LEGAL HISTORY AND THE HISTORICAL IMAGINATION OF THE IRISH

“Ireland at an early age attained the secret of stability. Her monarchy, established,
according to an ancient Irish tract, when Alexander reigned in Greece, was still flourishing when
the French Plantagenets ruled England, the succession, during the last eight hundred years,
descending almost unbroken in a single great Irish gens”.1

So wrote Benedict Fitzpatrick in his book unfolding the progress of Irish monasticism’s
glorious rescue of civilisation from the greedy maw of the Goths, Franks and Vandals. His work
does not confine itself to eulogising the achievement of “The Island of Saints and Scholars”, but
it also demonstrates a conception of Celtic culture, which stands equal to, if not greater than, its
Hellenic counterpart. Such books are typical of a period of pseudo scholarship or historical
imagination, which began in the late nineteenth century, with the Gaelic literary revival and
exploding in a Tour de Folie after the achievement of Irish Independence. Fitzpatrick depicts a
refined and cultured race, chivalrous in battle and civilised in society, ruled by laws of infinite
wisdom and ancient provenance. In short, he depicts a culture as ideal as a Pagan culture could
be, a culture which subsequently joins forces with Christianity to save Europe from the Dark
Ages. This tendency to idealise the social and legal structure of Early Ireland is also evident in
Joyce’s work, “A Social History of Ancient Ireland”, although his scholarship is of vastly
superior quality, given that he at least chose to
work with the official translation of the Law Tracts which, for all the errors, offers some
evidence of the nature of life of their period, as opposed to being wild fantasy fed on mythical
saga. Arnold Toynbee is also prey to allowing his historical imagination rather outpace what the
facts bear up in his vision of a “far-west Christian civilisation” centred upon Clonmacnoise
rather than Rome, a development which was aborted by the decision at the Synod of Whitby 2

As already suggested, the work of the historical imagination on early Irish history and
early Irish laws in particular, is the progeny of a Romantic perception of Ireland’s glorious past
separate from Britain and also inspired by the need of a nascent Nation State for a cultural
foundation quite apart from her recent “oppressor”. Thus, in the formulation of the legislative
houses of the new State, Irish names for various offices were chosen to hark back to Ireland’s
glorious past. Ironically, the names chosen such as “Dail”, for example, bear no resemblance to
what a ninth Century Jurist would have called an “Oerach” in an assembly of the Tuath. Dail, in
fact, means tryst or meeting, an unfortunate example of the popular misunderstanding of early
Irish law and language of the time! As Binchy points out, no immediate mark may be perceived
of early Gaelic law and culture on contemporary modern Irish culture. Our political and social
structures of today “are based primarily on representative democracy and central administration
after the British model”3, a heritage which certain historians attempted to subvert or deny by
extolling the praises of a superior, more just, uniquely Irish legal system, which in no way
smacked of the rod of the English oppressor.

Some of the most professional scholars have also fallen prey to this temptation, notably
Eoin MacNeill; however, his overall work is of such quality and scholarship that it is not to be
lightly dismissed. MacNeill was one of the foremost scholars in the “Nouvelle Vague” of
celticists and his work of translation, identification of faults within the official collections and
his replacement of previous romantic imaginings with scientific conclusions does him great
credit. However, there is something quite fascinating in some of his conclusions on the nature
and demise of the Gaelic legal order; conclusions which in turn impugn all of his previous
reasoning. MacNeill finds reason for the degeneration of the Irish from a state where they
supposedly held the law in great estimation, to one of lawlessness and amorality in modern times
in the treacherous and abusive way in which the old legal order was subverted by the new, which

1
Ireland and the Foundations of Europe, Fitzpatrick, @1
2
A Study of History II, Toynbee, @322 & 421-33
3
Irish history and Irish law, Binchy, 1976, @ 9
in turn denied them any recourse whatsoever. Even more interesting are the opinions expressed
by MacNeill in his book “Early Irish Laws and Institutions”, published in 1935, in which he
demonstrates his prescience by riling against the nigh deification of the Absolutist State.
Against this he counterpoints his image of early Irish society as seen particularly through the
tracts, whereby bonds are tribal and loyalty is to one’s king or a local political unit called the
Tuath, thus leaving scope, in MacNeill’s eyes, for individuality and freedom. It may be analysed
just how credible these images are in the light of subsequent conceptions of early Irish society.

