Imagine a system of law very different from our own, that lasted for well over 1,000 years, and under which there were no prisons and virtually no executions. I’ve learned about the Brehon law by reading well-researched historical fiction, an engaging way to learn about the past. Instead of memorizing dates, you get a feeling of what it might have been like to live in some other century. You identify with the emotions of characters who have very different lives and points of view, but recognizable human personalities and problems.
Stories in the new and growing genre of ‘history-mysteries’ have the added fillip of suspense and a mental puzzle. I follow two such series of mystery novels about women who functioned as detective, lawyer, and sometimes judge under the Brehon Law in 7th century and 16th century Ireland. http://www.courts.ie/Courts.ie/Library3.nsf/pagecurrent/62421128B249FE9480257FC3005C7C67?opendocument
The Brehon Law was based on community relationships and restoring the social balance. It was more of a tradition than a codified system based on past cases, and more like modern civil law (torts and contracts) than criminal law. It was about restitution rather than retribution.
Although medieval Ireland was dramatically different from modern America, this old tradition might still have something to teach us today, when the United States has the highest rates of incarceration in the world. When many poor people convicted of minor crimes are forced into a form of debt slavery. https://www.theatlantic.com/national/archive/2015/02/locked-up-for-being-poor/386069/ And when this country is one of six nations that carry out 95% of all executions, and the others are China, Iran, Saudi Arabia, Pakistan and Iraq.
First, the Sister Fidelma mysteries, set in the 7th century, which have an international following: http://www.sisterfidelma.com/society.html . These are authored by Peter Tremayne (pseudonym for Peter Berresford Ellis) who besides being a prolific writer is a historian who specializes in the Celtic past.
Sister Fidelma—a religieuse who renounces her vows in the course of the series—is a dalaigh or advocate in the courts of the Five Kingdoms of ancient Ireland. Both men and women may take the training required to become a dalaigh, a combination of lawyer and detective, or, in some cases, a Brehon (judge). Ireland at the time was a center of learning, and scholars came from Britain and the Continent to study in Irish schools associated with monasteries, prototypes of today’s universities.
Fidelma is a strong-minded woman, sister of the King of Munster, and she lives in a society that allowed women many rights and opportunities compared to the rest of Europe. In most of the stories she is accompanied by her colleague and eventual husband, the Saxon monk Aedulf. These are murder mysteries, but their complex plots relate to the social, political, and religious conflicts of the time. Ireland has been Christianized for only two centuries, and some people still hold to the Old Religion. Meanwhile, the Church in Rome is trying to bring its far-flung subsidiary churches to heel—which sometimes causes conflict with local customs. Priestly celibacy is one such idea coming from Rome and resisted by the Irish Church.
Here is how they handled criminal offenses. Early Irish society, based on clans, was very status-conscious. For legal purposes every individual had an ‘honor price’ based on earning power and the respect due to their position. The highest honor price attached to king, bishop, and the highest grade of poets. If an individual harmed or killed another, the perpetrator and his kin owed the victim or his family the appropriate honor price. This compensation might be expressed as a certain amount of silver, or a certain number of cows. Compensatory law occurred in several early societies, and instances may be found in the Bible.
The second series about the Brehon law, by Cora Harrison, takes place almost nine centuries later, in the early 16th century. Mara, a Brehon or investigating magistrate, also runs a law school with eight or so students from ages eight to 18 who are learning to be lawyers or judges. Most, but not all of them are boys. In the course of the series Mara marries King Turlough Donn, of the Burren with its four main clans. She bears his child but continues her judging and teaching.
Most chapters in Harrison’s novels begin with a selection from the Brehon laws, which sometimes sound very strange to modern ears, but sometimes seem amazingly progressive, especially compared with the English law of the time. In Laws in Conflict, the eighth Burren mystery, Mara takes a trip to Galway, a city state with a royal charter granted by Richard III, which is ruled by English laws. Mara discovers that a mentally ill man from the Burren, who knows no English, has been sentenced to death for stealing a meat pie in Galway, so she and her students set out to save him.
For a number of centuries under English law those who committed felonies, even children of nine or ten, were punishable by death. By contrast, under Brehon law, insane persons are not liable for their crimes, neither are children. In another century or two, the English law would prevail, as the English were convinced their system with its bloody punishments was far superior and more moral. In Blackstone’s famous Commentaries on the Laws of England (1765) he notes: “And yet, even in the reign of Queen Elizabeth, the wild natives still kept and preserved their Brehon law.”
I believe the modern movement toward restorative justice captures the spirit if not the details of the Brehon law. Restorative justice is a theory of justice that focuses on repairing the harm to victims of criminal behavior. It usually involves a mediation between the victim and the offender, and often includes representatives of the wider community. ‘Circle Justice’ is a Native American version of this concept. Restorative justice can be transformational for all concerned. http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/#sthash.XVewNJqM.dpbs
It helps to realize that our system of justice with its emphasis on punishment is not the only possibility out there.
Brehon Law, Burren Mysteries