Beginning the Puzzle:

Sources, Couples, and Private Enforcement in Early Irish Law

Finding a reliable description of the laws of pre-Christian Ireland has been nearly impossible until the last fifty years. Only recently have a few of the texts begun to be at all reliably translated due to a variety of difficulties with the texts. The Irish law tracts, often called the Brehon laws (the Brehons were the Irish judges), were recorded around the sixth or seventh centuries, likely by early Christian monks. By the eighth century, the texts were viewed as sacrosanct and unchangeable; they could be interpreted by the judges, but not altered by them. Irish law in these surviving tracts is a jurist-made law. Neither king nor subjects had influence in its development.[1]

The first challenge to analyzing the legal tracts is a linguistic one. Surviving texts are written in Old Irish – a dialect unknown to even Middle or Modern Irish speakers – and many of the legal terms appear only in the law texts. In addition, the texts have glosses and commentaries written in Latin, Middle Irish and even Modern Irish that can sometimes help in translating the Old Irish, but that mostly hinder translations.[2] While the texts began to be translated in the mid-nineteenth century, the Irish scholars at the time were ill-prepared to reliably translate the texts. Consequently, the multi-volume translation Ancient Laws of Ireland, was often misleading and inaccurate. This translation, however, is what scholarship regarding the early Irish laws was based on for almost 100 years. Initial scholars wrote based on the translation, and then subsequent scholars wrote off of those initial commentaries. Any translation prior to 1920 is not reliable; I would move that even further to the 1950s or 1980s. A leading Irish scholar, D.A. Binchy, published in the mid-twentieth century a collection of the Irish texts in the old Irish, making the tracts accessible to any scholar willing to tackle the translation again.

Ideas that Binchy did consider to be accurately translated from the texts are: “institutions of solidarity of kindred, ‘clientship’ as a forerunner of feudal commendation, pignoris capio and ‘fasting’ as methods of execution, and the organization of a complex system of suretyship as a primitive substitute for the public enforcement of legal obligations.”[3] Binchy also cautions that the Irish legal texts, like all early legal texts, should not be taken too literally; that the tracts reflect an abstract schematic, even within the details, that could never have existed in everyday life. Though the presentation is conventionalized, however, the general outlines are still true and we can still learn a great deal about the institutions under which the early Irish lived.[4] It is also important to remember that law tracts from different schools around Ireland reflect different laws and customs from different areas; each law tract does not represent a uniform code for all of the early Irish geographically or temporally. The tracts are uniform, however, in their style, composition, and technical terminology. As mentioned, many terms do not exist outside of the legal realm, which itself adds evidence that the Brehons alone were familiar with the terms and legal language, preserving their importance to the community as they maintained the mystery of the laws.[5]

Despite the effort of the English to impose their common law system on the Irish, aspects of the Brehon law remained until at least the 1600s beyond The Pale of English influence. With the Irish revolution at the beginning of the 20^th century came a revival of Celtic enthusiasm, and some court cases from the decades following reference the Brehon laws, for instance: Foyle and Bann Fisheries Ltd. v. Attorney General (1949) 83 I.L.T.R. 29; R. (Moore) v. O’Hanrahan (1927) I.R. 406; Little v. Cooper (1937) I.R. 1.[6] But trying to revive the laws became problematic within the courts, as this excerpt from one of the cases states:

The law still has to be deduced from elliptical, incomplete and often corrupt texts, which appear to be copies of copies of archaic manuscripts, reproduced by much later hereditary scholars, to the accompaniment of unreliable and often unskilled and sometimes unscrupulous interpretations. The study of Irish law, seriously undertaken only in recent times, is still in its infancy and the conclusions of the most experienced scholars are tentative, and seem at best generally to represent plausible historical speculation. Dr. Dillon’s view is that the law texts cannot be used as a solid basis for any conclusion at all until they are edited and examined.[7]

But while utilizing the early Irish laws for modern legal purposes will prove difficult at least until the texts have been reliably translated, there are still comparative historical and legal purposes for revealing the contents of the texts. While they have some fairly easily identifiable Christian glosses, the texts were not Christianized to the same extent as Anglo-Saxon law. Unlike under the Anglo-Saxon kings, there was no central authority in Ireland for introducing and enforcing reforms. To alter traditional law in Ireland, the monks needed the cooperation of the Brehons; and the Brehons were not eager to give up their power.[8]

Cáin Lánamna- The Law of Couples

The Cáin Lánamna is one of the Irish law tracts from around the 7^th century. This particular text listed laws related to marital and parental legal relationships. This is one of the texts of which we have a recently translated version from a peer-confirmed reliable translator.[9] The laws are brief and sometimes somewhat confusing in their syntax, but they reveal some otherwise unknown aspects of the rights of woman from a primary source.

