Dark Speech: The Performance of Law in Early Ireland

Dark Speech: The Performance of Law in Early Ireland

by Robin Chapman Stacey

What does it mean to talk about law as theater, to speak about the "performance" of transactions as mundane as the sale of a pig or as agonizing as receiving compensation for a dead kinsman? In Dark Speech, Robin Chapman Stacey explores such questions by examining the interaction between performance and law in Ireland between the seventh and ninth centuries.

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What does it mean to talk about law as theater, to speak about the "performance" of transactions as mundane as the sale of a pig or as agonizing as receiving compensation for a dead kinsman? In Dark Speech, Robin Chapman Stacey explores such questions by examining the interaction between performance and law in Ireland between the seventh and ninth centuries.

Exposing the inner workings of the Irish legal system, Stacey examines the manner in which publicly enacted words and silences were used to construct legal and political relationships in a society where traditional hierarchies were very much in flux.

Law in early Ireland was a verbal art, grounded as much in aesthetics as in the enforcement of communal norms. In contrast with modern law, no sharp distinction existed between art and politics. Visualizing legal events through the lens of procedure, Stacey helps readers recognize the creative, fluid, and inherently risky nature of these same events.

While many historians have long realized the mnemonic value of legal drama to the small, principally nonliterate societies of the early Middle Ages, Stacey argues that the appeal to social memory is but one aspect of the role played by performance in early law. In fact, legal performance (like other more easily recognized forms of verbal art) created and transformed as much as it recorded.

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Editorial Reviews

From the Publisher
"Fascinating and important."—Early Medieval Europe

"An extremely important, learned, and very thoughtful book that addresses a central issue . . . being hotly debated across the social scientific spectrum, among historians, anthropologists, sociologists, and others: the significance of language and performance in understanding traditional societies generally."—Patrick Geary, University of California, Los Angeles

"The best history book I have read in a very long time. It is full of important ideas based on impressive research expressed in prose that is not dark but clear and amiable."—Law and History Review

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University of Pennsylvania Press, Inc.
Publication date:
The Middle Ages Series
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6.12(w) x 9.25(h) x 1.40(d)

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It is often the case that the most important and unanswerable—and importantly unanswerable—questions are asked by those who know relatively little about the subject under discussion. Even the most naïve of queries from a community member in the back row can generate panic in an experienced lecturer possessed of a mastery of his subject, but not of its implications. And of course students are notoriously good at asking the sort of question which, if thought about at all honestly, could take days or even weeks to answer properly. So it is that this study also begins, for it too has its origins in one such confounded lecturer, and in one such unanswerable query. Some years ago, a student raised her hand in the middle of a lecture I was giving about the native Irish legal tradition and its relationship to the new dispensation prevailing in the island after the coming of Christianity. This was a subject I thought I knew relatively well, but her question was one that had never occurred to me, at least not in the terms in which she chose to phrase it. Why, she asked, would a literate jurist, working in a tradition that would ultimately produce the largest number of vernacular legal texts extant from anywhere in pre-twelfth-century Europe, choose in his own written lawbook to characterize the ecclesiastical legal tradition (but not his own) as recht litre, "written law?"

The question was a good one, and on one level eminently answerable: the longevity and appeal of native oral lore, the impact of the Scriptures and other early Christian writings on a hitherto exclusively oral culture, the tremendous promise represented by the new technology of writing introduced to Ireland by Christian missionaries. On another level, however, it seemed considerably more difficult, and the longer I thought about it the less satisfied I became, both with the specific response I had given and with my general understanding of the nature of the legal and political world these texts were purporting to describe. It is one thing to know that oral legal procedures exist, and quite another to imagine how and why they might actually have worked. The jurist who so confidently distinguished his own tradition from that of recht litre did so not because he perceived writing to be unimportant, but because he believed the essence of his tradition to lie elsewhere, in the performance of law rather than in what was—or could ever be—written about it. The authority of the procedures with which he was familiar lay not in their sameness, in their ability to be captured in writing, but rather in their difference, in the potential for success or failure that existed every time a king proclaimed a verdict from a mound or a farmer intoned a contractual formula. Risk, not security, is the essence of performance, and performance, not inscription, was the essence of "the law" as our jurist knew it.

