be conservative and useful primarily for reconstructing the laws and customs of the
Proto-Indo-Europeans The Proto-Indo-Europeans are a hypothetical prehistoric ethnolinguistic group of Eurasia who spoke Proto-Indo-European (PIE), the reconstructed common ancestor of the Indo-European language family. Knowledge of them comes chiefly from t ...
just as linguists had reconstructed the
Proto-Indo-European language Proto-Indo-European (PIE) is the reconstructed common ancestor of the Indo-European language family. No direct record of Proto-Indo-European exists; its proposed features have been derived by linguistic reconstruction from documented Indo-Eu ...
. For instance, historians have seen similarities between Irish and Indian customs of
fasting Fasting is the act of refraining from eating, and sometimes drinking. However, from a purely physiological context, "fasting" may refer to the metabolic status of a person who has not eaten overnight (before "breakfast"), or to the metabolic sta ...
as a method of shaming a wrongdoer to recover a debt, or to demand the righting of a wrong. Other legal institutions prominent in early Irish law but foreign to most contemporary legal systems, such as the use of
sureties In finance, a surety , surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a person or company (a ''sure ...
, have been considered as survivals from earlier periods. More recently historians have come to doubt such attributions. While few historians argue that all Irish law comes from church influence, they are today much more wary as to what material is a survival and what has changed. A past may still be suggested for a certain legal concept based on Irish legal terms' being cognate with terms in other Celtic languages, although that information does not prove that the practice described by the legal term has not changed. Today, the legal system is assumed to contain some earlier law influenced by the church, and adaptation through methods of reasoning the Irish jurists would have sanctioned. There is a dispute as to just how large a role each of these aspects may have played in creating the legal texts. The evidence leaves important scope for debate. In one area, scholars have found material that is clearly old. A number of legal terms have been shown to have originated in the period before the
Celtic languages The Celtic languages ( ) are a branch of the Indo-European language family, descended from the hypothetical Proto-Celtic language. The term "Celtic" was first used to describe this language group by Edward Lhuyd in 1707, following Paul-Yve ...
split up, because they are preserved both in
Old Irish Old Irish, also called Old Gaelic (, Ogham, Ogham script: ᚌᚑᚔᚇᚓᚂᚉ; ; ; or ), is the oldest form of the Goidelic languages, Goidelic/Gaelic language for which there are extensive written texts. It was used from 600 to 900. The ...
and in the Welsh legal texts. On the other hand, this is not regarded as unquestionable evidence that the practices described by such terms are unchanged or even have their origins in the same period as do the terms. Another important aspect when considering the origins is that the early Irish law texts are not always consistent. Early Irish law is, like the Old Irish language, remarkably standard across an Island with no central authority; as one scholar wrote, "The edifice of the law stands above all local and regional rivalries as a unified system." Even so, close examination has revealed some variations. Among these one can especially point to variations both in style and content between two of the major legal schools, as they are known: those that produced the and .


Substantive law


Women and marriage

Indications of women's status is indicated by the honour price system. A typical woman did not carry an honour price: a position shared with children, the insane, slaves, and others. However, there were many exceptions: for example, status was gained through inheritance. At times, some rose to ranks of leadership, and women, like men, were Brehons. Brehon Laws have a reputation among modern scholars as rather progressive in their treatment of women, with some describing the law as providing for equality between the sexes. The Laws generally reflect a patriarchal and patrilineal society in which the rules of inheritance were based on
agnatic Patrilineality, also known as the male line, the spear side or agnatic kinship, is a common kinship system in which an individual's family membership derives from and is recorded through their father's lineage. It generally involves the inheritanc ...
descent. It has sometimes been assumed that the patriarchal elements of the law are the result of influence by canon law or continental practice displacing an older, more egalitarian ancient Celtic tradition, but this is based mainly on conjecture and there is little hard evidence to support such claims. , a Christian Law, promulgated by the Synod of Birr in 697, sought to raise the status of women of that era, although the actual effect is unknown. Regardless, although Irish society under the Brehon Laws was male-dominated, women had greater freedom, independence and rights to property than in other European societies of the time. 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 and its increase when disputes arose.
Divorce Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganising of the legal duties and responsibilities of marriage, thus dissolving the M ...
was provided for on a number of grounds (that ultimately deal with the inability to have a child), after which property was divided according to what contribution each spouse had made to the household. 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. The property of a household could not be disposed of without the consent of both spouses.
Polygamy Polygamy (from Late Greek , "state of marriage to many spouses") is the practice of marriage, marrying multiple spouses. When a man is married to more than one wife at the same time, it is called polygyny. When a woman is married to more tha ...
was also supported, and regulated with complex codes. Later it was justified by reference to the Old Testament although church authorities opposed it. Under Western Catholic church law, women were still largely subject to their fathers or husbands and were not normally permitted to act as witnesses, their testimony being considered "biased and dishonest".


Kingship

While scholars have discovered a fair amount of information about how Irish Kingship worked, relatively little is actually related to early Irish laws. In particular, very little material survives regarding succession practices, which have been reconstructed as the system of Tanistry. A section of the tract on status was apparently devoted to succession, although little survives. Most early material on succession was collected by Domhnal O'Davoren in the 16th century. Another seemingly important omission is that the laws never mention the
High King of Ireland High King of Ireland ( ) was a royal title in Gaelic Ireland held by those who had, or who are claimed to have had, lordship over all of Ireland. The title was held by historical kings and was later sometimes assigned anachronously or to leg ...
centred at Tara. Likewise, the laws only once mention the practice of individuals being ineligible for kingship if they are blemished (a practice more widely evident elsewhere, especially in
Irish mythology Irish mythology is the body of myths indigenous to the island of Ireland. It was originally Oral tradition, passed down orally in the Prehistoric Ireland, prehistoric era. In the History of Ireland (795–1169), early medieval era, myths were ...
). That mention is only incidental to a regulation on the compensation for bee stings when the legal tract relates the story of Congal Cáech, who was deposed on account of being blinded by a bee. A fair amount of the material on kings relates to their position within the Irish laws of status, which see, of which the king is ranked at the top, parallel with the Bishops and the highest level of
poets A poet is a person who studies and creates poetry. Poets may describe themselves as such or be described as such by others. A poet may simply be the creator (thought, thinker, songwriter, writer, or author) who creates (composes) poems (oral t ...
. Three levels of kings are referred to in the status tracts, such as : , (the king of peaks) who is identified elsewhere as the (king of a ingle), who is below the (the king of bands) who is identified with the (king of ultiple) or (overking), who in turn is below the (the ultimate king of every individual) who is known also as the (king of overkings) and (king of a province). To a certain degree, kings acted as agents of the law. While other kings in Europe were able to promulgate law, such as
Alfred the Great Alfred the Great ( ; – 26 October 899) was King of the West Saxons from 871 to 886, and King of the Anglo-Saxons from 886 until his death in 899. He was the youngest son of King Æthelwulf and his first wife Osburh, who both died when Alfr ...
and his
Doom book The Doom Book, ''Dōmbōc'', Code of Alfred or Legal Code of Ælfred the Great was the code of laws ("dooms" being laws or judgments) compiled by Alfred the Great ( 893 AD). Alfred codified three prior Anglo-Saxons, Saxon codes – tho ...
, Irish kings had very little authority to do so. They could collaborate on law authored by the church. has the names of many kings attached to it who apparently enacted and enforced the law. Additionally, a king could issue a temporary law in times of emergency. But kings could not, by their own authority, issue permanent law codes. Kings also acted as judges, although the extent of their power compared to that of professional jurists has been debated. One law tract, '' Gubretha Caratniad'', describes a giving advice to a king (in this case, advice that seems flawed but is actually correct) who then gives it as a judgment in a case. It is not clear how much kings made judgments by themselves and how much they had to follow professional advice. The kings do not appear to have stood as judges in all cases, and in some cases, the professional jurists took that role. One subject the laws ''did'' cover is how the king fit within the rest of the legal system. The king was not supposed to be above the law. Some stipulations applied specifically to the king. With a king being the most powerful individual, and the one with the highest honour in an area, it was difficult to enforce the law against him. Although it might have been possible to proceed against the king as against any other, the laws also had an innovative solution to this quandary. Instead of enforcing against the king directly, a dependent of the king known as an (substitute churl) was enforced against instead, and the king was responsible for repaying the substitute churl. The laws also specified certain cases in which a king lost his honor price. These included doing the work of a commoner, moving around without a retinue, and showing cowardice in battle; again, though, it is unclear how often such stipulations were followed. Finally, the laws commented on how the king was to arrange his life and holdings and how many individuals should be in his retinue. In particular, gives a highly schematized and unrealistic account of how the king spends his week: Sunday is for drinking ale, Monday is for judging, Tuesday is for playing , Wednesday is for watching
hound A hound is a type of hunting dog used by hunters to track or chase prey. Description Hounds can be contrasted with gun dogs that assist hunters by identifying prey and/or recovering shot quarry. The hound breeds were the first hunting dogs. ...
s hunt, Thursday is for sexual union, Friday is for racing horses, and Saturday is for judging (a different word from Monday, but the distinction is unclear).


