- Not all literary specialists would agree that the family saga constitutes a discrete literary genre. For a brief general overview of the Icelandic saga, see Stefán Einarsson, A History of Icelandic Literature (Baltimore, 1957), or Peter Hallberg, The Icelandic Saga, Paul Schach trans. (Lincoln: U. of Nebraska Press, 1962).
- Traditionally, historians attribute the initial impetus for the emigration from Norway and settlement of Iceland to Harald the fair haired's unification of Norway under a single crown. Rather than submitting to Harald's rule, many Norwegian nobles chose to emigrate.
- Some scholars have advanced the view that the disinterest is a mere stylistic characteristic. The author clearly favors some characters and causes over others, while maintaining a seemingly objective stance with respect to his material. See, for example, Lars Lönnroth, Nja Is Saga: A Critical Introduction (Berkeley: U. of California Press, 1976), and see also Carola L. Gottzmann, Njä Is saga, Rechtsproblematik im Dienste sozio- kultureller Deutung (Frankfurt am Main: Peter Lang Verlag, 1982) for an exploration of the development and resolution of legal conflicts in a social context from the period. This article extends Lönnroth's and Gottzmann's views and demonstrates that the disinterest is only apparent. The author is very much involved in his subject matter.
- The term “saga” probably best translates to English as “history,” but it conveys much the same ambiguity concerning the reality of the events described as the German word “Geschichte,” the French “histoire,” or the earlier English usage of the term “history.” Compare the Oxford English Dictionary's first definition of “history:” “[a] relation of incidents (in early use, either true or imaginary; later only of those professedly true),” 5 Oxford English Dictionary (Oxford: Oxford U. Press, 1933, 1961), p. 305, column 2.
- The earliest manuscripts of the family sagas date to the early 13th century. Scholars generally agree that the sagas were written (or at least transcribed from oral tradition) during the period commencing in the late 12th and ending in the late 13th century. Njáls Saga being among the latest is regarded as having been composed around 1280.
- In order to demonstrate the lack of historicity, so-called “book prose” adherents carefully examined place names, topographical descriptions, and other written sources for inconsistences. See, for example, Sigurður Nordal's famous study of Hranfnkel's Saga: “Hrafnkatla,” 7 Studia Islandica (Reykjavík, 1940), English translation by Frank Stanton Cowley, ed., Hrafnkels Saga Freysgoða: A Study (Cambridge: Harvard U. Press, 1932). They sought to identify influences from other written sources to demonstrate that saga authors did not simply transcribe from oral sources but independently composed their stories with borrowings from other written sources.
- See, for example, Peter Hallberg, “Snorri Sturluson och Egils saga Skallagrimssonar. Ett försök till spráklig författarbestämning” 20 Studia Islandica (Reykjavíek, 1962).
- Lars Lönnroth, for example. See supra note 3, and text infra, at note 23.
- Njal's Saga is the name of the saga in the standard English edition, which is the Penguin Books translation by Magnus Magnusson and Hermann Plásson, Njal's Saga (Harmondsworth: Penguin, 1960, 1974 reprint). English language quotations in this article from Njal's Saga ate from this translation, and Icelandic language quotations use the standard Icelandic text, Einar Sveinsson, ed., Brennu-Nj&als Saga (Reykjavik, 1954). The Icelandic title translates as “Burnt Njal's Saga,” and the earliest English translation by Sir George Webb Dasent was titled The Story of Burnt Njal (1861). Scholars frequently and fondly refer to Njáls Saga by the diminutive “Njála.”
- This article will identify references to and quotations from Njál's Saga and the Icelandic Brennu Njdis Saga with chapter numbers corresponding to the standard texts. Both the Icelandic and English texts use the same chapter divisions. These references are embedded in the text in the form of a chapter number in parentheses, (Ch. 23) for example.
- This is a brief note about aspects of the Icelandic language. Icelandic is a highly inflected language containing certain letters that do not appear in English. The letter “þ” is an unvoiced “th” in English; the letter “ð” approximates a voiced “th” in English. Proper nouns inflect along with other words. The English text adopts the accusative singular case of names because it generally approximates the root form of the name. Many place names and nicknames in Icelandic are translated in whole or part. For example, Höskuldr Hvítanessgoði is Hoskuld Hvitaness-Priest in English.
- See, for example, Vilhjálmur Finsen, Om den oprindelige Ordning af nogle af den islandske Fristats Institutioner (Copenhagen, 1888) at p. 100 et seq. and Finnur Jónsson, “Om Njála,” 19 Aarbøger for Nordisk Oldkyndigbed og Historie, ch. 2 (Copenhagen, 1904) at p. 89 et seq.
- Karl Lehmann and Hans Schnorr von Carolsfeld, Die Njálssage insbesondere in ihren juristischen Bestandtheilen (Berlin, 1883). This monograph will be referred to by the authors' names as Lehmann and von Carolsfeld.