There are ten types of relationships for cohabitation and procreation described in the text. Common to all, however, are some general principles that are described before the specifics of the different relationships.

Exempt from legal suit for each is what each may have used or have consumed as against the other, except what lien, obligation or loan may have imposed, or what one of them may have mis-appropriated from the other. Exempt from legal suit is everything useful to the partnership, everything done in good faith; liable to legal claim is everything done in bad faith in the law of the couple.

Essentially, when a couple in a relationship splits, one party may try to retain more goods than the law provides that party is allowed. This first law provides that the wronged party only has a legal claim to items used or gained by the other in bad faith. In the course of a relationship, goods are used and contracts are made in good faith; these items cannot be disputed or sought in litigation.

The next general law sets out the types of legal pairings to be found in Irish law:

Question. How many pairings are there in Irish law? Answer. Eight: a lord and his base clients, a church and its tenantry, a father and his daughter, a girl and her brother, a son and his mother, a foster-son and his foster-mother, a teacher and his pupil, a man and his wife.

It is not immediately clear to what this law pertains in a text about couples; perhaps these ‘pairings’ are the types of relationships to which the general rules apply, and the rest of the laws specific to male-female pairings are sub-rules for the last group, “a man and his wife.”

The final general law further describes the division of property; rather, what can and cannot be litigated, and what remedies a party has against the other.

Equally exempt from legal suit for each is whatever one of them may have given the other, whatever one of them may have used as against the other, without violent crime, without stealth. Everything taken without permission that is complained about is repaid by simple replacement of the object until the matter goes as far as the legal remedy of fasting, except in the case of the church. Repayment, by simple replacement, of what is taken without permission and complained about is all that is required until there is evasion of the legal obligations that arise from fasting, or legal default. Anything taken by stealth, by violent crime, anything taken without permission, that is complained about and ignored, is levied with its penalty fine.

Essentially, if something was taken without permission, and the other party complained about it, the first party need only replace the item. If, however, the first party tries to evade its legal obligations by not replacing the item, or if the item was taken by stealth or violent crime, then a penalty fine is added to the replacement.

Moving on to the more specific laws related to cohabitating couples and procreation, the first of these laws describes the ten specific types of legally recognized relationships:

Question: how many couples of cohabitation and procreation are there in Irish law? Answer: ten-(1) union of common contribution; (2) union of a woman on a man's contribution; (3) union of a man on a woman's contribution with service; (4) union of a woman who accepts a man's solicitation; (5) union of a man who visits the woman, without work, without solicitation, without provision, without material contribution; (6) union by abduction; (7) union of wandering mercenaries; (8) union by criminal seduction; (9) union by rape; (10) union of mockery.

These ten types of relationships are addressed in more detail in the following laws. The first is the “union of common contribution” when the man and woman come to the union as equals.

(1) Union of common contribution: if it is a union with land and stock and household equipment, and if their marital relationship is one of equal status and equal propriety-and such a woman is called a woman of joint dominion-no contract of either is valid without the consent of the other, except for contracts that benefit their establishment. These are: an agreement for common ploughing with proper kinsmen when they do not themselves have a full ploughing team; paying for the leasing of land; getting together food for a coshering; getting food for feast-days; paying stud fees; fitting out the household; making an agreement for joint husbandry; the purchase of any essentials that they lack. Every contract shall be without neglect, an advantageous contract, conscientious, in accordance with right and propriety, with acknowledgement on both sides that the ownership of what is acquired belongs to the person whose property was alienated to acquire it.