Aside from these personal divergence’s, MacNeill’s opinions on the importance of the
comprehension of early Irish law tracts to our understanding of all archaic “Indo-European”4
institutions and of ancient Irish History itself. This perceived importance has been echoed by
numerous other early Irish historians, notably Kathleen Hughes. Is this importance another
product of the historical imagination of the Irish or does the relevance and illuminatory content
of early Irish law stand up to scrutiny? Alfred P. Smyth is remarkable in holding that study of
the law tracts and associated literature consisted of mythical indulgence of the historically
irrelevant. Any significance attributed by Hughes to the tracts (and by extension any
significance attributed by her fellow Early Irish historians) Smyth would hold to be imaginative.

Binchy is outstanding in the precise, balanced and reasoned nature of his deliberations
on the relevance of the early Irish tracts. Yet despite the poise and refinement of his intellect, he
is compelled by the nature of the material to conjecture, to suggest, to venture into the realm of
the imagination what exactly the sources are indicating and what the practical reality they
purport to describe. Binchy is very forthright on the erroneous difficulties of interpreting the
texts, whose message, even when the linguistic difficulties are surmounted, may depict a
legalistic schematised artificial order cooked up by generations of closeted jurists. He does not
trot out quite so blithely the apparent structures to be perceived within the texts as Joyce or even
MacNeill does. However, this is not to say that he denies the relevance of early Irish law to the
study of Irish history or Indo-European institutions. He does deny the relevance of Gaelic law to
contemporary Irish society however. Nevertheless the importance he accords native Irish law in
its influences on the early Irish church, for instance, is considerable. Thus Alfred Smyth might
well accuse Binchy along with Hughes and MacNeill of daydreaming at the back of the class.
The weight which Binchy is prepared to accord early Irish law is typified by his speculation on
the common Indo-European origin of “Dharma”, a Hindu method of distraint by fasting and the
parallel “Troscad” in early Irish Society. Despite the meticulousness of his approach and
tremendous mastery of his grip, both linguistic and historical, Binchy has no illusions about the
infallibility of his conclusions. His conviction that the significance of Early Irish laws was no
piece of imagination did not blind him to the possibility that his suggestions might be erroneous
and, as he foresaw, recent study has suggested reasons and conclusions different from his own.
These occur most notably in the adoption of writing by the Law Schools.

It may be useful at this stage to consider what the nature of the study of history is and
what role it plays in human endeavour. History may be perceived as the search to understand
what has gone before, to seek out the factors, internal and external, which orchestrate human
behaviour. It is the study of the human race in contest with the natural elements of its’
environment and ultimately with itself. It studies the various methods which human society has
evolved to regulate life in a more or less hostile world. Although the obvious importance of
facts and dates and other hard data cannot be ignored, a vital step in bringing history closer to its
goal lies in making the imaginative leap (a quantum leap in human terms) to understand the
mental attitudes, relationships and motivations of the human actors within the framework of an
institution scratched on vellum or graven in stone. Imagination might thus be held essential in
any meaningful attempt to mirror the functioning of early Irish of “Indo-European” society in
terms of its human significance. Thus Sagas and epic poems, genealogies, annals and all forms
of literature of the period, quite apart from the actual veracity of the information within, are
important. The language used, the works chosen or even the lies that some writer has seen fit to
tell all illuminate the period being investigated. Suffice something to be recorded, and to survive

4
In Binchy’s sense of the term.
until our times and it provides us with another clue. What shall we use to give us the key to the
clue but imagination? Thus the changing of a word in a later version of a tract may reveal how
language and society is developing, so may impossible qualifications appended in a gloss
indicated the subversion of a previous rule.

I would suggest that a rigid approach to the study of native Irish law as that outlined in
Smyth’s criticism of Hughes’ book is to close one’s eyes to an opportunity to understand a
society potentially fascinating in its difference from ours; operating on tenets of humanity quite
abandoned in these days of central authority. Obviously all conjecture must be qualified and
fantastical propaganda such as that indulged in by earlier generations must be ignored but in a
labyrinth of intertangled clues, as are evidenced in the tracts, imagination may be the only torch
to allow their denouement. Despite the daunting opacity of some tracts, they must not be
dismissed as “rambling discussions in the abstract”, “bordering on the unreal”5 but by dint of
hard work and bounds of imagination, they should be seen in their social and economic context.
As Binchy scathingly remarks in a gibe presumably aimed at Smyth: “The evidence they afford
in social and economic conditions during the seventh century and still earlier is extremely
precious to every historian except one, whose Geschichtsphilosophie could be summarised in the
clerihew “geography is about maps / and history about chaps”.