Performance has, to date, played a relatively minor role in our thinking about early medieval law and government. Students of the judicial ordeal have long recognized the dramatic nature of the ritual with which they are concerned. And other, no less theatrical productions have been detected as well in the insular and continental legal sources: the public perambulation of the boundaries of a contested estate, for example, or the throwing of earth on a person rendered liable for a kinsman's offence. Indeed, scholars now remark quite openly on the performative element of early law, on the important role played by spectacle and show in the small, principally nonliterate cultures of the early middle ages. But despite our acknowledgement of the theatrical character of early medieval justice, despite our increasing tendency as historians to make use of the terminology of the stage, we have yet to probe very deeply into the metaphor we employ. What does it mean to talk about law as theater, to speak about the "performance" of transactions as mundane as the sale of a pig, or as agonizing as the receiving of compensation for a dead kinsman? Historians have tended to use drama as a metaphor for legal rituals of this sort primarily in order to emphasize the publicity attendant on the affair. Attention has focused almost entirely on the issue of social memory, on the means by which imagery and symbol preserve in the collective consciousness of the non-literate that which might otherwise be forgotten. What will be argued in this book, however, is that the appeal to memory was but a single aspect of the role played by performance in early law. The power of legal performance, like that of other more easily recognized forms of verbal art, lay as much in its ability to create and to transform as to record.

And as with performance, so with speech and language generally. Earlier generations of anthropologists sought to define the phenomenon of performance as precisely as possible, drawing boundaries around that which they thought did and did not constitute "performance" within the cultures they studied. Dell Hymes was particularly insistent that performance not become a "wastebasket," a formless category of action into which to dump everything we do not otherwise know how to characterize. He himself differentiated between behavior ("anything and everything that happens"), conduct ("behavior under the aegis of social norms"), and actual performance, which he argued constituted a subset of conduct in which those performing assume a "responsibility for presentation" to an audience or a tradition. Richard Bauman refined Hymes's characterization somewhat, defining performance as "the assumption of responsibility to an audience for a display of communicative skill," and pointing to the manner in which it "calls forth special attention to and heightened awareness of the act of expression and gives license to the audience to regard the act of expression and the performer with special intensity." Another concept emerging as prominent in the literature was that of the frame—whether geographical, chronological, or ritual—within which performative actions often occurred and were interpreted by those who witnessed them. Central to all of these constructs was an emphasis on the performer's deliberate shouldering of responsibility towards his tradition and his audience. As anyone who has ever actually put themselves forward in such a way will immediately recognize, performance is an inherently paradoxical venture, an occasion both of power and vulnerability, since a performer displaying his mastery of his art inevitably renders himself open to the assessment of others. "Did he perform poorly, did he perform well?" When the performance in view has legal as well as artistic implications, these are questions of more than passing interest.

The views advanced by Hymes and Bauman have greatly improved our understanding of the workings of performance within oral cultures, although the issues raised by their attempts to define and delimit the phenomenon are unlikely to be resolved any time soon. It is possible to take a relatively narrow view of performance, defining it solely in terms of formal, framed procedures whose ritual aspect makes them easy to differentiate from more ordinary forms of social interaction. However, it is also possible to take a totally different view, defining performance more broadly, in a way that encompasses a wide variety of public demonstrations of status or affiliation, however brief and unpatterned. Traditionally, anthropologists have been as interested in the abstract as in the particular—that is, gleaning from the specific societies they study a sense of how their structures and traditions compare with those by which humans in other world cultures have historically organized themselves. In recent years, this emphasis on identifying what is "fixed" and "traditional" in society has waned somewhat. Culture tends now to be viewed as constructed and constantly evolving rather than as stable and immutable: for many scholars the challenge currently is to capture a sense of movement within the society they study rather than to establish boundaries around the practices by which in an earlier age that society might have been defined. Even the most nuanced of anthropological works, however, continues to display an interest in categorizing and distinguishing like from unlike, not least because it is so difficult to engage in cross-cultural comparisons without to some degree reifying that which one seeks to compare. It was probably inevitable, for example, that Catherine Bell's excellent book on strategies of ritualization (of which great use is made in the present work) would be criticized for treating ritual as an "it" and falling thereby into error she had objected to in others. It is difficult to write on a topic one cannot to some degree define.

