Dlíthe na hÉireann: The Laws of Erin

Cu Chulainn, from the Cattle Raid of Cooley

Welcome back to Legal Systems Very Different from Ours. Today we’ll be discussing Irish law, insofar as we can reconstruct what it looked like over the centuries before England invaded.

Ireland is one of those countries that it has become popular to over-mythologize, especially in certain New Age/Wiccan circles, so I am always a little skeptical about Irish-related claims–I’m in the uncomfortable position of knowing a lot, but not knowing how much of what I know is actually true.

People want Ireland to be this eternal place with a deep connection to Europe’s mythic past, perhaps because it wasn’t conquered by the Romans, or perhaps because it retained a more primitive agricultural/herding economic system for longer than its neighbors (which strikes me as probably just an accident of geography.)

“Hunter gatherer’s camp at Irish National Heritage Park Exhibit showing how a 7000 B.C. campsite of Mesolithic period hunter gatherers would have looked. They were nomadic and built temporary houses. Wood, bone and flint were the materials of their tools. They fished using dugout canoes – there is one in the photo.” More photos in the park Credit to David Hawgood  

Ireland was settled relatively late, by European standards, because it was covered by glaciers during the last Ice Age. (If humans lived there before the Ice Ages, we have no evidence of them.) The first (known) humans showed up around 12,500 years ago, but we don’t know if they stuck around; evidence of really continuous habitation doesn’t show up until 10,000 years ago.

These folks were hunter-gatherers who built simple shelters that would have made the first little pig proud.

Around 6,500 BC, Ireland’s hunter-gatherers were conquered by farmers, known as the Linear Pottery Culture or LBK. LBK originated around Anatolia and raised sheep, goats, cattle, wheat, and barley. They also appear to have introduced red deer to Ireland. (I suspect wheat that originated in the Middle East originally struggled to grow in Ireland, but sheep did fine.)

The hunter-gatherer population of Ireland was never very big–Wikipedia estimates it around 8,000 people. The farming/herding population was much bigger, around 100,000 or more.

The LBK people also brought the practice of building stone monuments, such as the famous Newgrange, built ca. 5,200 years ago.

Metallurgy arrived with a new group of people, the Bell Beaker, around 4,500 years ago (2,500 BC). They were probably Indo-European speakers but we don’t know which language they spoke; Irish proper probably arrived a little later, with the Celts. This era is marked by the production of metal objects–jewelry, swords, axes, etc–and of course the development of mining and long-distance trade.

Reconstruction of a Crannog (technically, this one is located in Scotland.) By Christine Westerback  

Housing changed in a rather distressing way–people began constructing their huts (called crannogs) on platforms built in the middle of lakes. This is how you build when either the fishing is very good, or the invaders are very nasty.

As far as I know, the Celts arrived around 500 BC, which on the scale of ancient human migrations wasn’t that long before the Romans invaded Britain, a mere 450 years later.

This is the society whose laws were variously recorded when literacy reached Ireland a few hundred years down the line, around the 7th through 12th centuries CE. The Tain Bo Cuailnge (pronounced “cooley,” because Irish likes to throw in extra letters, but honestly, English has words like “through”, so who are we to judge?) or “Cattle Raid of Cooley,” written in the 12th century (though it may be based on manuscripts that were written centuries earlier and just haven’t survived) about events in the first, offers some insight into the political structure of pre-British Ireland.

Insights from the Tain:

  1. Ireland was ruled by multiple kings, not a single high king
  2. Some of the rulers were women
  3. Wealth was counted in cattle
  4. Particularly nice cows/bulls might be traded or lent for political reasons
  5. Sometimes cattle were stolen; particularly successful cattle raids were immortalized
  6. Warrior culture

There are hints in these stories of the archaeological record–of course, the Irish histories speak explicitly about the migrations of different peoples to Ireland; Cu Chulainn (the hero of the Tain) is himself half Gael and half Tuatha de Danann–depending on the source, the Tuatha are a conquered people, fairies, gods, or people who worshiped a particular god (or goddess).

