Law in Iceland as Seen in Njal's Saga
“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson, Njal's Saga
Law in Viking age Iceland was and is a very complex topic; even the sagas look with admiration on those who were able to learn and use the Icelandic legal system to their advantage. The law evolved constantly in the face of new decisions, was highly mutable according to the relative status of the plantiff and defendant, and carried with it both the implication and reality of violence. Many of the great sagas contain a glimpse of this convuluted legal process, but Njal's Saga, in particular, is hailed as one of the greatest. Not only is it one of the finest examples of saga-writing, but it also hinges many times upon the outcome of this or that legal case. By examining the Saga of Burnt Njal, we can gain a richer view of Icelandic law at the turn of the first millenium.
Njal's Saga, however, is a work of historical fiction, written two hundred years after the events described, fictionalizing details that the histories do not provide .Its author likely embellished or altered certain historical events in order to create a more compelling story. In essence, it is as if John Grisham were to dramatize the case of Marbury v. Madison, turning a well-known court case into a story to entertain the masses. Thus, we do not truly get a deeper understanding of Icelandic law, but rather an understanding of how this law was viewed two hundred years on. We see how the descendants of our antecedents viewed an important transition in their history, and how they viewed the law of their ancestors. This is an important distinction to make, but also an important understanding to come to, as it is so often that we see the Viking Age of Iceland through the eyes and pens of those in the age of Writing and the Age of the Sturlungs.i
Given that the sagas were not written contemporary to the events they describe, it should be asked how reliable they are as sources. While Jesse Byock has convincingly argued that some saga writers, at least, were working from highly detailed sources,ii other sagas lack that pedigree. In the case of legal details in the sagas, we have a number of other sources to provide comparisons. There is the Codex Regius, which is a book of Icelandic Law, and histories by such Icelanders as Ari the Learned. By comparing these sources, we discover that the sagas are largely accurate accounts of events, though they should not be believed without question (a prime example being the Unipeds of the Vinland Sagas, which are discussed elsewhere).
These corroborating sources were specifically not consulted for this work; the purpose here is not to understand Icelandic law as it was, but rather to see Icelandic law of the Saga Age as the Icelanders two hundred years later would be familiar with it; by examining the sagas. To use a modern analogy, it is comparable to watching a season of Law and Order to gain an understanding of the American legal system; while the information gained might not be one hundred percent accurate, it does reflect the view of the legal system placed before society. It is through their eyes that the other sagas were written, and so knowing what their eyes saw improves our understanding of saga literature as a whole.
While Icelandic law had some things in common with the American legal system, many things were different. The concept of double jeopardy did not exist; if someone who was not part of an earlier trial or settlement had a valid claim upon you (or could manufacture one), they could bring charges against you. Furthermore, a simply winning a court case did not ensure that you would gain what was decided to be yours; you were responsible for enforcing your own judgments, and the judgments made for your friends. Someone of sufficient power and influence was essentially immune from prosecution, though it is unlikely that they would have maintained their influence if they flaunted the law (as witnessed by the many friends Flosi lost after the Burning became known).
Compensation decided varied depending upon the damage done, why it was done, who it was done by, and who it was done to, but the baseline wergild for a free person was one hundred ounces of silveriii. Monetary compensation would be divided amongst those who had a right to make a claim. That one hundred ounces is standard is seen many times throughout Njal's Saga, such as in the conflict between Njal's wife Bergthora and Gunnar's wife Hallgerd, where the sum is traded between Gunnar and Njal several times in response to a series of killings. It is later seen in the settlement for the Burning, as
Njal was to be paid for with treble compensation, and Bergthora with double compensation... Grim and Helgi were each to be paid for with double compensation, and there was to be single compensation for every other person killed.
Instead of monetary compensation, certain cases would also merit outlawry, which was literally being removed from the law and its protections. An outlawed man could be killed with impunity, and his lands would go These were usually unwarranted killings, and the outlawry which was inflicted would be for three years, or for life. If someone was convicted of two crimes carrying a three-year outlawry, then it the outlawry became life. All goods left behind by a life-outlawed man would be forfeit, with half going to his prosecutor, and half going to “those men in the district who have a legal right to confiscated goods.” These two punishment, outlawry and monetary compensation, were the only two that the courts of Iceland had the ability to impose. Imprisonment was unknown; probation was granted when one was found to be not guilty, but one's neighbors remembered the case. Parole was a matter of having the strength to ignore a judgment and would usually result in future difficulties.