But while it is thus understandable that anthropologists should seek to delimit performance from other aspects of the cultures they observe, the historian's primary goal remains that of understanding the particular rather than identifying the abstract, a fact that permits—perhaps even mandates—a different approach. Having begun with performance, I quickly found that I could not end there. The more closely I contemplated those rituals and procedures standing out in the Irish sources as unquestionably "performative," the more apparent it became that in the particular culture in which I was interested, such events did not occur in isolation, but were rather part of a larger nexus of beliefs about language and the exercise of power. Indeed, the authority to which many of these procedures laid claim within the community was inconceivable outside the context of such beliefs, not least because the speech many of them envisaged resonated so deeply with authoritative words spoken (or written) elsewhere. Thus what had been a work about law and performance quickly became a book about the manner in which publicly enacted words and actions of all types—and their opposites, including silence—were used to construct legal and political relationships in a period in which traditional hierarchies were very much in flux. Such an overlapping of performance with speech and language generally is not unique to Ireland, although there are elements in early Irish culture that make it particularly difficult to separate one from the other (the political prominence of poets, for example). But while not unique to Ireland, it is certainly relevant to it: the more I read the more convinced I became that there was nothing to be gained by treating performance separately from the larger world of culture and language of which it was a part, and a great deal to be lost.

The connections between speech and performance are most visible in the scholarly fields devoted to their explication. Sociolinguistics as a discipline is closely linked to performance theory, a fact that should not surprise us. One seeks to understand the manner in which language structures and regulates social relations (and vice versa), while the other imagines the structuring of social relations through formalized events in which language often (though not inevitably) has a role to play. Ritualized events often involve speech that differs in various ways from the speech of ordinary everyday interaction, and that speech frequently draws upon or alludes to types of language significant in other contexts. Moreover, phenomena that are bread and butter issues to sociolinguists, such as situational language use, codeswitching, and the social differentiation of codes, are all elements potentially important to an understanding of performance, just as they are of the social and political structures of the culture within which that performance takes place. Especially important to a sense of the authority claimed by performance (as by public speech generally) is the sociolinguists' observation that, in many cultures, it is not only language per se, but the form and syntax of that language that matters. In other words, the power claimed for particular types of speech is in many instances directly related to the structures of which that speech is composed, just as the structures of which that speech is composed are directly related to the nature of the authority claimed for it. Hymes has commented on the manner in which all too frequently anthropologists rush through the form of the speech they are studying to get to its content, whereas linguists in a hurry to explicate its points of grammatical interest pay little attention to what the statement before them actually says. In many cultures, the power of speech cannot be easily separated from the nature of the language in which that speech is couched nor the venue in which it occurs: the best approach, he argues, is one that takes all such elements into account.

This have I tried to do in what follows. In many ways, the idea that performative speech might be linked to power in early Irish society will not seem terribly new. It is a commonplace among Celticists to speak of the "power of the word"—to remark, for example, on the unusual language depicted in the sources as a hallmark of those with claims to otherworldly knowledge, or on the manner in which the powerful spoken genres of satire and praise exalted or diminished the standing of individuals in medieval Ireland and Wales. But if this study thus seems to replicate trends in existing scholarship, it also departs from it in significant ways. Typically, the power of performance has been associated primarily with self-consciously religious or artistic contexts and individuals—druids, seers, poets, and the like—just as matters pertaining to language have generally been treated by literary specialists rather than by historians. Law and politics have not usually entered into the discussion, except in the form of comments on the political implications of satire or the historical links between jurists and poets. The manner in which language structures legal relationships among persons living together within political communities has not been studied in detail, nor have the links between publicly enacted speech and performance as a more generalized phenomenon (e.g., nonverbal as well as verbal performance). A particularly important aspect of this study is the relationship between politics and aesthetics. It is a central contention of this book that the production (and prevention) of verbal art was a key element in the structuring of legal and political hierarchies in early Ireland, both on the level of metaphor (how power was discussed) and of actualization (how power was acquired and exercised). Performance appears thus in this work not only as an object of study in its own right, but also as a lens through which to detect struggles for dominance otherwise obscured from view—a role it has hitherto played only rarely in existing scholarship.