I propose a fairly straightforward sequence of events: The Celts (or Gaels) invaded and, after some conquering, married a fair number of the locals. In some areas bands of locals and invaders lived side by side for some years; many advantageous marriages may have been conducted to join the estates of local chiefs with invading warriors, and notables like Cu Chulainn with mixed ancestries may have been fairly common. Alternatively, the ancestry may be a bit more attenuated, like when certain American whites claim a smidgen of Native American ancestry. (*cough* Elizabeth Warren *cough*)

The conquering of a bronze-age people by an iron-age people might be remembered in the claim that “fairy folk” have no iron or are allergic to iron. I’d be allergic to iron, too, if the iron were a spear slicing open my intestines.

At any rate, some of the conquered people might have retreated into the hills and bogs and other unappealing places, eventually becoming a memory of an impoverished, violent, “fairy race;” elsewhere, rulers keen on presenting themselves as legitimate to all of their subjects may have played up their semi-mythic Tuatha ancestries, even turning their ancestors into a kind of ancestral cult which eventually resulted in elevating them to the levels of gods and demi-gods.

Or perhaps this is all nonsense speculation. Let’s get on with the book:

Ireland at the beginning of the fifth century was a pagan country with a rich oral literature and an elaborate legal system, also oral. …

Whoever the authors [of the legal texts] were, they showed a strong conservative bias, recording not only legal rules still in practice in the seventh and eight centuries, when the texts were written down, but older rules as well. Their writing thus provides a somewhat blurred window on the pre-Christian legal system, which may have preserved institutions going back much further, possibly as far as the period before the different Indo-European languages separated. The evidence for that conjecture is in part linguistic, similar words in different Ind-European languages connected with the same legal/political institutions, and in part comparative, features that the early Irish legal system shared with ancient Indian law.

This is a fascinating idea which the authors never return to or develop at all in this chapter. We’re never told which terms in Irish law are cognate with terms in other legal systems, nor which traits it shares with the Indian system. (Maybe they’ll get around to it in a future chapter?) People have this funny habit of assuming that Irish things in particular are ancient survivals from ancient Europe, but why would Ireland in particular have any more ancient Indo-European survivals than, say, Germany? or Russia?

To the extent that Irish law looks like Indian (or Somali) law, I’d posit that 1/3 of the similarities are due to the needs of a herding society (Ireland and Somalia), 1/3 the dominance of a warrior elite over a conquered peasant class (Ireland and India) and 1/3 random chance/people  identifying parallels that aren’t really there. Overall, I suspect that Irish law developed in situ, in response to the particular situation in Ireland.

The Ireland described in the law books was divided into a large number of small kingdoms… modern scholars estimate hat there were about a hundred of them, with a population of a few thousand in each.

I feel like this is an abuse of the word “kingdom.” Shouldn’t these be “fiefdoms” or “clans” or “chieftanships” or something similar? The text supplies the Irish word “tuath,” which just means “people,” so I think “clan territory” is more appropriate.

A king might recognize the overlordship of another and more powerful king. … While the idea of a high king of all Ireland existed and the title was sometimes claimed, such a king is mentioned only rarely…

A king who is under another king’s rule isn’t a king.

For the most part, an individual had legal rights only within his own kingdom, although some special categories, such as poets and hermits, had rights elsewhere.

Good poets must have been in short supply.

An interesting custom:

… when the subject of one king was killed by the subject of another, both acknowledging a common overlord, the procedure for collecting the fine for the killing was initiated by the victim’s king taking a hostage, presumably a subject of the killer’s king, in the court of their overlord.

Getting your king to go out of his way to visit another king’s court and take a hostage sounds like an inconvenient way for the common man to achieve justice. I doubt it happened very often, except for cases involving rather prominent or powerful subjects/relatives of the king.

Within the clan, people were divided into kin groups, with agricultural land generally held within a group, called a derbfine, defined by a paternal great-grandfather.

The derbfine, like the much larger dia-paying group in the Somali system, was responsible for enforcing the rights of its members, if necessary by feud, sharing in the payment of damage payments by its members and the receipt of damage payments to its members.

The authors note that networks of mutual obligations, while good when you have debts, limit your ability to make contracts that might impose new costs or debts or obligations on everyone else in the network.

