What is the value of Njals saga as a source for the historian of law in Viking Iceland?

The Saga of the Burning of Njal, usually known simply as Njals saga (or Njala for short), is considered by many to be Icelands best and most important work of literature. It is one of the more epic components of a body of writings known as the Icelandic family sagas, and is the one that deals most extensively with the topic of law. Like the other family sagas, it is a description in historical-narrative style of the conflicts among the Viking settler clans in Iceland. As befits an historical epic, there is a great multitude of characters as well as numerous plot lines, none present for the entire length of the book but constantly arising, disappearing and displacing each other. Along with a written collection of the Icelandic law codes called the Gragas, Njala is one of the few surviving insights we have into the legal system of early Iceland; neither, however, could be described as definitive or authoritative and they were frequently in contradiction, as shall be seen later. This essay will first look at the issue of the origins and reliability of this saga and indeed of the sagas in general, before discussing what Njals saga has to offer specifically in relation to the law, and finally considering whether its representation of the Icelanders legal system could be considered accurate. Thanks to the authors extensive use of genealogies of actual persons and his description of the Christian conversion, we know that the events described in Njala took place roughly at the turn of the second millennium, during the period of the independent Icelandic Commonwealth; it was not written down, however until circa 12801, more than two centuries later. Who wrote it, and for what audience, is not known and can only be speculated upon.2 We can infer certain things, such as that the author was a Christian (as Iceland had been Christian for almost three hundred years when he penned the saga); his substantial knowledge of the geography and people of Iceland, and his command of the Icelandic language3 make it virtually beyond doubt that he was Icelandic himself; the echoes of various works of European literature throughout Njala would seem to suggest a fairly widely read and cultured individual.4 The matter-of-fact, pseudo-historical style of the sagas for many years led them to be accepted almost uncritically as accurate historical sources. In the last few decades, however, considerable doubt has been shed as to how far they can be relied upon either for historical facts or as accurate portrayals of Icelandic society. Are they pure invention? Pure history? Or historical novels describing fictional events but in a real society? Essentially, the question is whether they are literature, history or a combination of the two. As Heather ODonoghue has observed, the various sagas are remarkably consistent in their descriptions of people and events (and do reference numerous actual historical persons); but whether this coherent saga society reflects the society of Iceland circa 1000AD is another question 5. This consistency could merely indicate a common source for the information, such as the Landnmabk (the book of land settlements, which describes the initial settlers of Iceland in great detail). However, many of the usual characteristics of fiction are absent; it is driven not by characters but by events:
It is almost as if the author is not himself the controller of these events, but that they have- or had- a life of their own. It is as if, in fact, the author were recording what happened.6

Furthermore, the text is highly matter-of-fact; the chronology is strictly linear, and when events are described we are almost never told about the characters motivations, or how they felt about the occurrence in question. To borrow from an early scholar of the topic, the eloquent Alexander Bugge, Njala presents
1 2

Njals Saga, ed.Tom Griffith, trans. Carl Bayershmidt and Leo Hollander (Ware, 1998), xiii. Heather ODonoghue, Old Norse-Icelandic Literature: A Short Introduction (Oxford, 2005), 23. 3 He has been described as an Icelandic equivalent of Shakespeare: Njals Saga, xiv. 4 Njals Saga, xv. 5 ODonoghue, Old Icelandic Literature, 29-30. 6 ODonoghue, Old Icelandic Literature, 34.