In short, what follows is less a study of the abstract phenomenon of performance than it is of the inner workings of one particular legal system, and less an inquiry into ritual per se than into the type of power ritual can effect. Although considerable attention is given to the sort of formal, framed performances on which the theorists are inclined most easily to agree, more than half the book focuses on the ways in which publicly executed speech of all kinds structures and defines the hierarchies within which people live. The first section of the book is devoted explicitly to performance per se, with chapter one focusing on nonverbal performative events (or at least events that appear in the sources as nonverbal, which may of course be quite a different thing). With chapter two we enter upon the specialized world of professional justice, and with it the elaborate rhetorical performances attributed to jurists and kings. The speaking of law was a matter of aesthetics as well as of office—indeed, what is implied in the texts is that the authority both of particular legal performances and of the men who produced them was in some sense linked to their aesthetic competence as performers—just as it was in the more obviously artistic venues of poetry and storytelling. Chapter three begins an exploration of beliefs about speech and language in early Irish society and, specifically, how both are depicted in the sources as actively shaping legal identities and relationships within the community (often in performance). Chapter four extends these observations by using the equation of speech and power to trace the tensions inherent in the restructuring of legal and judicial hierarchies in the wake of the advent of Latin European ideas about law and rule. With chapter five we cross from the world of public speech to that of the written text by examining language which, in its very essence as language, comments on performative speech and its relationship to authority in a rapidly changing legal world. And the conclusion departs from the lawbooks to argue that the perspectives revealed in the Irish sources can be helpful to understanding instances of performance documented from elsewhere in medieval Europe.

A word must be said about the sources, and about the methodological presumptions on which this work is based. The focus of this study is early medieval Ireland, and the period under consideration the early Christian period, between the seventh and ninth centuries of the Common Era. From many points of view, Ireland is an ideal subject for such a study. Even apart from the impressive quantity of extant Latin literature—saints' lives, penitential and canonical collections, poetry, letters—there is as well a body of vernacular material unparalleled anywhere in the European west before the twelfth century. Most appealing is the literature, an irresistible corpus of tales running the gamut from the heartrendingly tragic, to the studiedly political, to the humorously obscene. The Táin Bó Cúalnge and attendant Ulster Cycle stories are merely the best known of this truly exceptional body of material. Recent translations have made many of the delightful tales centering around Finn and his band of heroes available at last to the general reader, although the numerous stories dealing with kings and peoples of the historical era are unfortunately still somewhat difficult of access. Other vernacular genres exist as well, preserved in numbers unimagined by historians of other contemporary European cultures: genealogies, poetry, saints' lives, annals, and a full range of place-name tales. All are testimony to the remarkably fruitful intersection of traditions and technologies occurring in the wake of the conversion of the island to Christianity. Whereas elsewhere in western Europe (apart from Wales, Scandinavia and England), native literary traditions struggled only briefly before becoming engulfed by the tidal wave of Latin learning, in Ireland they not only survived but flourished under the new dispensation.