THE VIRTUAL REALITY OF IRISH LEGAL HISTORIANS

Thus an analysis of the historical imagination of the Irish writers on the law tracts might
be seen to have two prongs. One has pejorative connotations as in where the indulgence of legal
history writers in fantasy reflects a result which goes no further than their imagination. In this
category, we could put the post-independence, romantic propaganda or even (to show that
historical imagination is not a new thing) the invention of the “Pseudo-historical prologue to the
Senchas Mar”6, which attempts, in the fashion of the Spartans with Lycurgus, to give authority
to the law through association with a mythical/saintly figure. To a lesser degree, the extent to
which writings on the early Irish laws and the historical significance accorded to them may be
deemed “imagined” also comes under this prong, as do the conclusions of MacNeill. On the
other hand the historical imagination of the writers, whatever their nationality7, which has
deciphered the tracts, rooted them in human terms or traced links to the origin of Indo-European
society is a dynamic to be pondered and appreciated.

Joyce, in his writing on the Irish Law Tracts, relies entirely on the English translation of
the Ancient Laws of Ireland, published in 1852. In this way, he laid himself open to the wide
range of inconsistencies in the edition and translation of the text, without speaking of the
uncritical and blind inclusion of the Glosses and Commentaries. However, more will be said on
this, particularly in consideration of Binchy’s writings. Joyce’s inaccuracies in his description of
the social institutions of Ireland and the reliance he places on the tracts also run to naiveté and
self-indulgence in the vein of the blind celtophile, who pictured the fair, chivalrous Celts,
terrible in battle but lovers of peace, to be a kind of dreamy ideal - an Eden, whose walls the
Anglo-Saxons were to raze. This naiveté may be seen in his blithe acceptance of the previous
perceptions of ancient Irish family life criticised by MacNeill, who attributed most of the
inspiration of the “Clan” idea from Walter Scott’s novel “Waverly”. MacNeill showed in his
writings that the basis of society, although tribal, was much wider than that of kinship. He takes
various examples, one being Tir Eoghain, which was comprised of various Families, some even
arrivals from Wales, all proving integral parts of the social structure. The same naiveté may be
seen where Joyce accepts the introduction to the tract “Senchas Mar” as authoritative, where the
tract is said to issue from a conference of bishops, secular jurists and St. Patrick, where all the
5
Smyth, A.P, Studiae Hibernica 13, @170
6
The Pseudo Historical Prologue to the Senchas Mar, Binchy, 10-11 Studia Celtica @ 15
7
A host of nationalities have been attracted to the study of early Irish law, some on truer spoor than others.
These writers include many English academics writing on jurisprudence, the French celticists and scholars
of Sanscrit, the German celticists to whom the whole area owes an everlasting debt and various
Scandinavian scholars.
previous laws, the “Bearla Feine” were supposedly pondered and those consistent with
Christianity made definitive. Binchy also cites an author, who, speculating upon St. Patrick’s
role in the redaction of the Senchas Mar, concluded that coming from a Roman background, he
must have been inspired by the recently promulgated Theodosian Code8! Binchy has since quite
conclusively shown the introduction to be a forgery originating seven to eight centuries later9.

Joyce might also be accused of giving perhaps unmerited weight to institutions such as
that of the ritual promise, the geasa, as well as the importance of honour in the functioning of
society. There can be little doubt that these were real aspects of society, however it is perhaps
less than realistic to close one’s eyes to the ubiquitous aphorisms of human behaviour in their
exhaltation. Joyce betrays his sympathies with his description of the ancient Irish and Gaels as a
people most notable for their estimation and love of justice.

On consideration of much of what was written in the period of the Gaelic literary
revival, Eoin MacNeill’s achievement is even more notable. The standard of his scholarship and
the incisiveness of his writings at a time when many were drinking the heady scent of Celtic
individuality sets him apart with Thurneyson and Kuno Meyer as a leading light in scientific
analysis of the Law Tracts. However, MacNeill was a child of his time and not immune to a
period when Ireland sought to distance herself from England and all things English. Some of his
theories have been cast into doubt by subsequent scholars, as do some of his conclusions belong
more to political and historical imagination than to strict scholarship.

