The Law of the Irish

By John G. Browning, Contributor
June / July 2006

With St. Patrick’s Day just past, it’s only natural to reflect on the many gifts given us by Irish culture: the words of literary giants like Joyce, the lilting music of The Chieftains, the stirring spectacle of Riverdance, and of course the liquid wonder that is Guinness. But as we put away our “Kiss Me I’m Irish” t-shirts for another year, let us stop to ponder how the Irish shaped our legal system. In point of fact, Ireland had a sophisticated body of law in place for about four thousand years, making it the oldest in the world. English jurist Sir Henry Maine described the Irish system as “a very remarkable body of archaic law unusually pure from its origin.” Imagine a system of jurisprudence that recognized the equality of the genders, gave priority to the protection of the environment, revered the sanctity of a contract, and respected individual rights over property rights. Even more amazingly, the Irish legal system was held in such regard by its people that it required no courts, police, or jails to aid in enforcement. The Irish body of jurisprudence was known as “Brehon law,” from the Gaelic breitheamhan, meaning “judge.” In reality, the brehons were more like arbitrators, wandering the Irish countryside like a judicial version of Caine from Kung Fu, dispensing justice for a modest fee. Brehon law was passed down orally, and the “have gavel, will travel” career choice did not come easily; a would-be brehon’s course of study would often last ten years or more. While a prestigious calling, being a brehon was not without its risks. A brehon who was deemed to have delivered an unjust ruling would himself be liable for damages. Not only was there no concept of judicial immunity, but it was said that when a brehon deviated from the truth, a blotch would appear on his cheek. The oral traditions of Brehon law were eventually codified into five volumes in 438 A.D. by none other than St. Patrick himself (yes, he rid Ireland of snakes, but not of lawyers). These volumes, known as the Senchus Mór, consisted of detailed rules and commentaries that governed everything from trades to legal relationships to damages for virtually every imaginable personal injury. Lacking a legislature or appellate courts, Brehon laws were subject to review every three years at the Great Fair in Tara, where Ireland’s kings would gather to modify laws deemed unfair, and to approve new laws. The Brehon laws encompassed practically every aspect of human relations. There was no criminal law as such, since every liability incurred by wrongdoing, whether a tort or a criminal act, was answerable only in a fine, known as the eric. The exact amount of the eric would vary, depending on such factors as the nature of the injury and the social status of the parties. The higher one’s status in the society, the higher the standard to which one was held; a clergyman or noble would pay a greater fine than a tenant farmer for the same offense. An injury that merely bruised the victim resulted in a lower fine than one which drew blood, and the loss of a leg, hand, or eye would cost half of the eric imposed for a wrongful death or homicide. Enforcing the eric was a communal effort. If the responsible individual did not pay, every member of his sept (clan) remained liable for the debt – talk about joint and several liability! Brehon law also featured a unique approach to creditors’ rights. Before property could be seized, a creditor was obliged to “fast on” a debtor – literally going to the debtor’s house and sitting at the front door without food. The debtor was then obliged to fast as well, for so long as the debt remained unpaid. Publicly shaming a debtor wasn’t the only way to force someone to pay up; Irish law also recognized use of the “withe-tie,” a leather binding that the creditor could publicly wrap around the tools of a debtor’s trade (such as a blacksmith’s anvil or the horsewhip of a traveling physician). The debtor was honor bound to do no more work until he settled the debt. Brehon law addressed a wide range of subjects, and in many respects was ahead of its time (some scholars believe that the first copyright law is found in these old Irish volumes). The following is just a brief sampling of the topics one will find: Contributory negligence: “The blacksmith must rouse all sleeping customers before he puts the iron in the fire to guard against injury from sparks. Those who fall asleep again will receive no compensation.” Separate property: “Husband and wife retain individual rights to all the land, flocks, and household goods each brings to the marriage.” Medical malpractice: “If the doctor heals your wound, but it breaks out anew because of his carelessness, neglect, or gross want of skill, he must return the fee you paid. He must also pay you damages as if he himself had wounded you.” Maintenance of the elderly: A child was legally obligated to support an aged parent with “one oatcake a day, plus a container of milk,” seventeen sticks of firewood for warmth, and to wash the parent’s head every Saturday. The Brehon laws remained the law of Ireland well into the 17th century, when the British conquest became complete and English law was imposed. The Brehon system was outlawed, and condemned as “uncivilized” and “wicked.” A legal system that was egalitarian, pro-environment, valued compensation over violent retribution, and required no enforcement powers beyond the will of the people? I’d say it was ahead of its time.

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