Author Unknown
The Irish Law System, the Law of the Fénechus (tillers of the land) which we popularly know as Brehon Law (from the Irish breitheamh - a judge) was not displaced in Ireland until after the Tudor Conquests and disappeared in the 17th Century when English Law was enforced in Ireland. When the Normans conquered and settled in Ireland in the 12th Century, they found the Irish law, social customs and language more conducive to their lifestyle and adopted them. Henry VIII decided to make himself `King of Ireland' in 1541, instead of being merely `Lord of Ireland'. The Angevin emperors had become Lords of Ireland with the provincial kings owing allegiance to him rather than, as previously, to the Ard Rígh or High King. Henry VIII decided to change all that and he sent an ambassador, Sir Anthony St Leger, to address what are now called the `Anglo-Norman Lords' in the Dublin Parliament. Only one of them, the Earl of Ormonde, could speak any English and he had to interpret in Irish to all the other nobles in the parliament.
Henry VIII demanded that all the Irish provincial kings and nobles surrender their titles to him; they were to swear to learn English, give up Brehon Law and accept English law, give up their lands and estates held under the Brehon system and for this he would grant them English titles and give back some land to be held paying him feudal dues under the English system. Needless to say, the Irish and the Irishised Norman lords, refused. This started the sixty years of warfare known as the Tudor Conquests, which ended with the Irish defeat at Kinsale in 1603. From then onwards the Brehon Laws were proscribed, all Gaelic titles were abolished and the English language enforced throughout the country.
This is not to say that there had been no changes in the Irish law system until Tudor times. As my books show, there was a clash of ideas coming into Ireland emanating from Rome with Christianity. Some individual religious houses took it on themselves to write rules based on these new, foreign concepts, called `The Penitentials'. Roman Christianity was evolving a legal system based on Mosaic Law with a strong intermix of the Roman Laws (from the old empire) which were in conflict with the Irish ideas. Methods of land holding were one basic conflict. Roman Law was feudal, land was inherited through primogeniture, church leaders like the rulers and nobles had absolute ownership of land, there were still slaves and serfs. In Ireland, however, there was no such thing as absolute private ownership and kings and other leaders had to be elected, though often from particular families but sons did not automatically succeed their fathers to office. The land on which monasteries and churches were built was still subject to the rule of local authority. Ireland was almost like a modern democratic republic. This is why the conflict between what we now called `The Celtic Church' and the Roman Church lasted so long.
It was not until after the Norman invasion, when Ireland became part of the Angevin Empire in the 12th Century, that the Irish (Celtic Church) finally moved into the Roman Church camp as a result of that conquest. That is why the Popes supported the invasion of the Angevin emperors, in return for the papal blessings the conquerors agreed to pay Rome a tax on every house in Ireland and bring the Irish church in line with Rome. Coincidentally, it was at the Synod of Cashel (Fidelma's own `hometown') in 1172 that church leaders met under the authority of the Angevin Emperor and the structure of the Irish Church began to be altered into parochial and diocese systems, the church became property holders and so on. But this was all done though modifications and alterations to the native law system, which continued, as I say, through to the 17th Century.
This session looked at the history of non-Common Law justice systems in Ireland and the tradition of local community justice.
4.1 Brehon laws: pre-history to 17th century
This must be the starting point for any historical discussion of alternative justice systems in Ireland. Of course, conditions have changed radically since the 17th century, when the Brehon law system was suppressed by the colonising power. The Brehon system was appropriate to de-centralised, rural and hierarchical communities such as existed in Ireland at the time. It represented a legal code but also acted as a social code for the smooth running of communities. It is this aspect which is perhaps of interest, particularly from the point of view of ideas of restorative justice.
There are four main texts which make up the canon of Brehon law. These are:
·Senchas Mar Munster, c. 725-750 AD
·Bretha Nemed ToisechMunster, c. 725-750 AD
·Cain FuithirbeMunster, c. 678-683 AD
·Collectio Cannonum Hibernensis 8th century
The mainstay of the system was the solidarity of the tuath or clann. While there were clear notions of individual culpability, the shame of the individual?s act fell on her/his extended family if the offender was unable to pay. Similarly, the sept (a subsection of the clann) was culpable for crimes committed in their territory (unless committed by an outsider). Accordingly, communities policed themselves rather than relying on an ?independent? policing body which derived its authority from elsewhere. Also, there was no concept of equality before the law. Status of victim and offender could make a great deal of difference to the sentence of a Brehon court.
Retribution was far less dependent on physical punishment than was the norm with other contemporary systems. Thus a fine was a possible penalty for every offence, even murder. Interestingly, and in a striking comparison with the current informal justice system, expulsion was imposed for particularly vile crimes or habitual criminality. The tariff imposed was based on a number of factors including:
·the damage done;
·the status of the victim;
·the status of the offender; and
·the accompanying circumstances
It is possible to argue that the Brehon system represents a basic restorative approach to justice. The individual victim and offender are seen in the context of their community. The emphasis of judgement is on restoring the community status quo rather than simply retaliation and retribution. These do not take over until the English consolidation of power in the 16th and 17th centuries
Brehon \Bre"hon\, n. [Ir. breitheamh judge.]
An ancient Irish or Scotch judge.
Brehon laws, the ancient Irish laws, -- unwritten, like the common law of England. They were abolished by statute of Edward III.
