- The full Icelandic name normally given to this saga is Brennu-Njdls Saga.
- The quotes used in this paper are taken from Njala (Copenhagen: Det Kongelige Nordiske Oldskrift Selskab, 1875); the author also used as aids the Swedish translation Njals saga, H. Alving, trans. (Trondhjem: Bokförlaget Fabel, 1988); and the English translation Njal'sSaga, Magnus Magnusson and Herman Pálsson, trans. (Harmondsworth: Penguin, 1960.)
- “Lögmaður”: literally “law man.” The term referred to one knowledgeable in the laws: there were no “professional lawyers,” and legal knowledge was typically passed down in the family.
- Carola L. Gottzmann, Njal's Saga, Rechtsproblematik im Dienste sozio kultureller Deutung (Frankfurt am Main: Verlag Peter Lang, 1982), p. 90, gives an excellent graphical illustration of the expanding conflicts in Njal's Saga.
- Before marrying Unn, Hrut sails to Norway to claim an inheritance. While there, he is seduced by Gunnhildr, Queen Mother of Norway, and the couple spend two whole weeks together in bed. Hrut lies to Gunnhildr about his betrothal in Iceland; as a punishment she casts a spell upon him such that he is able to join sexually with any woman except his wife Unn. Njal's Saga, chs. 4–6.
- In the greatly influential work by Karl Lehmann and Hans Schnorr von Carolsfeld, Die Njälssage insbesondere in ihren juristischen Bestandtheilen (Berlin: 1883), the author showed the many legal fallacies found in Njal's Saga. The voiding of this legal claim because of a failure to accept a duel is one such fallacy. This article does not attempt to refute Lehmann and Carolsfeld's conclusions. Such refutation is unnecessary to the central theme of this article; even though the author of Njal's Saga may have misunderstood or, for stylistic reasons, deliberately distorted certain aspects of the prevailing procedural rules, the importance of well-spoken legal formulas at the time of Njal's Saga remains clear.
- Njal's Saga, ch. 20.
- Njal's Saga, ch. 19.
- Id.
- Richard Meyer, Altgermanische Religionsgeschichte (Leipzig: Verlag von Quelle & Meyer, 1910), pp. 284–85.
- Njal's Saga, ch. 20.
- In their most commonly understood sense, runes formed the alphabet used in Norse and Teutonic cultures and were adapted from Roman letters in such a way as to make them easy to carve into wood or stone. “Runes” are mentioned in written English as early as in Beowulf: “Swa wæs…burh ruw-stafas rihte gemearcod.” (emphasis added). See The Oxford English Dictionary (Oxford: Oxford Univ. Press, 1971).
- Cited and translated in Steven P. Schwartz's Poetry and Law in Germanic Myth (Berkeley: Univ. of California Press, 1973), p. 28, emphasis added.
- Germanic mythology emphasizes the beard as a sign of the powerful, free man. Meyer, supra note 9, p. 285. For an interesting modern analogue, see the wordy John Claggart, “beardless as Tecumseh,” in Melville's Billy Budd, Sailor.
- For example, Gunnar's wife Hallgerd develops a burning hatred of Njal's family, a hatred that is fueled by her jealousy of Njal's wife Bergthoray. At one point, Hallgerd encourages others to refer to Njal derisively as “Beardless Old Man” (karl hinn skegglausa), Njal's Saga, ch. 44.
- Schwartz, supra note 12, p. 37.
- Id. See also H.R. Ellis Davidson, Scandinavian Mythology (New York: Paul Hamlyn publishing Group, 1969), p. 56.
- Schwartz, supra note 12, p. 29.
- See Sigurour Lindal ed., Saga Islands (Reykjavik: Hið islenzka bökmenntafélag, 1974). Interestingly, the Law-Speaker was the only paid civil servant in Iceland.
- This formulaic phrase appears in several places in Njal'sSaga, e.g., in ch. 141.
