The early Irish law tract Fidbretha ‘Tree-judgments’

Reviewed by: Constructing Gender in Medieval Irelanded. by Sarah Sheehan and Ann Dooley Charlene M. Eska sarah sheehanand ann dooley, eds., Constructing Gender in Medieval Ireland. The New Middle Ages. New York: Palgrave Macmillan, 2013. Pp. xv, 219. isbn: 978–0–230–11525–5. $90. In this collection of essays, part of Palgrave Macmillan’s The New Middle Agesseries, the editors aim ‘to address an omission in the existing criticism of gender and medieval texts’ (1), specifically in relation to medieval Ireland, making the observation that ‘medieval Irish studies have benefited little from the deployment of critical methods and perspectives such as poststructuralist analysis, postcolonial theory, and gender studies’ (1). While their observation is, indeed, true, the uneven quality of the essays detracts from the success of their endeavor. The volume contains an introduction by the editors, nine essays (each more or less taking a different critical approach to early Irish literary, legal, and religious texts), a bibliography, notes on the contributors, and an index. The index, despite typographical errors, is very useful in helping the reader navigate through themes and texts which are often mentioned in more than one essay. As such, it goes a long way towards making the volume feel much more cohesive, although it could have been more substantial in terms of length and detail. The first two essays, ‘Travelers and Settled Folk: Women, Honor, and Shame in Medieval Ireland’ by Máirín Ní Dhonnchadha and Catherine Swift’s ‘Sex in the Civitas: Early Irish Intellectuals and Their Vision of Women,’ both deal with [End Page 178]the construction of gender roles and use early Irish legal material as sources. Both, however, also have a very dated feel. Even if neither scholar agrees with recent scholarship on the topic of women in medieval Ireland, each does need at least to engage said scholarship. For example, Ní Dhonnchadha’s analysis of material relating to marriage contracts with various classes of women found in the law tract Recholl Breth(31) would have benefited from the discussion of the same material to be found in Keltische Forschungen3 (2008): 33–43. Ní Dhonnchadha and Swift both reference the law tract Gúbretha Caratniad[The False Judgments of Caratnia], but neither cites Rudolf Thurneysen’s edition in the Zeitschrift fü r celtische Philologie15 (1925): 302–370; Swift does mention (45 n. 27) Liam Breatnach’s unpublished edition of the text, but this does not help the reader unfamiliar with early Irish legal sources. Of note is that the legal text in question is spelled variously as ‘ Gúbretha Carat Niad[The false judgments of Carat Nia]’ by Ní Dhonnchadha (28) and in the index, and as ‘ Gúbretha Caratniad[The false verdicts of Caratnias]’ by Swift (45). The next three essays are concerned with early literary texts. Joanne Findon’s ‘Looking for “Mr. Right” in Tochmarc Becfhola’ uses speech act theory and performativity to analyze the use of Becfhola’s speech as she creates and reshapes her own world, arguing that Becfhola has much more agency than previously thought (59). Taking a similar approach to performativity and gender, Amy C. Mulligan’s ‘Playing for Power: Macha Mongrúad’s Sovereign Performance’ builds on the author’s previous scholarship on female sovereignty figures and argues that Macha Mongrúad should be viewed more as a sovereign figure despite her gender rather than as a sovereign goddess figure (80). In one of the stronger essays in the volume, Sarah Sheehan’s ‘Feast for the Eyes: Visuality and Desire in the Ulster Cycle’ analyzes the descriptions of beautiful men in the Ulster Cycle from the perspective of the visual arts and the theory of the gaze. Sheehan argues that the men are depicted as objects to be gazed upon and physically desired, not only female characters (95). It is refreshing to find in a collection of essays dealing with gender an essay that concerns itself with the male characters found in the literary texts, a topic often ignored in gender scholarship of early Irish literature. The sixth essay, Judith L. Bishop’s ‘They Kept Their Skirts On: Gender-Bending Motifs in Early Irish Hagiography,’ begins by noting that...