Status

According to the introduction to the , the world had numerous problems before the creation of that text. Among those problems was that everyone was in a state of equality. Unequal status was of great import to early Irish Christian society and it is recorded in many places in the early Irish laws. The Irish law texts describe a highly segmented world, in which each person had a set status that determined what legal tasks they could undertake and what recompense they could receive when a crime was committed against them. and are two of the main texts focusing on lay landholders, the latter of which also briefly covers the status of skilled individuals and of
cleric Clergy are formal leaders within established religions. Their roles and functions vary in different religious traditions, but usually involve presiding over specific rituals and teaching their religion's doctrines and practices. Some of the ter ...
s. Other texts describe other groups, such as , which focuses on the status of poets. Much depended on status, and each rank was assigned an
honour Honour (Commonwealth English) or honor (American English; American and British English spelling differences#-our, -or, see spelling differences) is a quality of a person that is of both social teaching and personal ethos, that manifests itself ...
that was quantified in an honour-price to be paid to them if their honour was violated by certain crimes. The types of food one received as a guest in another's house, or while being cared for due to injury varied based on status. Lower honour prices limited the ability to act as
sureties In finance, a surety , surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a person or company (a ''sure ...
and as witnesses. Those of higher status could "over-swear" the oaths of those of lower status.


Ecclesiastical grades

In part, the seven ecclesiastical grades originate outside Ireland (as
holy orders In certain Christian denominations, holy orders are the ordination, ordained ministries of bishop, priest (presbyter), and deacon, and the sacrament or rite by which candidates are ordained to those orders. Churches recognizing these orders inclu ...
, later subdivided into minor orders and major orders) although their position in Ireland has been shaped by local thinking. The grades are given in as ( lector), ( doorkeeper), (
exorcist In some religions, an exorcist (from the Greek „ἐξορκιστής“) is a person who is believed to be able to cast out the devil or performs the ridding of demons or other supernatural beings who are alleged to have possessed a person ...
), ( sub-deacon), (
deacon A deacon is a member of the diaconate, an office in Christian churches that is generally associated with service of some kind, but which varies among theological and denominational traditions. Major Christian denominations, such as the Cathol ...
), (priest), and (bishop) although '' Bretha Déin Chécht'' puts the lector in a third position. The seven grades are subsumed into the Irish law of status, but it is unclear to what degree they conformed to all of the various status stipulations. According to , the seven grades of the church are the basis for the theoretical seven lay and poetic grades (see below). At the same time it is clear that the number seven is an insular invention, in the
Eastern Church Eastern Christianity comprises Christian traditions and church families that originally developed during classical and late antiquity in the Eastern Mediterranean region or locations further east, south or north. The term does not describe a ...
there were normally five or six grades (sometimes more), and the
Western Church Western Christianity is one of two subdivisions of Christianity (Eastern Christianity being the other). Western Christianity is composed of the Latin Church and Western Protestantism, together with their offshoots such as the Old Catholic C ...
typically had eight or nine grades. Although the various groups were theoretically on par with each other, the church apparently had supremacy. states "Who is nobler, the king or the bishop? The bishop is nobler, for the king rises up before him on account of the Faith; moreover, the bishop raises his knee before the king." This relative ranking is reflected elsewhere. In addition, according to the ranking of the lay grades was modeled after the ecclesiastical grades in that there should be seven grades, a number rarely met perfectly.


Lay grades

Irish law recognised a number of classes, from unfree to king, which were ranked within the status tracts. Little space was given to the unfree, which reflects the lack of dependence upon
slave Slavery is the ownership of a person as property, especially in regards to their labour. Slavery typically involves compulsory work, with the slave's location of work and residence dictated by the party that holds them in bondage. Enslavemen ...
s as opposed to other societies, such as
Ancient Rome In modern historiography, ancient Rome is the Roman people, Roman civilisation from the founding of Rome, founding of the Italian city of Rome in the 8th century BC to the Fall of the Western Roman Empire, collapse of the Western Roman Em ...
. The laws discuss slaves, both male and female, and the term for a female slave, , became a broader currency term. Anthropologist
David Graeber David Rolfe Graeber (; February 12, 1961 – September 2, 2020) was an American and British anthropologist, Left-wing politics, left-wing and anarchism, anarchist social and political activist. His influential work in Social anthropology, social ...
suggests this indicates a significant trade in female slaves was present not long before the laws were written. As unfree, slaves could not be legal agents either for themselves or others. In addition to the wholly unfree, a few individuals were semi-free. The (hereditary serf) was bound to work the land of his master, whereas the had no independent status or land of his own, but could at least leave as he might desire. Others might be of less than full status, based on age or origin. The status of children was based on their parents, and they could not act independently. The rights of sons increased with age, but they did not fully increase until after the death of the father. A young son just out on his own was called a (a man of middle huts), apparently, someone who occupied a hut on his father's land. These persons were semi-independent but did not have the full honour price of a free man until they reached 20. Even after a certain age, a "Son of a Living Father" was expected to be dutiful to his father and could only set up an independent household with his father's permission. In addition, those from outside a normally had a low status, as status was based not only on property but also on familial connections. There are two main ranks of commoners, the (lit. "young lord") and ("cow lord"), though Binchy thinks the is a recent offshoot of the latter, who had less property but was still a freeman. In addition are the (a of quality who had an honour-price of 5 ). The highest commoner was the ("land man"). Either of the last, according to Binchy, may be the "normal " who appears within the law texts. The three ranks of commoners, at least according to the status tract, vary in the type of clientship they undertook and the property they could hold, though it is unclear how this worked in practice. Commoners apparently had to co-operate in farming as they did not have enough property to own a whole plough-share or all the rights in a mill. Above these are a series of lords who apparently had clients of their own—the primary factor in lordship—as well as more property and a higher honour price. According to , each grade of lord increase by 5 for each rank, and also increased the number of clients. In addition, when they travelled they were expected to maintain a retinue with them. A lord not only had greater ability but also needed to take greater steps to preserve their honour, lest they lose their lordship. The order of lords varies, but in it is as follows: ("lord of vassals"), ("high lord"), ("lord of precedence"), and the ("lord of superior testimony"). After the normal lords were the , who was supposed to be heir to the throne. He had higher property qualifications than the , but his prime claim to higher status was that he would one day be king. Kings held the highest status that the laws describe. The basic king had an honour price of seven , and higher kings had yet a higher status. Having the highest status, the king especially was expected to be careful to keep his honour. Cowardice, as demonstrated in flight from battle, as well as taking up manual labour might cost him his honour-price. These grades are generally equated with the seven grades of clerics, although there is some discrepancy as to how the grades line up, with various texts doing it in different ways and selecting only certain lay grades and ignoring others. The ranking of lay grades has been seen by many scholars as rather schematic and not reflecting realities on the ground. Some of the texts give considerable detail on diet, tools owned, the number of livestock, and even the size of the house a person of a given status had. Modern scholars have generally assumed such details rarely match exactly what someone of a given rank had. In addition, contains the fee a client paid to a lord, according to rank from the lowest free man through the noble ranks, even though no noble would be another's client.


