Children of the Fíne and Children of the Family: Reformulating Children's Best Interests and Social Parenting in the Spirit of the Brehon Laws

Date01 January 2010
Children of the Fíne and Children of
the Family: Reformulating Children’s
Best Interests and Social Parenting in
the Spirit of the Brehon Laws1
Ireland boasts an extremely rich native legal heritage, in widespread use
prior to the seventeenth century and which was separate and distinct from
the common law. This ancient legal system is commonly referred to as the
Brehon laws. Widespread knowledge of the existence, and particularly the
thrust, of this distinct legal heritage has, until relatively recently, been quite
sparse. The subject has tended not to be taught in most mainstream law
degrees within Ireland and usually only makes an appearance in post -
graduate modules, for example, on legal history. This neglect belies the
reality, however, that the Brehon system was a sophisticated, well developed
and pragmatic legal regime. It was obviously tailored to the specific society
which existed in Early Ireland but, nevertheless, it cannot be summarily
dismissed as a dead tradition which can give no guidance in contemporary
debates on legal reform in specific areas. To the contrary, the spectacular
intricacy of the Brehon legal system illustrates that it addressed, in often
minute detail, legal obligations of individuals toward each other and the
nebulous state. Accordingly, this native legal system was considered a
candidate for utilisation or partial re-enactment by intelligentsia during the
Irish War of Independence.3It has even cropped up for consideration within
the case law stretching from the 1930s to the early years of this century.4
Consequently, it is clear that this ancient heritage may have something to
offer and has not been entirely extirpated from the judicial psyche.
1This paper has been partly derive d from an unpubli shed Masters thesis, Trinity
College Dublin (2008). Many thanks to Dr Eoin O’Dell, Trinity College Dublin, and
Professor Fergus Kell y, Dublin Institute for Advanced Studies, for their guidance in
relation to the original thesis.
2BA, LLM (Dub); Academic Researcher, Dublin C ity University & Trinity College
Dublin. T he views express ed herein are the author’s alone and do not necessarily
represent the views of any particular organisation.
3Casey, “Republican Courts in Ireland 1919–1922”, (1970) Irish Jurist 329.
4See, eg, R (Moore) & Ors vAttorney General for Saorstát Éireann & Ors[1934] IR 44;
Lobe & Orsv Minister for Justice, Equality and Law Reform & Ors [2003] IESC 3.
7&8 HJ2010:Layout 1 27/05/2010 17:05 Page 155
The Brehon laws were especially clear as to the legal worth of children,
child protection and also on the nature and role of the ancient Irish family
structure. Debates are currently raging on the extent to which children are
satisfactorily protected within the current Irish legal framework and how
this interplays with the constitutional construction of the Family. While it
cannot be credibly suggested that the exact provisions of the Brehon laws
regarding the Family be re-enacted into contemporary Irish law, some of the
provisions of the Brehon laws on this subject are highly instructive and
could be well worth utilising as intellectual and analytical tools within the
debates on law reform in these areas. Consequently, that is precisely what
this paper will seek to do.
In the first instance, an outline of the main aspects of the Brehon legal
system will be provided in order to conceptualise the discussion on children
and concepts of the Family under the ancient laws. Following this, there will
be a specific analysis of the stipulations which have been identified within
the Brehon legal texts relating to children, the legal construction of the
ancient Irish family and the proliferation of third party parenting. A
discussion on the contemporary law relating to children, their limited rights
within the biological marital family and judicial attitudes toward third party
parenting will then be presented. Following this, recent proposals for reform
in these areas will be discussed in conjunction with a potential comple -
mentary hybrid approach derived from the spirit of the Brehon laws. An
attempt to draw conclusions will follow.
Ancient Irish Brehon Laws
The Brehon laws derive from a broadly Celtic tradition and thus may trace
their roots as far back as the third century colonisation of Ireland by Celts
derived from a common Indo European origin.5The laws utilised by the
Celts have become known colloquially, in anglicised terms, as the Brehon
laws, but often referred to amongst Celtic scholars as Feineachus (Laws of
the Freemen). They formed part of a wider customary legal tradition which
proliferated, initially, across the British Isles and in Continental Europe. The
laws are thus seen to share many affinities with early Anglo-Saxon,6Welsh,7
Scots and Germanic law, in particular. The Brehon laws are, however,
simultaneously similar and distinct from these other systems. They are distinct
in the sense that they are, “the oldest, most original, and most extensive of
5MacNéill, Early I rish Laws and Institutions (Burns , Oates & Washbourne, Dublin
1935) 59–60.