MacNeill did not see ancient Irish civilisation as in any way isolated from those of the
rest of Europe, nor did he consider it atavistic. He stresses that because a civilisation exists on
the periphery of a landmass, this is not the same as saying that it is cut off from developments at
the centre, especially given that at the time travel was far easier by sea than overland. For
MacNeill (and indeed for many other writers who followed him) ancient Irish society was a
European institution and a European culture with firm common roots with many other societies
in Europe. He rejected its purported “primitiveness” as adjudged by numerous English writers on
jurisprudence (notably Maine and Vinogradoff), preferring to rather describe elements of Irish
society as “simple”, a quality whose presence MacNeill did not see as contradictory of
“progress”.

MacNeill professes to identify three aspects of ancient Irish society which did not derive
from a Celtic Origin but were rather attributable to the pre-Celtic inhabitants of Ireland. These
were (1)The Freedom of Tradesmen,(2) The Status of Women and (3) Druidism. The Freedom
of Tradesmen MacNeill cites as an example that the ancients supposed evaluation in society on
factors other than birth, as summed up in the old adage “a man is more than his birth”. The
Freedom of Tradesmen is explained by the need of the Celts to attract tradesmen to their
settlement during their conquest of Ireland. The distinct Status of Women in Early Irish Society,
as opposed to conventional Celtic societies or indeed any other, consists largely of the unusual
extent of the woman’s property rights in Irish society. This divergence, MacNeill maintains, is a
result of Pictish influence, the Picts being part of the pre-Celtic inhabitants of Ireland and whose
peculiar customs are supposedly best evidenced in early Scottish society. MacNeill uses the
Tain and Medhb as evidence. The veracity of this theory has been questioned since then by
numerous writers, most notably Binchy who finds no real evidence of the unusually high status
of women in Irish society, but rather that early Irish practices reflected the norm in Norse and
Anglo-Saxon tradition.

Finally with regard to Druidism, MacNeill maintains that this peculiar divergence of
Irish society, whereby Irish druids performed priestly functions was also a survivor of pre-Celtic
institutions. In other Celtic societies the Druids were a separate class of great wisdom,
scholarship and learning, versed in literature, philosophy and law. They reputedly had
supernatural powers that augmented their already considerable temporal powers of influence and

8
Irish history and Irish law, Supra @ 13
9
Supra note 6
decision over the rulers of separate Celtic Kingdoms; however, they did not have any sacerdotal
role. MacNeill’s high estimation of the institution of the Druids is obvious from his detailed
description, drawn principally from the writings of Caesar although also of Tacitus and Greek
writers of the period. He quotes instances of the learning of the Druids, their familiarity with the
philosophy of Pythagorus and their role in the adjudication of disputes both of an internal and
international nature and between the different Celtic institutions. MacNeill sees the Druids as a
bond of union between the various communities and he endorses Caesar’s assertion that the
Druidic cult must have studied “The Theory of Law”. Evidence for this he maintains is to be
found in early Irish law.

The existence amongst the Druids in Gaul of the practice of writing Gaulish in the
Greek alphabet MacNeill also considered very significant 10 as an indication of the extent of the
culture and sophistication of Celtic Society at the time, which society, by logical inference was
largely reflected also in early Irish Society. MacNeill attributes much of the fear of the Irish
jurists of change to be a throwback of the suppression of the Druids by Suetonius in AD 60.
Similarly, he suggests that perhaps the Roman alphabet was eschewed by the Druids and
subsequently the Fili or jurists before the arrival of Christianity for the same reasons and that the
Ogham alphabet was devised as a substitute. MacNeill relies on the tract “The Senchas Mar”
and the role played by the Fili Dubhthach in the redaction of the laws vetted by St Patrick as
evidence of the link between the Druids and the Breithims, it being said elsewhere that the Fili
derived from the Druids. MacNeill quotes the introduction to the same tract: “The judgements
of the True Natural Law which the Holy Spirit had spoken through the mouths of the jurists and
the faithful filidh of Ireland”11.

MacNeill also places much reliance on the “Legend of Cenn Faelad” to explain the
process whereby the ancient Laws of Ireland were reduced to writing. Cenn Faelad was a young
man who, injured in battle, goes to a certain monastery to recover where he also learns Latin and
writing and the native laws of the jurists, which he writes down by night. MacNeill reasons that
the same class of jurists who instruct Cenn Faelad were the essential factor in giving
homogeneity and unity to Ireland in spite of the widespread political divergence resulting from
so many different executives each of which was autonomous in its own right. The unity is
rooted in the “National” nature of the law applied by the jurists - a law which in its’ uniformity
of application, held the country together.