Poetic grades

Paralleling the status of the lay grades are the grades of the (poets). Each poetic rank corresponds to a particular lay (and ecclesiastical) rank, from to king. In these are given as , , , , , , and . These are given the same status as and the same honour prices as the lay grades, and hence have effectively the same rights. The qualifications for each grade is where the difference occurs. The qualifications fit into three categories, the status of the poet's parent or grandparent, their skill and their training. A particular number of compositions are given for each rank, with the having 350. In addition to the seven main ranks, variously named ranks below these seem to be names for unskilled poets, the , , and Their honour prices are no more than a pittance, and their poetry is apparently painful to hear.


Other grades

Other professions could give status based on the profession and the skill, but no professions besides poets could have a status as high as the bishop, king, or highest poet. For instance, in one text the
jurist A jurist is a person with expert knowledge of law; someone who analyzes and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal education in law (a law degree) and often a Lawyer, legal prac ...
or had three ranks, and the highest was given an honour price only halfway up the other scales. The ranking of a was based on his skill and whether he knew all three components of law (here: traditional law, poetry, and canon law), or fewer. A craftsman who worked with wood could have similar honour prices but these were based on his craftsmanship. A physician and a
blacksmith A blacksmith is a metalsmith who creates objects primarily from wrought iron or steel, but sometimes from #Other metals, other metals, by forging the metal, using tools to hammer, bend, and cut (cf. tinsmith). Blacksmiths produce objects such ...
, among other ranks, had an even lower honour price—less than half what the could achieve, and the honour price apparently did not vary based on skill. Other professionals, such as makers of
chariot A chariot is a type of vehicle similar to a cart, driven by a charioteer, usually using horses to provide rapid Propulsion, motive power. The oldest known chariots have been found in burials of the Sintashta culture in modern-day Chelyabinsk O ...
s or engravers, had still lower honour prices (less than that of a ). Finally, a few professions received only meagre ranks, as with the lowest poets, and the authors may be actively making fun of some of the professions, such as
comb A comb is a tool consisting of a shaft that holds a row of teeth for pulling through the hair to clean, untangle, or style it. Combs have been used since prehistoric times, having been discovered in very refined forms from settlements dating ba ...
makers.


Change in status

Status in early Ireland was not entirely rigid and it was possible for a family to raise its status. If three consecutive generations—grandfather, father, and son—had the property qualifications of a lord, or the poetic qualifications of a higher level poet, etc., then the member of the third generation became a lord. On the other hand, the son or grandson of a lord, or a
poet A poet is a person who studies and creates poetry. Poets may describe themselves as such or be described as such by others. A poet may simply be the creator (thought, thinker, songwriter, writer, or author) who creates (composes) poems (oral t ...
, etc., who did not have the proper qualifications, did not have that status. The grandson of a person with a certain status could have that status themselves, assuming they had the proper qualifications, even if their father did not. This created an interesting in-between stage. A commoner who had the property qualifications but not the parentage to become a lord is variously referred to as a , (a commoner lord), a (a man of withdrawal), or an (an ere with a broader meaning than lordbetween two ypes of). According to , these individuals had status in between a commoner and a full lord. In the case of poets, a poet with skill qualifications but who did not have proper training was a
bard In Celtic cultures, a bard is an oral repository and professional story teller, verse-maker, music composer, oral historian and genealogist, employed by a patron (such as a monarch or chieftain) to commemorate one or more of the patron's a ...
. According to Breatnach poets who were not allied with the church were given this rank for that reason. In addition, there were ways that, in an extraordinary circumstance, an individual could achieve higher status without having parents with such qualifications. Someone who chose to become a (hospitaller) could have twice the normal property qualifications of a lord of whatever grade (and this can extend, in theory, up to the qualifications of a king). Further, a had to open his house to any guests. This included feeding them, no matter how large the group—he could lose his status if he ever refused a guest. Because of that stipulation, the position of was potentially ruinous, and this outcome is portrayed in a number of tales such as in and . A commoner might also ascend to the status of a lord if he is a (lord of violence). Such a person helped individuals to avenge deaths committed in another for a limited time after the cessation of hostilities, although the details are unclear. A poet who had the skill and training of a rank, but not the proper familial qualifications received half the honour price that his skill and training otherwise earned.


Clientship

A member of the property-owning classes could advance himself by becoming a "free client" of a more powerful lord, somewhat akin to the Roman system of clientship. The lord made his client a grant of property (sometimes land, but more usually livestock) for a fixed period of time. The client owed service to his lord, and at the end of the grant period returned the grant with interest. Any increase beyond the agreed interest was his to keep. This allowed for a certain degree of social mobility as an astute free client could increase his wealth until he could afford clients of his own, thus becoming a lord. A poorer man could become a "base client" by selling a share in his honour price, making his lord entitled to part of any compensation due him. The lord could make him a smaller grant of land or livestock, for which the client paid rent in produce and manual labour. A man could be a base client to several lords simultaneously.


Physical injury

On account of the structure of early Irish society, all law was essentially civil and offenders had to answer only to the victim or the victim's representative. This is important to point out, as in case of serious injury it is in stark contrast to most modern legal systems.