6See, generally, McLeod, “Parallel and Paradox – Compensation in the Legal Systems
of Celtic Ireland and Anglo-Saxon England” (1983) 16 Studia Celtica 25.
7See, generally, MacNéill, “Ireland and Wales in the History of Jurisprudence” (1927)
(Pt 1) 16 Studies 245; MacNéill, “Ireland and Wales in the History of Jurisprudence”
(1927) (Pt 2) 16 Studies 605.
7&8 HJ2010:Layout 1 27/05/2010 17:05 Page 156
medieval European legal systems. It is a unique legal inheritance …”8
Aspects of this unique legal inheritance will now be surveyed.
Origins of Knowledge: The Law Texts
The bulk of what is known about the substantive content of the Brehon
laws derives from information contained in the remnants of the ancient Irish
law tracts. These texts cannot, however, be regarded as the final word on
the native laws because before their committal to writing they had
previously been a thoroughly pragmatic oral code passed down from time
immemorial by a class of professional jurists.9The texts do however capture
much of the intricacies of the laws. Approximately eighty law texts survive,
some in an extremely fragmentary state.10 The texts that do survive are not
originals and are datable to between the fourteenth and sixteenth centuries,11
although, on linguistic grounds, the material within them ultimately derives
from texts originally written roughly between the seventh and tenth
centuries. These were then copied time and time again by later jurists within
law schools or monasteries under the control of particular juristic12 or
ecclesiastic dynasties. The transcription of the material across the ages
ensured that scribal errors crept into the translation as later jurists struggled
to comprehend archaic legal terms composed in secretive language.13 The
later scribes also attempted to gloss and comment on the contents of the
materials, viewed as interpretatively helpful in some instances,14 but also
ludicrously elaborate and erroneous in regard to some of the material.15 The
8Ó Corráin, C ELT: Corpus of Electronic Texts http://ua_tuathal.t
testdefault.html, accessed on 2 November 2009.
9Charles-Edwards , “Early Irish Law”, in Ó Cronín (ed) A New History of Irel and:
Prehistoric and Early Ireland (Oxford University Press, Oxford 2005) 331.
10 Kelly, “Texts and Transmission s: The Law Texts” in N í Chatháin & Richte r (eds)
Ireland and Europe in the Early Middle Ages: Texts and Transmissions (Four Courts
Press, Dublin 2002) 230.
11 Kelly, “Early Irish Law: The Present State of Research” (1992) 29 Études Celtiques
15, p 16.
12 Most notably, perhaps, the MacEgan and MacClancy juristic dynasties; Nicholls, Gaelic
and Gaelicised Ireland in the Middle Ages(Gill & MacMillan, Dublin 1972) 47.
13 See, generally, Binchy, “The Linguistic and Historical Value of the Irish Law Tracts”
(1943) 29 Proceedings of the British Academy 295.
14 See, gene rally, Simms, “The Contents of Later Commenta ries on the Brehon Law
Tracts” (1998) 49 Ériu 23.
15 Binchy and MacNéill have tended to take a dim view of these glosses and commentaries,
describing the later glossators , inva riably, as “pseudo-antiquarians” who were
attempting, in some instan ces, to engage in elaborate interpretations of the original
material i n order to shi eld the fact t hat the substantiv e content of m uch of it had
become obsolet e by their own time. See, e.g, MacNéill, supra note 3, pp 147–148;
Binchy, “Irish Histor y and Irish Law (Pt 1 )” (1975) 15 Studia Hib ernica 15, p 21;
Binchy, “Irish History and Irish Law (Pt 2)” (1976) 16 Studia Hibernica 7, pp 32–33.
Children’s Best Interests and Social Parenting in the Brehon Laws 157
7&8 HJ2010:Layout 1 27/05/2010 17:05 Page 157

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT