Irish
law is almost wholly the product of a professional class of jurists
called brithim or brehons. Originally the Druids and later the filid or
poets were the keepers of the law, but by historic times jurisprudence
was the professional specialization of the brehons who often were
members of hereditary brehonic families and enjoyed a social and legal
status just below that of the kings. The brehons survived among the
native Irish until the very end of a free Irish society in the early
17th century. They were particularly marked for persecution, along with
the poets and historians, by the English authorities. The statutes of
Kilkenny (1366) specifically forbade the English from resorting to the
brehon's law, but they were still being mentioned in English documents
of the early 17th century.
The absence from the function of
law-making of the Irish kings may seem startling. But Irish kings were
not legislators nor were they normally involved in the adjudication of
disputes unless requested to do so by the litigants. A king was not a
sovereign; he himself could be sued and a special brehon was assigned to
hear cases to which the king was a party. He was subject to the law as
any other freeman. The Irish polity, the tuath, was, one distinguished
modem scholar put it, "the state in swaddling clothes". It existed only
in "embryo". "There was no legislature, no bailiffs or police, no public
enforcement of justice . . . there was no trace of State administered
justice". Certain mythological kings like Cormac mac Airt were reputed
to be Lawgivers and judges, but turn out to be euhemerized Celtic
deities. When the kings appear in the enforcement of justice, they do so
through the system of suretyship which was utilized to guarantee the
enforcement of contracts and the decisions of the brehon's courts. Or
they appear as representatives of the assembly of freemen to contract on
their behalf with other tuatha or churchmen. Irish law is essentially
brehon's law-and the absence of the State in its creation and
development is one of the chief reasons for its importance as an object
of our scrutiny.
The bulk of the Irish law tracts were
committed to writing in the late seventh and early eighth centuries, and
though influenced somewhat by the impact of Christianity, they are
basically reflective of the social and legal principles, practices and
procedures of pagan Irish society. In the early ninth century, the
oldest texts were being glossed because the original meaning was no
longer certain, or practice had in fact undergone developmental change.
By the 10th century elaborate commentaries were being added which
indicate that the texts were either so obscure to the new generation as
to be inexplicable, or change had become so marked that the commentaries
often contradict the text itself. Part of this confusion was due to the
very archaic and technical language of the earliest texts and the
subsequent change in the Irish language from what we call now Old Irish
to Middle Irish. If we recall the marked differences between the English
of Chaucer and that of Shakespeare, we will understand the difficulties
of the brehon jurists over a comparable period of time.
Extract from “Property Rights in Celtic Irish Law”, Joseph R. Peden,
Department of History, Baruch College of the City University of New
York, 1977
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