- Literally: “Speaking forth of the matter,” “framsögu sakar. “
- Lars Lönnroth, Njal's Saga, A Critical Introduction (Berkeley: Univ. of California Press, 1976), p. 189. Lönnroth also points out that the story of the formation of the Fifth Thing found in Njal's Saga grossly distorts Icelandic history. Id. at 188. Despite its historical inaccuracy, however, the story stresses the severity of wrongdoing involving speech and procedure (usually based on spoken formulas).
- The Fifth Thing was to determine cases by considering “ef annarr ferr meö rjett mái, enn annarr meo rangt.” Njal's Saga, ch. 97. Literally, the Fifth Thing was therefore to judge according to whether “one uses right speech, but the other uses faulty [speech].”
- Gottzmann supra note 3, p. 280. Lönnroth observes that fully 36 of the 159 chapters in Njal's Saga are devoted solely to descriptions of legal procedure. Id. at 101.
- The Norse system thus resembled the Anglo-Saxon custom of paying the “wer” or “wergild.”
- This reads: (“lýsti vgi á hönd sjer”), literally: “shone the deed on his hand.”
- Njal's Saga, ch. 39.
- Njal'sSaga, ch. 109.
- Njal's Saga, ch. 138. This may be one of the earliest associations of lawyers and greed in the Law and Literature canon.
- Njal'sSaga, ch. 141.
- Gottzmann points out that many cases depended on the correct wording of a procedural assertion or matter. An entire legal claim could be voided because of a single word that violated the established rules. Gottzmann, supra note 3, p. 102.
- The jurors' function was not to decide questions of fact or of law; rather, they served more as official witnesses to the proceedings. Any failure to “name” the proper number of jurors, to seat the proper jurors (who typically were required to be those living closest to the place of a killing, even though they hadn't seen the killing), or to exclude unqualified jurors, could lead to dismissal of a case.
- Njal'sSaga, ch. 142.
- Njal's Saga, ch. 145.
- Id.
- Essay, Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel, 62 S. Cal. L. R. 615 (1989).
- The “gods” (Æ.sír), the giants, and the dwarfs. See, e.g., Paul Hermann, Nordische Mythologie, (Leipzig: Wilhelm Ergelmann, Verlag, 1903), p 306.
- Eddan—De nordiska guda och hjältesångerna (translated from the Norse into Swedish by E. Brate Vddevalla: Niloe, 1986). Or see English translation of Snorri Sturluson's Edda (London: Dent, 1987).
- Id. at 36: “Discourse of the High One,” §§ 141–42 (my translation). See also, D. E. Martin Clarke, The Hávamál (London: Cambridge Univ. Press, 1923).
- Old Norse “rün,” Old High German “runa,” < Proto-Germanie *runo “secret”. See G. Wahrig, Deutsches Wörterbuch (Gütersloh: Bertelsmann Lexikon-Verlag, 1975).
- Meyer, supra note 9, p. 135.
- Njal's Saga, ch. 102.
- Jan de Vries, 1 Altgermanische Religionsgeschichte, (Berlin: de Gruyter, 1956), p.300 (§216). As de Vries points out, just what these words were, or what they could have intended, remains unclear.
- Meyer, supra note 9, p. 133
- Id. at 133–42, compares the characteristics and uses of runes, blessings (Segen), curses (Flüche), prophesies (Weissagungen), and sayings (Sprürche).
- Id. at 139 n.1. In addition to a “strong” or “core” word, the most important requirement for success was the correct order (“Sonst ist die Reihenfolge die Hauptsache”).
- De Vries, supra note 41, p. 307 (§221).
- Meyer, supra note 9, p. 133
- “Das Wort als lautliches Korrelat des Begriffes hat an dessen magischer Wirkungssphäre Anteil, de” de Vries, p. 318 (§228).
- Id. at 145.
- de Vries, supra note 41, p. 310 (§222).
- J. Boswell, A Dictionary of the Anglo-Saxon Language, (London: J.R. Smith, 1838) p. 295.
- Id.
- Id.
- “Die hohe Bedeutung des Wortes macht es auch erklärlich, dass man der wortgetreuen Wiedergabe einer sakralen Formel eine entscheidende Bedeutung beimisst.” Id. at 300 (§217).
