Intro to the Brehon Laws

Image credit: Extract from an early Irish law tract in ‘Ancient Laws of Ireland’ (Vol. III) (Dublin, 1873) (link)

Welcome to The Brehon Lawyer! See the ‘About’ section for general background on the motivations for this blog.

In this first article I provide a brief introduction to the Brehon Laws, a lot of which will be explored further over time in the ‘Brehon Blog’.

The article starts with a summary of the origins of the Brehon Laws. The outlines of early Irish society and the legal system are then sketched. The article concludes with a synopsis of the fall, but not the end(!), of the Brehon Laws.

Origins of the Brehon Laws

Most of what is known about the ‘law of the Féni’ (fénechas), colloquially referred to as the ‘Brehon Laws’, comes from remnants of the early Irish law tracts in surviving manuscripts dating to between the 14th and 16th century. The law tracts were, for the most part, originally written between the 7th and 8th centuries, the most significant collection of which is the Senchas Már (‘Great Tradition’) [1].

Influenced to a degree by early Christianity and the Latin alphabet, the ultimate origins of some of the laws lie much further back in time, previously passed on via an ancient oral tradition [2]. The law tracts were written in various forms including standard prose, questions and answers and an alliterative poetic style. The different law tracts formed part of a broadly coherent, albeit somewhat ‘pluralistic’, tradition, with regional and doctrinal variations across the sources.

The original law tracts were repeatedly copied within law schools and monasteries under the control of juristic and ecclesiastic dynasties. Copying also involved a practice of ‘glossing’. These were attempts by the later ‘scholiasts’ (scribes) to interpret and update spellings of older Irish terms, reconcile internal contradictions between different texts, comment upon the meaning of texts etc. [3].

This painstaking copying and glossing was vital to preserving and understanding the legal tradition, though the scribes were also prone to errors and some questionable interpretations over the centuries. Faced with content they did not always understand, or which no longer operated in their time, scribes sometimes had a tendency to write elaborate explanations or propose overly technical rules. Some of this activity may also have been undertaken for purely theoretical and training purposes in the law schools [4].

The scribes did not usually see it as their role to formally ‘update’ the laws to reflect different realities by their time, although changed circumstances did influence some of their commentaries and interpretations [5]. The scribes seemed to revere what they were handling. This was, for them, an ancient and superior wisdom.

The Brehon Laws and Early Irish Society

The society depicted in the Brehon Laws has sometimes been romanticised. Early Ireland was no utopia however. It was a hierarchical and patriarchal place. That said, the Brehon Laws were pragmatic and humane in many ways [6]. They also contained detailed rules governing what we would today think of as ‘civil’ agreements and disputes, for example relating to contracts.

There was no developed ‘criminal’ law system (in the modern sense) in Early Ireland, which lacked a centralised justice and police apparatus. Instead, illegal acts were usually atoned through a kind of privately-enforced system of ‘restitution’, mostly based on a complex regime of fines. For example, in cases of homicide typically a two limb fine was calculated based on 1) the nature of the crime (éraic or cró); and 2) the ‘honour price’ of the victim of the crime (lóg n-enech), depending on their social status [7]. Physically harsh punishments and summary killings for certain offences also feature in some of the laws [8].

Early Ireland was politically fragmented. Many competitive ‘petty kingdoms’ or ‘chiefdoms’ (túath), varying in size and influence, were spread across the island. Each túath was a jurisdiction in its own right. Any rights (and not everyone had the same rights) enjoyed by people in a particular túath were usually confined to that particular place. There were some exceptions to this. Certain professionals (e.g. clerics) could, because of their standing, enjoy legal rights wherever they went [9].

Each túath was headed by a king (). Some kings were more powerful than others and commanded the loyalties of other túatha, although the concept of a ‘King of Ireland’ (rí Érenn) is only thinly referenced in the legal sources [10]. Though their role evolved, kings seem not to have been heavily involved in ‘law-making’. But they likely had a role in at least some Brehon court proceedings and in issuing specific legal judgments and decrees [11].

Irish Political Landscape c. 800 A.D. Image Credit: Mike Christie,Ireland, early peoples and politics’. Redrawn from a map in Sean Duffy, Atlas of Irish History (Gill & MacMillan, 2012) (link)

The Early Irish Legal System

The early Irish legal profession mainly comprised the judges (brithemain) and the advocates (aigneda). The aigneda were akin in their basic functions to modern-day barristers or attorneys [12]. Poets (fili) may also have performed roles in the philosophy and practice of law but the exact nature of their involvement varies across the sources. One theory is that the legal profession branched out from the poets over time. Poets may previously have been more central to the legal system prior to Christianity, and perhaps became so again during the later medieval period [13].

The early Irish judiciary functioned more like arbitrators and were (similar to most of early Irish society) internally organised according to grade. The highest grade of judge may have been those who were proficient in (traditional) Brehon Law, early Christian law and poetry, known as a ‘judge of three languages’ (brithem trí mbérla) [14]. Each túath would have an official ‘judge of the túath‘ (brithem túaithe) [15], perhaps resembling a hybrid Attorney General/Chief Justice role in modern terms. The brithemain and the aigneda were subject to various professional requirements and it is assumed they received their training together in the same law schools [16].

