property to disclose any hidden defects they knew
about, and it gave both parties until sunset to back out
of the contract. Contracts were generally unenforce-
able if made while drunk, or by people without full
legal capacity.
The law of marriage is set out in a text called Cáin
Lánamna(The Law of Close Relationships). The nor-
mal form of marriage was one between social equals
following the betrothal of the woman by her kin in
exchange for the payment of a bride-price. Wealthy men
might also have a secondary wife, usually one from a
lower class. Cáin Lánamna also gives details of a range
of more-casual sexual relationships, including those
where a man merely visits a mistress on a regular basis.
Divorce was readily available.
The Authors of the Law Texts
The compilers who produced the Senchas Már claimed
that its texts had been produced in the fifth century.
Those texts were supposedly written by a legendary
sage (Dubthach moccu Lugair), working under the
supervision of St. Patrick. This story is now recognized
as a typically anachronistic piece of medieval propa-
ganda. Linguistic analysis has shown that the Senchas
Mártexts were originally composed between 650
and 750C.E. On the other hand, it is quite likely that
they were produced by eminent clerics working with
members of the traditional learned classes (or indeed
by clerics who had themselves been trained in Brehon
law). We know, for instance, that some other law texts
were the results of collaborative efforts by clerics,
poets, and trained lawyers. This is true, for example,
ofBretha Nemed toísech (the first collection of the
Judgments of Privileged Persons), which was com-
posed between 721 and 742 C.E. It is also most likely
true in the case of Cáin Fhuithirbe (The Law of
Fuithirbe), composed circa 680 C.E.
The important role played by the church in record-
ing Brehon law has only been recognized relatively
recently. For much of the twentieth century it was
believed that the law texts were produced in traditional
law schools. It was assumed that these schools had,
somewhat reluctantly, adopted writing from the monks
and had finally made written records of texts that had
existed for some time as oral compositions. This view
stressed the supposedly “archaic” nature of the texts,
and valued them chiefly as repositories for long-obsolete
elements of Indo-European law. The legal endorsement
of polygamy was seen as evidence that they were not
produced by monasteries.
However, by the seventh century the church had
good reason to compile an authoritative account of
secular law. It had managed to secure for itself a prom-
inent place in the status-based hierarchy of Irish soci-
ety, as well as significant property rights. The Church
also had the appropriate facilities, in the form of scrip-
toria, as well as the necessary financial resources for
the job. The role of the church in recording Brehon
law was not, however, a legislative one; the church was
not “creating” law in a vacuum. The law that was
recorded was that of the existing secular society, and
it shows all the hallmarks of a long development. So
it is that the Brehon law tracts provide for murder to
be “bought off” by the payment of an éricfine and
sanction polygamy, despite the fact that these were
institutions that the church considered to be less than
ideal.
The church did, indeed, attempt to modify the
Brehon law by legislation. But it did this primarily
by harnessing the emergency power of the kings to
make temporary laws. The church promulgated a
number of special edicts which were guaranteed by
local kings. These edicts include Cáin Domnaig
(which introduced fines for breach of Sunday obser-
vance) and Cáin Adomnáin(the Law of Adomnán), also
known as the Lex Innocentum(Law of the Innocents).
Cáin Adomnáinhas the rather undeserved reputation
of introducing laws to protect women. In fact, it intro-
duced a new layer of fines in the case of preexisting
offences. These new fines went to the church rather
than to the victim. Most, and probably all, of these
promulgated church laws were concerned primarily
with collecting revenue for the church. Very few of
them survive. Only the two mentioned here are intact,
and there is no copy of either among the Brehon law
manuscripts. They were, however, well known to the
lawyers and are referred to quite often in the Brehon
law commentaries.
The Brehon law-texts also show the influence of
the Irish poets, with many texts containing sections
of highly alliterative prose and a good number con-
taining significant portions of poetry. This poetic
aspect was, until recently, considered to be good evi-
dence for the “oral origin” of many of the law texts.
But what it shows rather is that the texts are the
polished product of a concerted effort by members
of the learned elite.
This elite class produced authoritative law texts
covering every area of law in the seventh and eighth
centuries. Only one or two new texts were produced
in the centuries that followed. The texts were func-
tional works, used for studying the law and, no doubt,
in preparing litigation. Many of the texts were later
provided with an apparatus of learned glosses, which
explain the terms of the main text. Lengthy “com-
mentaries” on similar topics were also added as theBREHON LAW