- Id.
- Id.
- Id. at 301 (§217).
- Elias Wessén, Våra ord (Stockholm: Svenska bokförlaget, 1961), p. 274, defines “mål” as the ability to speak, or “language,” and traces it back to Old Swedish and Icelandic “mái,” a common Germanic word having the original meaning of “congregation” or “deliberation.”
- K. & A. Cannelin, L. Hirvensalo, N. Hedlund, eds. Suomalais-ruotsalainen suursanakirja (Helsinki: Werner Söderström, 1979), p. 583.
- Interestingly, these languages represent the cultures of northern Europe in which the power of the Church was most pervasive and unquestioned, and consequently, in which the individual was all but powerless beneath his temporal and divine rulers. As Kevin Crossley-Holland points out in The Anglo-Saxon World (Oxford: Oxford Univ. Press, 1984), pp. 24–25 only 99 years after Augustine's mission of conversion in England, the power of the clergy was so strong that the very first of the “Laws of Wihtred” (ruler of Kent during the years 690–725) was: “The Church is to be free from taxation.” Indeed, so strong was the Church's grip on legal power that the very words for “law”—“æ” or “æw” in Anglo-Saxon also meant “faith.” See H. Sweet, The Student's Dictionary of Anglo-Saxon, (Oxford: Oxford Univ. Press, 1897).
- Lönnroth, supra note 21, pp. 211–13.
- Id. at 170–72.
- Id. at 166–74.
- Äke Holmbäck and Elias Wessén, Svenska landskapslagar (Swedish Provincial Laws), (Stockholm: Hugo Gebers Förlag, 1946).
- In his autobiography, Benjamin Franklin referred to a rare and more modern manifestation of a concern over the drawbacks of codification. Michael Welfare, a founder of the sect known as the Dunkers, complained to his acquaintance Franklin that the Dunkers were “grievously calumnated by the zealots of other persuasions, and charg'd with abominable principles and practices, to which they were utter strangers.” Franklin suggested that the Dunkers might put a stop to the rumors by simply publishing the articles of their belief, and the rules of their discipline. Welfare replied:
- When we were first drawn together as a society, it had pleased God to enlighten our minds so far as to see that some doctrines, which we once esteemed truths, were errors, and that others, which we had esteemed errors, were real truths. From time to time He has pleased to afford us farther light, and our principles have been improving, and our errors diminishing. Now we are not sure that we are arrived at the end of this progression, and at the perfection of spiritual or theological knowledge; and we fear that, if we should feel ourselves bound and confined by it, and perhaps be unwilling to receive further improvement, and our successors still more so, as conceiving what we their elders and founders had done, to be something sacred, never to be departed from.
- The Autobiography of Benjamin Franklin (New York: The Modern Library, 1932), p. 123. In these words one hears an unusual response to the modern search for the “Framers' intent” behind vague phrases in our Constitution.
- Holmbäck and Wessén, supra note 63, p. 27. The Older Laws of Västergötland are the oldest and best-recorded body of the medieval Swedish provincial laws, and date from the period toward the end of the 13th century. These provincial laws were thus developed and recorded within a generation after Njal's Saga was written.
- See Jerold S. Auerbach, Justice Without Law?, (Oxford: Oxford Univ. Press, 1988), pp. 72–73, for a brief account of the 19th century Scandinavian tradition of conciliation.
- 49 N.D. 248, 191 N.W. 485 (1922).
- For a modern edition of the full original text of this well-loved and well-known Swedish poem, see, for example, Svensk dikt, compiled by Lars Gustafsson, (Stockholm: Wahlström & Widstrand, 1978), pp. 506–507.
- “The New Legal Rhetoric,” 40 Southwestern L.J. 1089 (1986).
- Id. at 1091.
- Id. at 1090, emphasis added.
- Amusing Ourselves to Death (New York: Penguin Books, 1984), p. 20.
- Id. at 19.
- Id.
Law & Literature
Volume 3, 1991 - Issue 1