tanadrin:

tanadrin:

tanadrin:

I disagree with Friedman’s conclusions about medieval Iceland as having an effective and stable system of law. I did two research papers on the saga in University, from a legal and literary perspective, and it is worth noting:

1) the Icelandic sagas were written well after (centuries) the period they described; they are primarily literary artifacts, not accurate histories. In some cases they’re very inaccurate–though presumably based on some form of oral tradition. Given the nature of Icelandic society throughout history, this tradition is probably roughly equivalent to the family lore that gets passed around and vaguely alluded to by your ancient aunts and uncles, not a carefully curated Official Record. Among the things Njals Saga gets wrong, for instance, is the timing and reason for Iceland’s conversion to Christianity. The change is made for literary reasons, because it fits the story the author is trying to tell better.

2) the other main institution of the Icelandic Commonwealth, as the period is sometimes known, was the blood feud. This is Scott’s outlaw Cascade, and it was just as bad if not worse as he describes it; it is also the heart of Njals saga, in which a blood feud destroys some of the wisest and best people on the island and drives the others into exile and results in two of the most heinous crimes possible under Icelandic law, burning a man to death in his home, and a pitched battle breaking out at the Althing (where weapons are forbidden). The sense we get from the saga is the futility of law at stopping these things; even though part of the saga is about legal drama (“with law shall our land prosper; with lawlessness perish”) it’s also a saga about violence, which brings me to point 3:

3) the Icelandic Commonwealth ended because the system was unstable. Transferrability of everything to legal cases to godords meant that power gradually became concentrated in the hands of a few strong, rich men; by snorri sturlusons era, competing factions were at constant low level war with each other, and we’re strong enough to ignore penalties like outlawry. Icelandic society was on the verge of collapse, lacking central enforcement mechanisms, and the only solution the Althing could devise was to invite the king of Norway to come rule them and impose his laws; Iceland became a dependency of foreign powers until the 20th century as a result.

4) the sgaa itself is a litany of failures of both law and the abilities of good men to prevent the breakdown of ordered society. Gunnar, Njal, and Flosi all fail to stem the bloodshed (not that Flosi really tries), everyone in the saga is driven forward relentlessly by social obligations like vengeance or the support of kin that they cannot escape, and the moments of climax like the burning are both terrible and seemingly inevitable. This is not a society that is a good model for anything! It’s romantic, sure, but it’s deeply dysfunctional–and keep in mind one thing that suffuses this tale is *nostalgia* for the old order, since Iceland at the time it was written was *even worse*. But it is a romantic depiction, I’ll give it that, especially if you are a male landholder. (A woman, thrall, or hired man… not so much)

(NB these are mostly not my own conclusions, but the standard view of historians and other scholars who I read while researching the saga.)

I should see if I still have copies of my old papers on the saga. It’s a great read. Skarphedin cleaves a guy’s head in half so hard his teeth scatter on the ice, and there’s ghosts and magic and Vikings, and a lawyer who runs a guy through with a spear.

I knew this guy seemed familiar… Friedman was one of my sources for the essay! Specifically, his article “Private Creation and Enforcement of Law: A Historical Case,” in The Journal of Legal Studies.

Takeaways from looking over my old notes on the saga:

– The vast majority of cases ended not before a panel of judges, but in private, or in an open field, or at the point of a spear; per William Ian Miller, less than 10% of all cases concluded with a judicial decision. This is both good and bad, even where settlement is concerned, since the saga itself provides examples of people left out of a settlement or reneging on it who cause a previously settled case to be raised again.

– Although, NB, the legal system depicted in the saga is not a faithful rendition; this is most clearly seen where legal formulas are invoked without understanding, and without the unnecessary elements of the formula being struck off, as fits the facts of an individual case. That doesn’t mean it’s pure invention, just that the law depicted in the saga is serving a literarly purpose primarily, not a historical one.

– Iceland came by this system really peculiarly: migrant society escaping a centralizing authority meant they brought with them the Germanic tradition of the Thing, but not the Germanic tradition of kingship, or anything remotely like it. Plus, it was (for the early Middle Ages) relatively egalitarian at the beginning: lots of independent landholders without stark differences in wealth among the political class (but, again, cf. slaves, women, and landless servants). But the hierarchy terminated abruptly above that point. There was no nobility. The highest public office was consultative, just the guy who memorized the law.

– Kinship was your social (and legal, and military) support network; kinship obligations were therefore very important, natch.

– Blood feud was basically inseparable from the legal order. Blood feud was in some ways the eruption of dissatisfaction with the legal order; the structure of the feud channeled (sort of) violence that could have otherwise been unrestrained, but without a state monopoly on violence, *some* kind of private enforcement of grievances was inevitable. And women drove feuds as fiercely as men: one of the most chilling scenes in the saga is when Kari’s wife drapes him in the bloody cloak of a man he has an obligation to avenge, in order to spur him to action. The law could get parties to the table for arbitration, but there was no guarantee it would work; if it failed, blood feud was usually the only option, especially where serious issues were at stake. (”Serious issues” include things like killings, but also personal insults, cheating at horse fights, and accusations of unmanliness.)