Payment for wounding

Although early Irish law recognised a distinction between intentional and unintentional injury, any type of injury was still normally unlawful and requiring compensation. The main exception is injuries received when the victim has gone into a place where an injury is likely. In all other cases, an injurer was responsible for paying a
fine Fine may refer to: Characters * Fran Fine, the title character of ''The Nanny'' * Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny'' * Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano Legal terms * Fine (p ...
. The legal text '' Bretha Déin Chécht'' "The Judgments of Dían Cécht" goes into considerable detail in describing the fines based on the location of the
wound A wound is any disruption of or damage to living tissue, such as skin, mucous membranes, or organs. Wounds can either be the sudden result of direct trauma (mechanical, thermal, chemical), or can develop slowly over time due to underlying diseas ...
, the severity, and in some cases the type. According to that text, the payment was decided by a physician after nine days. Prior to that, the victim was cared for by his family and a physician. Some suggest that the effects of the wound would be clear to a physician at that point if not before. First, either the victim would have died if such was likely, or it would be clear that the patient was in danger. If the first was the case, the injurer had to face punishment for murder, and in the second he had to pay a heavy fine called a , "blood-lying of death." If the victim had recovered but his wound was still present, it was measured and a fine paid. describes that the wound was measured according to how many grains of a certain plant fit in the wound. The higher the 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 honour, further payments were required. Early Irish law saw certain locations, known as the "twelve doors of the soul" were considered particularly severe. It has been suggested that this is because of the potential for such wounds to turn deadly, although the law texts do not suggest any reason. In such cases, the physician was entitled to a greater share of the fine—one half. Similarly, if the wound is one of "the seven principal bone-breakings," or if it causes constant vomiting or bloody urine the physician also received a greater fee.


Sick maintenance

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 , , , or 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 fulfil the victim's duties while he was incapacitated. He also had to pay a fine for the missed opportunity for
procreation Reproduction (or procreation or breeding) is the biological process by which new individual organisms – "offspring" – are produced from their "parent" or parents. There are two forms of reproduction: asexual and sexual. In asexual reprod ...
if appropriate. ''Bretha Crólige'' also goes into the importance of keeping a proper environment for the victim during his sick-maintenances. Largely this means that anything that might cause loud noise was prohibited in the vicinity. This included fights by men as well as by dogs, the playing of games and even the disciplining of children. It is clear from the law tracts that the practice of Sick Maintenance was being discarded. mentions some of what each individual is entitled to while being nursed according to his rank, it also mentions that the practice was no longer in use, and instead, an additional fine encompassed the same provisions the injurer would have had to pay for under sick maintenance. ''Bretha Crólige'' does not mention anything about the practice being obsolete. It does mention that certain types of person could not be maintained because of the difficulty in doing so. Thus it was very hard to provision those of the highest rank and obviously impossible to find a substitute to do their work. Certain professionals could similarly be difficult. On the other hand, a number of persons could cause difficulty to the people maintaining the victim. Such troublesome individuals included the insane and women likely to cause trouble for those nursing them.


Murder and avoidance of capital punishment

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 or , that is either a "body fine" or a " wergild", and the other is the , an
honour Honour (Commonwealth English) or honor (American English; American and British English spelling differences#-our, -or, see spelling differences) is a quality of a person that is of both social teaching and personal ethos, that manifests itself ...
price owed to the kin of the victim that varied according to the status of the kinsman to whom it was owed and the closeness of his relationship to 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. In certain cases, though, where the murderer and victim were relatives, capital punishment could not be carried out as it would make the executioner commit or ''kin-slaying''. 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 A feud , also known in more extreme cases as a blood feud, vendetta, faida, clan war, gang war, private war, or mob war, is a long-running argument or fight, often between social groups of people, especially family, families or clans. Feuds begin ...
. It is unclear how often capital punishment was carried out in situations where it would be licit without any records other than the legal tracts. It is clear that that punishment could be avoided in most cases. The origin of this particular legal provision is as unclear as the rest of Irish law. The so-called "Pseudo-Historical Prologue to the Senchas Már", a late introduction to the main collection of Irish law, makes a claim on how this came about. It declares that prior to the coming of St. Patrick, Irish law demanded capital punishment in all cases of murder. Christianity was supposed to preach forgiveness. The two fines are apparently a compromise so that the murderer is both punished and forgiven. It is at least dubious whether or not this is a valid historical account, given the lateness of the story (originating hundreds of years after Patrick's time).


Kinship

Early Irish law recognised a number of degrees of
agnatic Patrilineality, also known as the male line, the spear side or agnatic kinship, is a common kinship system in which an individual's family membership derives from and is recorded through their father's lineage. It generally involves the inheritanc ...
kinship In anthropology, kinship is the web of social relationships that form an important part of the lives of all humans in all societies, although its exact meanings even within this discipline are often debated. Anthropologist Robin Fox says that ...
, based on a belief that there was a common male ancestor. The closest kin group that is defined is (bright-kin)—descendants of a common grandfather (including the grandfather's relationships to his descendants and his children). This is followed by the (certain-kin)—descendants of a common great-grandfather, (after-kin)—descendants of a common great-great-grandfather, and the (end-kin), all of which contain the old Irish word for kin or family, . The is, by far, the kin-group most commonly mentioned. The leader of the kin group was known either as (pillar of the family) or (head iterallyof the family). He apparently was a senior member selected from the kin group based on various qualifications. One of his main duties was to take responsibility for members of the kin-group, acting as a surety for some of the actions of members, making sure debts are paid (including for murder). If the member could not be made to pay, the fee was normally paid by members of the kin group. He was also responsible for unmarried women after the death of their fathers. As mentioned above, the actions of a member could require other kin to pay a fine. In certain cases, the kin-group could refuse liabilities, although in some cases only after they been proclaimed as a non-member, which might occur if the member did not carry out his responsibilities to the kin. One particularly heinous crime in early Irish law was (kin-slaying) because it was against a group that had some right to trust. The killer had to give up their kin-land but was still liable for fines incurred by other members of the kin. An undutiful son might also be excluded from certain kin rights as well, especially as sons of a living father generally did not have significant rights of legal actions except as permitted by the father.


Inheritance

Early Ireland practised partitive inheritance whereby each of the sons received equal portions, and any grandsons whose father predeceased their grandfather equally split their father's portion. When the Normans entered Ireland and saw the Irish practice they called it gavelkind, the Jute inheritance in Kent to which it seemed similar. Early Irish law typically did not distinguish between "legitimate" and "illegitimate" children, so any recognised, even those of concubines, received a portion. On the other hand, disobedient sons were automatically excluded. In addition, adopted children could receive a portion of kin land, though status as an inheritor and the inheritance amount had to be explicitly stipulated. The division of land is somewhat obscure. One
maxim Maxim or Maksim may refer to: Entertainment *Maxim (magazine), ''Maxim'' (magazine), an international men's magazine ** Maxim (Australia), ''Maxim'' (Australia), the Australian edition ** Maxim (India), ''Maxim'' (India), the Indian edition *Maxim ...
suggests that the youngest son divided the land into equal parts. The eldest chose first, followed by the second and so on until the youngest received the remaining land. The intent was to make the division of land equal. Other laws suggested that the eldest son had automatic claims to the buildings. There are some hints that this only happened if a younger son challenged a division. The normal practice was that the eldest son both divided and chose first, but had to divide equally. More rarely, a father might divide the land for his sons in his lifetime. While a daughter with brothers did not normally receive a portion of the inheritance in land, she could inherit
movable property Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be m ...
. In a case where there are no sons, some of the law tracts allow the daughter to inherit a limited portion. Unless her husband was a foreigner to the and had no land of his own, the land did not descend to her sons but instead went to the other members of her
agnatic Patrilineality, also known as the male line, the spear side or agnatic kinship, is a common kinship system in which an individual's family membership derives from and is recorded through their father's lineage. It generally involves the inheritanc ...
kin group. There was apparently pressure for a woman with land to marry a relative to keep the land within the kin group. Finally, if a man died with no children, the property was distributed between his nearest kin—first the descendants of his father, and if there were no such descendants, then between the descendants of his grandfather, and so on. Any extra land that daughters could not inherit because of female inheritance limits also went to the wider kin. The head of a kin group was entitled to extra property since he was liable for debts a kinsman could not pay.


