Early Irish law,Historically referred to as (English: Freeman-ism) or (English: Law of Freemen). also called Brehon law (from the old Irish word breithim meaning judge), comprised the statutes which governed everyday life in Gaelic Ireland. They applied in Early Medieval Ireland and were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence on most of the territory of the island from the 13th century, coexisting in parallel with English common law, which eventually surpassed them in the 17th century. Early Irish law was often mixed with Christian influence and juristic innovation. For centuries, these secular laws existed in parallel, and occasionally in conflict, with canon law and English common law, the latter of which was first introduced in Ireland in the 12th century.
The laws were a civil rather than a criminal 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 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 Brehons, 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, 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 was written in AD 438.
Historians, such as D. A. Binchy, have usually viewed the laws as conservative and especially useful for reconstructing the laws and customs of the Proto-Indo-Europeans just as linguists had reconstructed the Proto-Indo-European language. For instance, historians have seen similarities between Irish and Indian customs of fasting 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, have been considered as survivals from earlier periods. Clearly old material is found in a number of legal terms that have been shown to have originated in the period before the Celtic languages split up, because they are preserved both in Old Irish and in the Welsh legal texts.
Other historians have emphasised elements of Christian, ecclesiastical and Latin-language origins in the preserved law texts and have argued that the laws as recorded represent a compromise between native pagan legal lore and the imported ecclesiastical tradition. It has even been suggested that the texts may have been produced by clerics and not, as usually assumed, by a separate class of professional lay jurists. Still, this is controversial because there remain many stark divergences and contradictions between the main body of Early Irish law on the one hand and Christian and continental tradition on the other. Early Irish legal texts that are indeed known to originate from the church, such as Cáin Adomnáin and Cáin Domnaig, also differ in their principles from most Early Irish law in a number of ways.
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 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.C. E. Meek and K. Simms, The Fragility of Her Sex: Medieval Irish Women in their European Context, p. 25, 'Marriage Laws in the Early Middle Ages.' Historian Bart Jaski compares the earlier Pagan marriage law to early Roman 'manus' marriage, implying an improvement in the status of Irish women over time.
, 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 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 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". quoting and translating Binchy 1978, p. 45, line 3, and p. 1421, line 30
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.Jaski 2013, Appendices 1 and 2. Another seemingly important omission is that the laws never mention the High King of Ireland 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). 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. 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 [single] ), who is below the (the king of bands) who is identified with the (king of [multiple] ) 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).Binchy 1979, 104–105
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 and his Doom book, 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 hounds 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).Binchy 1979 pp. 21, 37, 105