Brehon Law

Copyright (c) 1998 by Nick Szabo
permission to redistribute without alteration hereby granted

The Brehon law of Ireland lasted from pre-Roman times until the 1600's. Our primary interest is in the relatively isolated era preceeding the Viking invasions.

The Brehons were travelling judges and lawyers who had undergone extensive training. Like ancient Germanic law, a tort-like system of fines replaced criminal law, and the entire legal system was, relative to continental and modern legal systems, decentralized and competitive both in terms of both adjudication and enforcement. "Kings" were often more powerful than other persons both in their ability to hire Brehons and their ability to enforce Brehon edicts (or defy them). The law also recognized different classes of law based on property ownership -- the most commonly applied class of law being the "Fenechas", the law of the free tillers. However, the system did not have a legislative nor executive branch. The system was very much intermingled with sacred ritual.

I will briefly discuss some interesting aspects of the commercial law. Contracts ("cor") were based on "mutual understanding, mutual agreement, mutual consent, and surety given". Mutual agreement required "nothing malicious coercion". Surety came in three forms:

(1) Naidn: Oath pledging one's honor (reputation)
(2) Aitire: Oath pledging one's freedom
(3) Rath: Surety given by a third party of types (1) or (2)
Presumably most monetary damages were based on an underlying type (2) pledge, the potential to lose one's personal freedom (i.e. exposure to legal physical force), although "face" in one's tauth (extended family to four generations) plaid such a large role that it probably also incentivized obeying a fine.

For Aitire a particular third party, with a good reputation as an enforcer, was agreed to by the principles. Rather than being assumed any time significant mutual business promises were made (as in English and Continental law), the ability to invoke physical enforcement was an optional part of the contract and had to be an explicit part of the agreement to have force of law. This may have greatly reduced invocation of and dependence on physical force to incentivize remedy, which may be more efficient in a decentralized and competitive law system.

I also found a wonderful bankruptcy procedure. The idea of a "withe-tie" corresponds loosely to my idea of a "smart lien". The "withe-tie" is some kind of visible band tied around the debtors' tools. Also "if a Bard or physician is the debtor immobilize his horse whip for both ride their circuits". Since this is largely symbolic, the debtor is on honor to not remove the withe-tie, and thus to do no work, until the debt is paid.

In my version, taking advantage of computer controlled machinery (most capital equipment now takes this form), a "smart withe-tie" could literally shut down the machinery. However, I find the law as described too harsh. I would let the debtor operate the machinery. My protocol would rather enforce that any revenues gained via the activity should go to the creditor first; if any revenues beyond the most essential costs are instead retained by the debtor then the machinery is turned off. In my interpretation a withe-tie would not have shut down the tool but rather indicated that the tool was dedicated to the sole purpose of paying off the creditor.

My hi-tech "withe-tie" is something of a departure from my discussion of Brehon law proper, but you can see why I have found the Brehon law system to be a valuable source for constructing the law of the coming digital millenium.

My thanks to Eileen O'Connor, J.D. for introducing me to this wonderful resource.

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