The Rhetorical Arts in Late Antique and Early Medieval Ireland, by Brian James Stone

Gender & History the thought of the Anglo-Saxon monastic theorist Aldhelm (c.639-709), for example, religious men and women partook, in Emma Pettit's words, of a 'shared invisible spiritual identity heavily indebted to masculinity'. Monks and nuns alike were enjoined to contend 'manfully ' (viriliter) in the battle against vices. The visible dimensions of religious life, however, from dress to demeanour, retained clear gender distinctions, and for Aldhelm the transition to religious life entailed a more dramatic break for men than for women. Elsewhere, hagiographers drew on different models of sanctity in characterising the transition to female religious life, from the transcending of gender through virile asceticism to the transformation of gender through spiritualised motherhood. Often, as Simon Coates has shown in his study of the vitae of the sixth-century abbess Radegund of Poitiers, hagiographers blended elements from these models. cross the diversity of early medieval models of sanctity (and their modern interpretations), chastity was a crucial sign of religious distinction. But chastity was also fragile, an 'unstable condition and easily lost among the pitfalls of the world'. From early Christianity onwards, sexual lapses were rude reminders to individuals and communities of the gender roles which religious orientation sought to reconfigure. When, in the early third century, Tertullian critiqued an emergent custom in Carthage for virgins who had renounced marriage to stand unveiled in church, he noted acerbically that after uncovering their heads many ended up covering their bellies in shame or resorting to abortion to prevent public disclosure of sexual sin. 9 From punitive retribution to the remedy of penance, responses to such lapses endeavoured to recover the communal experience of chastity and to contain the turbulence of sexual sin in communities of the chaste.

In the Hanbal? fiqh manual the Mughn?, Ibn Qud?mah (d. 620/1223) claims consensus (ijm?’) of the scholars of Islamic Law regarding a father’s ability to compel his prepubescent daughter to marry against her will, provided it is to a suitable match. This paper explores Ibn Qud?mah’s claim by investigating the contours of consensus- writing on child marriage. It looks first to the primary transmitter of early consensus (Ibn al-Mundhir, d. 318/930)—who is cited as a source of consensus throughout al-Mughn?—then at three other writers who focused on Ijm?’ (al-Marwaz? (294/906), al-?a??w? (321/933), and Ibn ‘Abd al-Barr (463/1070).
 This discussion explores the relationship between early claims of consensus and the proof texts upon which they relied. The paper highlights the influence on this topic of al-Sh?fi’?, whose arguments in support of compulsion of female minors in the Umm changed the discussion irrevocably. Finally, it illustrates how, unlike the Sh?fi‘?s, early M?lik? and ?anaf? texts did not rely upon the unit tradition regarding ‘?’ishah’s marriage to the Prophet. When jurists began relying upon the report of ‘?’ishah as a proof text for this issue, its veracity itself became a topic of consensus. In the hands of Ibn ?azm (465/1072), and with that report as his basis, child marriage shifted from an issue applying equally to both children to an issue pertaining only to girls. The larger juristic culture seems to have followed his lead, as child marriage for boys became radically under-discussed in the later legal texts, including the famed manual al-Mughn?.
 Above all, this paper exposes the concept of Ijm?’ as a “lowest common denominator” of agreement on this topic. Extracting an ijm?’ic claim from its context of debate and discussion deprives the inquiring scholar of any sense of the ripples of conflict and controversy emanating from it. In these early texts, we find there was no consensus with regard to what grants agency to females (pubescence or sexual experience); no consensus on the meaning of “suitability” in marriage (a condition for the permissibility of a father’s force); no consensus on at what point a female child can tolerate sexual activity; and, of extreme importance from the legal standpoint, there was no consensus with regard to how the prepubescent is to be maintained if she is not yet able to tolerate sexual activity. Because the marriage contract predicates maintenance upon sexual availability, this point causes a crisis in the jurists’ definition of marriage.

Early Christian Ireland was a highly inegalitarian society. Indeed, the original Introduction to the Senchas Mar expressed horror at the very notion of social equality. Yet, although status was all-important, the early Irish laws explicitly recognised that there were several ways to achieve high rank. This acknowledgement that there were different sources of high status made it much easier to give a high social value to verbal and artistic skills and to learning; for that reason, the approach to status was a principal foundation-stone of early Irish culture. As we shall see, the treatment of the subject in the laws suggests that men whose own claim to high rank was through their learning used that very same learning to impose a comprehensive view of social status. In any inegalitarian society there is a need to have a comprehensive hierarchy of status, namely a system by which one person's status can be related to anyone else's. If rank is a essential part of any person's social identity, no one can be left outside the system. When someone was injured or killed, compensation was due, and the value of the compensation, including the conditions in which an injured person was treated, depended on the status of the victim and the rank of his kinsmen and lord. But if there is division of labour and therefore diversity of social function, the different functions performed by people are likely to be incommensurable.

