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Brehon Laws
Prior to the coming of writing, Ireland had a
highly developed legal system that was enshrined in
the collective oral tradition of a powerful legal
caste. The 'Brehon Laws', from the Old Gaelic
breithem, meaning 'a judge', governed
relationships at all levels of society. With the
advent of writing, much of this legal system was
preserved. One must be careful, however, in reading
our manuscripts of ancient Irish laws. By the time
they were written down a good deal of Christian
influence had been brought to bear on the native
tradition. Even the oldest laws show this
influence, and those laws which have sometimes been
regarded as the most primitive have been shown to
contain Gaelic versions of Jewish laws mediated
through the Bible - Leviticus, for example.
Nevertheless, the surviving tracts of early
Irish laws are very revealing of the society in
which they operated - and show similarities in
content and form to many of the ancient laws of
Indo-European traditions, going back to the Vedic
Laws of Manu in India.
Documentary evidence from the seventh and eighth
centuries show Ireland to be a relatively settled
agricultural society divided into as many as 150
túatha or small kingdoms. The
settlement was well scattered with no towns, and
the closest we come to an urban setting is in the
larger monasteries.
The Brehon lawyers drew up an elaborate system
based on two important institutions of society: the
fine or family group and the túath or
kingdom. The kings of some túatha
managed to gain power over neighbouring kings, and
a hierarchy of kingship gradually emerged: there
were kings of one túath, kings of
several túatha, and kings of whole
provinces.
Unlike Roman Law, native Irish law had no
concept of a crime against the king's law or
against the state. Every crime was an offence
against another person or their family, and so
rather than the king or his judges punishing crimes
in courts of law, the resolution of offences was
effected by paying compensation to the victim of a
crime or to his family - a payment and restitution
governed by laws made by the Brehon class.
Irish society was enormously hierarchical. There
were sóer and dóer
classes, free and unfree. Within the class of free
men there were further hierarchical divisions,
dependent on family, wealth and power, and
expressed in terms of honour. The higher a person's
honour the heavier the fine or payment was due for
offending him. Thus for inflicting a slight facial
injury on a man, if the victim is a powerful lord
the 'honour price' or payment is a cow. If he is a
mere inol - a lower class of person - he is
only entitled to payment of a sheep's fleece.
The lower castes, the dóer or
unfree, lacked the protection of having their own
honour price. These included at the lowest level
the senchleithe or 'hereditary serf', who
had no power to leave the service of his lord or
the land to which he was tied, and the slave (male
and female, mug and cumal
respectively).
Generally speaking, a free man only had rights
within his own túath. Once he moved
beyond its borders he was unprotected by law. Only
a few learned classes, such as poets, lawyers, holy
pilgrims and clergy, had the ability to travel
freely beyond their own territory while enjoying
the law's protection. Outside the
túath, relationships were the
responsibility of the king - usually in terms of
demanding the subjection of another king, or in
recognising his overlordship.
The lawyers catalogued every aspect of a
person's status and property, sometimes in highly
artificial and theoretical terms which were
probably hard to apply in practice. All freemen
were landowners and the higher grade of landowner
[the bóaire] had to have land
worth three times that of 63 milch-cows. His
property was described in detail, including a large
number of cooking pots, household goods and farming
equipment. Here are some of the other requirements
for a man to 'make the grade':
He owns seven houses: a kiln, a barn, a
mill or a share in one, a house of twenty-seven
feet, an outhouse of seventeen feet, a pig-stye,
a pen for calves, a sheep pen.
He has twenty cows, two bulls, six oxen,
twenty pigs, twenty sheep, four domestic boars,
two sows, a saddle horse, an enamelled
bridle,
sixteen bushels of seed in the ground. He has
a bronze cauldron in which there is room for a
boar. He possess a green in which there are
always sheep without having to change
pasture.
He and his wife have four suits of
clothes.
The fine was the family group and it was
here that ultimate ownership of family land was
vested. The family group was made up of the
relations in the male line of descent. If someone
died without heirs, the property would be divided
among their fine, to each kinsman according
to the nearness of his kinship. The system had no
place for primogeniture as land was shared equally
among brothers. The fine also came into play
in the matter of paying compensation for offences:
they were responsible for payment if one of their
members committed a crime. And if one of their
members was criminally slain, payment was made to
the fine.
At the peak of the social pyramid, the king was
in a position of power, but carefully constrained
by law and ritual. His kingship was understood in
sexual terms, as
he was the 'husband of the land', or of the
fertility goddess who represented the prosperity of
the land. His justice, the fir flathemon
ensured its continuing productiveness. He must also
be careful not to lose his honour, as a reduction
in his honour would result in a loss of legal
protection and status. Loss of honour for a king
might happen as a result of him giving a false
judgment, or by doing manual labour which would
make him look like a commoner, and would give him
the reduced honour-price of a commoner. He must
have a retinue to travel round with him, and be
able to enforce his rights and receive tribute.
Some of this enforcement depended on his having
taken hostages from those subject to him, to ensure
their good behaviour.
Contrary to some rather romantic notions about
women in ancient Irish laws, women were pretty
powerless. There is no evidence for any real woman
(as opposed to a legendary goddess such as Medb)
exercising political-military power. The laws
reveal severe restrictions on her rights: a crime
against her is treated as a crime against her
father or her husband; he is paid, not her, the
compensation. A woman could not inherit land, but
if she had no brothers when her father died she
might gain merely a life-time interest in her
father's property. However, on her death it would
revert to her male kin. Some rights were maintained
for women, however, such as the right to divorce
her husband under some circumstances.
Check out the following
sections of the website for related
information:
Key
References
- Fergus Kelly, A Guide to Early Irish Law,
Dublin, 1988
- Robin Chapman Stacey, The Road to Judgement:
from Custom to Court in Medieval Ireland and
Wales, University of Pennsylvania, 1994
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