By Declan McClean
Law is not universal. We comprehend that different countries have different legal systems, and sometimes laws are varied even within countries. However, the universal nature of the modern state has largely eroded the cultural responses to law and enforcement that were present in previous ages, and we often consider elements of corruption or extra-legal affairs to be maimings of some sort of super-national universal justice, rather than the effects of western legal systems, which began under certain circumstances, not being fully suited to other circumstances.
Similarly to the modern world, law was practiced differently in different areas in the medieval period, with Iceland being one of the more litigious societies due to its unique history, with a transition from feuding culture to a court system mediated by steady centralization by the kings of Norway and the Christianization of the Norse world. We can see alternate points of view on the most important elements of ‘justice’ using the example of medieval Iceland and Njal’s Saga.
Iceland was first settled by discontents fleeing laws simply written and occasionally enforced for the attempts at centralization of Harald Fairhair (850–932), the first king of Norway. The early Icelanders replicated the old Germanic tradition of the ‘thing’, a sort of parliamentary assembly, in a deliberate attempt to prevent centralization and tyranny, with Adam of Bremen remarking in his Gesta Hammaburgensis that in Iceland there was “no king except the law.” Without going into excessive detail on the specific arrangements of medieval Icelandic governmental structures, the settlers established districts with a goði each, a combination of priest and judge, as well as higher assemblies to discuss national laws, with a “lawspeaker” appointed with significant judicial authority. We see one example of these practices during the Christianization of Iceland where a fractious period of communities warring over conversion ended when Thorgeir Thorkelsson, the lawspeaker of the time, meditated under a blanket and afterward announced that Iceland was to become Christian, throwing pagan idols into a waterfall and converting the populace with relatively little disagreement.
The practices of law in Iceland are attested in many of the usual medieval sources such as hagiographies, histories, and stories. However, Iceland had a unique combination of a story-focused culture and high literacy among free farmers, which provides modern scholars with extensive literature to demonstrate contemporary attitudes to legal processes, as well as cases or circumstances that were thought notable enough to remark upon in a story. Indeed, Icelandic sagas are often essentially legal dramas, though the plaintiffs often brought swords to court and occasionally killed the judge. Through examination of a few of these cases we might understand how the Icelandic Commonwealth considered issues of justice, reciprocity, and civil, political, and familial conflict, as well as the status of law itself. Were laws simply written and occasionally enforced for personal benefit by powerful figures to provide a veneer of legitimacy to otherwise tyrannical acts, or were they popularly accepted and supported?
A few examples can be highlighted in Njal’s Saga, one of the longer and higher-quality sagas, depicting a series of feuds involving Njal, a well-respected lawyer, and his associates and enemies. Aside from the dramatic parts of the story, there are several more unusual elements, such as a cheese theft and a psychic dog, that make it well worth reading.
Njal’s Saga: A Dowry Dispute Gone Wrong
The saga begins with a dispute over a dowry. Hrutur marries Unnr, but due to a curse the couple are sexually incompatible, leading to an ugly divorce. In Icelandic law, both parties were able to initiate divorce, and the proceeding was often used as a dramatic device in sagas. In this case, Hrutur challenges Unnr’s father to a duel so that he doesn’t have to give Unnr’s dowry back, and he keeps it after Unnr’s father forfeits, knowing he would lose against Hrutur. To the farmers of Iceland, a dowry might be a significant investment and a divorce would endanger relations between neighbors, and as such, the state of affairs leads to general discontent.
Following this, Gunnar, a heroic figure, enters the story and assists Unnr in reclaiming the dowry. Gunnar consults Njal, who gives him a legal formula with which Gunnar tricks Hrutur into accepting a legal summons and challenges him to a duel. This time Hrutur forfeits, knowing Gunnar’s superior skill in arms.
These events give us insight into the legal culture of Iceland, where legal settlements often result from technicalities and the threat of violence rather than from legitimate attempts to resolve disagreements justly. Gunnar uses the same threat of violence that Hrutur did, with neither profiting from the method in the long run, while Njal (as will be seen later) is perfectly happy to use trickery to enhance his own reputation and support his associates. The legal culture present is an unusual one as it combines the elements of popular violence we associate with the medieval period before the emergence of the nation-state with a complex system of legal precedents and customs developed over time.