- The Icelandic Commonwealth lasted from about 930 A. D. when the first Allþsingi was seated until Iceland became subject to the rule of the Norwegian crown in 1262-64. The part of this era during which the family sagas were composed has come to be known by the name of one of the powerful families of the time, the Sturlungs. Essentially contemporaneous stories of the events taking place during the family saga composition period make up the Sturlunga Saga. Sturlunga Saga appears in an edition by Jón Jóhannesson, Magnüs Finnbogason and Kristján Eldjárn (Reykjavik, 1946), English translation by Julia H. McGrew (New York: Twayne Publishers, 1970–74).
- The Sturlung age was extremely volatile. The various chieftancies (see infra, note 48) became concentrated in ever fewer hands. As the dominant families sought to consolidate their power, bloodshed ensued. After 1200 the system of quarter courts declined rapidly as an effective judiciary, and revenge and warfare became the order of the day. (On the quarter courts and their control by chieftains who were resident in the given quarter, see Lehmann and von Carolsfeld, supra note 12, p. 109; on the jurisdiction of the quarter courts generally, see William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: U. of Chicago, 1990), pp. 16–19.) The period was even bloodier than the saga age. The Norwegian king attempted to bring Iceland under his rule. When use of armed force in 1220 failed, he searched out other methods to gain a foothold. He secured control of some chieftaincies in which he installed his Icelandic followers. The crown, with the assistance of the Icelandic church, gradually became an arbiter of disputes in Iceland. Ultimately, the king subverted the deteriorating system of self-rule, and Iceland voluntarily yielded its independence in favor of the stability the Norwegian crown had to offer.
- See supra note 12.
- Grágás (English: Grey-goose) is a collection of Icelandic laws from the period of the Icelandic Commonwealth which includes both the age in which the action of the family sagas takes place and the later Sturlung age during which the family sagas were committed to parchment. The earliest manuscripts of Grágás date from the middle to late 13th century, but Vilhjálmur Finsen in his 1852 edition assumes that the 13th century manuscripts were based on manuscripts dating from the middle of the 12th century.
- One should not assume that the Grágás accurately records the laws of medieval Iceland. Unlike modern statutes, which a legislative body adopts in their written form, Grágás is a compilation of existing laws taken from oral tradition. No legislature enacted the laws in the precise formulation in which the manuscripts transmit them-unless one were to assume that human memory could preserve the law texts verbatim through lengthy periods without a written record. Moreover, the compiler of the laws may well have had personal and political goals in mind as he set about recording the laws from the oral sources.
- For an English language analysis, see Andrew Dennis, Peter Foote and Richard Perkins, Laws of Early Iceland: Gragas. 3 University of Manitoba Icelandic Studies, (Winnipeg, 1980).
- Lehmann and von Carolsfeld contend, for example:”…that the form of the Iýsing is a thoughtless copy of the formula in the lawbooks without adaptation to the instant case,” supra note 12, p. 105, translation by author.
- The Allthing [Icelandic: Allþingi] was the annual national meeting of chieftains and their adherents. The meeting took place at Thingvellir [þjingvellir] (the Thing grounds) where the Lögberg (the law rock) is located, some thirty miles from modern Reykjavík, the capital of Iceland. Allthing also refers to the parliament itself and generally to the courts that met to hear cases during the meeting. The courts for the four quarters of Iceland met during the Allthing. In addition to the Allthing, there were district meetings and court sittings in the spring which also were referred to as þing [things]. See, generally, Jesse L. Byock, Medieval Iceland, Society, Sagas, and Power (Berkeley: U of California Press, 1988) at 65–66 and William Ian Miller, supra note 14, especially chapters 1 and 7.
- In Icelandic Mörðr is nicknamed “gígja” which translates as “fiddle.”
- Lehmann and von Carolsfeld, supra note 12, p. 48, translation by author.
- Lönnroth, supra note 3, pp. 243–45.
- Id. at 248. Lönnroth infers that the author may have known the formulas so well that he was comfortable dictating them to a scribe. Lönnroth continues:
- If this was the situation, it is easy to understand that he decided to give his audience a very thorough lesson in legal procedure, partly at the expense of narrative structure. As every professor should know, nothing breeds unnecessary lecturing as much as a good opportunity to unburden oneself of esoteric learning. Id.
- See, for example, Albert B. Lord, The Singer of Tales (Cambridge: Harvard U. Press, 1960) for a general discussion of the formulaic theory of oral epic poetry.
- Lönnroth, supra note 3, pp. 61–82.
- Translated as Njáls Saga: A Literary Masterpiece (Lincoln: U. of Nebraska, 1971) hereinafter “Einar.”
- Id. at 27.
- Id. at 34.
- See text supra, at note 20.
