History of Irish Law

The law of Ireland has undergone many changes since its inception during the Old Irish and Gaelic periods. This work will attempt to highlight all the major changes from then until the present day. Thereafter, the following order will be adopted:

The most interesting points about Irish legal history
An elaboration of the most interesting points
Background or additional points

The study ends by providing the reader with a summary of why Irish law should be celebrated in the light of: (i) its difficult and complex evolution, and (ii) the thoughts, words and actions of the many many actors which have been involved in re-shaping Irish law to something that today looks authoritative and recognisable to all. For readers interested in conducting further research into the history of Irish law, the note at the end of this study should provide some useful assistance.
Irish law – A historical context

Early Irish law propounded by the ‘Gaelic order’ consisted of statutes which governed both those involved in political debate and the common people. When the Gaelic order was finally overrun by the Norman Invasion of 1169, some of the extant rules of the Irish legal order were altered. There was a further upheaval of the Irish legal system in the 13th century, but for the majority of the island few changes were effected until the 17th century. Thereafter, Irish law existed in parallel to the laws of England and Wales. Some Irish law mirrored that of its island neighbours; however, for the most part, Ireland kept its own identity. Today, the Irish legal tradition is somewhat more complex: the influence of the past is clear, yet the suggestions in respect of legal developments offered by Irish jurists and the acceptance that the ‘common law’ system of England and Wales is a ‘good’ thing is also self-evident.

Irish law – From an ‘oral’ tradition to a working written code

The most interesting points to note about the development of Irish law is in its life as a very much ‘oral’ tradition, and the gradual shift it has made to becoming a contextualised system. Irish law had been documented in the old Irish period in texts which reflected the traditional laws of the land. The influence of Christianity and the innovations of Irish idealists and activists certainly played a crucial role later on in the establishment of a legal code. Although, primitive to begin with, an Irish legal system in written form was achieved by the publication of the ‘Bretha Nemed Déidenach’ in the 8th century. Other examples of a documented Irish legal code were included in the ‘Pseudo-Historical Prologue’ to the Senchas Már (a certain school of legal thought which existed in parallel to the Bretha), and the legal texts known as ‘Fenechas’ written by the ‘Feni’ (or the ‘freemen of Ireland’). All of those texts were heralded in the early Irish legal tradition. More recently, however, Irish law has been documented principally in the case-law (or in Ireland ‘Brehon Law’ or judge-made law). It should also go without saying of course that statutory legislation is another primary source of Irish law in the modern period.

Irish law – Aspects of its past

Though today Irish law is well-developed with matters across the entire spectrum of legal subject areas covered, that has not always been the case. In its early days, Irish law was a civil code; criminal sanction was not recognised until much later. The principal areas of the law consisted of contract, property and trusts (particularly the inheritance of estates). The principal remedy was for the wrongdoer to provide compensation to the person who suffered the wrong – very much like the concept in modern law: ‘to put both parties back into the position they were in before the wrong occurred’. The early Irish law was concerned for its most part in ensuring a proper balance in societal status. Particularly in the early medieval period, the Irish took great pride in their society’s hierarchical structure; in turn, rights and duties were defined according to that structure. The lords and landed gentry were protective of their rights.

The working classes or the serfs had almost no rights – they were, in fact, treated like slaves.
Irish law – Additional points taken from the writings of Irish historians

Much has been written on the topic of Irish law, its evolution, and its interesting and less interesting aspects; however one point is clear amongst all, namely that no single document has ever recorded the full history of Irish law. Many stories have been told, however, particularly when the law went through its ‘oral’ tradition. Poets told dark and complex tales. The followers of the Christian church recited hymns and were responsible for the mixing effect of native Irish law and secular law or ‘canon law’. According to St. Patrick, any law which conflicted with the church was replaced. Of course, that tradition was to change dramatically with the acceptance of the philosophy of Irish jurists and the word of the Brehons. All in all, no-one really knows the full extent of whether what had been said in the past was an accurate depiction of the Irish law as it then stood. Many modern historians have suggested that Irish jurists were formerly in the poetic class, and that their real intentions were only in the preservation of the early Irish law. A scholar of Irish linguistics and Irish law, Daniel Anthony Binchy (1900–1989) was of the opinion that the laws in Ireland had been rather conservative, and that it had formed the basis of foreign legal systems such as for the ‘Proto-Indo-Europeans’. Other historians have drawn comparisons between Irish law and Indian customs such as ‘fasting’, which had been used as a method of putting a wrongdoer to shame or in order to recover a debt or to demand the righting of a wrong. In addition, the use of ‘sureties’ as a way to secure the observance of a court order has been noted by some of the traditional historians as attributable to early Irish law. Modern historians, however, have doubted such attributions.

Another point of some relevance to the contexualising of Irish law is the changes that have taken place in respect of legal terminology. The texts documenting the Irish legal code as aforementioned were translated into various Celtic languages. Thereafter, the code was preserved in both Old Irish and Welsh. Today, plain English has been adopted; however, as evident from the judgments of the Irish High Court and Supreme Court, some of the old terminology has survived. The Irish legal tradition has therefore come full circle. Elements of the past have been retained giving Irish law its authority and those within its jurisdiction, the ability to recognise that it is a system in its own right.

Conclusion

Like many legal systems in the democratic world, the Irish one is littered with complexities. Its evolution has been gradual, and can be understood in many distinct stages. From the old Irish period to the present day, it has grown, adopted the thinking of those which have gone before it (the poets, the story-tellers, the jurists and the scholars), and arrived at something which, although not perfect nor complete, is as close to a well-governed order as one could ever expect. The influences of the traditionalists, the church-goers, those involved in politics and the Brehons, have been instrumental in the creation of Irish law. The code which had been documented in written form now takes the form of Irish primary and secondary legislation: statutory law and case-law. Irish law is now capable of governing every area imaginable – for example, unlike the past; both criminal and civil law are now covered. Furthermore, the changes to some, and the retention of other, legal phrases have made Irish law what we all see it as today: a law which has built upon its traditions, learnt from its mistakes, and looks forward into the future. Moreover, language now is no barrier to accessing and comprehending Irish law. Whereas in the early centuries, Irish law suffered from inherent weaknesses by the way it favoured the wealthy and educated, and neglected the poor and uneducated class, the present day law governs all with fairness and logic. Some similarities with other legal systems can also be seen; however, overall, Irish law has retained its own proud distinctive character.

Endnote

It is hoped that the foregoing has provided some flavour as to the life of Irish law, both in terms of its past and present. For further invaluable information as to understanding Irish law, particularly its historical context, the most interesting and the less interesting points from which note should be taken, Janet Sinder’s essay entitled ‘Irish Legal History: An Overview and Guide to the Sources’ (available from the internet at http://www.aallnet.org/products/pub_llj_v93n02/2001_10.pdf) may provide a useful starting point. In her own words, her essay covers ‘sources for researching Irish legal history from the earliest days of the brehon legal system to the present. In addition to suggesting sources for research, the article provides brief explanations of the Irish legal system and its major developments.’