In his 16th century writings on Ireland, Edmund Spenser paints the Emerald Isle as a debauched, lawless country in great need of reform or subjugation. However, ancient Ireland was a highly organized society with an extensive, codified legal system that often gets overlooked today. Early Irish law is commonly referred to as Brehon law, as the rulings were the accumulated decisions of the Brehons, or judges. Brehon law was secular and largely existed parallel to canon law (or church law), though any secular law that conflicted with official church law was replaced.
Despite the fact that many Brehon texts were destroyed when the laws were banned in favor of English common law, several written tracts survived, as many Brehons thought to hide them from the English colonists. Two Irish scholars, Eugene O’Curry and John O’Donovan, began translating the manuscripts in 1852 and began to unearth a fascinating, in-depth look into early Irish life.
Roughly 100 distinct legal texts have been discovered, and scholars began grouping their findings together based on related authorship. The Senchas Már is the largest of these groupings, containing 47 different tracts that were estimated to have been collected around the 8th century, and these are the legal documents that received the most analysis in later legal texts. The laws were often grouped together in threes—a significant number in Celtic Ireland—which was also a common practice in Wales.
The codes took care to define all aspects of social life and relationships between classes in early medieval Ireland’s hierarchical society.
The ruling class of early medieval Ireland were referred to as kings, though there were varying grades of kingship, highest of which was the high king of Ireland (whose seat was at the Hill of Tara in County Meath, though this is never expressly mentioned in the extant Brehon texts). Irish kings seemed to wield significantly less power than medieval rulers of other countries, however. Kings acted as judges and could collaborate on the church’s legal decisions, and in times of war or emergency, they could issue temporary laws. They could not officially alter or issue permanent legal codes, though. Some legal texts even outline how a king should spend his week! (In this equation, very few days seemed designated for kingly duties: Sundays were for drinking ale, Wednesday for hunting with hounds, Thursday for sexual union, Friday for horse racing.) In this highly organized society, even the high king was not the only figure at the top—equal to the high king were the Bishops and a small number of highly trained and respected poets.
Beneath the kings were the nobles, called flaith, and below them, several different distinctions of lower nobles, and between these distinctions there was a certain amount of movement. Celtic society, despite being heavily stratified, was far more fluid than other medieval societies, and upward (or downward) mobility was possible. If three consecutive generations of a family could maintain the property qualifications for lordship, then the member of that third generation became a lord. A similar process occurred in the case of poets—if three consecutive generations of men in a family had the qualifications to become a poet, that grandson would be elevated to poet status. If a man had the wealth necessary for nobility but not the familial background, he was known as a flaith aithig (“commoner lord”) and held a societal status in between commoners and nobility. Similarly, someone with poetic skill but without the proper training might be referred to as a bard, though some suggest those poets who didn’t align themselves with the church also received this status ranking.
Music and arts were especially important in ancient Celtic society, and were naturally covered by Brehon laws, as well. Of all the different types of musicians, harpists were the only ones afforded a status near nobility. Poets, too, could achieve a level of social standing near lordship with the right combination of talent, training, and family history, and there were five different class designations for trained poets, three for untrained. This standing was not always guaranteed, however—one law states that any poet overcharging for a poem should be stripped of half his social rank! It is assumed (or rather, hoped) that certain procedures were established to judge the objective quality of poetry in an effort to avoid such an embarrassment over mere difference in taste.
Concerned more with property and compensation for harm or crimes committed, Brehon laws were a civil code, rather than criminal. Celtic society was one of the earliest to shun capital punishment, except as an absolute last resort. A convicted murdered was required to pay two fines: the first was the fixed éraic, the “body price,” and the second was the Log nEnech, the honor price owed to the victim’s family, which varied depending on the victim’s social status and the closeness of their relationship to the next of kin (in essence, the monetary value of the deceased was assessed according to their social standing and bereavement of their family—it turns out everyone does have a price). If a murderer was unable to pay the fines, the onus fell to his or her family. In turn, if they were unwilling or unable to pay, the victim’s family took the murderer into custody, when they faced a choice between three options: continue to wait for remuneration, sell the murderer into slavery, or kill the murderer. If a murderer went on the run without taking care of the required fines, the victim’s family was actually obligated to initiate a blood-feud. Some believe that the move away from capital punishment entered Brehon law only after the advent of Irish Christianity, which preached forgiveness, and it had previously been the only allowed sentence for murder.
