Celtic law

Kinship

Kinship without a doubt played a very important role in Celtic societies in late prehistory. The importance that ancestry had for the late prehistoric Celts is stressed by several classical authors,^[16] and seems – at least for some areas, in some periods – also be confirmed in the archaeology by the effort put into burials.^[17] The structure of Celtic kin-groups can be reconstructed to some extent,^[18] but little of internal kinship relations will have been formalised in a way that could be considered law. There are, however, a number of important legal principles that can be reconstructed, which are related to kinship or external kin-group relations. There is relatively strong evidence for a customary requirement for kin members to support and help each other, in everyday life as much as in legal disputes. This seems to be evident from historical sources,^[19] and would fit well with what we find in the early medieval Irish and Welsh laws.^[20]

One of the most important legal principles that seems to have been associated with kinship is that of private property, especially the ownership of land and resources. In the very least, differential access to property and resources for different groups in society is evident in the archaeology, indicated both by differential burial wealth^[21] and relatively consistent enclosing of settlement space.^[22] Most likely, access rights were at least partially based on kinship/descent, as this is the case not only in the early medieval Irish and Welsh laws, but also in the neighbouring Roman and Germanic laws. Even though we cannot be perfectly sure, inheritable individual possession of property and resources, with legal ownership resting with the wider kin-group, is the most likely form of regulating differential access to property and resources in Celtic societies in late prehistory.

The other highly significant legal aspect associated with kinship relations is of sexual unions and reproduction. Inheritance seems to have been passed on primarily in the paternal line,^[23] as such, clarifying the relations between partners, who probably quite frequently were members of different kin-groups, as well as their children, must have been quite essential. The surprisingly close parallels between the early medieval Irish and Welsh laws where sexual unions are concerned,^[24] and the similarity between the most prestigious union described in them with the Gaulish marriage as described by Caesar,^[25] indicate that the treatment of different sexual unions was quite similar over wide areas of western Europe from late prehistory well into the medieval period.

We also know that, at least amongst the Gaulish and the early medieval Irish nobility, polygyny was a widespread practice.^[26] Given the detail given to different kinds of sexual union in early medieval Welsh law, it seems reasonable to assume that polygyny was also common in Wales some time before the law-texts were put into writing.^[27] Given that the main focus in the early medieval Irish laws where sexual unions are concerned are with the contribution to and division of assets of the union in case of divorce, as well as the responsibilities towards children resulting from these unions, it is quite likely that similar provisions also were at the core of earlier Celtic laws' treatments of the matter of sexual unions. This also seems to correspond with the significance attributed to the equal contribution of assets by Caesar,^[28] while the fact that he assumes that the man would have owned more property than contributed by the wife^[29] would fit well with the possibility of several different kinds of recognised sexual unions, some with greater, some with lesser or no contributions by the female partner.

While we have no direct evidence from late prehistory that divorce was possible, it is likely that the possibility existed – again, this seems to be indicated by the emphasis on the joint accounting of input and profits made during the existence of the marriage,^[30] which would have proven at least as useful in case of a divorce as it would for the reason given by Caesar, to determine the inheritance of the partner who survived the other.

It is likely that there were other elements covering various issues of kinship relations in early Celtic laws, for instance covering adoption, expulsion of antisocial kin members, and inheritance rules in case that a whole lineage would be heirless, but there is too little available information on this subject from late prehistory to allow for more than a generalisation of similarities in these areas as found in early medieval Irish and Welsh law.^[31]

Artificial kinship

With kinship being an essential element in early Celtic legal systems, it seems likely that artificial kinship, in the form of fosterage, was also an important element of these early customary laws. Evidence for the exchange of children as hostages can frequently be found in historical sources,^[32] which, as most of them were the children of important nobles, must have been educated during this time, as they would have been expected to become important nobles themselves in the future. Similarly, the reference in Caesar that many Gauls send their children to study druidry, which is best to be studied in Britain at its alleged point of origin,^[33] together with his remark that the Gauls do not suffer to be seen with their children in public,^[34] might indicate that fosterage practices were widespread. This would seem to be supported by the fact that fosterage was important in both early medieval Irish and Welsh societies,^[35] and that there is a cognate terminology in Irish and Welsh for the foster-father/teacher, allowing to reconstruct a Celt. *altros, 'nourisher, foster-father, teacher', as well as close friend/foster sibling, from Celt. *komaltros, 'jointly nourished, co-fostered, alumni'.^[36] Fosterage networks, establishing artificial kinship and thus political and information exchange networks also are a good explanation for the spread of some aspects of 'Celtic' material culture, like e.g. La Tène art.^[37]

Rank

Another principle that seems to have been pretty widespread in early Celtic laws is that of the importance of social rank. It is not clear whether, in late prehistory, it was equally detailed as Irish law seems to indicate for early medieval Ireland.^[38] However, it seems rather evident from statements like the one of Caesar that "... those most distinguished by birth and wealth have the greatest number of vassals and clients about them. They acknowledge only this as influence and power",^[39] which is an almost perfect summary of the requirements set for different noble ranks in the early medieval Irish lawtext Críth Gablach,^[40] that rank must have been an important element of Iron Age Gaulish customary law, too.