It is likely that Brehon courts heard cases involving larger numbers of people in the open air and they were just as preoccupied with detailed procedures as courts are today [17]. There is very little surviving reliable case law though. Most cases cited in the law texts are unlikely to have actually happened, more closely resembling ‘legends’ or ‘myths’. Still, the legal principles highlighted in the apocryphal and other sources are often consistent with the rules set out in the law tracts [18].

A better-known early Irish case, though probably fictitious, is that of Saint Fintan v. Saint Columba. Here Saint Columba is said to have copied a prized religious book belonging to Saint Fintan without authorisation. Fintan claimed that the copy therefore belonged to him. Ruling in Fintan’s favour in this seminal(!) copyright dispute, Diarmait (King of Ireland) used the analogy: ‘to every cow its calf, to every book its copy’. Columba was aggrieved by the ruling. This was apparently a motivator for the Battle of Cúil Dremne, sometimes referred to as the ‘Battle of the Books’, in 561 A.D., a rebellion of the Uí Néill clan (allegedly instigated by Columba) against Diarmait [19].

The brithemain, as imagined in Edward Ledwich, ‘Antiquities of Ireland’ (2nd ed., Dublin, 1804), p. 320 (link)

The Fall (but not the end…)

Exactly when the Brehon Laws were entirely displaced by English ‘common law’ is debatable. Military defeats against the Kingdom of England and its Irish allies in the early 17th century culminated in the ‘Flight of the Earls’ in 1607. The Flight was undertaken by a group of Gaelic Irish leaders in Ulster who tried to drum up support on the European continent for their cause. It turned out to be a one way ticket. The death knell of the old Gaelic Irish political order also sealed the demise of the Brehon Laws, at least formally speaking. It is assumed that the Brehon law schools had all disappeared by the 18th century [20].

An interesting line of analysis championed by some British commentators (especially in the 19th century) was that the Brehon Laws had nonetheless lived on, if only in the Irish subconscious. Under this narrative the failure of the earlier Medieval English political authorities to assimilate aspects of Brehon Law into the English common law (as it applied to Ireland) could help in understanding the drivers of subsequent agrarian unrest and the Land War [21].

Later on, there was passing interest in the Brehon Laws under a short-lived parallel Court system (the ‘Dáil Courts’) established by revolutionaries during the Irish War of Independence. Brehon-related notions also reared in the early days of the Irish Free State when the shape of the future judicial system and judges’ attire were being considered [22].

As it would turn out, the post-independence Irish legal system continued under a more or less similar guise as the English system, though the Constitution of 1937 refashioned its key underpinning principles (albeit not in the direction of the Brehon Laws). The Brehon Laws have nevertheless cropped back up in unexpected ways from time to time, faint but unmistakable echoes of a rich native legal heritage.

This article may be cited as J. Biggins, ‘Intro to the Brehon Laws’, The Brehon Lawyer (November 2020)

Sources for this article

D.A. Binchy, ‘Lawyers and Chroniclers’ in Seven Centuries of Irish Learning 1000-1700, ed. Brian Ó Cuív (Mercier Press, 1971)

George Campbell, The Irish Land (London, 1869)

Fergus Kelly, A Guide to Early Irish Law (Dublin Institute for Advanced Studies, 2009)

Katharine Simms, ‘The Contents of Later Commentaries on the Brehon Law Tracts’ (1998) 49 Ériu 23 (‘Simms 1’)

Katharine Simms, ‘The Brehons of Later Medieval Ireland’ in Brehons, Sergeants and Attorneys: Studies in the History of the Irish Legal Profession, eds. D. Hogan and W.N. Osborough (Irish Academic Press, 1991) (‘Simms 2’)

Mary Kotsonouris, Retreat from Revolution: The Dáil Courts, 1920-24 (Irish Academic Press, 1994)

Frank McNally, ‘An Irishman’s Diary’, Irish Times, 10 April 2010 (link)

Endnotes

[1] Kelly, p. 1, p. 242

[2] Kelly, pp. 231-232

[3] Kelly, p. 226

[4] Binchy; Kelly, p. 238; Simms 1

[5] Binchy; Simms 1

[6] Kelly, pp. 236-237

[7] Kelly, p. 126

[8] Kelly, chapter 9

[9] Kelly, pp. 4-5

[10] Kelly, p. 18

[11] Kelly, pp. 21-24

[12] Kelly, p. 56

[13] Kelly, pp. 47-48; Simms 2, pp. 65-66

[14] Kelly, p. 52

[15] Kelly, p. 52

[16] Kelly, p. 56

[17] Kelly, pp. 192-193, chapter 8 generally

[18] Kelly, p. 240

[19] McNally

[20] Kelly, pp. 260-261

[21] Campbell

[22] Kotsonouris, p. 19, p. 99