Land rights of kin

The potential for inheritance by even distant kin meant that, in Early Irish law, those kin all had some sort of right in the land. Land that had been inherited was known as (kin-land). Certain rights of use of land by the owner's kin seem to have existed. Moreover, it was possible that land could be redistributed if a certain branch of the family had few descendants and hence larger shares in the land per person. In such a case, even some more distant cousins could acquire the land, though they benefited less than closer kin. Apparently because of these potential claims it could apparently be difficult to alienate kin-land. Even when selling land that an individual had acquired separately from an inheritance, a portion went to his kin.


Legal theory


Changes in the legal system

Ireland had no regular central authority capable of making new law and hence the
Brehon Brehon (, ) is a term for a historical arbitration, mediative, and judicial role in Gaelic culture. Brehons were part of the system of Early Irish law, which was also simply called " Brehon law". Brehons were judges, close in importance to the ...
laws were entirely in the hands of the jurists. As such, some early scholars felt that the legal system was essentially unchanging and archaic. More recently scholars have noticed that some methods of change were laid out within the Brehon laws. In particular, '' Cóic Conara Fugill'' mentions five bases on which a judge must base judgment, and at least three offer some room for change: (
legal maxim A legal maxim is an established principle or proposition of law, and a species of aphorism and general maxim (philosophy), maxim. The word is apparently a variant of the Latin , but this latter word is not found in extant texts of Roman law with ...
), ( legal analogy), and (
natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
) (the other two are , a type of legal verse jurists were trained to create to mark a statement made by someone who knows the law and (scriptural testimony)). It has not yet been studied in detail how exactly these three innovative methods were used.


Maxims

The use and application of maxims is clearly a location where the principles of Irish law could be recorded. Any number of maxims may be found within the Early Irish Laws and perhaps the reason why we are unable to derive a coherent theory of law from them is that there are a great many different topics. Some do seem to represent a legal theory, such as the maxim in that "no-one is obliged to give something to another for nothing" and that in '' Bretha Crólige'' that "the misdeed of the guilty should not affect the innocent". These maxims do say more than one might think since legal systems often have problems balancing the interests of all. The majority of maxims treat with more specific problems. The main problem with our understanding of maxims is that while one law text tells us that they were used as a basis of judgment we know little else about them; we do not even know how exactly maxims could be used for judgment. A further complication is that we know very little about the origin of maxims (or even what the jurists thought was the origin) and similarly we do not know whether jurists were introducing new maxims regularly or whether all maxims were ''supposed'' to be from time immemorial.


Natural law

Early Irish law mentions in a number of places or
natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
. This is a concept apparently borrowed from, or at least akin with, European legal theory, and reflects a type of law that is universal and may be determined by reason and observation of natural action. Neil McLeod identifies concepts that law must accord with: (truth) and (right or entitlement). These two terms occur frequently, though Irish law never strictly defines them. Similarly, the term (law in accordance with proper order) occurs in some places, and even in the titles of certain texts. The laws tell stories of how truth could apparently cure a person and falsehood could cause blisters. These were two very real concepts to the jurists and the value of a given judgment with respect to them was apparently ascertainable. McLeod has also suggested that most of the specific laws mentioned have passed the test of time and thus their truth has been confirmed, while other provisions are justified in other ways because they are younger and have not been tested over time.


Legal procedure

The early Irish laws are devoid of a state-centred enforcement mechanism and at least some of the judges were outside the state apparatus. This did not mean that the laws were ineffective, rather the methods of enforcement of legal procedures worked in such a way to fit with the conditions of society.


Suretyship

Sureties In finance, a surety , surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a person or company (a ''sure ...
were the prime enforcers in early Irish law. They were not government officials, but rather sureties who were appointed to enforce a contract or other legal relationship. , the law tract that deals most with sureties, offers formulaic speeches the contractors may have recited ceremonially to appoint sureties and make the sureties swear to perform their duties properly. In addition to sureties appointed for specific contracts, relatives might be expected to act as sureties in cases where they were not specifically bound. There is also evidence that most sureties were either relatives or lords of the contractor. Three types of sureties appear in Irish law. The (and in earlier texts ) refers to a surety who is expected to enforce payment from the contractor. Apparently, in standard contracts two (plural of ) were appointed by each party. The word might also refer to the "binding" of a contract. If the contractor whom he is appointed for defaults it is the s responsibility to attempt to make the contractor pay. If he does not act or does not put in sufficient effort he loses his honour price. In attempting to extract payment, the had a wide range of powers. He might distrain the contractor's property, imprison or even violently attack the contractor. Apparently, as with witnessing, someone could not be a to a contract worth more than his honour-price. The is generally referred to as a ''paying surety''. Should the contractor default, the had to pay the debt from his own property. He could then attempt to extract the money from the contract. Assumedly, the only paid if the was unable to make the debtor pay. Since acting as a could mean a financial loss that might not be repaid, the law tracts apparently see the position as dangerous, as one of three "dark things of the world." The , like other sureties, were paid a fee when hired, which potentially made up for the risk they undertook. A person could not act as a in contracts worth more than his honour-price, though it was possible that one might act as a ráth for only part of a contract, in which case they were responsible for payment only up to their honour-price. Finally, the is a surety who became a hostage in the case of a default. Once the hostage was in captivity, the debtor had ten days to pay the debt to have the hostage released. If the hostage was not released by then, expenses to the debtor could become exorbitant. The had to pay his own ransom by paying his body price, which was expensive, and the debtor had to pay twice that fee plus the surety's honour price. The could enforce the debt to him by himself.


Relationship to the church and church law

Brehon Brehon (, ) is a term for a historical arbitration, mediative, and judicial role in Gaelic culture. Brehons were part of the system of Early Irish law, which was also simply called " Brehon law". Brehons were judges, close in importance to the ...
law was produced in the vernacular language by a group of professional jurists. The exact relationship of those jurists to the church is subject to considerable debate. Brehon law at times was at odds with and at times influenced by Irish canon law.


Vernacular church law

A number of law tracts that originated from the church were written in Old Irish. The most famous of these is , which was apparently created in 697 under the influence of
Adomnán Adomnán or Adamnán of Iona (; , ''Adomnanus''; 624 – 704), also known as Eunan ( ; from ), was an abbot of Iona Abbey ( 679–704), hagiographer, statesman, canon jurist, and Christian saint, saint. He was the author of the ''Life ...
and ratified by a number of ecclesiastics and kings whose names appear in the text. The idea of the law was apparently to supplement the punishments of Brehon law for crimes against women, children, and clerics. In some ways it follows the ideas embodied in Brehon law although there are differences; for instance, it uses capital punishment, which Brehon law avoids.