Despite the extremely limited nature of a King’s power over members of his Tuath and
the even more limited nature of the fuidir or superior kings over the ri Tuaithe, they did serve a
very important function in the execution of judgements of the jurists and in instances where
compensation was due. MacNeill explains the complex process whereby a king superior in
status to both protagonists needed to be found to form the band to seize the body or honourprice
incurred. MacNeill’s sympathies are laid bare in his words on the English reaction to the Brehon
Law:
“The wide range of the principles of compensation in Irish Law offended the fine
Legal sense of Ardent Feudalists, who hanged men for petty theft and burned
women on charges of witchcraft”.12
In the same way he denies the primitiveness of Early Irish Society by comparison with its Celtic
equivalent in Caesar’s account of the fate of Orgeteris, Chief of the Helvitii, who died for
purported crime of attempted autocracy: “This narrative is commended to the attention of those
who write or read that the ancient Celts had no conception of the State, no curial procedure, no
distinction between crimes and torts, no penal enforcement of judicial decrees.”13

MacNeill places great store by certain aspects of property in Gaelic society, in

particular “clientship” which he considers especially significant in the structure of a society
10
MacNeill find evidence for this in the bronze “Calendar of Coligny” which is written in Gaulish as is the
“Graffiti of La Gaufesque”. Early Irish Laws and Institutions, MacNeill, @ 77-78.
11
Vol 1 Ancient Irish Laws of Ireland, Introduction to the Senchas Mar.
12
Early Irish Laws and Institutions, MacNeill, @ 114
13
Ibid. @ 117
which he sees as not having the oppressive characteristics of our modern centralised one. He
typifies the system of clientship as one very similar to that of the ancient Roman “Patronus et
Clientus”, particularly in the means by which there existed a relationship of mutual interest
between the Patron and Client where the stress is placed on the protecting function of the Patron
(or “flaith”).
Most importantly, MacNeill points out, the relationship was terminable at the will of either party
which meant that the client could not be described as a bondsman; he preserved his freedom
although in practice, MacNeill says, bonds of loyalty developed between succeeding generations
of families. He speculates on the possible Indo-European origin of this system and concludes
that the same probably existed in Early Germanic society as well He puts the question: “the
inquiry is raised if it were not the root out of which feudalism degenerated?”14.

This question forms an essential part of MacNeill’s contention that native Irish law was
in fact superior to the feudal system. He makes a virulent attack on the romanocentric nature of
the study of history which tended to regard the establishment of a centralised authority which
was large in size and faceless in practice as civilisation and progress and decentralised societies,
such as early Irish society, as primitive and barbaric. He also finds most writers on the
Renaissance guilty of the same adulation of the centralised state in ignorance of the
enthronement of “an artificial culture confined to a privileged few and imbued everywhere with
a spirit of snobbishness and affectation”. He accuses Renaissance ideas, fresh in the minds of
the new conquerors of Ireland, of overthrowing “in Ireland a rich national culture and replacing
it by a pretentious and imitative vulgarity”15. He questions the bases of why individualism
should be regarded as a higher form of civilisation and he maintains that the Pax Romana was
rather the repression and standardisation of a culture which in its personal assimilation of
Hellenic culture had something much more innovative to offer than that of Rome. He states:
“The worship of success, the worship of bigness, the worship of the state - it is in the spirit of
this abasement that the history of the Roman power has been written, and no historian has yet
faced the other side of the picture, the amount of steamrolling of humanity that went to make up
the Pax Romana”16. In the same way MacNeill rejects the contention of previous historians that
Gaelic society fell to feudalism because of its primitiveness. MacNeill rather sees early Irish
society as a superior form of civilisation in the freedom it allowed to its members where each
small political and social unit had its own autonomy however under the rule of a uniform law.

The decay of the old order MacNeill attributes to the extension of the same spirit which
swept through all Europe in the Middle Ages, that of Feudalism. Although Irish Society, thanks
to its uniform system of law delimiting the basic rights of each Tuath and each person inside that
Tuath, managed to hold back the currents of Feudalism which had already claimed the rest of
Europe, MacNeill sees traces appear in the autocratic ambitions of certain higher kings in the
ninth and tenth century. They seek to override the internal autonomy of the Tuath and foist their
kin upon kingdoms within their jurisdiction. The arrival of the Anglo-Normans in the 11th
Century comes as the final wave in a development leading to the extinction of Gaelic culture.