Prominent among these vernacular sources—not least by virtue of a reputation for inaccessibility—are the laws, available to scholars today in an edition that runs six single-spaced volumes without substantial notes, indices, or translations. Their relative user-unfriendliness does not mitigate their importance. Unlike the law codes of the early English and continental realms, which at least made a pretense (and sometimes a great deal more than that) of being connected to the royal court, the Irish lawbooks emanated from a professional class of jurists, the earliest known from anywhere in medieval Europe. More will be said later about these individuals and their work; suffice it to say at this point that the approach they took to the writing of law, while highly stylized and schematic, nonetheless betrays a keen awareness not only of the institutions themselves, but of the sociological underpinnings of those institutions. The tracts of which the lawbooks are composed are not records of legislation, but rather extended discussions of the structures and practices prominent in Irish society of the period: clientship, fosterage, social status, regulations concerning animal behavior, dues owed to and by the church, just to name a few. Some show signs of being structured around native patterns of learning—heptads, triads, and the like—whereas others testify to the tremendous impact of the church on both society as a whole and the legal tracts in which that society is described. Historians differ in their assessment of the demonstrably "native" element in the extant legal corpus; however, there can be little doubt that what remains to us today is the product of the joining of two great legal traditions, native and Christian, each with their own mythology, specialists, and sense of the past.

But how then can one hope to use legal sources of this nature—written, stylized, and largely descriptive in nature—to talk about something as immediate as performance? In continental or English tradition, historians would turn in such a situation to charters, trial records or judicial transcripts to get as close as possible to the actual circumstances of particular cases. Sadly, as those familiar with the field already will know, such records do not exist in great numbers from pre-Norman Ireland. Indeed, because the state of manuscript survival for Ireland is unusually poor, it is impossible even to determine whether what we are confronting here is an actual gap in the evidence or merely an accident of survival. Some historians have argued from the little that remains that a "Celtic" charter tradition embracing Scotland, Brittany, Ireland and Wales once existed, even if only a tiny percentage of this tradition is extant today; others have argued, by contrast, that the almost total absence of charter and diploma evidence from the period suggests that these genres never really gained enough popularity in Ireland to pass into general use. The question is one of more than passing interest, as the answer would likely reveal much about the manner in which the early Irish envisaged law and the legal process. Whatever the truth, it is unquestionable that our inability to resurrect the details of even a single "real life" lawsuit poses a formidable obstacle to anyone wishing to resurrect the oral world within which disputes arose and were settled. The lawbooks can—and often do—describe the procedures by which legal cases were supposed to proceed from stage to stage in the course of their settlement. Regrettably, they do not tell us what actually happened in any one particular instance.

To say this is not to give up on any hope of understanding. It is true that a description of performance can never substitute for the reality of the thing itself. Musical notation can instruct a player in the mechanics of a song, but cannot capture the clarity of tones or exquisite lingering on notes that makes a performance memorable. Likewise in the legal setting, where an awkward gesture or infelicitous intonation of the voice might induce an audience otherwise predisposed to acquiesce in the claims being asserted to hesitate in their acceptance of them, or a judiciously timed snort undermine even the most tightly scripted of presentations. However, as Margaret Bent has demonstrated with respect to the more overtly performative world of medieval music, the reminder that performance was always for our subjects the primary referent can be valuable in itself. This is particularly true of those aspects of medieval life that in modern culture are so far separated from one another as to suggest that there could never be substantial links between them. Politics and art, for example: when we speak of the "power of language," we mean usually to highlight the power of words to sway our emotions and fears. In the early medieval world with which we are concerned, by contrast, words exercised a power not dissimilar to that of the sword. These sources may not be everything we desire; they may not represent even to the remotest degree a satisfactory substitute for a recording or transcript of actual legal proceedings. For all their faults, however, they cannot help but reflect the quiet cultural presumptions on which the practices they describe were predicated, and this is valuable in itself.