Canon law

More contradictions exist with Latin Canon Law, such as in the (Irish Collection of Canons), than with Vernacular Church law. Brehon law allows
polygyny Polygyny () is a form of polygamy entailing the marriage of a man to several women. The term polygyny is from Neoclassical Greek πολυγυνία (); . Incidence Polygyny is more widespread in Africa than in any other continent. Some scholar ...
(albeit while citing the authority of the
Old Testament The Old Testament (OT) is the first division of the Christian biblical canon, which is based primarily upon the 24 books of the Hebrew Bible, or Tanakh, a collection of ancient religious Hebrew and occasionally Aramaic writings by the Isr ...
) and divorce, among other actions that canon law expressly forbids. At the same time, it is clear that the two legal systems have borrowed from each other. Much Latin terminology has entered into Old Irish and into the legal system, such as a type of witness from Latin . The also borrows terms found in Brehon law such as from Old Irish , a type of
surety In finance, a surety , surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a person or company (a ''sure ...
. The latter also suggests more substantive borrowing from Brehon Law into canon law. There are a number of places where it is clear that law was borrowed in one direction or another. Large sections on the Church have been translated wholesale from the into a section of the Law tract . Other overlaps have been suggested, in many cases where biblical references seem to appear in the Brehon law.Donnchadh Ó Corráin ''et al.'', "The Laws of the Irish" in ''Peritia'' 3 (1984) Where both texts cite the same rule, it is not always clear which came up with the rule first. In addition to substantive law, other legal aspects appear in both, such as the propensity towards the use of analogy.


Relationship of jurists with the church

The above similarities have led scholars to ask what relationship did Brehons have with clerics. Some scholars, known as anti-nativists, have suggested that the Brehons were nothing more than clerics who had training in secular law. In addition to the similarities and evidence of borrowing from Canon law and the Bible, scholars who hold this position ask how any non-Clerics could have been sufficiently literate at this period to create the texts. Other scholars, known as nativists, have asked how the differences could arise if the authors of canon and secular law were indeed the same.


Legal texts

Scholars have found over 100 distinct texts, ranging from complete texts through various degrees of partial preservation—and in some cases only as a name in a list, and even, in one case, a tract that scholars have decided must have existed. Almost all of the secular legal texts existing in various
manuscripts A manuscript (abbreviated MS for singular and MSS for plural) was, traditionally, any document written by hand or typewritten, as opposed to mechanically printed or reproduced in some indirect or automated way. More recently, the term has c ...
have been printed in D.A. Binchy's six-volume and a few texts left out of that work made it into another book intended as a companion to the .


A number of the legal texts may be categorised together on account of related authorship. The largest such grouping is the , a collection of at least 47 separate tracts compiled into a single group sometime in the 8th century, though individual tracts vary in date. These tracts were almost certainly written by a variety of authors, though some suggest that certain authors wrote more than one of the included tracts. The collection was apparently made somewhere in the north midlands. The tracts have been subjected to the greatest amount of glossing and commentary in later manuscripts. Moreover, one of the few examples of Old Irish glossing has been given to the various texts of . These glosses were apparently made in
Munster Munster ( or ) is the largest of the four provinces of Ireland, located in the south west of the island. In early Ireland, the Kingdom of Munster was one of the kingdoms of Gaelic Ireland ruled by a "king of over-kings" (). Following the Nor ...
. The text has been arranged into thirds; three was apparently an important number to the Irish. A number of laws were grouped into threes, called ''triads''—a practice also common in the Welsh. One scholar has recently suggested that there were a number of groups of six including one single tract, generally from the first third, two contiguous tracts generally in the second third, and three contiguous tracts from the third third. Each group of six is theorised as related to each other in various ways. The prologue ascribes the authorship of the book to a committee of nine appointed by St Patrick to revise the laws. It was composed of three kings, three bishops, and three professors of literature, poetry, and law. Chief among the latter was Dubthach. It became his duty to give a historical retrospect, and in doing so he exhibited "all the judgments of true nature which the Holy Ghost had spoken from the first occupation of this island down to the reception of the faith. What did not clash with the word of God in the written law and in the New Testament and with the consciences of believers was confirmed in the laws of the brehons by Patrick and by the ecclesiastics and chieftains of Ireland. This is the Senchus Mor."


texts

In addition to the school that produced the , scholars have detected a few other legal schools that produced texts. The next most fully formed is the or school, named after two of the texts it produced. This school, which has been referred to as ''poetico-legal'', apparently was located in Munster, based on references to the
King of Munster The kings of Munster () ruled the Kingdom of Munster in Ireland from its establishment during the Irish Iron Age until the High Middle Ages. According to Gaelic traditional history, laid out in works such as the ''Book of Invasions'', the earli ...
and two monasteries in Munster.


and

These two texts, the "First Judgment of Privileged Ones" and the "Final Judgment of Privileged Ones" are the later scribal names of two texts are written primarily in the obscure style of poetry. The first describes the roles and status of the church, poets and various other professionals. The final primarily with the status and duties of poets although it contains other material as well. The first is also one of the few early texts scholars have assigned an author to, namely three brothers, , who are a bishop, a poet, and a judge.


The ("Small primer") is a text on status and has the greatest breadth in coverage, including not only commoners, kings, churchmen and poets, but also a variety of other professional groups, including judges. It does not go into as much detail for each group and level as do other status tracts.


Other texts

A number of other texts have not been grouped together as coming from either the same author or from the same school. This doesn't mean no affiliation for authors of other texts exists, only that scholars have not been able to find them.


Literally ''Shearing of the Court'', Fergus Kelly suggests that this might mean more loosely "court summary" or "synopsis of court procedure." The text deals with a number of topics for judicial procedure, but most importantly on the role of the various types of sureties. Interesting, it covers the ways that sureties were appointed to their duties, and hence it is informative on the way contracts were created.


"Branched Purchase" is the title of what is perhaps the most well-known tract on status and certainly the most accessible, as a modern printed edition (though not a translation) has been published by the
Dublin Institute for Advanced Studies The Dublin Institute for Advanced Studies (DIAS) () is a statutory independent research institute in Dublin, Ireland. It was established, under the Institute For Advanced Studies Act 1940, by the government of the then Taoiseach, Éamon de Vale ...
. The text goes into details on the grades of commoners and nobility: what property should they own, how large should their house be, how should their clientship be arranged. The text presents a schema that could not have been used in actuality. For instance, it includes clientship information for even the highest nobility, who would not have acted as clients. The text also presents a certain amount of interesting information on the duties of a king. In addition to the main text, a poem immediately follows in the manuscript, but there has been debate as to whether this is actually a part of the tract.


A two-part text, ''On the Binding of Contracts'', deals with when contracts are binding and when they are not. The first section deals with general rules regarding when contracts are binding, including an analogy to the fact that Adam's trade of an apple for access to the
Garden of Eden In Abrahamic religions, the Garden of Eden (; ; ) or Garden of God ( and ), also called the Terrestrial Paradise, is the biblical paradise described in Genesis 2–3 and Ezekiel 28 and 31.. The location of Eden is described in the Book of Ge ...
was valid even though it was an uneven contract because Adam knew it was such. The second half deals with cases in which a contract may be overturned. The tract is also interesting because it is a collection of material from varying dates and places and as such much more uneven in content than other tracts.