– It gets so much worse. Quoting from a footnote: ‘That such violence
played a constructive, or at least neutral, role in building social order can
be seen by the counterexample; in the latter Commonwealth period—the same
period in which the sagas were written—the concentration of goðorð in the hands of a few families,
the rise in powerful goðar, and
attempts by these goðar to claim
political and territorial control for themselves resulted in the erosion of the
traditional systems of dispute resolution, and the weakening of legal institutions.
Feuds were forbidden, and the stórgoðar
attempted to intervene and solve disputes at an early stage. (Þorláksson, p.
149-150, and see also Sagas, Society, and
Power, pp. 73-76) Territorialization and competition between the stórgoðar, however, resulted in the
outbreak of war in 1235, and traditional restraint disappeared. Violence, when
it erupted in the Sturlung era, was general, and the parties attempted to
utterly destroy one another. Þorláksson puts it best: “The family sagas… are
well known for their descriptions of hostility and skirmishing between feuding
parties. But they contrast sharply with the contemporary sagas, which are full
of tales of mindless maiming and mutilation, pillaging, arson, and limitless
butchering. … [T]he family sagas are, in a way, glorifying the times when men
showed some restraint and respect for others by tempering of violence and by
honoring the unwritten rules of the feud.” (Þorláksson, p. 149)’ In the absence of strong mechanisms to prevent such things (again, everything from land to godords was transferrable property; there was no system of redistribution), this instability is hard to see as anything other than inevitable.

– “Because of the
importance of kinship ties in such a society, an insult to one person may be
the basis for action by another; though conflicts are private in the sense that
they do not involve any public authority, they are also automatically communal,
in that they quickly spill over beyond the individuals initally party to a
dispute.” In other words, you can find yourself the target of violence because your cousin did some stupid shit. As someone with a fair share of dumb cousins, I feel this has… drawbacks.

– Someone dying as an outlaw doesn’t prevent people seeking vengenace for them, even though outlaws technically don’t have the right to vengeance (cf. Gunnar).

– “’Nefnduð þér nǫkkura
vátta at orðunum?’ segir Njáll. ‘Enga,’ segir Skarpheðinn; ‘vér ætlim ekki at
sœkja þetta nema á vapnaþingi.’” Did you name any witnesses to your words? said Njal. None, said Skarphedin. We’re going to prosecute this case in an assembly of weapons. Holy shit you guys this saga is so good.

More random Njala notes:

– My opening quote for the second essay was “Inter arma enim silent leges,” which I got from Star Trek (though my ON professor loved Star Trek, so I’m sure she caught that).

– Stark tension between individual choice/an individualistic society as depicted in the saga and the inescapable web of social obligations (of which the feud is only one part). This is something we still struggle with, although I actually think the modern configuration of things should be viewed as more free rather than less: you don’t have to support your deadbeat relatives just because they’re related to you, because that’s what you pay taxes for (in theory). Outsourcing social welfare to a central authority gives individuals more choice to pursue life paths not (say) dependent on whether they can support extended family with their income if necessary. So I think the “libertarian” option of a society without a safety net is one I would find to be much less free, in terms of actual individual experience. Paying taxes gives us a lot more choices in our day to day lives than we would otherwise possess.

– One of the many morals of the saga is Don’t Slap Your Wife, Because She Might Not Give You a Strand of Hair for a Bowstring, When You’re Trapped in Your Burning House Trying to Shoot the People Outside. It is a good lesson, if a narrow one.

– Njal’s last words are, “Have faith that God is merciful, and he will not permit us to burn both in this world and in the next.” Seriously this is SUCH A GOOD BOOK.

– The other downside of an integrated community being the source of order in your society is that when you remove people from that context they’re free to act however they like: this is how ordinary farmers become terrible vikings, for instance. An integrated norm of “all countries have laws and you have to obey them regardless” means your vacation to Ireland is much less likely to end in monastery-pillaging.

– The last season of a TV adaptation of Njal’s Saga would just be Kari sailin’ around killin’ folks, every episode would be entitled “Kari’s Revenge, Part Whatever”, and it would be pretty great tbh.

– More seriously though: nothing in the Commonwealth *required* someone to settle; there was not even a weak social norm demanding it. This meant that a conflict could last until everyone involved grew sick of it, or the last claim for vengeance died out–and that could take a long time.

– The ending of the saga is instructive: it’s not an act of law or violence that finally brings the whole cycle of destruction to an end, it’s Kari forgiving Flosi in a Christian fashion. The individual act of goodwill is the strongest source of order in the saga (even above the law), which is perhaps the author’s point. Every time we choose to do either the thing that’s easy, that’s preordained by social forces around us and our own inclinations, or we choose to do the thing that is kind and very, very difficult, we choose what kind of world we want to live in, and I feel like this is one of those Important Lessons Books Taught Me (or at least reinforced) that can get lost in all the head-cleaving and house-burning.

But seriously, go read Njal’s Saga, it’s fantastic.