In a fascinating way MacNeill attributes the sequence of treachery by which the Anglo-
Normans establish themselves in Ireland as a vital part in the formation of the Irish national
character today. He recounts a litany of treachery beginning with the falsity of the initial grant
of Pope Adrian IV, based as it was, on the forgery of Constantine, to the illegal grants of
territory by Henry II, his successors and barons. Similarly he gives us the betrayal of a series of
treaties beginning with the Treaty of Windsor as an example of the dishonesty of the English.
He cites Davies’ comments on the nature of the Gaelic Irish previous to “Anglicisation” in
support of how their nature has changed today. Davies wrote:
“There is no nation of people under the sun that doth love equal and indifferent justice better
than the Irish or well rest better satisfied with the execution thereof, although it be against
themselves as they may have protection and benefit of the Law when upon just cause they do

14
Ibid. @ 127
15
Ibid. @ 20
16
Ibid. @ 19
desire it”. It was in the denial to the Irish of the right to seek the succour of the Law, beginning
with the Statutes of Kilkenny, that MacNeill saw the souring of this noble nature in the Irish.
He writes: “Out of the systematic illegalities of Henry and John and the effects on those who
benefited by them, there grew a doctrine and a practice that did violence to human nature and
poisoned for centuries the life of Ireland”.

MacNeill states the superiority of the Irish system of Law over the feudal although he
acknowledges the weakness of the system of succession in comparison to Primogeniture. In
practice Feudal Law might be more effective, although in theory, in the freedom it accords to the
human being and the ignobility of existence it allows in society, MacNeill feels that early Irish
Law must be preferred despite its defects. There is a note of wistful regret at the conclusion of
his “Early Irish laws and institutions” in his assessment of the ill effects of centuries of
disenfranchisement of the Irish from Feudal and Royal law on a once justice loving people.

Huge emphasis has been laid by recent scholars, most notably Binchy, on the difficulties
of the sources. Thurneyson described the Irish legal source as “the picture of a ruin, not to say a
mound of rubble”; how, therefore, might one be justifies in drawing the conclusions which
Kathleen Hughes draws, or MacNeill or even Binchy himself? To what extent can any writings
on the nature of Early Irish society be accepted as significant as opposed to figments of
historical imagination? Is Thurneyson’s evaluation of the tracts as “these Sources which are so
important for the history of civilisation”17 valid? What foundation is there for Binchy’s hope the
Tracts will “shed much light on primitive Western institutions and perhaps even on the
rudiments of Indo-European Law that must surely have evolved before the period of dispersal” 18.
To understand whether such evidence may be deduced from the tracts and is not rather the
figment of overactive optimism on the part of the writers we must assess the difficulties with the
tracts. Above all the other writers, in laying the foundations for further research and for
personal scholarship, Binchy stands on his own.

The only positive knowledge which may be derived from the Tracts, according to
Binchy, is from the details of the original texts of the Tracts as the Glosses and Commentaries
have been shown to be corrupt with fantastic schematisation, legal casuistry and etymological
distortion. However, the ancient text of the tracts does not survive in many cases completely
whole in one document. Frequently pieces of the tract must be scribed together from extracts
given in other manuscripts and sometimes details of the original text are available only in
Glosses and Commentaries, where their language may have been modernised to fifteenth
Century Irish or, worst still, only certain words may have been so modernised. In addition to
this, the early jurists had a system of abbreviations extremely arcane and difficult to decipher, a
difficulty further compounded by the tendencies of later copyists and jurists to expand the
abbreviations out to their full form without actually understanding what they mean. Sometimes
the game of reconstructing an ancient law Text may involve imagining what a 15th Century
Jurist might have imagined a certain abbreviation to mean; recapturing that abbreviation and by
comparison with other abbreviations of the 8th Century then translating it!