The "Primer of Stipulations" is a text on the status of poets. It includes information on compensation based on status, but it also includes information about the poetic craft such as the number of type of positions one must have to be a certain grade. It also describes the difference between a and a
bard In Celtic cultures, a bard is an oral repository and professional story teller, verse-maker, music composer, oral historian and genealogist, employed by a patron (such as a monarch or chieftain) to commemorate one or more of the patron's a ...
.


Later texts

While most of the legal tracts were composed during the 7th and 8th centuries, there were some independent tracts, as well as a significant amount of glossing and commentary, often written within a century of when some of the tracts were composed.


Glosses and commentary

The most voluminous legal material written after the 8th century takes the form of notes upon that earlier material. There have been numerous questions about the degree to which such glossators understood the material they worked on. It is also possible that in some cases jurists used the earlier material for a legitimate method of explaining how the law had come to work. This material takes two main forms: glossing between the lines of a text, and mini texts that begin with a quote from earlier legal material. O'Davoren's Glossary, an early modern glossary of Old Irish, preserves many quotes from early Irish legal texts. In many cases, it is the only text that includes certain quotes as well as information about certain whole law tracts. Its primary focus is to list and define certain words, particularly legal terms, and as such has provided significant help in understanding the oldest laws.


Later legal tracts

While the majority of legal texts were written before the 9th century, a few were written later. The
Middle Irish Middle Irish, also called Middle Gaelic (, , ), is the Goidelic language which was spoken in Ireland, most of Scotland and the Isle of Man from AD; it is therefore a contemporary of Late Old English and Early Middle English. The modern Goideli ...
text, ''The Distribution of Cró and Dibad'' deals with extracting fines from a killer and dividing a dead man's property. Additionally, the legal text '' Cóic Conara Fugill'' (the Five Paths of Judgment) was originally written during the earliest period but received a number of subsequent
recension Recension is the practice of editing or revising a text based on critical analysis. When referring to manuscripts, this may be a revision by another author. The term is derived from the Latin ("review, analysis"). In textual criticism (as is the ...
s afterwards. The text deals with how a court case should proceed based on the substance of the intended argument. It is not clear what distinctions are made in this text.


Case law

Early Irish Law is almost completely lacking in
case law Case law, also used interchangeably with common law, is a law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
. What exists are a few brief references in a number of texts, both legal and non-legal, which reference the laws in action. For instance mentions the case of a king who lost his throne because he was blinded by a bee. Additionally, the
Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...
Life of St.
Columba Columba () or Colmcille (7 December 521 – 9 June 597 AD) was an Irish abbot and missionary evangelist credited with spreading Christianity in what is today Scotland at the start of the Hiberno-Scottish mission. He founded the important abbey ...
refers to the case of a man who killed another and the subsequent punishment he was to endure.


Decline of the Brehon laws

The first attempt to encroach on Brehon law in Ireland came in
1155 Year 1155 ( MCLV) was a common year starting on Saturday of the Julian calendar. Events By place Europe * April 18 – Siege of Tortona: German forces capture the citadel of Tortona (after a two-month siege). The city is razed ...
when the English pope Adrian IV issued the papal bull , which sanctioned the
Norman Invasion of Ireland The Anglo-Norman invasion of Ireland took place during the late 12th century, when Anglo-Normans gradually conquered and acquired large swathes of land in Ireland over which the monarchs of England then claimed sovereignty. The Anglo-Normans ...
. Following the Norman invasion (from 1171), areas under Anglo-Norman control were subject to English law. One of the first changes came with the
Synod of Cashel The Synod of Cashel of 1172 in Ireland, 1172, also known as the Second Synod of Cashel,The first being the Synod held at Cashel in 1101 in Ireland, 1101. was assembled at Cashel, County Tipperary, Cashel at the request of Henry II of England short ...
in 1172, which required single marriages to partners that were not closely related, and exempted clergy from paying their share of a family's eraic payments.
Henry II Henry II may refer to: Kings * Saint Henry II, Holy Roman Emperor (972–1024), crowned King of Germany in 1002, of Italy in 1004 and Emperor in 1014 *Henry II of England (1133–89), reigned from 1154 *Henry II of Jerusalem and Cyprus (1271–1 ...
, who created the
Lordship of Ireland The Lordship of Ireland (), sometimes referred to retrospectively as Anglo-Norman Ireland, was the part of Ireland ruled by the King of England (styled as "Lord of Ireland") and controlled by loyal Anglo-Norman Lords between 1177 and 1542. T ...
, was also a legal reformer within his empire, and started to centralise the administration of justice and abolish local customary laws. Strongbow was assigned large parts of Leinster in 1170 under the Brehon law by his new father-in-law Dermot McMurrough that were then regranted by Henry. Landowners such as the Earl of Kildare could claim a continuous title that just predated the Lordship itself. In the centuries that followed, a cultural and military "Gaelic revival" eventually came to cover the larger portion of the island. The majority of Norman barons eventually adopted Irish culture and
language Language is a structured system of communication that consists of grammar and vocabulary. It is the primary means by which humans convey meaning, both in spoken and signed language, signed forms, and may also be conveyed through writing syste ...
, married in with the native Irish, and adopted Irish legal custom. By the 15th century, in the areas outside of the English controlled Pale around
Dublin Dublin is the capital and largest city of Republic of Ireland, Ireland. Situated on Dublin Bay at the mouth of the River Liffey, it is in the Provinces of Ireland, province of Leinster, and is bordered on the south by the Dublin Mountains, pa ...
, and some notable areas of joint tradition in northern and eastern
Munster Munster ( or ) is the largest of the four provinces of Ireland, located in the south west of the island. In early Ireland, the Kingdom of Munster was one of the kingdoms of Gaelic Ireland ruled by a "king of over-kings" (). Following the Nor ...
, Brehon law became the de facto legal writ. Nevertheless, the Brehon Laws could never be adopted on an official basis by the English-controlled government of the
Lordship of Ireland The Lordship of Ireland (), sometimes referred to retrospectively as Anglo-Norman Ireland, was the part of Ireland ruled by the King of England (styled as "Lord of Ireland") and controlled by loyal Anglo-Norman Lords between 1177 and 1542. T ...
, although some modernised concepts have been readopted in the laws of the
Republic of Ireland Ireland ( ), also known as the Republic of Ireland (), is a country in Northwestern Europe, north-western Europe consisting of 26 of the 32 Counties of Ireland, counties of the island of Ireland, with a population of about 5.4 million. ...
. The imposition of the
Statutes of Kilkenny The Statutes of Kilkenny were a series of thirty-five acts enacted by the Parliament of Ireland at Kilkenny in 1366, aiming to curb the decline of the Hiberno-Norman Lordship of Ireland. Background to the statutes By the middle decades of the ...
in 1367 and the policy of
Surrender and regrant During the Tudor conquest of Ireland (c.1540–1603), "surrender and regrant" was the legal mechanism by which Irish clans were to be converted from a power structure rooted in clan and kin loyalties, to a late-Feudalism, feudal system under t ...
effectively outlawed Brehon Law. In one exceptional case, vestigial rights have been recognised in recent Irish case law, in reference to the survival of Brehon law-governed customary local fishery rights in Tyrconnell, but these also amounted to an
easement An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
under
Common Law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
. The
Tudor conquest of Ireland Ireland was conquered by the Tudor monarchs of England in the 16th century. The Anglo-Normans had Anglo-Norman invasion of Ireland, conquered swathes of Ireland in the late 12th century, bringing it under Lordship of Ireland, English rule. In t ...
in the mid-16th century, ending in the
Nine Years' War The Nine Years' War was a European great power conflict from 1688 to 1697 between Kingdom of France, France and the Grand Alliance (League of Augsburg), Grand Alliance. Although largely concentrated in Europe, fighting spread to colonial poss ...
(1594–1603), caused Tanistry and Gavelkind, two cornerstones of the Brehon Laws, to be specifically outlawed in 1600. The extension of English law into
Ulster Ulster (; or ; or ''Ulster'') is one of the four traditional or historic provinces of Ireland, Irish provinces. It is made up of nine Counties of Ireland, counties: six of these constitute Northern Ireland (a part of the United Kingdom); t ...
became possible and led in part to the
Flight of the Earls On 14 September ld Style and New Style dates, O.S. 4 September1607, Irish earls Hugh O'Neill, Earl of Tyrone, and Rory O'Donnell, 1st Earl of Tyrconnell, permanently departed Rathmullan in Ireland for mainland Europe, accompanied by their fa ...
in 1607. Elements of Brehon law operated in dwindling remnants in the
Gaeltacht A ( , , ) is a district of Ireland, either individually or collectively, where the Irish government recognises that the Irish language is the predominant vernacular, or language of the home. The districts were first officially recognised ...
in the west of Ireland and in the Scottish Isles, notable on the
isle of Lewis The Isle of Lewis () or simply Lewis () is the northern part of Lewis and Harris, the largest island of the Western Isles or Outer Hebrides archipelago in Scotland. The two parts are frequently referred to as if they were separate islands. The t ...
. On Lewis, the chiefs of the Morrison clan (earlier, Clann mhic Amhlaigh ( Macaulays) of Uig in Lewis, and Sliochd a' Bhreitheimh, later Morrison) continued to hold office as hereditary brieves ( Scots for or ''brehon'') or judges of the MacLeod clan of Lewis into the 17th century. The last Morrison to exercise the office was put down with Letter of Fire and Sword in about 1619. It is probable that it was the last operative in Lewis by about 1595 or so. See the later history of
Clan Morrison Clan Morrison is a Scottish clan. The Highland Clan Morrison is traditionally associated with the Lewis and Harris, Isle of Lewis and Harris (Leòdhas) around Ness, Lewis, Ness (Nis), Dun Pabbay, and Barvas (Barabhas), lands in Sutherland aroun ...
.