Moreover, absence is not all there is. It is tempting for historians acquainted with the sources extant from other early medieval European cultures to describe the work of the Irish jurists in largely negative terms—in other words, in terms of what they did not leave us rather than what they did. And it is certainly true that there are frustrations associated with working with lawbooks willing to discourse at length on the mechanics of distraint but obstinately opposed to mentioning even a single, historically verifiable, cow. However, to focus only on what is missing does considerable disservice to what we have. It is true that what we write will inevitably be a history of ideas rather than of events; on the other hand, as Thomas Charles-Edwards points out, ideas about culture are no less real than are events themselves. Indeed, as Philippe Buc has recently argued, the historicity even of seemingly well-attested occurrences may be more apparent than real: in a very real sense, we may all be writing a history of ideas, whether we realize it or not. It is thus a working premise of this book that even the most stylized of descriptions opens a window onto the world that produced it. Irish historians may not be able to tell how a given procedure worked on a particular occasion, but they can recreate to a considerable extent the priorities and principles around which it was constructed. This is important, because it is precisely such an understanding of general principles that is so difficult to glean from the types of legal texts extant from other medieval European lands, where performative events tend either to be mentioned so briefly that one can no longer recreate the ideas that lay behind them, or else described in such transparently political ways that one cannot feel confident as to the accuracy of the account.

Some of the sources utilized in the following work present special challenges to the historian, and it is important to acknowledge those difficulties here at the outset. The closest we get to a description of how legal cases might actually proceed are texts that purport to reproduce, often verbatim, the words and gestures exchanged by parties in dispute. Some of these texts take the form of juristic citations of the formulas and verbal conventions appropriate to specific legal occasions. Berrad Airechta, for example, a tract on suretyship dating to c. 700, is actually constructed around a series of contractual formulas (supposedly) quoted word for word in the tract. Others belong more to the genre of fiction than of law per se: mythical accounts of lawsuits associated with pseudo-historical figures of the pre-Christian past. Often these accounts occur as individual scenes or episodes within a larger fictional narrative, although some exist as independent tales that would appear to have been deliberately composed in order to underscore the legal point being made. Obviously there are significant differences between these two types of "verbatim account," not least of which is the transparent artificiality of the fictional tales. On the other hand, there are important similarities as well. Even the tales occur almost always in legal contexts, either in actual law tracts or in collections that betray a considerable amount of legal knowledge on the part of their composers. Indeed, it is clear that a good proportion of these tales were actually used in the instruction of apprentice jurists, constituting such a standard item in the oral curriculum of the law schools that they could be referred to in shorthand form. Clearly, the presumption must have been that their general contours and characters would have been well known to all. In fact, storytelling would seem to have an important educational technique for the Irish jurists generally. Law tracts of all traditions and regions made use of this tactic, drawing on characters from the literary realm like Finn, Cú Chulainn or Conchobar's jurist Sencha on the one hand, or characters from the Bible like Lucifer, Adam, or Cain and Abel on the other.

Neither the formula summaries nor the tales can be regarded as uncomplicated sources with which to work. Insofar as they present their accounts as ipsissima verba, they are crucial to an understanding of the role played by language and performance in structuring and resolving legal disputes. Insofar as the principal characters in these texts are either exemplary or transparently fictionalized, however, they cannot simply be taken at face value. The words they report could have little or nothing to do with those spoken in the course of ordinary judicial proceedings—certainly it would be extremely unsafe to take them as representing anything even approaching a transcript of an actual legal case. On the other hand it would be equally unsafe to dismiss them, as both types of source would appear to be the work of specialists well versed in the language and procedures of the legal tradition. One must thus be very clear about the assumptions with which one approaches these texts and the questions one asks of them. It would be perfectly possible to argue, for example, that these are literary fabrications having little or nothing to do with the realm of the oral. In this case, sources of this kind would presumably be of limited value to historians interested in reconstructing the realities of an early Irish court. Alternatively, one could understand the language these sources report as broadly reflective of the language actually used in legal situations, a stance that would considerably broaden the possibilities inherent in such texts. Crucial to both of these interpretations is the issue of the manner in which these excerpts were composed and the purposes they were intended to serve. Can "word for word" accounts that make no pretense of being transcriptions be useful at all to historians working several centuries after they were composed?

