"Brehon law" is a term used to describe the native Irish legal system. This system operated in Gaelic Ireland until the early seventeenth century. The phrase "Brehon law" comes from the Irish word for a "judge," which was Anglicized as "brehon." The Irish themselves generally referred to their law as fenechas (Irish jurisprudence). The term "Brehon law" is nevertheless an apt one. Irish law was "judge-made" law; its texts distill the legal rules and remedies developed over the centuries by highly trained professional jurists. It was an "organic" system that reflected the complexities of Irish society. This explains its richness and sophistication. Had lawmaking been the preserve of Ireland’s many petty kings, it is likely that it would have been a more rudimentary affair, focused primarily on coercive rules and the accumulation of state revenues. King-made law would also have been fragmented and transitory: Ireland was made up of numerous petty kingdoms, arranged in turbulent alliances. However, Brehon law was the product of a learned class which transcended political boundaries. As a result, Brehon law was "national," in the sense that it was a cultural phenomenon of Ireland as a whole, with few (if indeed any) discernible regional variations.
This is not to say that the petty kings had no role in Irish law. As heads of their respective kingdoms they presided over their royal courts. But the king most likely pronounced the judgment recommended to him by his brehon. Kings were also empowered to pass emergency regulations in times of war and pestilence. These edicts were probably as narrowly focused as they were temporary, and no fragment of any of them survives.
On the other hand, a vast treasury of judge’s law survives. The principal monument is the Senchas Mar, "The Great Collection of Traditional Learning." This consisted of about fifty separate texts. Twenty-one of these survive more or less intact, and fragments of most of the others remain. Most of the texts deal with a discrete topic of law. For example, the first text in the Senchas Mar is a tract "On the Four Divisions of Distraint" (Di Chetharshlicht Athgabala). Distraint was a process by which parties could force their opponents to court by impounding their cattle.
Specific Topics of Law
Relatively little is known about Irish court procedure. Notable features are the use of trained advocates, the prominence given to the evidence of eyewitnesses, and the right to appeal if a judge had made an error of law. There was no jury. Formal oaths setting out an allegation or denial had to be supported by a fixed number of "oath-helpers" of good reputation. If a party could not prove their case by bringing eyewitnesses, they could resort to an ordeal, such as casting lots, "trial by battle," or the ordeal of the cauldron. (The latter involved plunging one’s hand into boiling water. The hands of the truthful were assumed to heal promptly.)
A person’s legal status was dependent on his or her degree of wealth or professional training, and each grade in society had its own "honor-price." It is sometimes claimed that the status of women in early Irish law was considerably more advanced than that in comparable medieval cultures. But that claim finds little, if any, factual support in the laws. Most legal rights were dependent on the ownership of property, and most property was owned by men. Land was passed down through kin-groups which were agnatic, that is, reckoned through the male line. A man’s land was inherited in equal shares by his sons. Only when a man had no sons would his land pass to his daughters, and then only for their lifetimes. Upon their deaths, the land was redistributed among their father’s male relations.
Acts of violence were generally settled by a payment of compensation known as an eric fine. If a free person was murdered, the eric was equal to 21 cows, regardless of the victim’s rank in society. In addition, each member of the victim’s agnatic kin received a payment based on their own honor-price. There were separate payments for the kin-group of the victim’s mother, and for the victim’s foster-kin. (Many Irish children were brought up by foster-parents.) If this compensation was not paid, the members of any of these three separate kin-groupings could take vengeance against the offender’s kin.
In cases of injury, a number of different fines were paid to the victim. The first component was again the eric fine, which varied with the nature of the injury. Injuries involving scarring or permanent damage incurred additional payments. On top of this, the injured person was entitled to a set fraction of their honor-price. Fines were halved if the injury was the result of mere negligence. The fact that Brehon law recognized a distinction between accident, negligence, and deliberate harm is a notable aspect of its sophistication.
Persons seriously injured through negligence were entitled to "sick-maintenance." In the early texts, the key feature of sick-maintenance was the dingabail (removal) of the injured person from their home. They were taken away to be nursed and cared for in a suitable residence. They were entitled to be accompanied by a retinue appropriate to their status in society, and food of a defined standard had to be provided for the whole party. In addition, the offender had to pay for the fees charged by the physician. (Those fees are set out in the text Bretha Dein Checht, The Judgments of Dian Cecht.) The offender also had to provide a substitute to perform the injured person’s duties during their period of convalescence. In the case of intentional injuries (and in the case of some high-status persons), removal on sick-maintenance was replaced by a payment which varied with the status of the victim. In time this payment became the norm in cases of negligence as well, and the older institution of physical removal faded away.
