Ancient Ireland was home to one of the most forward-thinking systems of law of its time and possibly even today. There were no prisons, no police force and no government enforcement. The laws carried force by virtue of their morality and by the will of the people who respected and revered them. These laws were so pure in essence, and with such a strong focus on justice, fairness and equality, that mechanisms of enforcement were not necessary. They allowed for divorce and respected the rights of women and they were the first body of law to recognise copyright. What follows is a brief introduction to this ancient system of jurisprudence.
Historically, the people of Ireland were renowned for their love of the Law. To them the law was truly justice in action and this attitude and desire for justice permeated the entire culture. Today we refer to them as the Brehon Laws but it is properly known the Fénechas i.e. the law of the Féine or ‘free land-tillers’. It was also known as the Senchus Mór (‘the Great Ancient’) and was considered, even back then, to be as old as the rocks.
It is one of the oldest systems of verifiable jurisprudence and it even gave us the very first copyright law case a millennia before it was codified in legislation. These native laws bear striking resemblance to the Laws of other tribal and native societies such has the similarity of oral tradition and the importance of the family unit within a tribal system. However, much of the Brehon Laws were codified into books at a later date under the direction of Saint Patrick and King Laegaire.
Attorney General Sir John Davies, a man who was instrumental in the abolishment of the Brehon Laws, once said of Ireland that:
“…there is no nation of people under the sun that does love equal and indifferent justice better than the Irish, or will rest better satisfied with the execution thereof; [even] though it be against themselves, so that they [too] may have the protection and benefit of the law when upon just case they desire it.” [Source]
To these people the law was alive, fluid and electric; it was a part of nature and in tune with a natural order that flows through creation. The aim of these laws was to create a society based on principles of fairness, justice, truth and honour. The role of the Brehon (or Breitheimh; still used today in Irish courts to address a judge using Irish) was to impartially determine the most just and fair outcome. He was an arbiter ‘desirous of settling disputes among neighbours‘ rather than what we now associate as a ‘judge’. Importantly there was no executive body to enforce laws or judgements upon the people; there was no police force, capital punishment, or system of imprisonment.
The Brehon’s opinion merely carried persuasive power and nothing was binding, in a legal sense, upon the sovereign free men and women on the land. The opinion carried respect as being true and just and for that reason the fear of solitude and stigma associated with going against the morals of the clan, and for rejecting the fair conclusions of the learned elders, amounted to these opinions having what could be described today as a ‘force of law’.
The outcome of a case was ultimately determined via agreement between the two parties and always had a view towards ‘restoration’ i.e. to restore the victim to the place they were in before the transgression occurred and it was therefore a law of compensation. The Brehon’s role therefore was to impart knowledge, understanding and wisdom which merely served to guide the case towards a just and fair outcome. Judgements and opinions however could also be offered up by any member of the community and the parties would deliberate until the most favourable agreement was found. Negotiation, negotiation, negotiation.
The Laws of a land govern the nature of that land and are an irrebuttable witness to its character. In order for the English conquest of Ireland to be truly successful it was essential to eradicate the Brehon Laws and replace it with the Courts and Laws of the Crown, and bring the land under the Kings dominion. This attack on the law spanned many years, but remnants of the Brehon Law existed up and until the 1700′s when it was finally stamped out, aided heavily by the oppressive penal laws. The Irish old and natural love for the Law was replaced by a fear and distrust that remains to this day.
The Nation re-gained her right to govern and make her own laws after generations of struggle, but alas we see that the original system of law was never restored; that grievance was never addressed.This shows however that the system of law in place today is relatively young compared to the system that preceded it and in the short three hundred years or so we can directly see the impact this imposed system has had on us. The modern view of the ‘legal system’ can be seen as a reaction and direct consequence of unjust systems of punishment and penalty. It seems as though justice is dead, but really it is just dormant, laying patiently, waiting to be rekindled.
The preamble of the earlier Statutes of Kilkenny makes no excuses in outlining the importance for the English in eradicating the Irish system of jurisprudence. It states that the English settlers had for a long time been governed and ruled according to English common law
“…but now many English of the said land, forsaking the English language, manners, mode of riding, laws and usages, live and govern themselves according to the manners, fashion, and language of the Irish enemies”.
Why were these early settlers changing their customs and referring to the Brehon Courts for justice?
This indicates that English settlers sent here to establish a new form of governance found themselves naturally drawn to the customs and laws of the native Irish people. Settlers would revert to the Brehon system for justice and in doing so denied their allegiance to, and the ‘protection’ of the Law offered by the Crown.