While we do not know what precise advantages higher social rank may have carried, it is quite likely that there were some legal privileges for people of higher social rank. As Caesar reports that the leaders of the Gaulish factions are those with the greatest influence, whose opinion is most highly thought of,^[41] it is quite likely that such differences in rank also had consequences in legal proceedings, much like in the Irish case.^[42]

Contracts

The regulation of contractual relationships is one of the most important elements in any legal system, and especially so in societies where there is a lack of a strong central state, enforcing codified law. Where Celtic societies in late prehistory are concerned, all evidence points to such an absence of a strong central state control, and a largely kin-based enforcement of legal claims.^[43] The regulation of contractual relationships therefore most likely formed the single most essential element of all early Celtic laws.

As such, it is hardly surprising that some of the most obvious similarities, and the largest body of cognate terminology from late prehistory and between Irish and Welsh, in case of the latter two associated with parallel practices, exists.^[44] Close terminological similarities or cognates can be found for witnesses, sureties, pledges, and distraint, which partially even extend into Germanic legal terminology,^[45] the latter supporting the archaeological argument that close trade links existed between late prehistoric Celtic and Germanic societies.^[46] Generally speaking, all these elements are also common in other early Indo-European laws.^[47] Historical texts also provide considerable evidence that later prehistoric contracts were secured with either pledges or sureties, the best example once again provided by Caesar, who reports that for the securing of a coordinated revolt against Caesar, the Gauls, "since they could not take the usual precaution of giving and receiving hostages, as that would have given away their plans, they asked that a solemn oath on their military standards be sworn, in which manner their most sacred obligations are made binding".^[48] That children of nobles were frequently used as hostages (i.e. pledges) in state contracts, also between Celtic and Germanic polities, is also well documented in the historical evidence.^[49]

Celtic contract laws seem to have distinguished between two main kinds of contracts, such that were either immediately actionable or short-term and/or involved only very little risk, and such that were either long-term or established semi-permanent relationships, and/or involved high risks. While it would seem to have been sufficient to secure the first by just providing sureties, the second ones usually would have required both sureties and pledges. It is also quite likely that there was at least some degree of distinction between two different kinds of pledges, minor pledges on the one hand, and hostages on the other; and two kinds of sureties, one who would stand in as a surrogate for the original contracting party if that failed to fulfil its obligations, and one who would have the right to enforce the obligations of said party.^[50] Particularly the latter would also have had an important role in the development of hierarchy in late prehistoric Celtic societies, with regularly approached enforcing sureties at some point being able to institutionalise their position as a social superior of those who frequently required their services, particularly if approached as an enforcing surety by all contracting parties.^[50]

Contractual relationships most likely were of particularly great significance in ordinary subsistence economy. One of the close similarities that exists between early medieval Irish and Welsh laws is a cooperative farming, particularly co-ploughing, based on contracts agreed between small farmers with too few oxen to set up a full ploughing team.^[51] Given that archaeology seems to indicate that the average late prehistoric farm in much of temperate Europe had about 5–10 cattle, of which at the most 2–3 would have been oxen,^[52] and that Pliny reports that teams of up to 8 oxen were used on the heavier soils of the Gallia Cisalpina (with possibly even larger teams required for more northerly areas with even heavier soils),^[53] it seems highly likely that similar regulations for cooperative farming practices were also common in many late Prehistoric Celtic laws. Reconstructable as Celt. *komarom, 'joint ploughing', it is one of the areas where early law may have even penetrated to within the internal processes of the individual kin-group, particularly where some members of a ploughing cooperative were not kinsmen, while others were: as formal contracts would have been required between all members of the cooperative, they would also have bound members of the same kin in formal contracts.

Another important field where contracts most likely were of high significance is in the establishment of long-standing or even semi-permanent social relationships between clearly socially superior and inferior parties, particularly clientele contracts. The similarity between the Irish and Gaulish way to establish noble rank has already been remarked upon above. Comparable similarities seem also to have existed in the mutual responsibilities between noble patron and client.^[54] The significance of contractual relations in late prehistoric Celtic laws is also given away by an episode in Caesar's account of the Gaulish Wars, in his description of how Dumnorix, an Aeduan noble, had acquired his vast wealth: "for a great many years he has been in the habit of contracting for the customs and all the other taxes of the Aedui at a small cost, because when he bids, no one dares to bid against him".^[55] Even the relationship between nobles and the state was based on contracts in late Gaulish polities, contracts no doubt constructed based on a more general model between lords and their clients: access to property or resources in return for rent.