no analysis of conditions of soul, contains no moralising observations; it is sober and realistic. 7 These things suggest history rather than fiction; but they could easily be an intentional stylistic device used to make fiction look like real history for the purposes of entertainment, like an historical novel. Furthermore, the intrusion of the supernatural, such as in Njals saga when the character Hrut suffers the consequences of a spell8, or where the slain warrior Gunnar sings from beyond the grave 9, hardly supports the notion that it is history that is being discussed; but perhaps these can be excused as merely being minor, stylistic devices reflecting the superstitious nature of Icelandic society rather than compromising the integrity of the sagas altogether. The question of fact versus fiction is related to the debate about the origin of the sagas itself: the free prose versus book prose debate. Essentially, proponents of the former say that the sagas are based on oral transmission of true stories from the time the events took place, before being written down as they traditionally existed. Meanwhile, the latter dogma holds that the sagas were literary inventions conceived of in the thirteenth century, and were thus non-historical fictions. 10 (Yet another camp suggests, implausibly, that they were based upon imported European literature.) If the free prose camp is correct, it would be reasonable to assume that even if the events being described are fictitious, that the framework and society within which they are portrayed as taking place do in fact reflect early Iceland in an accurate way. However, if the sagas are in fact entirely a creation of the authors in the twelfth and thirteenth centuries, then the society depicted in the sagas would probably be more reflective of the thirteenth century than the tenth or eleventh. The balance is probably somewhere in the middle. Unquestionably, there are thirteenth-century anachronisms imposed by the saga authors upon the supposedly eleventh-century Iceland: for instance, the author of Njala repeatedly refers to churches11 even though no churches were built in Iceland until considerably later. Some book-prosists have effectively, and chauvinistically, argued that Icelanders werent sophisticated enough to transmit such large, multi-stranded stories as Njala orally; however as Jesse Byock observes, if we accept they were intelligent enough to create an original and elaborate legal system, ..they could create a form of narrative sufficient to tell stories about themselves.12 At the end of the day, we cannot solidly conclude precisely how much of the sagas are accurate, how much fiction, and how much anachronism; however there is no doubt, thanks to other sources such as the slendingabk (although also written down later, its authors historical scrupulousness is considerably superior to that of the writer of Njal) and Gragas that they are broadly useful in representing Iceland a millennium ago, particularly insofar as they do not conflict with the latter primary sources- but of course we must always remember that in reading the sagas we are closer to the men of the thirteenth century than the tenth.13 To turn, then, to the topic of law. Broadly, two aspects of the law as it appears in Njala will be considered. Firstly, respect for the law as well as the lack thereof manifested by the frequent occurrence of its manipulation. Second, the other mechanisms for dispute resolution (such as arbitration), their legality and interaction with the law, and the shortcomings of the legal system which made them attractive. Before going into these matters, however, a brief outline of the Icelandic legal system. During the period described in the sagas, Iceland was independent, subject to no external sovereign; the state, such as it was nevertheless was quite unique, lacking any executive branch or figurehead at all (except for local chieftains, the godi, and the law-speaker, in whose mind the repository of Icelands law resided). Indeed,
7

Alexander Bugge, The Origin and Credibility of the Icelandic Saga, The American Historical Review 14, no.2 (Jan 1909), 249. 8 Njals Saga, 7:17. [Chapter:Page] 9 Njals Saga, 78:153. 10 Jesse Byock, Saga Form, Oral Prehistory, and the Icelandic Social Context, New Literary History 16, no.1 (Autumn 1984), 153. 11 E.g., Njals Saga, 123:245; also 132:267. 12 Byock, Saga Form, 168. 13 Peter Sawyer, The Viking Age (London, 1976), 37.

the only real manifestation of a state that existed was the Althing,14 an annual two-week gathering at which the law was pronounced, new laws made, and legal cases heard. There were four courts at the Althing, one for each of the quarters of Iceland, divided by the compass points, with each also having a smaller local thing.15 All suits were private, there being no concept of a difference between civil and criminal law. Judgements which the courts made, due to the absence of executive authority, had to be enforced by the successful plaintiff. It is obvious that, at least on the face of it, the Icelanders in Njala had a great deal of respect for the law. Njals inspiring exhortation16 that with the law our land shall be built up, and by lawlessness destroyed! is used to this day as a motto for many courts and judicial institutions in Iceland and Scandinavia. Furthermore, probably no modern society could claim that as many of its citizens were participants in, or spectators at, its judicial system as in Njals Iceland; for the two weeks every year his countrymen are present at the Althing, it seems hard to see how they could have avoided it. The high point of the islanders respect for the rule of law can be seen in the descriptions of the conversion of Iceland to Christianity contained in Njals Saga and the slendingabk.17 Although the Christian and heathen factions almost come to blows at the Althing, they agree to submit the question of Icelands future religion to the law-speaker (not Christian himself) and to abide by his decree. Accordingly, the law-speaker, Thorgeir, decides that Christianity is adopted, and both parties accept without violence or dissent. It is his eloquent speech persuading the two sides to submit to his decision in the first place, though, that is interesting; it is a rousing appeal to the value of having one set of laws, and the necessity of compromise to maintain the peace. According to slendingabk18, he declares: I think it is advisable that we don not let those have their way who are most confrontational; let us so compromise the case between them there can be no doubt that if we sunder the law, we also destroy the peace. That this appeal is heeded by men who a short time before were ready to do battle indicates the value the Icelanders attached to peace and unity of law even over their most passionately held beliefs. Nevertheless, this admirable spirit does not always prevail. There are numerous instances of cynical manipulation of the law in order to achieve personal ends. Most notably, Njal, despite the sentiments he expressed above, appears to show no qualms in abusing the trust placed in him as a man of law sought by all for advice and good counsel when he wishes to secure a godard (chieftainship) for his foster-son, Hoskuld. Njala records that:
To all men Njal gave advice which was not designed to be conductive to the success of their suits, so that both prosecution and defence came to naught.19