Kind of like how your health insurer would really appreciate it if you didn’t smoke.

Despite the occasional “warrior woman” or queen popping up in the sagas, Irish law wasn’t favorable toward women:

Marriage law recognized a range of possible relationships, depending both on the resources each party brought into the marriage and the degree to which the marriage had or had not been approved of by the women’s kin… A man would normally have a chief wife but could also have a secondary wife or concubine.

A woman was under the authority first of her father, then her husband, hen her sons, and had very restricted rights.

Fostering was common, though:

Fostering of children was a common practice that established a form of pseudo-kinship… a man’s foster father had a claim to a fraction of the blood-money if his foster son was killed…

Irish law was built around a status system similar to the Indian Caste system, which is probably a reflection of the realities of life in a conquered country:

An individual’s honor price determined what he was owed for offenses against him but also the limits to his legal capacity, including the amount for which he could contract on his own authority and the weight of his evidence in legal dispute.

The major categories of status were [noble], non-noble freemen, and unfree. Within each there was a range of sub-categories. …

[Nobles] had a variety of legal privileges, limiting the degree to which legal rights could be enforced against hem… One consequence… was to make contracting with them risky, since it might prove impossible to enforce the contract, a problem pointed out in the period sources.

There’s a system rather like feudalism or sharecropping, in which lords have clients who are provided land or animals in exchange for a share of the produce or other services.

Among the unfree, the major divisions were between the semi-free… who had no land of his own and no independent honor price, the hereditary serf, who was bound to the land, and the salve.

More than one level of unfree. Sounds awful.

Private Law:

The legal sources describe mechanisms for making and enforcing contracts that do not appear to depend on either royal courts or any centralized mechanisms for judgement and enforcement. But there are also references to what appears to be curial law, law enforced in the court of a king. …

Private contract law depended on a system of sureties, third parties with rights and obligations connected with the contract…

Freedom of contract within the system was limited by the network of mutual obligations. … A son was obliged to support his aged father, so a father could under some circumstances cancel a contract the son made that might reduce his ability to do so [and vice versa]. Husband and wife had mutual obligations which gave each the right to cancel some contracts made by the other, with the details depending in part on the nature of their marriage.

The derbfine also placed restrictions on the sorts of contracts and obligations the individual could have–in general, in systems where governments don’t offer social safety nets, such restrictions are the norm.

Anyway, if you did make a contract and then failed to fulfill it, after some back and forth announcements and mediation, the other party could come and drive away your cattle. People probably did not always allow their cattle to be driven away without a fight, though.

Of course, if you’ve entered into a contract with someone of higher social standing than yourself, you don’t get to just up and drive away their cattle. The king has more soldiers than you do; good luck.

So if a king or other noble has wronged you, the proper procedure was a kind of ritual fast outside the noble’s house. For whatever reasons, the nobleman was obliged not to eat while the fast was going on, until he had satisfied the claim against him. How exactly this was enforced, I don’t know. Maybe shame.

More violent crimes, like murder, were settled like the Icelandic system, via feud and payment:

In both, offenses were expected to be open rather than concealed…

Just as in Somalia, there was a pre-existing coalition responsible for both pursuing feud on behalf of a wronged member and assisting with the payment of damages owed by a member.

Ireland did have some sort of court system, with professional judges and lawyers; after a promise or physical pledge to abide by the judge’s decision, the case proceeded in a manner fairly similar to modern courts.

As in Jews and Islamic law, the legal procedure might include the swearing of oaths; under some circumstances someone accused of an offense could defend himself by swearing the charge away. …

the force of an oath was linked to the honor price of the person swearing it; a higher-status individual could overswear a lower-status.

This isn’t really a system that looks out for the little guy, but if several little guys teamed up, they might be able to get their oaths to add up to the same value as higher-status person’s.

Women’s oaths were only accepted if no one else could be found to swear on a thing. In general, they weren’t allowed to be witnesses.

Disputes could also be settled via ordeal or duel.


That’s all for now. If anyone knows what these supposed parallels with Indian law or proto-Indo-European legal survivals are, I’d love to hear them.

Next week we’ll hop across the pond and discuss the Comanches, Kiowa, and Cheyenne.