Saturday, June 8, 2013

THOUGHTS ON IRISH LAW BY FACEBOOK GROUP 'IRISH MEDIEVAL HISTORY'

 By Irish Medieval History (http://www.facebook.com/Medieval.Ireland)

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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