Crime and punishment

Evidence for what constituted criminal offences, and what was considered the appropriate punishment for them, is mostly lacking for late prehistoric Celtic laws. What little there is to be found, again mostly in Caesar's account of the Gaulish wars, seems again to fit reasonably well with what we could reconstruct as ‘general principles’ from early medieval Irish and Welsh law. Crimes mentioned in Caesar's account are murder,^[56] theft and robbery,^[57] as well as crimes specific to only some Gaulish societies, e.g. usurpation of kingship amongst the Helvetii.^[58] The punishment considered most severe amongst the Gauls, according to Caesar, is to ban criminals from religious rites,^[59] which probably is better understood as outlawing them. He does, however, also mention the death penalty,^[60] presumably of outlaws, not as a regular form of punishment. The common form of punishment, however, seems to have been the imposition of fines. That Caesar mentions both praemia poenasque, "premiums and fines"^[61] may indicate that a system with two separate kinds of fines, comparable to the body-fine/restitution and honour-price in early Irish and Welsh law,^[62] already existed in late prehistoric Celtic laws. As fines and outlawing are the preferred forms of punishment not only in the early medieval Irish and Welsh laws, but also in the early Germanic laws,^[63] it seems quite reasonable to assume that the same applied for most of the late prehistoric Celtic laws.

Procedure

Much as with crime and punishment, we have only little direct evidence from later prehistory where legal procedure is concerned. Caesar claims that the druids are the judges for all kinds of legal disputes, both where criminal and where civil law is concerned.^[61] Where the latter is concerned, the examples Caesar mentions are quarrels over inheritance and boundaries, indicating that such conflicts were seen as particularly important by his sources. That druids were moral philosophers is also known from other historical sources such as Strabo,^[64] which may indicate that at least part of the druids was trained as professional lawyers.

While we have no direct evidence for that, it is highly likely that legal proceedings only started if there was a plaintiff, either the injured party or a representative, the latter almost certainly a kinsmen of the injured party. Proceedings probably will have been started by a complaint to whoever was seen responsible to uphold justice, which might have been a druid, in some late Gaulish policies an official, or perhaps a noble patron of either the injured party or the offender, or possibly the offender himself had to be approached. It is most likely that if the offender did not submit willingly to settle the dispute in court, he could be distrained by the plaintiff. While we have no direct evidence for the latter, it seems quite likely, given that the practice is well attested in early medieval Irish and Welsh law^[65] with cognate terminology,^[66] but also in the early Germanic laws,^[67] and even in early Roman law.^[68]

What little evidence we have (almost exclusively a few lines in Caesar's De Bello Gallico)^[69] would seem to indicate that a day would be appointed for the pleading, probably with pledges given or sureties named that the defendant would actually show, and both plaintiff and defendant would swear an oath that their respective claim or account of events was a truthful representation of what had occurred. Most likely, they could be supported by similar oaths sworn by their kinsmen, retainers, clients or whoever wanted to support them, as character-witnesses for the original plaintiff or defendant, quite comparable to the procedure in early medieval Irish, Welsh and Germanic laws.^[70] Given that at least some contracts most likely were entered into in front of witnesses and secured by sureties, it is also likely that these may have been called up to give testimony, also supporting their accounts by similar oaths.

We are lacking direct evidence as to what happened once a judgement had been found, and whether there were any appeals procedures possible, but most likely the party who had been convicted would have been expected to pay, by a certain date, any fines or premiums awarded to the victorious party. Any other form of punishment would probably be executed as well, if direct punishment possibly even right on the spot. If any fines or premiums awarded were not paid, it again is quite likely that the successful claimant then gained the right to distrain the convicted party and thereby recover a value equivalent to the unpaid fines or premiums.

Foreigners and the law

We have no direct evidence for how early Celtic laws treated foreigners for most of the late prehistoric Celtic world. However, the already mentioned tesserae hospitales from Celtiberia,^[13] as well as the common practice in early European legal systems to consider, in principle, foreigners without a local host as without legal protection,^[71] we can assume that the same was the case in most if not all late prehistoric Celtic laws. While foreigners without local kin or a local host would thus have been 'fair game', it is likely that at least some members of late prehistoric Celtic polities were able to grant legal protection to foreigners (guests). This again would correspond well with the situation in early medieval Irish and Welsh law, where again cognate terminology exists for parallel practices of granting hospitality to foreigners.^[72] There is, of course, no evidence who actually could grant such hospitality, but it seems, if we go by the tesserae hospitales, that at least in Celtiberia this practice was not necessarily limited to ruling kin in larger polities, but was available at a relatively local level,^[13] which might indicate that, much like in early medieval Ireland and Wales, many members of any given polity were able to grant hospitality.