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Clerical influence in early Irish law

Introduction:

In early medieval Ireland, a law system developed which was chiefly based on a system of customs and traditions, known as Brehon law. It is best explained by Byrne and McCutcheon as a “system [that] was administered by judicial figures known as Brehons, the equivalent of travelling justices, and are thought to have successors to the pre-Christian Celtic druids. Many of the key elements of the Brehon system of law are to be found in the Irish law tracts, which were written in the 7th and 8th centuries.” At this time the majority of Irish law tracts were recorded. Peden points out that the laws, “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.” This essay seeks to demonstrate the extent of clerical influence upon Early Irish law.

Background:

For the most part, Irish law is essentially a product of a professional class of jurists called brithim or brehons. Initially the Druids and later the filid or poets were the keepers of the law. The brehon's status in early Irish society was just below that of a king. A king was not completely sovereign and by law he could sue and be sued. A special brehon would oversee a case brought against a king. Irish bishops did not participate in secular legal cases as it was forbidden by early Irish canon law. So it would seem that secular schools remained separate from the activities of their clerical counterparts in relation to legal matters. Despite brehons enforcing the law it would seem that clerics were the first to commit such laws to writing.

Christianity And The Law:

“The conversion of the Irish to Christianity begun in the fifth century was bound to affect profoundly Irish life and institutions. Christianity brought with it literacy which was required for worshipers to read the Bible and to perform the Latin liturgy. With literacy in Latin came literacy in Irish (Gaelic).There is a general consensus that those who physically wrote down Irish law were clerics resident in monastic schools in approximately the sixth and seventh centuries. This is the view of Professor Donnachadh Ó Corráin who argues ‘in early Christian Ireland, the lawyers, poets, canonists and ecclesiastical scholars formed a single mandarin caste whose legal and other writings...are to be seen as the products of a single...ecclesiastical culture'.

The Christian church could not rely on an Irish king or state to impose their religion on an unwilling population. Without the support of the state to enforce the Christian will, it meant the Church's impact on Irish law was still very weak in the sixth century. This lack of influence meant the Church was compelled to create its own legal codes. The so-called penitentials of the Irish Church spread across the continent and played an integral part of the judicial structure of the Western Christian Church thanks to Irish missionaries. Penalties ranged from set periods of prayer, fasting, pilgrimage and other spiritual acts, to a fixed scale of monetary commutations of these penalties.

Joseph Peden highlights one instance in which the Church did influence Irish law “ by seeking to have the Irish Kings and assemblies accept a specific written code of law composed by an outstanding ecclesiastic. The Annals of Ulster for A.D. 778 record that Bresal, Abbot of Iona, and Dunnchad, King of Southern O'Neill “confederacy”, had agreed to accept the laws of St. Columcille, founder of Iona, as binding upon their people.” This is similar to a compact with implications on internal and external affairs. The people agreed to adhere by the new law as decided and represented by their King. All law codes attributed to saints reflected the intrusion of Christian moral practices into the customary Brehon law.“They were largely concerned with ensuring better protection for the persons and property of the clergy, their households, clients, servants, tenants, and ordinary women and children. They were also efforts to impose Sabbath laws. But these new ecclesiastic-inspired codes were thoroughly Irish in structure and principles. Kathleen Hughes argues that the main effect of Christianity upon early Irish law was to “modify the law without dislocating it” and thus strengthened their institutions as a result.

Comparing native Irish law and canon law can reveal certain instance were both influenced each other, particularly in the seventh century. It can be seen in the prose law tracts and is evidenced by in the corpus Canonum Hibernenis ‘The Irish collection of canons'. This corpus was compiled by two clerics, Ruben of Dairnis and Cú Chuimne of Iona. So the way in which canon have been assembled as in Canonum Hibernenis is similar to the way secular law tracts have been recorded. Also there is a clear clerical influence in relation to secular laws between canon lawyers taking over many of the institution and legal concepts of their brehon law peers. Arguably there is a substantial amount of evidence when analysing certain areas of law (marriage and divorce) which a clerical influence can be seen.

Marriage:

The church's prohibition of inter-related marriages, that is marrying a close cousins caused great controversy among early Irish society which had implications on inheritance rights. Certain church rules had implications for women in early Irish society. If a woman's father had no male heir then the woman was only entitled to a life-interest in their father's estate which diminished after they died. However, the solution for such an incident would be to marry your father's cousin which was an ultimate heir to the estate.

Another contentious issue faced by secular lawyers and clerics was conflicting views in relation to marriage and divorce. “The text known as Cáin Lánamna (‘The law of couples') is a description of different marriages and unions that were permitted by Irish law. It also makes states the provisions in relation to divorce and divisions of land due to separation. As pointed out by Ó Cróinín:

“A man for example could have a principal wife (cétmuinter) in the first form of marriage, and another partner as well. The offspring of both marriages would have equal inheritance rights, and the concept of illegitimacy arising from such unions is unknown to the law.”

The idea of multiple marriages and divorce show secular law did not always follow the Christian ideals.

Conclusion:

In the law-texts, Críth Gablach it is asked ‘who is nobler, the king or the bishop?' it is concluded that the bishop is “nobler” as the king bows to him due to his faith. We can see the influence of clerics in Irish society by the high status granted to them under the secular law. Despite maintaining such a high status in early Irish society, the views of the Church did not always coincide with secular law even though there were some parallels. The influence of clerics was controversial in area of marriage and divorce which is evidenced in the law text Cáin Lánamna.

Overall, it would seem the Church modified but did not alter the basic character of the native Irish law and institutions. The Church failed to fully overrule secular law and this view is reinforced by Peden: “While it secured for itself almost total freedom from lay ownership and secular obligations, it was never able to fully destroy the essentially secular character of Irish law as exemplified in laws on marriage and divorce.”

Bibliography

Byrne, Raymond and McCutcheon, Paul, The Irish Legal System, 4th ed, (Dublin: Tottel Publishing Ltd, 2001).

Hughes, Kathleen, The Church in Early Irish Society (London, 1966)

Kelly, Fergus, A Guide to Early Irish Law (Dublin: Dundalgan Press Ltd, 2001)

Ó Corráin, Donnachadh, ‘Irish law and canon law' in Ní Chatáin and Richter (1984).

Ó Corráin, Donnachadh, ‘Irish vernacular law and the Old Testament' in Ní Chatáin and Richter (1987).

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995).

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977.

Website:

http://www.novelguide.com/a/discover/eich_01/eich_01_00114.html. Accessed 27/02/2010

Byrne, Raymond and McCutcheon, Paul, The Irish Legal System, 4th ed, (Dublin: Tottel Publishing Ltd, 2001). p25.

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p123

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p123

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

http://www.novelguide.com/a/discover/eich_01/eich_01_00114.html

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p120

Ó Corráin, Donnachadh , ‘Irish vernacular law and the Old Testament' in Ní Chatáin and Richter (1987) pp.284-307

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

Hughes, Kathleen, The Church in Early Irish Society ( London, 1966) p 144-153

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p124

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p124

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p125-126

Ó Corráin, Donnachadh, ‘Irish law and canon law' in Ní Chatáin and Richter (1984). p160-161

Ó Cróinín, Dáibhí. Early Medieval Ireland 400-1200 (London: Longman, 1995). p127

Kelly, Fergus, A Guide to Early Irish Law (Dublin: Dundalgan Press Ltd, 2001) p40

Peden, Joseph, ‘Property Right in Celtic Irish Law', Journal of Libertarian Studies, Vol.1, No.2, 1977. p 81-95

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