The Early Middle Irish Adam and Eve story in the tenth- or eleventh-century biblical poem Saltair na Rann includes an exchange between the devil and the snake in paradise. The devil seeks to persuade the snake to corporeal cohabitation in order to further his desire to bring about the fall of Eve and Adam. Lucifer's argument to the snake stresses the snake's hierarchical superiority to Adam, an idea that, as Brian Murdoch points out in his commentary on the poem, 'is a simple reprise of Lucifer's' earlier argument against subservience to God.1 But Lucifer's encouragement of the snake is capped by the singular plea, 'denamm cotach is carddess' ('let us make a bargain and treaty') (lines 1150).2 To this, the pragmatic serpent responds, 'Cia luag nom tha, fiad each thur / ... ar failti duit im churp chain, / cen nach locht dom chomaittreib?' ('What reward have I, before every host ... for welcoming you into my fair body, to live together with me without any fault?') (lines 1165-8). The reply: fame. The devil cunningly promises that his union with the snake will 'be continuously mentioned' in ages to come ('bid do gres ar n-anmnigud', line 1176).3 The devil offers an assurance partly based on form. The language he uses, in referring to making a treaty or a proper arrangement, or an alliance - however one translates 'cotach' - elevates the discussion to a formal level, as he offers the snake a verbal contract: if you will do this for me, I will assure you of this result, or, you give me that, and I will give you this.4 The legalistic language of the encounter marks a convention in perception of the Fall, one visible in another early medieval Insular poem on the Fall, the perhaps tenth-century Old English Genesis B, and in legal texts themselves.5The Fall has a long history of reference in law, the Irish aspects of which Damian Bracken explores in his study of 'The Fall and the law in early Ireland'. Bracken demonstrates that 'clerics with an interest in the explanations of the opening of Genesis were involved in writing the laws of early Ireland' and that lawyers subsequently maintained a 'very practical use of the theology of the Fall', using it as a prime example:The Fall and its consequences are the basis for discussion of matters like free will and perhaps that most Christian of ideals - the attempt to go beyond law and its technicalities to a psychological consideration of motive and intent. The early lawyers use the theology of the Fall in just this context: whether the accused was incited to commit the crime, whether he committed the crime with malice aforethought, whether he was fully aware of all circumstances before entering into an agreement.6Texts concerning the rules of contracts demonstrate especially well this practical applicability in a central area of the law. Fergus Kelly in his study of early Irish law asserts that 'The commonest legal act in early Irish society was no doubt the verbal contract or cor bel (lit. putting of lips) often referred to simply as cor. This term covers all commercial undertakings, as well as agreements to marry, to foster, to engage in co-operative farming, to enter clientship,' and so on.7 One collection of early Irish texts on contracts, what Neil McLeod identifies as 'perhaps the central text on the subject', is Di Astud Chor, On the securing of Contracts', which McLeod dates to the eighth century, at least in the compilation as it now exists.8 Perhaps the best known and the largest of surviving Old Irish legal texts is, however, the Senchas Mar, or 'Great Tradition', which has a substantial introduction that has also been dated to 'probably' the eighth century, though at least part of it pre-dates Di Astud Chor? Both Di Astud Chor and the introduction to the Senchas Mar utilize references to Lucifer's and to Adam and Eve's fall to confirm a legal point, while both poetic treatments of the Fall, the Early Middle Irish Saltair na Rann and the Old English Genesis B, employ contractual language similar to that in the law texts. …

Thurneysen, Rudolf (1857–1940)

It has long been noted that in early Irish society there appear to be seven-fold divisions of status within the classes of freemen and filid ('seers' or 'poets') which seem to be in imitation of the seven Holy Orders of the Church. The division of the clergy into seven grades is evidenced at least as early as the third century. They were normally: porter, lector, exorcist, acolyte, sub-deacon, deacon and priest. The bishop was not usually considered to be sufficiently distinct from the priest to rank as a separate order.

In contrast to modern Western society's treatment of plants as non-sentient beings to be used or killed at will for our own benefit, the complex legal system used in Ireland from prehistory up until the 17th century delineated penalties for mistreating trees that were not dissimilar to the penalties for mistreating other humans. The early Irish relationship with trees as described in Brehon Law and extant lore was not only utilitarian but also deeply spiritual and tied to the peoples' identity. Brehon Law provides an example from European history that illustrates traditional ecological knowledge (TEK) and animistic relationships with the more-than-human world of nature. This paper explores some ecopsychological and environmental benefits of applying its principles today.

This volume contains a critical edition of the Old Irish law tract Corus Besgnai(The Arrangement of Discipline), one of the constituent tracts of the late seventh-century compilation Senchas Mar(The Great Tradition). It has taken the editor a very long time to bring this work to completion, but the result is a highly accurate and informative edition representing the highest standard of scholarship in early Irish language and law.