Two concepts of the Icelandic legal system in particular need to be clarified, as their use is very different from the American sense of the words; jurors and witnesses. Jurors did not decide whether or not someone was guilty of the crime they were accused. Rather, they served in a capacity similar to an American grand jury, deciding whether or not enough un-refuted evidence existed for the case to continue.iv Witnesses also did not necessarily serve to tell what they saw, but rather to certify that things had been said and that forms had been followed. Failure to do so could result in a lost case, as is seen in chapter 53, when Gunnar at first does not tell anyone about his wounding by Otkel. This can be seen in Chapter 22v, where Gunnar summons Hrut in the case of Unn Mord's-daughter; he brings two witnesses with him, but neither saw the events in question. Instead, they are there to testify that Gunnar made the summons properly. Later, in Chapter 66, Njal clarifies that, even though Thorir did the actual killing, Kol can be held responsible because the witnesses were informed that he was at fault, and their testimony would implicate him. In essence, the witnesses of Icelandic courts served as notaries of the American legal system; not testifying to the truth of events, but rather to what had been done in their presence as lawfully named witnesses.
Long before a case was brought to court, and in many cases while the case was in court, the parties would attempt to come to a mutually acceptable settlement. This avoided all of the problems inherent in the Icelandic legal system, and provided a chance for prestige if a settlement was well-reached. Settlements could be whatever would be mutually agreeable to both parties, or one party could give the other self-judgment, wherein the other party set the terms of the settlement. This was a sign of holding the other in honor, and believing that they would make a fair assessment, but it could also result when one party was so much stronger that any settlement would come down to them dictating terms. A good example of the give and take in making a settlement is in chapter 49, when Gunnar is admitting to Hallgerd's theft of Otkel's goods. Gunnar first offers to have the farmers in the district make the decision, but Otkel rejects this, as Gunnar is far more popular with them. Gunnar then offers to make the settlement himself, pledging friendship along with double value, but Otkel rejects this based on advice. Finally, Gunnar offers Otkel the right to make the judgment, which is also refused. While the case is eventually brought to court, the complicity of both parties is clearly needed for any settlement to go forward. Rejecting a good settlement, though, can lead to a difficult court case or, as in this case, a duel.
Icelandic law was rooted in tradition and forms. If a case was brought to trial, each form had to be rigorously precise, or a case could be completely invalidated. Even if a summons were given under odd circumstances, a correctly worded and witnessed summons was binding. This can be seen in Chapter 22, where Gunnar summons Hrut in the case of Unn Mord's-daughter. Hrut, a great lawyer, tells a disguised Gunnar how someone would summon Hrut for such a case, and Gunnar says in a voice that only his chosen witnesses can hear the proper formula to make the summons official Even though deceit was employed, the summons is legal and binding.
This concern for forms in the early saga presages a similar concern at the climax of the saga. In Chapter 142, Mord's pleading and giving of evidence is very precisely worded, each time using the exact same phrasing.
Mord then named witnesses again – 'to testify that I reserve to myself the right to correct any mistakes I may make in my pleading, whether overstatements or errors. I reserve to myself the right to amend any of my pleading until I have given my case its proper legal wording. I name these witnesses on behalf of myself or whomsoever else may require the benefit of this reservation.
As said, this set formula allowed Mord to plead his case properly, but also contained loopholes to allow others to take over, if necessary. The set wording, formulaic is evident throughout Mord's case against Flosi, the leader of those who burned Bergthorsknoll. Each action taken, from naming witnesses to bringing charges, had its own ritual wording in this Icelandic legalese.
The concern for proper wording stemmed from the minutiae of Icelandic law; small mistakes could be fatal to a case, as can be seen, again, in the case that Gunnar brings against Hrut. In chapter 24, Gunnar fails to cite three witness statements that should have lawfully been in his argument; this invalidates his case, making it impossible to prosecute Hrut through the courts. This only left two options: a settlement or violence.
Single combat was always an option for resolving disputes, but not one often taken. Early in the sagavi, Hrut challenges Mord Fiddle to single combat over a dowry claim Mord was making on behalf of a kinswoman, and when Mord refuses, he is met with derision, even though it is generally accepted that he will lose should he fight. When Gunnar is prosecuting the same case in chapter 24, however, the situation is reversed, as Gunnar is a far superior fighter to Hrut. The threat of violence, then, could force a settlement, and the legal status of single combat made any such killings immune to claims of compensation.vii
More dramatically, extra-legal violence was also an option in the Icelandic system. At the Althing where the conversion was announced, both Christians and heathens stood ready to do battle should the decision not go their way. While battle was avoided at that point, battle actually does happen after the Burning, when the Burners, through “lawyers tricks and quibbles” seem about to absolve them of their actions. In a large battle with much bloodshed, both sides are brought to a point where a third group is able to force them to settlement.
The broad strokes of Icelandic law were as above; settlement if possible, court if necessary, and violence when either all else failed, or it would be the simplest way to reach your end without costing you your honor. However, the broad strokes do not address the full picture, and so need to be completed with fine details.