Binchy expounds upon the difficulties of studying documents detailing Laws which had
been written 6-7 centuries later by comparison with the Dharma sastras, law texts of a similar
nature, some of which were written up to a 1000 years later. However in the case of the Hindu
text, Binchy points out the scholars recounting the texts were doing so in a dead Classical
language, in this case Classical Sanscrit, whose orthography and structure had already been
fixed by Panini’s grammar. In the case of archaic or early Irish the language had not been so
encased in resin to glitter its fossilised gems at the legal historian. Despite the efforts of the
Irish jurists to preserve the immutability and continuity of the law Tracts they “had no hesitation
in modernising the language of their exemplars”. Thus Binchy was moved to write that “any
attempt to restore the original text must begin by freeing it from the cocoon of scribal
innovations in which it is encased”.

17
Thurneyson, 2 CP XVI 187 @ 1
18
Corpus Iuris Hibernici, ed. Binchy, introduction, XX
 On these grounds Binchy warns any Legal Historian pretending a study of the sources in
an attempt to explore the clues therein to early Irish Society to beware most of all of the English
text of “Ancient Laws of Ireland”. Given the relative ignorance of O’Curry and O’Donovan of
Early Irish and the fact that Zeus’s classical Grammatica Celtica did not appear until the year
after the appearance of the Ancient Laws the translation is not reliable . Binchy also counsels
that the interpretations of the Glossators should be ignored except in the capacity of explaining
away rules already redundant or actually changed. The writings of the Commentators he regards
as even more unreliable except again in a negative manner in the evidence they give of changes
within society, in particular Anglo-Norman penetration. O’Croinin however ascribes greater
importance to the writings of the Glossators and Commentators maintaining that the former will
occasionally quite openly indicate that the law has changed (for example in the Status of
Women) and that evidence of the infiltration of the money economy and feudal concepts abound
in the commentaries. Binchy concludes that the legal historian must primarily concentrate on
the Texts themselves where the value of the tracts extends really only to the nature of society in
the 8th or 9th Century when they were written. However, once again the scholar must beware
once more of two stratae within the texts and the “Mandarin” style in which they were redacted.
The first more ancient stratum comes directly from the oral tradition, the “Senechas” and the
second stratum is typical of the early classical old Irish of the Monastic schools, indicating
development and change even in this early period.

To avoid many errors and to expand the potential for discovery of new evidence Binchy
recommends profound study of Old Irish combined if possible with an understanding of basic
Indo-European languages such as Celtic and a grasp of what he calls historical linguistics in
particular “historical Semantics”. Nevertheless Binchy poses questions as to the accuracy of
what the Tracts reflect. He points out the inconsistency of much in the Tracts with
contemporary annals and literary works. He suggests the reason for this to be the “backward
look” of the early jurists, whose gaze was constantly fixed on a dead past.

Kathleen Hughes, in writing “Early Christian Ireland: an introduction to the sources”

contends that: “ The law tracts provide one of the least explored and most potentially productive
sources of Irish history”19 It was this assertion that Smyth questioned, suggesting that the
potential productivity of the sources and the understanding to be gained was largely mythical.
However Hughes is extremely thorough in her analysis of the sources and her account of the
structure of early Irish society furnished through the laws is indeed detailed and tersely argued;
although she places much reliance on the tracts she seems very aware of their limitations as
outlined by Binchy. Futhermore her analysis embraces sources other than the tracts thanks to her
deep knowledge of the annals, genealogies, lives of saints, poetry and other sources of the time.
Hughes outlines a social structure based primarily on bonds of kinship although within a Tuath
there might be several different kingroups. She gives particularly interesting emphasis to the
gradually weakening importance of the kingroup as the social structure of each Tuath begins to
coalesce around the more “modern” notion of loyalty to the Tuath. Similarly she analyses the
decline of the remedy of sick maintenance where the malfeasor was required to nurse the injured
party back to health for the substitution of a system where compensation was paid purely in the
currency of the time (cattle, grain, or other services). This greater flexibility in legal interaction
is emphasised by also by O’Croinin in his book “Early Medieval Ireland” 20 and Robin Chapman
Stacey in her book “The Road to Judgement”21 in their description how traditional methods of
surety dependent on honour and hostages gradually gave way to the predominance of the
financial surety. Hughes is prudent in her conclusion as to the value of the tracts as sources; she
acknowledges that what is required of the historian in this case is a description of how a society
may function whereas in this case the tracts only tell us how they claimed to function. With this
caveat she advocates that any study of the tracts should be in conjunction with the other sources.

1
19
Early Christian Ireland - an introduction to the sources, Hughes, @ 46
20
Early Medieval Ireland 400-1200, O Croinin, Ch 5
21
The Road to Judgement, Chapman Stacey, introduction.
In my opinion if she is to be accused of feats of imagination then they are feats of an
imagination which every good historian should boast.