Assault and injury, too, carried with them various fines. Even an accidental wounding was considered a crime and subject to fines, unless, of course, the victim had injured themselves by entering a place or situation where bodily harm was likely (this writer hopes that some form of a pre-modern Irish waiver exists, but the chances of one surfacing are unlikely). Brehon texts go into great detail describing the injury related fines, which were decided upon based on the location of the wound and its severity. Physicians decided the appropriate fine after nine days of caring for the wounded victim. The wound size was judged based on how many grains of a specific plant could fit in the injured area, and the Brehon texts mentioned nine different grains used to measure, depending on their fineness—the higher status the injured patient had, the finer the grain used to measure their wound, and thus, the higher the compensation owed. If a wound did not heal properly and left the victim with a visible blemish or scar, that, too, subjected the injurer to a fine, as the vestiges of those wounds were a blot on the patient’s honor.
Additionally, a doctor who through neglect or malpractice failed to heal or causes further injury to a patient must pay said patient a fine as if he had caused the original wound or illness.
Despite their emphasis on wealth and property, Brehon codes’ hyper-awareness of social status carried with it a distaste for public shame; if a creditor held a piece of someone’s toque, bracelet, or earrings as collateral against a loan, the creditor must return the piece of jewelry for the debtor to wear at public assemblies or be fined for causing humiliation.
Brehon laws today have the reputation among legal scholars for their relatively progressive treatment of women, and many of the laws are cited when discussing the equality of the sexes in pre-colonial Ireland. The laws in general do outline a patrilineal society, though some suggest this is the influence of canon law gradually infiltrating or replacing older, more egalitarian Celtic traditions. There is little evidence for or against this suggestion, especially because Celtic Ireland relied more heavily on oral than written tradition. Many of the laws regarding marriage and divorce speak to a certain sense of egalitarianism between the sexes; both spouses had to consent to disposal of household property, and in the event of a divorce, the husband and wife divided their property based on their original contributions of wealth, land, livestock, etc. Like in many ancient patriarchal societies, a man was allowed to hit his wife to “correct” her (yikes!), but if the blow left a mark, the woman was entitled to compensation equal to her bride-price and if desired, divorce her husband.
Some laws concerning relationships and marriage might amuse a modern audience. For instance, if a pregnant woman desires a certain food and her husband denies it to her through stinginess or neglect, he must pay a fine. Similarly, a husband who avoids his wife’s bed out of listlessness or boredom must also pay a fine. (At the time of publication, this writer cannot find evidence of laws to the reverse of this.)
Of course, not all Brehon laws afforded women as much respect—female “scolds” are grouped in with drunks and fools as nuisances to be banned from the house of a doctor with a sick patient, as such disruptions were thought to impede the patient’s recovery. And church law, which existed alongside Brehon law, did not allow women to testify as witnesses, as their testimony would have been considered impartial and dishonest.
Brehon laws first came under attack in 1171 after the Norman invasion of Ireland, when areas under Anglo-Norman control were subject to English law. As the centuries went on, however, English law relaxed in most areas outside of Dublin and the surrounding English Pale—many Anglo lords with Irish holdings in other areas of the country began adopting Irish culture, language, and legal practices. Naturally, this Hibernofication horrified the Dublin English lords, who deemed their behavior uncouth, coining the phrase “beyond the pale.” The Statutes of Kilkenny, passed in 1367, were an English attempt to suppress what they saw as a decline of the Anglo nobility in Ireland, and attempted to renew English language, dress, and habits. The Statutes were largely unsuccessful, but by English horror and disgust at the Irish legal system continued to grow. By the end of the Nine Years’ War in 1603, in which the remaining Gaelic chieftains made one last stand against Tudor England, important Brehon laws governing inheritance had been outlawed. The 1607 Flight of the Earls signaled the end of the dominance of Gaelic culture in Ireland, though some vestiges of Brehon law were still employed in the Gaeltacht of Ireland’s west coast.
Some Brehon laws may feel a little arbitrary, or even silly, by today’s standards, but even at their most inconsequential, they offer a fascinating snapshot of a rich, highly organized culture that was almost entirely eradicated by colonial rule.