In a marriage of common contribution, the consent of both spouses was necessary for the formation of certain contracts. Those contracts which were excepted were specifically described. In addition, the law includes that agreements shall be made in good faith. Further, as the next law specifies, if the lack of an item will bring a loss to the household, it cannot be sold without the agreement of both spouses:

Anything, the lack of which brings loss on the household, cannot be sold without common counsel, consultation, and mutual concession. For the impairment of the joint economy in a union of common contribution is not proper without mutual concession.

Interestingly, it is social policy that pushes the equal rights of both spouses in the union of common contribution. Similarly, the law regarding the fosterage of children of a common contribution household is also related to policy:

Putting children in a well-befriended and good fosterage is a contract in accord with all propriety that brings well-being into the community of their common household.

The following are the remainder of the laws set out for a union of common contribution. These laws describe the rights of the woman and the man in contracts, divorce, and the partition of proceeds. Note the rights of the women and the extent to which she is treated an equal in this type of marriage.

Every contract shall be without cheating. Either of them may dissolve the bad contracts of the other. The one does not dissolve the good contracts of the other in the case of those matters that have been listed, if the joint husbandry is without mutual friction, without mutual inculpation, in good partnership, in good faith.

If they divorce, each divorce shall be without mutual defrauding. If they divorce by mutual consent, let them divide their property in accordance with legal propriety.

A third of all proceeds belongs to the owner of the land, except for handiwork; a third of the cattle dropped during the union belongs to the owner of the stock from which they are sprung; a third to whoever did the labour. Division is made in proportion to the entitlement of each in regard to land, stock and labour. If the conduct of each is equally good or equally bad, this is the way they divide their thirds.

The third assigned to labour of the proceeds of the cattle is further divided into thirds: a third to the master of the house, a third to the mistress of the house, a third to the workers, that is, the herders.

Likewise dairy produce: it is divided in three between land 12/36, stock 12/36 and labour 12/36. The labour third: half goes to the woman who does the work 6/36; a twelfth goes to dairy vessels 3/36;two-thirds of the remaining half go to the master of the house 2/36, a third to the dairy workers 1/36.

If one of them is ill-behaved, the labour portion of the ill-behaved falls to the well-behaved, but the portions due to land and stock are not diminished

The labour third of the fodder corn and salt meat:let it be divided in three i.e. a third 1/9 to the wife who is responsible for ploughing and reaping and for looking after the pig-sties, for feeding and for fattening the pigs, unless they are fattened on milk. In that case, the wife gets two-thirds 2/9. For only spring-work in regard to ploughing and looking after the sties, the wife is entitled to two-thirds of a third 2/27.

The wife takes a half of clothing and of woven fabric, a third of fibre combed and ready for spinning; a sixth of fleeces and sheaves of flax; a third of woad in steeping vats, half if it is caked.

Anything that either of them may consume that belongs to the other is exempt from liability if it is by mutual consent. Whence is said: Without penalty is anything mutually discussed, mutually conceded.

Every defrauding is paid off by replacement in kind unless the person entitled waives claim, or else compensation is paid on the day of parting.

Anything taken by stealth, or despite mild or forceful protest, or by violent seizure, is repaid with its interest and with double its replacement if dry goods; if it is livestock, it is repaid with milk and young,with double replacement, and with interest.

Exempt from liability is every loan, every lease, every sale, every purchase, without mutual defrauding by either, made with the private property of each up to the amount of the honour-price of each, in accordance with the contracting rights of each.

Hospitality and refection is a duty of each of them according to rank. [...] Each of them gives hospitality to his/her own lord, to his/her own church and friends and relations.

In many decisions, the wife’s opinion is of equal importance to the husband’s. In terms of property division, women (not necessarily the wife) get sometimes a half and sometimes a share in goods created through her labor. While women may in general not enjoy equal rights to men, they do receive more rights than a medieval image often allows them.

Next the laws describe the rights of a man and woman in a union in which the man brings more, a “union on man’s contribution.” The word “cétmuinter” refers to a chief wife (as opposed to a concubine or secondary wife).

Union on man's contribution: (2) Union of a woman on a man's contribution: the man's contract is a valid contract without the wife's consent, except for the sale of clothing and food; and the sale of cattle and sheep, if she is a duly contracted wife who is not a cétmuinter.