Source: Webster's Revised Unabridged Dictionary (1913)
The Irish Law System, the Law of the Fénechus (tillers of the land) which we popularly know as Brehon Law (from the Irish breitheamh - a judge) was not displaced in Ireland until after the Tudor Conquests and disappeared in the 17th Century when English Law was enforced in Ireland. When the Normans conquered and settled in Ireland in the 12th Century, they found the Irish law, social customs and language more conducive to their lifestyle and adopted them. Henry VIII decided to make himself `King of Ireland' in 1541, instead of being merely `Lord of Ireland'. The Angevin emperors had become Lords of Ireland with the provincial kings owing allegiance to him rather than, as previously, to the Ard Rígh or High King. Henry VIII decided to change all that and he sent an ambassador, Sir Anthony St Leger, to address what are now called the `Anglo-Norman Lords' in the Dublin Parliament. Only one of them, the Earl of Ormonde, could speak any English and he had to interpret in Irish to all the other nobles in the parliament.
Henry VIII demanded that all the Irish provincial kings and nobles surrender their titles to him; they were to swear to learn English, give up Brehon Law and accept English law, give up their lands and estates held under the Brehon system and for this he would grant them English titles and give back some land to be held paying him feudal dues under the English system. Needless to say, the Irish and the Irishised Norman lords, refused. This started the sixty years of warfare known as the Tudor Conquests, which ended with the Irish defeat at Kinsale in 1603. From then onwards the Brehon Laws were proscribed, all Gaelic titles were abolished and the English language enforced throughout the country.
This is not to say that there had been no changes in the Irish law system until Tudor times. As my books show, there was a clash of ideas coming into Ireland emanating from Rome with Christianity. Some individual religious houses took it on themselves to write rules based on these new, foreign concepts, called `The Penitentials'. Roman Christianity was evolving a legal system based on Mosaic Law with a strong intermix of the Roman Laws (from the old empire) which were in conflict with the Irish ideas. Methods of land holding were one basic conflict. Roman Law was feudal, land was inherited through primogeniture, church leaders like the rulers and nobles had absolute ownership of land, there were still slaves and serfs. In Ireland, however, there was no such thing as absolute private ownership and kings and other leaders had to be elected, though often from particular families but sons did not automatically succeed their fathers to office. The land on which monasteries and churches were built was still subject to the rule of local authority. Ireland was almost like a modern democratic republic. This is why the conflict between what we now called `The Celtic Church' and the Roman Church lasted so long.
It was not until after the Norman invasion, when Ireland became part of the Angevin Empire in the 12th Century, that the Irish (Celtic Church) finally moved into the Roman Church camp as a result of that conquest. That is why the Popes supported the invasion of the Angevin emperors, in return for the papal blessings the conquerors agreed to pay Rome a tax on every house in Ireland and bring the Irish church in line with Rome. Coincidentally, it was at the Synod of Cashel (Fidelma's own `hometown') in 1172 that church leaders met under the authority of the Angevin Emperor and the structure of the Irish Church began to be altered into parochial and diocese systems, the church became property holders and so on. But this was all done though modifications and alterations to the native law system, which continued, as I say, through to the 17th Century.
This session looked at the history of non-Common Law justice systems in Ireland and the tradition of local community justice.
4.1 Brehon laws: pre-history to 17th century
This must be the starting point for any historical discussion of alternative justice systems in Ireland. Of course, conditions have changed radically since the 17th century, when the Brehon law system was suppressed by the colonising power. The Brehon system was appropriate to de-centralised, rural and hierarchical communities such as existed in Ireland at the time. It represented a legal code but also acted as a social code for the smooth running of communities. It is this aspect which is perhaps of interest, particularly from the point of view of ideas of restorative justice.
There are four main texts which make up the canon of Brehon law. These are:
·Senchas Mar Munster, c. 725-750 AD
·Bretha Nemed ToisechMunster, c. 725-750 AD
·Cain FuithirbeMunster, c. 678-683 AD
·Collectio Cannonum Hibernensis 8th century
The mainstay of the system was the solidarity of the tuath or clann. While there were clear notions of individual culpability, the shame of the individual?s act fell on her/his extended family if the offender was unable to pay. Similarly, the sept (a subsection of the clann) was culpable for crimes committed in their territory (unless committed by an outsider). Accordingly, communities policed themselves rather than relying on an ?independent? policing body which derived its authority from elsewhere. Also, there was no concept of equality before the law. Status of victim and offender could make a great deal of difference to the sentence of a Brehon court.
Retribution was far less dependent on physical punishment than was the norm with other contemporary systems. Thus a fine was a possible penalty for every offence, even murder. Interestingly, and in a striking comparison with the current informal justice system, expulsion was imposed for particularly vile crimes or habitual criminality. The tariff imposed was based on a number of factors including:
·the damage done;
·the status of the victim;
·the status of the offender; and
·the accompanying circumstances
It is possible to argue that the Brehon system represents a basic restorative approach to justice. The individual victim and offender are seen in the context of their community. The emphasis of judgement is on restoring the community status quo rather than simply retaliation and retribution. These do not take over until the English consolidation of power in the 16th and 17th centuries
Brehon \Bre"hon\, n. [Ir. breitheamh judge.]
An ancient Irish or Scotch judge.
Brehon laws, the ancient Irish laws, -- unwritten, like the common law of England. They were abolished by statute of Edward III.
Source: Webster's Revised Unabridged Dictionary (1913)
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