In order to advance Hoskulds interests, Njal thus sees to it that all the courts are paralysed and all the suits end in deadlock; hardly in keeping with his passionate belief in the rule of law expressed elsewhere (indeed, in the same very chapter, he is heard to say it would be intolerable to have no law in the land. 20 Granted, his machinations result in the institution of a higher court of appeal (the Fifth Court), thus arguably providing a boon to the legal system as a whole, but the self-interested nature of his motives and the underhand way he achieves this are hardly in the spirit of law as an impartial and principled institution above the petty squabbles of the powerful. In general, the system of law portrayed in Njala seems to be one that is quite open to manipulation. For those willing to exploit them, there is a multiplicity of technicalities and loopholes available to thwart the legal process, thanks to the precise and pedantic manner in which every stage of the process must be carried out. For instance, the climactic legal battle in
14 15

slendingabk, ch. 3. slendingabk, ch. 5. 16 Njals Saga, 70:138. 17 Njals Saga, ch. 100-105, slendingabk, ch. 7. 18 Ch. 7, this time quoted in William Ian Miller, Of Outlaws, Horsemeat and Writing: Uniform Laws and Saga Iceland, Michigan Law Review 89, no.8 (Aug 1991), at page 2085. 19 Njals Saga, 97:194. 20 Njals Saga, 97:194.

Njala, between Kari, Asgrim and the burners of Njal, is not a conventional lawsuit but rather descends into a battle of competing technicalities and obscure, dimly-remembered rules.21 (At one point, a rule introduced by the Court is known only to Thorhall Asgrimsson, who directs the prosecution from behind the scenes, and Skapti, the law-speaker, a relatively unsurprising consequence of having a body of law recorded only in peoples memories.) As a result of this the suit collapses and the Althing promptly turns from a court into a battleground. This is merely the most spectacular example of justice being thwarted due to the law being, on the one hand, unwritten and on the other hand, demanding of absolute precision. We see another example earlier in the story, when Mord Valgardsson deliberately sabotages the suit against Njals sons for the slaying of Hoskuld.22 Twice, a defendant who is in the wrong thwarts the judicial process entirely by challenging his prosecutor to a duel he knows he cannot win.23 As Henry Ordower has pointed out, in a saga full of lawsuits, not one runs its course to judgement: all are either settled by arbitration or by force, leading Ordower to declare we are observing a failed judicial system. 24 It is a system that, despite the occasional lip-service to the rule of law, all characters are perfectly prepared to undermine, manipulate and abuse; it is merely a tool for them to obtain their own ends and to gain honour and acclaim. Nevertheless, it has been observed that the very ineffectiveness of the law gave rise to a much less fragile and adversarial system as an alternative: arbitration.25 In addition to its tendency to collapse into stalemate, the ordinary law system offered only outlawry (for three years or life) as a remedy; arbitration allowed an amicable and honourable settlement that could include payment of money or certain conditions, which would be more likely to produce genuine reconciliation and peace than outlawry with its inherent violence and its consequent potential to prolong rather than end feuds. Often, arbitration would result from a stalemate in a lawsuit rather than as an actual alternative to it: on one occasion, Njal forces a suit against Gunnar to arbitration by threatening to invoke self-defence, which would clear Gunnar. 26 Other chieftains urge the plaintiffs to agree. That Njal would forgo the chance to see his client win the case, preferring an arbitrated settlement, illustrates that the latter would be more effective at actually resolving the matter at hand and obtaining peace. Having observed this somewhat shaky legal system as shown in Njala, it is now necessary to consider how accurate the portrayal of the legal system is to the one that actually existed in Iceland at the time. The Gragas is the only extensive written source outside of the sagas. However, it is not merely a compilation of the laws of the time- it also mixes in laws from other periods in Icelands history;27 like the sagas themselves, they were penned long after they were supposedly in force.28 Nevertheless, when sagas and Gragas conflict, generally the Gragas are considered authoritative.29 There are quite a few examples of Njalas author contradicting the actual law as it is understood: for instance, it has been observed that Mords sabotage of the lawsuit against Njals sons in Chapter 121 should not have defeated the suit and could have been rectified, and that a highly complicate ruse contrived by Njal to enable Gunnar to bring a suit in Chapter 22 was also unnecessary under the Gragas.30 These and other legal inconsistencies seem to indicate that the author either didnt know much about the law, or that he bent it a little bit in order to tell a
21 22