These are complex questions on which scholars are likely honestly to disagree. In what follows below I have tried to grapple with these issues, realizing that not all are likely to be convinced by the conclusions to which I have come. My work makes no necessary presumption about the oral or written origins either of the tales themselves or of the language reported in them. The explosion of interest in the relationship between the spoken and the written word that followed on the pioneering work of Albert Lord and Milman Parry in the earlier part of the twentieth century profoundly reshaped our sense of the possibilities of the early medieval source material. Anglo-Saxon specialists were among the first to take up the challenge: passionate debates over the role played by "oral" formulas in the composition of the extant early English texts began in the 1950s and have raged furiously ever since. Questions of a similar nature became in the seventies a central theme in scholarship on early Irish literature as well; most recently, Joseph Falaky Nagy's highly original examination of the manner in which medieval literati imagined the relationship between oral and written has taken the field to an entirely new conceptual level. Much of the discussion in Celtic circles has centered on the archaic and oral (seeming) style of text known as rosc or roscad—a debate that is itself embedded in an ongoing and often bitter historiographical dispute between those who would emphasize the native element in our extant texts and those who would give the nod instead to Latin Christianity as the likely source for the forms and practices described in those texts. Scholars who see Irish literature and law as having by definition originated in a Latin monastic milieu are likely to see rosc as literate in origin—both Johan Corthals and Kim McCone, for example, see rosc as a learned Kunstprosa, the literate product of a Latin-educated elite. Those less inclined to the monastic hypothesis are more open to the idea of an oral poetry memorialized in writing at a time subsequent to its composition. For these scholars, what remains to us is obviously Kunst; whether it is Prosa is another matter altogether.

The debate over the origins of rosc is directly relevant to the issue of legal performance, for rosc is a style of language frequently associated with legal proceedings in the tales. The use of rosc is by no means confined to legal situations; it is the language also of prophecy, of supernatural insight, and of verbal contestation generally. But it is definitely the language most closely associated with the spoken legal realm: judicial verdicts, for example, as well as the pleas of plaintiffs, are frequently depicted as having been couched in rosc. Happily, it is not the purpose of the present work to resolve the controversy over origins, and frankly it is difficult to see why all examples of rosc must have a single origin in any case. The fact that some passages can be shown to have originated in writing and to be contemporaneous with the prose by which they are surrounded, has no necessary implications for the genre as a whole. What is important for the purposes of this study is less the actual origins of such texts—whether they were composed orally or in writing, in other words-than the manner in which they were conceptualized in the sources that cite them. Almost always rosc is imagined as speech—instructional, admonitory, mysterious, mocking, prophetic, riddling and even flirtatious, but largely oral in its conception and delivery. This is particularly true of legal rosc. Even in the Bretha Nemed tracts, where rhetorical language is employed more generally than in any other legal texts, it is notable that the majority of rosc passages are phrased in a way as to indicate speech-either couched in the vocative or the first or second person, or attributed explicitly to particular speakers. One can thus speak in terms of rosc as a primarily oral style, as long as what one means by that is a type of language conceptualized as oral, regardless of whether it actually originated orally or in writing. In other words, the issue of how language is employed is separable from that of how it was composed: the fact that rosc existed as a literary style does not negate the fact that it was perceived by those who knew and composed it as being a type of language intimately associated with—indeed, deliberately evocative of—the oral realm.

To remark on the connection between rosc and the realm of the oral is not, of course, to demonstrate that the language attributed to mythical jurists in the tales has any necessary connection to how judicial exchanges would actually have proceeded in real life. It would be foolhardy to deny the possibility that what we are seeing here belongs more to the world of the imagination than to that of eighth-century Ireland. On the other hand, the consistent association with the oral, coupled with the fact that the legal tales in which rosc appears seem to have been authored by those with expertise in judicial affairs, make it difficult simply to dismiss this style as being nothing more than literary art bearing little relationship to the real-life world of the spoken word. When jurists in contact with ordinary legal arrangements in the localities wished to depict judicial statements in court, this was the language to which they turned. When they wished to instruct novices in the complexities of their craft, this was the language they chose to teach them. Unless we wish to believe that the jurists imagined the fictional cases they described in ways entirely different from the manner in which cases would actually proceed in the locality—and then taught those erroneous practices to persons entering their profession for reasons best known for themselves—we must take these accounts seriously.