Over the course of the saga, Gunnar becomes involved in a series of disputes that Njal attempts to mediate. Many of these disputes focus on how familial ties and honor compel Gunnar and his enemies to continue feuds even though they have no particular wish to, demonstrating the social pressure present that overlays the judicial conflicts of the saga. Over time the feuds spiral out of control, involving more and more people and resulting in many deaths, leading Gunnar to accept “lesser outlawry,” in which he is exiled for three years.
However, after accepting the settlement Gunnar decides to stay, demonstrating the lack of executive power goðis and the courts of Iceland had to compel individuals to accept legal judgements without the threat of violence. Eventually, one of the goðis is compelled by his supporters to assemble a gang and kill Gunnar, though they reject suggestions to burn him in his home, demonstrating the taboos Icelanders commonly understood, even when engaged in violence. Gunnar’s initial attempts to retrieve Unnr’s dowry cascade into a much larger feud where blood- debts are presented as part of a feud between parties, rather than discrete legal disagreements, despite Njal’s efforts to prevent escalation.
The narrative details several other issues, with one notable episode where Njal arranges the marriage of his foster son, with the intended woman only willing to marry a goði. To resolve this, Njal goes about for three years giving poor legal advice to his clients and causing them to lose their cases, with the unsatisfied plaintiffs stating, “We would rather seek our rights with point and edge.” Njal then announces at the assembly that, as there will be many appeals, the Icelanders should create an appeals court to resolve them, with his foster son as the goði in the new court.
This circumstance might tell us several things about the opinions of the time: firstly, that Njal apparently feels no particular inclination to represent his clients properly in legal matters and is perfectly happy to manipulate the justice system for his own ends; but secondly, that the Icelanders are evidently collectively concerned by the growth in the number of cases that might result in an appeal, and they are sufficiently moved by Njal’s rhetoric to reform their legal system. Clearly, however, Njal’s interpretation of law and justice is very different to our modern conception of it, with Njal rather hypocritically stating, “With law shall our land be built up and settled, and with lawlessness wasted and spoiled.”
Blood Vengeance or Compensation?
Through a complex series of events, Njal’s sons engage in their own feud. Their enemy Flosi agrees to take a suit against them for a murder “to the utmost limits of the law” and initially wishes Njal’s sons to atone and make amends. However, Flosi is persuaded to only accept blood-vengeance instead of any monetary compensation for the killing after the widow of the victim throws a bloody cloak over him, with the saga describing a dramatic emotional reaction, demonstrating that even if individuals might prefer certain outcomes they can still be persuaded toward others.
Similarly, due to the familial nature of the conflict, when Flosi consults his supporters to determine the appropriate punishment for Njal’s sons, there is a series of different preferences, from making some judicial arrangements to more serious penalties such as outlawry or death, with one remarking, “I would willingly stand by when [Njal’s family] were all slain, every man of them.” Flosi is aware of the potential repercussions, though, stating, “I see this clearly, that though we slay Njal or his sons, still they are men of so great worth, and of such good family, that there will be such a blood feud and hue and cry after them, that we shall have to … beg for help before we find our way out of this strait.”
Flosi is correct, and the saga continues with the burning of Njal’s family in their home, an escalation from the previous attack on Gunnar, and many more deaths as the burning is avenged by Kari, an associate of Njal’s family. Eventually, Flosi and Kari reconcile, but the tragedy of the saga only concludes in the last chapters, with the cycle of vengeance and feuding in the narrative involving more and more characters who were uninvolved in the initial quarrels.
While this has only briefly examined Icelandic justice through the lens of Njal’s Saga, many of the themes and concepts are present in law codes or other sagas. These include the focus on familial justice or violence employed as a remedy instead of compensation, the steady escalation of violence in the narrative, and the fatalistic attitude displayed by some of the characters who, despite their reluctance, continue on their bloody roads. We can observe how the variable authority of the goðis and lawspeakers is inadequate to prevent violence due to the lack of executive power elsewhere present in continental kingships, as well as how the deliberately decentralized political constitution of Iceland at the time prevented tyranny, but also prevented anyone from stepping in to resolve even small disputes, with individuals instead relying on their popularity, martial prowess, and social capital to achieve their aims.
Declan McClean is a Policy Advisor at the Department for Business, Energy and Industrial Strategy of the United Kingdom.
This article was first published in The Medieval Magazine. Click here to learn more about this digital magazine.
Top Image: The Njáll tapestry project at Njála museum, Hvolsvöllur, Iceland. Photo by Reykholt / Wikimedia Commons