The Celtic legal tradition, surveyed in the Celtic law and the Brehon tradition cluster within the wider Celtic society, law, and governance framework, never took the form of a single imperial code such as the Corpus Iuris Civilis of Justinian. The Welsh, Irish, and Breton lawyers compiled, glossed, and commented on their customary law for centuries, but they never produced a definitive text that could be imposed on the whole Celtic-speaking world. The reasons lie in the structure of Celtic society, in the nature of the Celtic legal profession, and in the relationship between the Celtic world and the Roman world.
The Absence of a Centralising State
The most basic reason is the absence of the political authority that could have issued one. The Roman Empire, when Justinian’s commissioners were compiling the Corpus Iuris Civilis, was a state with a bureaucracy, a salaried official class, and a monopoly of legitimate force that reached from the borders of Persia to the Atlantic. The Celtic world, by contrast, was politically fragmented. The Celtic tribal organization of the early medieval period was based on the small tuath of Ireland, the cantref of Wales, and the Breton plou, each with its own chief, its own assembly, and its own sense of identity. There was no imperial authority that could have imposed a single code on all of them.
The political fragmentation shaped the legal tradition itself. The Brehon law of Ireland developed as the law of a hundred or so small kingdoms, each with its own rí and its own assembly, and the law texts are emphatic that the law of one tuath was not necessarily the law of another. The Senchas Már and the other law texts are presented as the law of the Féni or free Irish, but the texts are also full of references to local variations, and the later glosses are at pains to record the differences between one province and another. The Welsh Cyfraith Hywel had a similar problem: the law texts of the thirteenth and fourteenth centuries record variants from different parts of Wales, and the compilers of the great legal manuscripts do not try to eliminate the variants.
The Kin Group and the Decentralised Polity
The Celtic legal tradition was also the law of the kin group. The fines or kin was the basic unit of Celtic society, and the law treated the kin as a legal person with rights and duties of its own. The kin was responsible for the payment of the éraic for one of its members who had been killed, and the kin was entitled to receive the éraic paid for one of its members who had been killed by another. The kin had a right to share in the inheritance of a deceased member, and the kin had a duty to support those of its members who could not support themselves. The whole structure of liability was based on the kin rather than on the individual.
The kin-based structure has no real parallel in the Roman law from which the Corpus Iuris Civilis descends. The Roman law treated the individual as the basic legal person, and the Roman institution of the peculium castrense, the family fortune administered by the paterfamilias, was a device for managing the property of a household rather than for distributing liability among a kin group. The Celtic kin-based structure made the code form inappropriate: a code that listed the rights and duties of the individual would have been useless in a society in which the basic legal person was the kin.
Case Law and the Living Memory of the Brehon
The Celtic legal tradition was administered by a class of professional jurists, the brithemain of Ireland, the brawdwr of medieval Wales, and the corresponding figures in the other Celtic regions. The Brehon was a learned specialist who had undergone a long training in the law, who was familiar with the texts and the case law, and who was capable of delivering judgments on the most difficult cases. The Brehon did not work from a single code but from a body of texts and a body of case law, and the case law was, more important than the texts. The Brehon could adapt the older rules to new circumstances, and the adaptation was itself a part of the law.
This emphasis on case law striking differences between the Celtic legal tradition and the Roman legal tradition of the later empire. The Roman law of the classical period was also administered by professional jurists, and the Roman jurists also developed the law through case law and through the writing of legal opinions. The Roman law, however, was also a written law, and the emperor had the power to issue legislation that was binding on the whole empire. The Brehon, by contrast, had no such power behind him. The Brehon could deliver a judgment on a particular case, and the judgment would be recorded as a precedent, but the Brehon could not issue a new law that would bind the whole of Ireland. The result was a tradition of case law that grew organically over centuries, and a code would have been a kind of amputation of the living tradition.
Roman Law and the Survival of the Customary Form
The Celtic world was in contact with the Roman world from the late Iron Age onwards, and the continental Celts in particular were in close contact with the Roman legal tradition through the civitas system. The Welsh and Irish were less directly affected, but the early Christian church brought the Roman legal tradition into the Celtic-speaking regions through the church courts and through the cána or church legislation. The result was a degree of cross-fertilisation, and the Brehon law shows traces of Roman law in contract, procedure, and evidence.
The cross-fertilisation, however, was limited. The Celtic legal tradition preserved its own distinctive features, and the adoption of Roman law was selective and partial. The Cáin Lánamna and the other marriage tracts of the Senchas Már are recognisably Celtic, and the rules of kin-based liability are not Roman. The honor price system, the athgábail, the troscad, the leth cuing — all are distinctively Celtic, and none has a direct parallel in the Roman legal tradition. The Celtic lawyers, in other words, knew about Roman law, but they did not want to be Roman lawyers, and they did not want to abandon their own tradition in favour of the Roman one. The Welsh Cyfraith Hywel was attributed to a tenth-century king, Hywel Dda, and the Welsh lawyers of the thirteenth and fourteenth centuries defended the tradition against the encroachment of the English common law on grounds of national identity.
The Celtic legal tradition, survived as a customary law, and the customary form is one of the reasons why the law was never codified. Customary law is, by its nature, a law that grows over time, that is adapted to local circumstances, and that is administered by specialists who know the tradition. A code, by contrast, is a fixed text, and a fixed text is, by its nature, a law that is imposed from above and that is the same for everyone. The Celtic legal tradition, with its emphasis on the case law of the brithemain, with its local variations, with its kin-based liability, and with its professional jurists who served the small kingdoms of the Celtic world, was a customary law in the fullest sense, and the customary form was the form that the Celtic lawyers preferred. The legacy of the Celtic civilization today includes a legal tradition that is still studied as a model of a customary law that never became a code.
Related Topics
- The Celtic law and the Brehon tradition cluster surveys the major principles of the Celtic legal tradition.
- The Celtic tribal organization cluster describes the decentralised polities within which the customary law operated.
- The history of the Celtic civilization pillar traces the long history of the Celtic world from the Iron Age to the early medieval period.
- The Celtic legacy today pillar examines the modern reception of the Celtic legal tradition.
- The Celtic religion, mythology, and spirituality pillar describes the religious institutions, including the Druids, that administered customary law.