Ireland on a Plate: Curating the 2011 State Banquet for Queen Elizabeth II

Early Irish law texts appear frequently to draw upon a particular numerical series. The numbers in this series are 1, 3, 5, 10, 15, 30. In status texts this series is supplemented by the numbers 2, 20, 42. A method for generating these numbes is suggested. This method also provides a solution to anomalies in the ordering of grades in some texts.

Reviewed by: Second-Best Justice: The Virtues of Japanese Private Law by J. Mark Ramseyer Meryll Dean (bio) Second-Best Justice: The Virtues of Japanese Private Law. By J. Mark Ramseyer. University of Chicago Press, Chicago, 2015. xii, 283 pages. $50.00. The conundrum of low litigation rates in Japanese civil law cases has fascinated scholars of Japanese and comparative law for a number of decades. In turn, this has generated considerable discussion and created an extensive body of literature. The debate extends beyond straightforward statistical analysis to encompass a sociocultural analysis of the Japanese legal system and the interaction of Japanese citizens with the law and legal processes. The tensions between Japanese scholarship and the analysis of scholars outside Japan gathered pace in the 1970s. The Nihonjinron literature of the 1960s and 1970s had served both to reinforce national identity and to claim Japanese cultural “uniqueness.” Its pseudo-anthropological narrative promoted the idea of a homogenous, hierarchical society that emphasizes the group rather than the individual. By relying on a theory of Japanese uniqueness, it was thought that differences between Japanese and Western societies could be explained. The pervasive nature of the Nihonjinron theory meant that academic literature on the Japanese legal system and its laws reflected a similar discourse. Thus, in one of the early English-language texts on Japanese law, Yosiyuki Noda characterized the relationship between the Japanese and their law as follows: “To an honourable Japanese the law is something that is undesirable, even detestable, something to keep as far away from as possible. To never use the law, or be involved with the law, is the normal hope of honourable people. To take someone to court to guarantee the protection of one’s own interests, or to be mentioned in court, even in a civil matter, is a shameful thing. . . . In a word, Japanese do not like law.”1 During the same period, one of Japan’s foremost legal sociologists, Takeyoshi Kawashima, emphasized the role Japanese culture plays in attitudes to litigation. He suggested that low litigation rates in civil disputes could be explained by reference to sociocultural norms unique to Japan.2 Against this background [End Page 241] emerged the idea of the “reluctant litigant” in Japan, someone who had a cultural preference for informal mediated dispute settlement, who disliked and distrusted resort to the courts and its associated judicial intervention. While it could be demonstrated statistically that the Japanese used their courts less often than citizens in other countries, particularly the United States, the causes were contested. The culturalist hypothesis put forward by Kawashima and others was subjected to its first major challenge by John Haley in his article “The Myth of the Reluctant Litigant.”3 Whereas the culturalists claimed that, because of the importance placed upon consensus and harmony in Japanese society, litigation threatened the social order and was therefore to be avoided, Haley argued that this was a myth and that the Japanese were not particularly litigation averse. Instead, he believed that institutional incapacity, namely insufficient numbers of courts, judges, and lawyers, weighed heavily against taking civil action in the courts and in favor of utilizing more readily available forms of alternative dispute resolution (ADR) that also provided effective remedies. A decade later, Ramseyer entered the debate with the first article of what would become a body of work using law and economics theory as his thematic tool of analysis.4 He too dismissed the sociocultural hypothesis for low litigation rates in Japan and introduced the idea of the “rational litigant.” Analyzing disputes following traffic accidents and the pattern of insurance claim settlements, he argued that litigants made a rational choice between litigation and ADR settlement and that this wealth-maximizing model, rather than a cultural explanation, determined the way the Japanese behave in disputes. Thus, in a context where the legal rules are relatively certain, and because similar disputes are frequent, potential litigants are able to calculate with reasonable certainty what the litigated settlement will be. They therefore make a rational choice and opt for ADR to maximize their financial settlement by avoiding the expense associated with court litigation. Ramseyer went on to apply law and economics theory to develop...

Methods for resolving cross-border legal claims between two or more kingdoms appear in various early Irish legal texts. The basic models of cairde, rechtge, and other types of inter-territorial law will be illustrated using a variety of legal texts, including Bretha Cairdi, Slán nAitire Cairde, Críth Gablach, and the tract on the distribution of cró and díbad. By examining the general models of these kinds of inter-territorial dispute settlement, we can begin to understand these methods as cohesive legal institutions and therein provide a premise for further research into inter-territorial affairs in early medieval Ireland.

Sadeghi, Behnam. <i>The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition</i>. Cambridge: Cambridge University Press, 2013. 234 pp. $99.99 (cloth).