If she is a woman who is a proper cétmuinter, equally good and equally well-bred — for everyone of equal goodness is of equal birth — she impugns all his contracts if they are foolish — for immunity from suit does not attach to defrauding and to what is forcefully protested against — and her sureties annul them.

If he gives bridewealth to acquire another woman, even from his own private property, that bridewealth is forfeit to his cétmuinter if she carries out her marital obligations. Every secondary wife who comes 'over the head' of a cétmuinter is liable to penalty: she pays the honour-price of the cétmuinter.

The wife gives hospitality to half as many people as her husband, in accordance with the social status of her husband.

[...]Everybody is fed and hospitality is not refused up to the legal number of his/her retinue. Refusal of hospitality in the case of a guest accompanied by a excessive retinue does not damage one's honour for, though one refuse, this is not deemed refusal of hospitality if the retinue is excessive.

If they divorce and the divorce is by mutual consent and their behaviour is equally good at the time of parting, what the one may have freely consumed as against the other is without penalty at the time of parting if it is done without bad faith and with consent, so that they may not defraud each other. Every replacement in kind shall be as that consumed, with milk and young and dung and with interest. Everything taken by stealth, by force, by secret removal, without consent, without recompense, without asking pardon, is levied with its penalty fine.

The wife receives half the handiwork, as we said in the first type of union we discussed; a sixth of the dairy produce with the same proportions as previously between land and cows and vessels and servants. She receives ~a ninth of the cattle dropped during the union, a ninth of the corn, and a ninth of the salt meat, if she is a great worker.

She receives a sack of corn for every month that remains until the year end i.e. until the first of May next, following the time they part.

Even when a wife contributes little to the initial union, she still retains influence over some contracts entered into by her husband. She has rights, if a chief wife, over the secondary wives and she has rights upon divorce to a portion of the goods produced.

Next we examine what changes when a woman brings more to a union than the man: a “union of an heiress”.

Union of an heiress: (3) Union of a man on a woman's contribution: in that case, the husband goes in the track of the wife and wife in the track of the husband. If he is a man of service he receives a ninth of the corn; and of the salt meat, if he is a 'head of counsel' who controls the people of the household with advice of equal standing. The sixth of milk produce is divided in two: one half (1/12) goes to the vessels; of the other half, the husband receives two-thirds (1/18). He receives a ninth of the handicraft when they divorce. If they divorce by mutual consent, they part in this way.

If either of them is badly behaved, the labour third of the badly-behaved partner is forfeit to the well-behaved one. In the case of a cétmuinter, everything is forfeit to the party that carries out his/her marital duties, apart from what the other is entitled to in respect of land and breeding stock. But they part as they came together: what survives of what each brought in to the other, that is what each brings away on parting, or its replacement out of the profits if it no longer survives.

But he is a husband who is paid honour-price in accordance with his wife's status if she holds all the property, unless he has higher property qualifications in his own right than his wife or is more godly, more high-born or more estimable than she.

Here, upon dissolution, each leaves with the property he or she brought to the union that remains. The man receives a portion of goods produces, but these laws are instead written to specify what portion the man receives rather than the portion the woman receives as in the prior laws.

The following laws describe other types of unions and the affirmative rights that exist in those scenarios. The first two seem to cover unions perhaps more informal than the first, or perhaps when neither party can contribute to the initial union.

Other Unions: (5) Union of a man who visits the woman, without provision without work: a fifth of the handiwork is the portion of the man (i.e. of the partner) when they part if the handiwork is hers to dispose of-for a fifth is the proportion of the compensation due to him for her being dishonoured; if an offence is committed against her, that is the compensation he is paid for it.

(4) Union on accepting the inducement of the man: in that case the man receives a quarter of her handiwork. If it is a union with stock on land, let them divide by the proportions of land, labour and breeding stock, in accordance with what each owns.

When these unions dissolve, the man retains a proportion of the handiwork of the woman if it is hers to give. These unions seem to involve consent on the part of the woman, because the following rules contrast in that there is no consent by the woman (or in the case of “union in secret,” of her family). The word “éraic’ refers to the body honor price.

(6/8) Union by abduction and union in secret: they have no stock or dry goods to divide on parting, only offspring. If a woman abducted from her family grants property to her partner who has abducted her, that grant is invalid from the point of view of her family and it is thus repaid: it is paid off with half penalty-fine if what was given belonged to the woman; if a third party owns a share in it, it is paid off with full penalty-fine. The same holds good for union by criminal seduction in secret.