Fictional references and Ulster cycle of legends

The Brehon laws play a large role in the Sister Fidelma series of historical (7th century AD) crime books by Peter Tremayne, and in those of Cora Harrison's Mara,
Brehon Brehon (, ) is a term for a historical arbitration, mediative, and judicial role in Gaelic culture. Brehons were part of the system of Early Irish law, which was also simply called " Brehon law". Brehons were judges, close in importance to the ...
(investigating judge) of
the Burren The Burren ( ; ) is a karst/glaciokarst landscape centred in County Clare, on the west coast of Republic of Ireland, Ireland.
(early 16th century). They are also the underlying principles seen in such Irish saga as Táin Bó Flidhais and Táin Bó Cuailnge


March law

March law was a set of laws and customs obtaining in the border areas of the
Lordship of Ireland The Lordship of Ireland (), sometimes referred to retrospectively as Anglo-Norman Ireland, was the part of Ireland ruled by the King of England (styled as "Lord of Ireland") and controlled by loyal Anglo-Norman Lords between 1177 and 1542. T ...
during the
Middle Ages In the history of Europe, the Middle Ages or medieval period lasted approximately from the 5th to the late 15th centuries, similarly to the post-classical period of global history. It began with the fall of the Western Roman Empire and ...
. These regions were ruled by
Anglo-Irish Anglo-Irish people () denotes an ethnic, social and religious grouping who are mostly the descendants and successors of the English Protestant Ascendancy in Ireland. They mostly belong to the Anglican Church of Ireland, which was the State rel ...
lords between The Pale, which was the portion of Ireland ruled directly by the English crown, and
Gaelic Ireland Gaelic Ireland () was the Gaelic political and social order, and associated culture, that existed in Ireland from the late Prehistory of Ireland, prehistoric era until the 17th century. It comprised the whole island before Anglo-Norman invasi ...
, which was still under the rule of native kings. It came into being in the late 13th century, when King
Edward I of England Edward I (17/18 June 1239 – 7 July 1307), also known as Edward Longshanks and the Hammer of the Scots (Latin: Malleus Scotorum), was King of England from 1272 to 1307. Concurrently, he was Lord of Ireland, and from 1254 ...
drained resources from Ireland to fund his conquest of Wales and his wars in Scotland. Since the two areas were often intermingled in the border regions, as in the
Wicklow Mountains The Wicklow Mountains (, archaic: '' Cualu'') form the largest continuous upland area in Ireland. They occupy the whole centre of County Wicklow and stretch outside its borders into the counties of Dublin, Wexford and Carlow. Where the mountai ...
, the applicability and content of march law varied widely. Gearóid Mac Niocaill, "March Law", in S. J. Connolly, ed., ''The Oxford Companion to Irish History'', 2nd ed. (Oxford University Press, 2002 nline 2007, retrieved 2016-03-28.


See also

* :Customary legal systems * Kritarchy * William Ó Deorádhain (15th century), Professor of Jurisprudence


References


Sources

;Primary * * Six Volumes: Vol. I: Introduction + pages 1–337; Vol. II: 339–744; Vol. III: 745–1138; Vol. IV: 1139–1531; Vol. V: 1532–1925; Vol. VI: 1926–2343. * * ;Secondary: * * * * * * Kleefeld, John (2010)
"From Brouhahas to Brehon Laws: Poetic Impulse in the Law" ''Law and Humanities'' 4(1): 21–61.
* * * Dáibhí Ó Cróinín (1995), ''Early Medieval Ireland 400–1200'', Longman. * Dáibhí Ó Cróinín (2013), ''Early Medieval Ireland 400–1200'', Longman. * Power, Patrick C. (1976). "Sex and Marriage in Ancient Ireland", Mercier. * Katherine Simms (2004). ''Gaelic military history and the later Brehon law commentaries'', ''Unity in diversity'', 51–67. * Katherine Simms (2007). "The poetic Brehon lawyers of early sixteenth-century Ireland" ''Eiru'' 57, 212–132. * Wylie, John C.W. (2013). ''Irish Land Law'', 5th ed, Bloomsbury Professional.


Transcripts and translations

* , on behalf of the Brehon Law Commission, edited by W.N. Hancock, T. O'Mahony ''et al'' ** ** ** ** ** ** * ** **


External links


The Brehon Laws: A Legal Handbook
by Laurence Ginnell, 1894

Catholic Encyclopedia ''The'' ''Catholic Encyclopedia: An International Work of Reference on the Constitution, Doctrine, Discipline, and History of the Catholic Church'', also referred to as the ''Old Catholic Encyclopedia'' and the ''Original Catholic Encyclopedi ...
article
Brehon Law Manucripts
held at the Library of Trinity College Dublin {{Gaels Customary legal systems