Irish Legal History (An Introduction)
1) Brehon Law Origins
From the 4th-5th century until 1169, there were approximately 150 tribes in Ireland. As a result of this system, there was no government, parliament etc. Each tribe was under the leadership of a King with approximately 3,000 people in each tribe.
Prior to the Norman invasion in 1169, a system of customary law (fénechas or ‘native law’ as opposed to canon law) was in place.
Customary law is an organic legal system where:
- rules and procedures are decided ad hoc over a period of time
A more formal definition would be: the practice of participant that is understood to be law; based on custom rather than the common law or statute.
This type of law is now referred to as Brehon Law (judgment = brett & brithem = judge in the Irish language)
During this time, society was organized in regional units (tûath = tribe) under the leadership of the King of the tribe (rí tûaithe).
In these societies there was a distinction between those with legal standing and those without:
- Aurrad – Person with legal standing.
- Deorad (outsider) – Person without legal standing.
- A deorad may only have legal standing if there was a cairde (treaty) between this tûath and his tûath.
The aurrad, as people with legal standing would convene in ónach (assembly) convened by the King. Only they had this right, as aurrad’s.
Within the tribe there were smaller unit groups called fine’s (kins) which had its own fintiú (kinland) and was represented by the head of the kin.
Society was largely inegalitarian (characterized by or promoting inequality between people) and its stratification worked by means of lóg n-enech (honor-price, lit. the price of his face). In this case it may be the amount of cows owned.
As a result of this inegalitarian society, there was heavy distinction between classes of citizens:
- Nemad – Noble/sacred
- e.g. Kings, Lords, Professors, Poets, Priests etc.
- craftsmen, physicians, druids, judges and advocates
- Slaves, unfree
This whole system was heavily influenced by mythology. In this sense, when there was a good King, the soil was fertile and nature would ‘behave’ for lack of a better word. When there was a ‘bad’ King, nature would rebel. Fir flathemon (King’s justice) was therefore the most important indicator for the welfare of his tribe. The King could issue ordinances only in times of emergency. He was also not involved with law enforcement except for in relation to ‘transborder’ disputes. He was required to be present for important lawsuits and to approve, if not to issue, the judgment.
Brithem tûaithe (judge) advised the King on legal questions and adjudicated in disputes.
- What made the judge qualified to do so was not his qualifications but instead his personal traits. Every judge had to be on his own judgment. “Cach brithermoin a baegul”. But, how would we know if the judgment was correct? The answer to this is if the earth/nature rebels.
Legal Procedure under Brehon Law
- Assertion – The plaintiff must assert a complaint – they then had to hire an advocate.
- 5 paths to a judgment
- Fir (truth) – claiming someone had lied/division in family etc.
- Dliged (entitlement) – performance of a contract.
- Cert (justice) – unfair contract.
- Techtae (property) – relationship between farmers/lords.
- Coir n-athchomaire (proper enquiry) – all other claims.
- 8 stages of trial
- Choice of date
- Choice of path
- Fixing of pledge (according to path)
- Tacrae (pleading) – there were 16 signs a lawyer was not good/telling the truth.
- Frecrae (rebuttal by the defendant)
- Breth (judgment)
- Forus (announcement of foundation)
- Forbae (conclusion of the trial)