After kinship, the most important legal institution appears to have been clientship. Members of the free farming classes would become the clients of noblemen, in return for grants of cattle. (These farmers generally farmed their own land.) In return, they owed their lords annual payments of food and fixed amounts of labor. Clientship agreements lasted for the life of the lord. When the client died, his heirs carried on the clientship agreement until the lord’s death. Between nobles, too, there was a form of cli-entship which established hierarchies of homage and political support.
Contracts were supported by witnesses, whose job it was to remember the terms of the contracts, and by sureties who undertook to ensure those terms were fulfilled. Irish contract law required anyone selling property to disclose any hidden defects they knew about, and it gave both parties until sunset to back out of the contract. Contracts were generally unenforceable if made while drunk, or by people without full legal capacity.
The law of marriage is set out in a text called Cain Lanamna (The Law of Close Relationships). The normal form of marriage was one between social equals following the betrothal of the woman by her kin in exchange for the payment of a bride-price. Wealthy men might also have a secondary wife, usually one from a lower class. Cain Lanamna also gives details of a range of more-casual sexual relationships, including those where a man merely visits a mistress on a regular basis. Divorce was readily available.
The Authors of the Law Texts
The compilers who produced the Senchas Mar claimed that its texts had been produced in the fifth century. Those texts were supposedly written by a legendary sage (Dubthach moccu Lugair), working under the supervision of St. Patrick. This story is now recognized as a typically anachronistic piece of medieval propaganda. Linguistic analysis has shown that the Senchas Mar texts were originally composed between 650 and 750 c.e. On the other hand, it is quite likely that they were produced by eminent clerics working with members of the traditional learned classes (or indeed by clerics who had themselves been trained in Brehon law). We know, for instance, that some other law texts were the results of collaborative efforts by clerics, poets, and trained lawyers. This is true, for example, of Bretha Nemed tofsech (the first collection of the Judgments of Privileged Persons), which was composed between 721 and 742 c.e. It is also most likely true in the case of Cain Fhuithirbe (The Law of Fuithirbe), composed circa 680 c.e.
The important role played by the church in recording Brehon law has only been recognized relatively recently. For much of the twentieth century it was believed that the law texts were produced in traditional law schools. It was assumed that these schools had, somewhat reluctantly, adopted writing from the monks and had finally made written records of texts that had existed for some time as oral compositions. This view stressed the supposedly "archaic" nature of the texts, and valued them chiefly as repositories for long-obsolete elements of Indo-European law. The legal endorsement of polygamy was seen as evidence that they were not produced by monasteries.
However, by the seventh century the church had good reason to compile an authoritative account of secular law. It had managed to secure for itself a prominent place in the status-based hierarchy of Irish society, as well as significant property rights. The Church also had the appropriate facilities, in the form of scriptoria, as well as the necessary financial resources for the job. The role of the church in recording Brehon law was not, however, a legislative one; the church was not "creating" law in a vacuum. The law that was recorded was that of the existing secular society, and it shows all the hallmarks of a long development. So it is that the Brehon law tracts provide for murder to be "bought off" by the payment of an eric fine and sanction polygamy, despite the fact that these were institutions that the church considered to be less than ideal.
The church did, indeed, attempt to modify the Brehon law by legislation. But it did this primarily by harnessing the emergency power of the kings to make temporary laws. The church promulgated a number of special edicts which were guaranteed by local kings. These edicts include Cain Domnaig (which introduced fines for breach of Sunday observance) and Cain Adomnain (the Law of Adomnan), also known as the Lex Innocentum (Law of the Innocents). Cain Adomnain has the rather undeserved reputation of introducing laws to protect women. In fact, it introduced a new layer of fines in the case of preexisting offences. These new fines went to the church rather than to the victim. Most, and probably all, of these promulgated church laws were concerned primarily with collecting revenue for the church. Very few of them survive. Only the two mentioned here are intact, and there is no copy of either among the Brehon law manuscripts. They were, however, well known to the lawyers and are referred to quite often in the Brehon law commentaries.
The Brehon law-texts also show the influence of the Irish poets, with many texts containing sections of highly alliterative prose and a good number containing significant portions of poetry. This poetic aspect was, until recently, considered to be good evidence for the "oral origin" of many of the law texts. But what it shows rather is that the texts are the polished product of a concerted effort by members of the learned elite.
This elite class produced authoritative law texts covering every area of law in the seventh and eighth centuries. Only one or two new texts were produced in the centuries that followed. The texts were functional works, used for studying the law and, no doubt, in preparing litigation. Many of the texts were later provided with an apparatus of learned glosses, which explain the terms of the main text. Lengthy "commentaries" on similar topics were also added as the law changed, and indeed as the Irish language itself changed. These glosses and commentaries date mainly from the twelfth to the sixteenth centuries. The surviving legal manuscripts also date from this period.