Njals Saga, 142:300-304. Njals Saga, 121:241. 23 Njals Saga, 8:19; 24:47. 24 Henry Ordower, The Literary Function of Law and Litigation in Njals Saga, Cardozo Studies in Law and Literature 3, no. 1 (Spring-Summer 1991), 51. 25 William Ian Miller, Avoiding Legal Judgement: The Submission of Disputes to Arbitration in Medieval Iceland, The American Journal of Legal History 28, no.2 (Apr. 1984), 134. 26 Njals Saga, 74:144. 27 ODonoghue, Old Icelandic Literature, 32. 28 In 1117: Miller, Uniform Laws and Saga Iceland, 2091. 29 Miller, Avoiding Legal Judgement, 96, n.5. 30 Ordower, Literary Function of Law, 43-45.

more interesting story or to illustrate particular points. Henry Ordower has pointed out that the authors agenda may also have been to exaggerate the failures of the law in order to illustrate to the inhabitants of his own time, during which the legal order had collapsed and had to be replaced by submission to the Norwegian crown, the dangers of a dysfunctional legal system. 31 By and large, though, the conflicts with Gragas are not numerous or grievous enough to justify concluding that the author knew nothing about the law; he is clearly quite adept in it, indeed, one of his own inconsistencies with the Gragas- Hruts challenge to Mord in court, which terminates the proceedings32 would in fact have been illegal- is recognised later as not having been lawful at all.33 Far more likely, he merely invoked poetic licence here and there in order to help plot progression and characterisation. All in all, once one takes into account the fact that both Njala and the family sagas as a whole have to be taken with a pinch of salt, and as long as there is a copy of the Gragas to hand, the legal scholar will obtain from Njals Saga a beneficial portrait of how, by and large, the Icelandic justice system worked in practice. It is the best source we have as to how the laws that existed were actually enforced, interpreted and perceived, none of which can be obtained from looking at the law-books alone. The nature of Icelandic studies is that we are never quite sure which sources are useful, and to what degree, and as such a degree of scepticism must always be brought to any source in the field. It is in this spirit that it can be fairly said the Njals Saga is of value to a historian of the law of Viking Iceland.

31 32

Ordower, Literary Function of Law, 52. Njals Saga, 8:19. 33 Njals Saga 22:44.

Bibliography Note: when citing Njal in footnotes, the format used is chapter number:page number. ODonoghue, Heather. The Saga. In Old Norse-Icelandic Literature: A Short Introduction, by Heather ODonoghue. Oxford, 2005. Njals Saga. Wordsworth Classics of World Literature. Edited by Tom Griffith, translated by Carl Bayershmidt and Leo Hollander. Ware (Herts.), 1998. slendingabk. Wikisource translation. Byock, Jesse L. Saga Form, Oral Prehistory, and the Icelandic Social Context. New Literary History 16, no.1 (Autumn 1984): 153-173. Miller, William Ian. Avoiding Legal Judgement: The Submission of Disputes to Arbitration in Medieval Iceland. The American Journal of Legal History 28, no.2 (Apr. 1984): 95-134. Ordower, Henry. Exploring the Literary Function of Law and Litigation in Njals Saga. Cardozo Studies in Law and Literature 3, no. 1 (Spring-Summer 1991): 41-61. Bugge, Alexander. The Origin and Credibility of the Icelandic Saga. The American Historical Review 14, no.2 (Jan 1909): 249-261. Miller, William Ian. Of Outlaws, Christians, Horsemeat and Writing: Uniform Laws and Saga Iceland. Michigan Law Review 89, no. 8 (Aug. 1991): 2081-2095. Slusher, Jeffrey L. Runic Wisdom in Njals Saga and Nordic Mythology: Roots of an Oral Legal Tradition in Northern Europe. Cardozo Studies in Law and Literature 3, no. 1 (Spring-Summer 1991): 21-39. Posner, Richard A. Review: Medieval Iceland and Modern Legal Scholarship. Michigan Law Review 90, no,6 (1992): 1495-1511. Reviewed Work: Bloodtaking and Peacemaking: Feud, Law, and Society in Viking Iceland by William Ian Miller. Saywer, Peter. The Age of the Vikings. 2nd ed. London, 1975.