Perhaps surprising to those unfamiliar with the Sagas, women play a very large part in this saga; indeed, the tale begins with a story of Hrut, who promises to marry Unn Mord's-daughter when he has retrieved an inheritance from Norway. He becomes the lover of Queen Gunnhild in order to gain her support in his claim, and his untruthfulness on parting causes her to curse his manhood so he will never enjoy Unn. His inability to consummate the marriage causes her to divorce him. This is only the first sign of female and legal right independence that we see. Since Hrut is determined to be “at fault”, Unn is entitled to both the dowry and the husband's portion of the bride price, though she must rely on her male relations to plead her case in court, and represent her should it come to combat.viii We also see evidence of the relative independence of women in the conflict between Bergthora and Hallgerd; both are able to convince the men of their farms to perform killings for them, though it is their husbands who are ultimately responsible for the damages. Even the large influence of Njal's mistress over his legitimate sons, and Hallgerd's refusal to help Gunnar, which ultimately results in his death, speak well for female power and independence in Icelandic society. While they had no ability to plead cases or stand at law, they did have legal standing and rights independent from those of their husband, fathers, or brothers.
The importance and value of oaths is also made evident in the saga. Each witness was required to give oaths, of course, but oaths themselves could be called evidence. When Gunnar is called to court by Otkel, he demands oaths from Gizur the White and Geir the Priest (who were advising Otkel) that it was not their idea to bring him to court, and those serve as enough evidence for him. This could be even if the oath-taker had broken oaths before, as Thorarin Olafsson is willing to forgive Hallgerd's previous problems in marriage to marry her to his brother Glum. As with all things, though, this required there to be mutual esteem; if the oath would not be taken by the party receiving it, it was worthless.
Throughout the saga, there is a thread of respect for the honor of an individual. Hrut is chosen as an arbiter, even though he is the brother of one of the parties, because he is well known for his honor. Njal and Gunnar are awarded self-judgment in actions against them because they are known to be honorable men who will give fair judgments. Wisdom and honor in disputes win men prestige, and are seen as signs of the worthiness of men's claims against others. Guile is acceptable, but not when it relies on technicalities to allow men to escape horrible actions. Honor, then, means using your resources to gain for yourself what is rightfully yours, but without infringing on what rightfully belongs to another, or seeking to escape the consequences of your wrong actions.
The Icelanders had a great respect for law and for the wise decisions of honorable men. This is seen in the stories they tell of their ancestors. Law in Iceland was a matter of forms and force, tradition and wisdom, and, above all, subject to the court of public opinion. The Iceland of Njal's Saga never comes closer to dissolution and civil war than when the law is being flouted, be it because religious obligations make it impossible for people to live under the same law, or because a conflict has gone so far that the law cannot be trusted to bring the guilty to justice. Njal Thorgeirsson had a reputation for prescience, and the statement which began this paper shall also end it: “With laws shall our land be built up, but with lawlessness laid waste.” Njal's Saga shows this to be true, while giving us an insight into how the saga-writers saw their ancestors and their actions.
Works Consulted and Cited
Byock, Jesse. “Egil's Bones,” Scientific American, January 1995, 82 – 87. Available on-line at http://www.viking.ucla.edu/Scientific_American/Egils_Bones.htm
Magnusson, Magnus and Hermann Palsson, trans. Njal's Saga. New York: Penguin Books, 1960
Sigurthsson, Ingvar. Milestones in Icelandic History. Available on-line at http://www.south.is/milestones.html
iThe naming of “ages” in medieval Iceland is not precise, nor generally agreed upon. I have chosen to define the period from 874-930 CE as the “Settlement Age”, while the period from 930-1030 as the Saga Age or the Viking Age. The Age of Writing begins in 1120, and is replaced by the Age of the Sturlungs in 1230, which lasts until the end of Icelandic independence in 1262.
iiIn “Egil's Bones”, from January 1995's Scientific American, Dr. Byock argues the theory that Egil Skalagrimsson suffered from Paget's Disease, which results in distorted facial features, a host of minor physical problems, and an exceptionally hard skull. Based upon the sources, many symptoms Egil describes are common to Paget's disease, but are unlikely to have been known to a medieval author, suggesting a continuity of knowledge and the persistence of Egil's poetry, at least, into the Age of Writing.
iiiThe use of one hundred is not as precise as might be preferred; while it not only could refer to a modern one hundred, the Icelander would also frequently use a “long hundred” as a unit of measurement, which equaled ten twelves, rather than ten tens.
ivAs stated by Magnusson and Palsson in their footnote on page 138.
vChapter titles in this paper refer to those used in the Penguin Classics edition of Magnusson and Palsson's translation of Njal's Saga. The ISBN for this volume is 0-14-044103-4.
viiIt is unclear whether single combat in this case refers to holmgang, which was a ritualized combat to first blood, or einvigi, which was a duel to the death. While the statement in chapter 8 that Mord would lose his life if he fought Hrut points towards einvigi, it is also possible that it was more a statement of their comparative skill levels that Hrut would be able to kill Mord even given the constraints of holmgang..
viiiThese events are from chapters 2-8.