(9) Union by rape or by stealth: they the partners possess nothing but offspring. Full éraic is paid for a virgin, for a young nun who does not reject her veil, and for a cétmuinter; half éraic for secondary wives— all this is without the cooperation of the woman— together with the full honour price of the man of highest rank who has authority over her of those to whom she specially belongs.

In these unions, no property exists to divide because the union had no legal support to property, and because all that was produced recognized by the law are offspring. The final law describes a cruel union created for the amusement of others: a “union of mockery”. Here, someone has brought together a mentally handicapped man and woman. The law provides for the care of any offspring:

(10) Union of mockery: union of a lunatic or madman with a deranged woman or madwoman. Neither of them is bound to take or to make payments. The person who brings them together for fun and the responsible person in whose presence this takes place, theirs is the offspring, if offspring there be; its rearing, compensation for its offences, and its suretyship falls on both of them. The éraic and the legacy of such persons is divided between the king, the church and the family.”[10]

Whoever brings the two together or has knowledge of the union is responsible for any offspring produced. This responsibility includes raising the children, paying for the children’s offenses, and supporting the children when they enter into suretyship arrangements. Since the parents likely cannot provide such complex duties for their children, the law supports these children being provided for.

State or Private Enforcement?

While some evidence exists that the king played a role in some disputes, those disputes seem limited to disputes involving the king himself. Disputes within kin groups were arbitrated by independent judges who interpreted the laws but had no means of enforcement. It was up to individuals to enforce judgments by means of fasting or cattle raiding if the other party was not paying. But lest we make the same mistake as the Victorian anthropologist and impose the idea that our society reflects the epitome of culture and hold the early Irish legal system as inferior and anarchic, let’s consider the society as a whole and the role of the law in it.

In a society that at the same time is rural, hierarchical, familiar, and “tribal,” there was not in existence a system that could support the development of the judicial, administrative, and political institutions which we find in our States now. The túath was small, both in population and in the geographic area it covered and influence it held, and so there was no need for an intermediate group between the king and subjects. In addition, cities and walled towns were brought to Ireland by invaders; the early Irish people did not have these places of mass congregation that supported cities and marketplaces. Remember that the very words we use – politics, civilization, etc.—reflect the urban roots of our own society.[11] In an aristocratic and rural society, like that of the early Irish, it is quite possible, owing to the system of patronage, to produce great literature and art… but it is not possible to develop a “polity,” as the Greeks called it, because the pattern of life is not complex enough to demand it. Within each túath, the king, with the aid of a few officers, could practice the few functions of government necessary in person. Essentially, the idea of the State as something distinct form the ruler, or of the king’s government as distinct from the king (the idea of depersonalization of institutions) would be foreign to the minds of the early Irish.[12]

Rather than the responsibility of the king, the kin-group itself was responsible for its own internal conflicts. Early Irish society was based on agnostic kin-groups. Originally, the narrowest kin-group was called derbfhine, and described four generations. This was the property owning unit, and was responsible for the liabilities of its members. Like all known early systems, the law did not bother legislating amongst the internal affairs of the kindred; instead, the law would be limited between members of different kin-groups.[13]

During these intertribal relations, it was the king who mattered. The king made war against other kings (“war” generally described cattle raiding) or made treaties with them. The king made submission to an over-king, to whom he gave tribute and hostages. He acquired these hostages and tribute from his own subjects, for which he was personally responsible. When it came to internal government, however, the king did not have the power to create new laws or repeal existing laws; the traditional rules of law, as mentioned, were completely out of his control and were instead interpreted by Brehons. Granted, a “royal judge” (a Brehon chosen by the king) existed in each túath, but he seems to have had jurisdiction only over issues like treason and taxation: issues where the king’s rights were involved. It is here one can see the beginnings of public law. Aside from this limited area, however, there was no state-administered justice.[14]