It is difficult to go far in any analysis of the scholarship on the early Irish laws without
coming back to Binchy. He has proven to be the most consistent and concise debunker of flighty
imaginings whilst delivering himself solidly argued hypotheses on the import of the law tracts.
He rejects MacNeill’s claim of the uniform nature of the law tracts stating: “The uniformity
postulated in the Irish tracts was doubtless as fictitious as the universal validity claimed for
some of the Hindu law books”. Binchy cites as evidence to the contrary the divergence between
contemporaneous tracts; differences which could not be glossed over, rooted as they were in the
local differences of tribal custom. Similarly he reiterates his belief in the primitive nature of
ancient Irish society, untouched as it has been by Roman influences. This however, to contradict
MacNeill afforded the tracts even greater worth. The influence of the preCelts he also rejected as
a meaningful contributor to the formation of early Irish society, maintaining rather that
conquerors bring their own law with them. He felt that the effect of christianisation on early
Irish society had largely been exaggerated through glosses and commentaries by jurists far more
christianised than the original writers. He finds (with O’Croinin) that the Christianity reaching
Ireland had been considerably weakened in comparison with the strict principles taught by
Rome, in particular the ecclesiastical technique of consolidating Christianity through the
romanisation of secular institutions. Thus Binchy explains some of the large scale pagan
divergences in Family Law and other areas.

Binchy cautions at all times against too naive a belief in the tracts. He gives constant
warnings of the casuistry of the later jurists, who were prepared to distort the meaning of the
tracts they were commenting or glossing in any way to maintain the fiction of the immutability
of the law without speaking of the obscure schematisations, changes in morphology and absurd
extrapolations of St Isidore’s etymological technique of glossing. O’Croinin painted the picture
neatly in the words “These early Irish lawyers, described sometimes as a “mandarin caste” have
been frequently portrayed as a group of warped minds, gnawing on the bones of discarded
learning.”

Binchy also has severe doubts as to what extent the laws described within the actual
texts could be said to be the “Moss Maiorum” of the people. He points out that they are the
progeny of an exclusive , privileged, professional class sheltered from the real jurisprudential
necessities demanded of their law and who had an interest in the perpetuation of the existing
order despite the changing the social imperatives. Binchy also suggests “that the tracts may only
be treated as a superstructure on a much larger base of custom” 22 Indeed there is evidence to
suggest that the “Cumlechta Feine”; the customary law of the Tuath which was very
occasionally changed by regulations called “nos” formulated and voted on in an assembly, was
not considered worthy of attention by the jurists! Nevertheless, Binchy continues to believe in
the importance of the texts for an impressionistic rather than a photographic picture of the
ancient structures of Celtic society. It is the belief in this importance that must have led Binchy
on his own imaginative speculation, jumping the gap between emaciated Gaelic saints and
Hindu Brahmans at the doors of secular kings to reach his own conclusions on the fundamental
origins of Indo-European society.23

Edmund Sweetman.

22
The Linguistic and Historical Value of the Irish Law Tracts, supra.
23
Ibid.
 Bibliography

The Road to Judgement - From Custom to Court in Medieval Ireland and Wales, Robin
Chapman Stacey (1994, Pennsylvania).

Early Irish Laws and Institutions, Eoin MacNeill (1935, Dublin).

A Smaller Social History of Ancient Ireland, P.W. Joyce (1906, Dublin).

Early Christian Ireland - an introduction to the sources, Kathleen Hughes (1977, Cambridge).

Corpus Iuris Hibernici - introduction, D.A. Binchy (1978, Dublin).

The Linguistic and Historical Value of the Law Tracts, D.A. Binchy, 29 Proceedings of the
British Academy 195.

Irish History and Irish Law, D.A. Binchy, (1975) 15 Studia Hibernica 7, (1976) 16 Studia
Hibernica 7.

Review of “Early Christian Ireland” Kathleen Hughes, A.P Smyth, (1973) 13 Studia Hibernica
170.

Early Medieval Ireland 400-1200, Daibhi O Croinin (1995, London).

A Guide to Early Irish Law, Fergus Kelly (1988, Dublin)

Ireland and the Foundations of Europe, Benedict Fitzpatrick (1927, New York).

Ireland and the Making of Britain, Benedict Fitzpatrick (1922, New York).