Item IV of the Statues of Kilkenny states that:
“…whereas diversity of government and different laws in the same land cause difference in allegiance, and disputes among the people; it is agreed and established, that no Englishman having disputes with any other Englishman, shall henceforth make caption, or take pledge, distress or vengeance against any other, whereby the people may be troubled, but that they shall sue each other at the common law; and that no Englishman be governed in the termination of their disputes by March law nor Brehon law, which reasonably ought not to, be called law, being a bad custom; but they shall be governed, as right is, by the common law of the land, as liege subjects of our lord the king; and if any do to the contrary, and thereof be attainted, he shall be taken and imprisoned and adjudged as a traitor and that no difference of allegiance shall henceforth be made between the english born in born in Ireland, and the English born in England, by calling them English hobbe, or Irish dog, but that all be called by one, name, the English lieges of our Lord the king; and he who shall be found doing to the contrary, shall be punished by imprisonment for a year, and afterwards fined, at the king’s pleasure; and by this ordinance it is not the intention of our Lord the king but that it shall be lawful for any one that he may take distress for service and rents due to them, and for damage feasant as the common law requires.” [Source]
Once independence was achieved it was perhaps deemed impractical to revive the old traditions of the native institutions and the British system of law was retained, that said, a complete resignation of the Brehon laws to the vaults of antiquity is to turn our backs on the legal aspects of our rich cultural heritage and a literal ignorance for the wisdom of elders.
Some features of the Brehon Law
The Brehon Laws were very in tune with modern understandings of restorative justice. Damages were awarded in a similar fashion to modern tort law cases i.e. to restore the injured party to the position they were in before the injury took place, although this principle was seamlessly applied to injuries of a criminal nature or those with malice and intent. Debts were paid to society by actually compensating the injured party, not by imprisonment of the offender. The rationale here is to ‘help alleviate the suffering’ by sharing in it. This system focussed on inclusion and dialogue between the parties and was not adversarial in the same sense as our modern system – it provided a democratic means for the people to come together to find a remedy.
o Honour Price
Damages were calculated with regards to an honour price which allowed for a much fairer, proportionate and precise means of penalty as ‘each according to his worth, according to his stock’. People of a higher status were judged at a higher standard as; by virtue of their position, they were deemed to have known better. “A man of high rank was always fined more than a man of low rank in a like case”.
o Moral Code and Social Unit
In addition to a legal code the law served as a moral code based on neighbourly respect. Social structure in Ireland consisted of groups and sub-groups of families. The social and moral unit was the family who shared a group responsibility over their kin to ensure the law was upheld and could be held liable in the second degree if an offender could not pay. Families joined together into wider family sets called septs, like modern communities i.e. common unities, which in turn joined into tribes, like mini-states who could become liable for a secret crime within in their precincts; all the while maintaining the social unit of the family as the building block. We develop our moral compass in the family home, we learn about compromise, negotiation, reconciliation.
o Tort Law (Civil Wrongs)
The Brehon Laws made no distinction between crimes and tort (civil wrongs) and offences consisted of ‘a lapse from the standards of personal honour and brotherly kindness’. This reclassification of both crimes and torts to be considered ‘civil wrongs’ against one’s neighbour’ did not change the factual moral wrong of an act or society’s ability to deal with it. This approach does create a distinction between moral offences and political offences (where the State is the injured party) that might therefore be considered inappropriate in a modern society.
Brehon Law was among the most forward thinking systems of law with regards to woman’s rights. In comparison, English common law did not recognise the rights of women until the 18th and 19th centuries . Under that system women were considered to be the property of their Father’s or Husband’s and they could not enforce contracts or take a court case in their own name. However, under the Brehon Law’s Women were viewed as equal to men and in some cases had more rights to property in the case of divorce.
Women were free to choose their husbands and were allowed to divorce them. Grounds for divorce included a husband’s failure to support them, telling lies, impotence, getting too overweight or striking her causing a mark. Both partners brought their own wealth to the marriage and in the event of divorce they could reclaim their property. If the husband was the cause for divorce the wife could claim his property also.
Women could hold office and govern in the same manner as men and there are records of women Rulers, Brehon’s and law makers.
Words still in use today
- Oiréachtas (or-ach-tus) – Comes from the old Irish word for a gathering and it is used today as a name for the Irish parliament.
- Breitheamh (Bre-hiv) – Comes from the old Irish word for ‘judge’ also known as a ‘Brehon’.
- Taoiseach (tee-shock) – Comes from the old Irish word for ‘cheiftan’ and is used today to refer to the Irish prime-minister.
- Tániste (ton-ish-ta) – Was the old Irish word for the chieftan’s second in command and is used today to refer to the deputy prime minister.
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