According to Binchy, there is no evidence in the texts themselves that the king would, if necessary, enforce a judgment in an ordinary dispute between families in his túath. Binchy attributes the lack of public enforcement of judgments to the idea that those legal disputes likely to arise between members of separate family groups were likely few in number and kind, given that the separate family groups lived isolated on hereditary land. Other than crimes and torts like manslaughter, maiming, arson, theft, insult, and trespass, there would be title problems to immoveable property and problems with those basic contractual relationships that could develop in a society that lacked urban market places and a case nexus—these two institutions are the “primary engines of development for the law of obligations.” Were litigation restricted to those crimes, there would be so few of them that one might argue they did not justify the effort in establishing the machinery to enforce the judgment—it wouldn’t have paid to do so. The original reason for publicly administered justice was to get money for the king’s treasury; with so few cases, the cost of administering such a process would not likely justify the rewards.[15]

When suits arose within the túath between members of different kindreds, even in cases of homicide, the State (king) took no part. The kinsmen of the slain or otherwise wronged party could either prosecute the blood feud against the offender’s kin or else agree with the offender’s kin that the customary compensation should be paid or else the case would be submitted to arbitration by a Brehon. When submitting to a Brehon, both sides agree in advance to accept the judgment and to be bound by it. The party who wins the judgment received no assistance from a public authority since, as mentioned, private rights were not enforced by the State (king.)[16]

The Irish laws managed a number of modern public institutions within the private sphere. Consider the institution of suretyship, for instance. Within Irish law, there were three kinds of suretyship: the man who guaranteed his own property for his principal’s default, the man who pledged his own person and freedom by becoming a hostage to the defrauded party if the principal defaulted, and a man of higher rank than the principal who pledged his honor price in compensation for the insult to the honor of the defrauded. Most every transaction required a surety; the more important transactions required all three. This seems to have resulted in a number of people having a very real interest in seeing that the principal fulfilled his duty. The chances of the principal being able to defy the law with impunity were very slight.[17]

While one may believe that there must have been no sense of law and order without a public enforcement mechanism, one should note that fear of the compulsive power of the State is not one of the main reasons at all why the majority of men obey laws. The legal system present in early Ireland, for instance, is built not on State sanctions, but on the power of traditional custom. This custom has been formulated and applied by a learned professional caste (the Brehons) that functions and commands obedience. Of course lawlessness existed; lawlessness exists in our own modern society despite the strength of the State (hence the great number of attorneys!). But as Binchy notes, “far more important that the threat of State enforcement in the minds of a small, rural, and patriarchal community was the veneration due to hallowed ancestral tradition. There was also the enormous prestige of the learned class who were custodians and practical interpreters of tradition. In the absence of state backing, they showed remarkable ingenuity in devising methods of procedure which would compel the average citizens … to keep the rules. Perhaps, indeed, their very success hindered the evolution of public justice by diminishing the need for it.”[18] With no need for a stronger State role in justice, why create a public enforcement institution?

[1] “The Linguistic and Historical Value of the Irish Law Tracts” D. A. Binchy—Proceedings of the British Academy. Oxford University Press. Oxford. 1943.214

[2] Early Irish Society, edited by Myles Dillon. “Secular Institutions” by D.A. Binchy. Published for the Cultural Relations Committee of Ireland by Colm O’Lochlainn Dublin: At the Sign of the Three Candles 1954, pg 53

[3] “The Linguistic and Historical Value of the Irish Law Tracts” D. A. Binchy—Proceedings of the British Academy. Oxford University Press. Oxford. 1943. Pgs 213-214

[4] Early Irish Society, edited by Myles Dillon. “Secular Institutions” by D.A. Binchy. Published for the Cultural Relations Committee of Ireland by Colm O’Lochlainn Dublin: At the Sign of the Three Candles 1954pg 53

[6] Some Comparative Aspects of Irish Law

Alfred Gaston Donaldson. Duke University Press, Durham, NC. 1957

[7] Modern Irish cases referencing Brehon Law: Foyle and Bann Fisheries Ltd. v. Attorney General (1949) 83 I.L.T.R. 29 at page 41

[8] “The Linguistic and Historical Value of the Irish Law Tracts” D. A. Binchy—Proceedings of the British Academy. Oxford University Press. Oxford. 1943. Pg 219

[9] http://www.ucc.ie/celt/published/T102030/index.html

[10] http://www.ucc.ie/celt/published/T102030/index.html