Nor can we simply dismiss this style as a type of speech associated with the mythological past. Many rosc passages are attributed to characters imagined as having lived long before the coming of Christianity to the island—heroes like Cú Chulainn, for example, or kings like Conchobor and poets like Amairgin. However, there are clear indications in these sources that rhetorical speech was an aspect of contemporary legal life, and not merely a literary conceit designed to evoke a world now long gone. rosc may in certain circumstances evoke the past, but this is by no means a necessary association. All in all, seeing these accounts as literary fictions entirely divorced from reality seems by far the harder intellectual position to take—not least because the evidence taken together suggests that speech and language were crucial aspects of the negotiation of power relations generally in early Ireland, and not merely in legal venues.

This then is the most important methodological presumption on which this study is predicated: that even sources that do not allow one access to the language used in actual lawsuits still allow one to speak generally about the manner in which language was used in social and political contexts like law. This does not mean that we need to see the formulas and fictions cited by the jurists as reproducing the actual language used in any particular historical legal suit. What it does mean is that we need to consider seriously the possibility that these "verbatim" accounts reflect, in a general way, the linguistic character of legal events as they would normally have progressed. In other words, while these texts might not duplicate the words used by actual parties in dispute, they might well reproduce the nature of the lexicon upon which such parties would have drawn. While they might not reprise the syntax of any historically verifiable judge, they could easily duplicate the syntactical structures such a judge would have employed. And while they might not recapture the poetry of any particular judicial performance, they seem very likely to reflect the importance of law as a form of verbal art. Moreover, the remarkable consistency obtaining among these texts in terms not merely of language, but of the linguistic patterning of the occasions they describe—the alternation between plain and heightened speech, for example—suggests that we can also learn a lot from them about the manner in which the rhythm of the language itself contributed to establishing the authority of the event. Judges and litigants in these texts are not always—or even primarily—depicted as speaking in rosc. Heightened language tends to occur in particular sequences and situations, and only when the speech in question is regarded as especially privileged in its significance and authority. Again, this is evidence of great importance for those who would understand the performative dimension of early law. Just as the character of a musical piece is determined as much by the mathematical relationship existing between the notes of which it is composed as by the identity of those notes tout court, so also the evidence suggests that it was not only the words themselves, but how these words were put together, that mattered in legal affairs.

It is a given of our culture that whereas art and drama are by nature wild, imaginative, and risky, law is stolid, objective, and obscure. One has only to call to mind the popular stereotypes of the practitioners of each of these crafts to understand the ubiquity of the perception. Were an avant-garde artist to appear in a three-piece suit of tailored wool we would probably be surprised; were the justices of the Supreme Court of the United States to shed their robes in favor of Birkenstocks and sagging jeans, the shock might well be fatal. How accurate these stereotypes are for our own culture is best left to others to determine. What is unquestionably true is that such an opposition between art and politics, and between drama and law, does an injustice to the realities of life in the early middle ages. To use the term "drama" to describe the procedures by which order was achieved in early Ireland is not simply to employ a metaphor of convenience; it is, rather, to recognize the creative, fluid, and inherently risky nature of the event. Performances may transport the audience to unfamiliar settings and introduce them to characters previously unknown, but implicit in every such event is the very real possibility of failure—the chance that the audience will reject the proffered message and revert to a reality of its own choosing. It is this sense of daring and immediacy that the present study attempts to recapture, if only dimly, like a world glimpsed through the shadows that fall after the applause has finished and all have left the stage.

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Meet the Author

Robin Chapman Stacey is Professor of History at the University of Washington. Her book The Road to Judgment: From Custom to Court in Medieval Ireland and Wales, also published by the University of Pennsylvania Press, was awarded the John Nicholas Brown Prize of the Medieval Academy of America.

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