- Anna Cornelia Kersbergen, Litteraire Motieven in de Njala (Rotterdam, 1927).
- Kersbergen writes:
- …it does not seem unlikely to me that something other than simply a personal inclination brought the author to these complicated trials. Perhaps through Njal's advice, he intended to create a closer link between Gunnar's Saga and Njal's Saga, or perhaps the oral tradition included all kinds of material which did not agree with the image the writer had formed of Gunnar, and he hoped, without it being noticed, to push these to the background by adding so much detail. (Id. at 12, translation by author).
- See discussion of this episode infra, text at note 47.
- Kersbergen, supra note 29, at 46.
- Gottzmann, supra note 3, at 294.
- Id. at 306–7, translation by author.
- Gottzmann writes:
- [When] this individualistic-liberalistic element within the legal theme leads to the nearly total destruction of two important families, then the saga certainly is supposed to shed light upon one of the most central social-cultural problems, which played a role both in the period depicted (around 1000) and the period of the compilation (around 1280). The Icelandic cooperative, social structure was shaken fundamentally by the inadequate legal order and the lack of a sense of community that resulted from it. (Id. at 307, translation by author).
- Compare Theodore M. Andersson and William Ian Miller: Law and Literature in Medieval Iceland: Ljósvetninga Saga and Valla-Ljóts Saga (Stanford: Stanford U. Press, 1989), p. 20.
- The Lawspeaker [lögsögumaðr] was the only significant office holder in saga age Iceland. He was the legal expert for the country, and his major occupation was to recite the laws at the annual meeting of the Allthing. He served a three year term and recited one-third of the laws at each of the three meetings during his term. The legislative council, lögrétta, and the parties to a lawsuit also consulted with him from time to time when there was uncertainty about the law. See, generally, Byock, Medieval Iceland, supra note 18, pp. 64–65.
- Lehmann and Von Carolsfeld: That Hallgerd is permitted to handle her own engagement here, and that the Lawspeaker expressly could sanction it as legal, cannot be understood from the perspective of the law books,” supra note 12, p. 39, translation by author.
- See supra, note 9 for translation information.
- While duelling did not become illegal until somewhat later, after the introduction of Christianity (see text, infra, at note 67), Hrut makes it clear in ch. 22 that duelling was not the appropriate means of resolving legal disputes, so that Mord could have revived the claim.
- Jeffrey Slusher offers a slightly differing approach to this episode in his interpretation of Njal's Saga in the present volume. See Slusher, “Runic Wisdom,” 3 CSLL at p. 24. With Njal's assistance, Gunnar proves more adept in defending against the prosecution for Otkell's killing (ch. 56).
- The falsity of the accusation becomes clear in ch. 70.
- Lehmann and von Carolsfeld aver that, according to the written legal sources, initiation of the prosecution by one who himself took part in the killing would not void the prosecution of those he summoned and was an error easily correctable at the court. See supra note 12, p. 98. Again it appears that the author of Njal's Saga either was not knowledgable about the law or chose to ignore it in order to advance the plot.
- It is likely that the author was aware of at least some of the problems with the saga's legal premises. To serve his esthetic and his social criticism, he seems intentionally to have built them into the saga. The fact that he repeatedly has his characters reveal that errors are curable leads to the conclusion that the author was in fact a knowledgeable jurist. With my conclusion, accord Lönnroth but contrast Lehmann and von Carolsfeld; see supra, respectively at notes 21 and 17.
- The saga permits Mord to redeem himself in part by handling the prosecution of Flosi Thordarson, the leader of the arsonists.
- The saga also bills Mord Fiddle as an excellent lawyer, but the litigation with Hrut over Unn's divorce in which he is involved seems of far lesser significance to the story than other lawsuits.
- Imagine criticizing a lawyer today for accepting a fee for services rendered. Lehmann and von Carolsfeld assert that the action against Eyjolf for accepting a bribe in taking the fee is not supported by the written legal sources. There was nothing untoward about accepting a fee for assuming a defense. The Njal's Saga author seems to have made a legal error, unless he injected the mistake intentionally to enhance the reader's animosity toward him. Lehmann and von Carolsfeld also point out that Eyjolf's advice to Flosi is flawed in that one could not shift to another chieftain's district in a secret proceeding like that Eyjolf recommends. See supra note 12, pp. 108–09.
- Other sources do not attribute the establishment of the Fifth Court to Njal. The account in Njal's Saga appears wholly fictional. See Ari þorgilsson: íslendingabók, published in Jakob Benediktsson, ed., íslendingabók. Landnámabók, 1 íslenzk Fornrit (Reykjavík, 1968), and discussion in Lehmann and von Carolsfeld, supra note 12, p. 128.
- Goðorð (nominative plural is the same as the singular) were the limited number of formal chieftaincies which existed during the Commonwealth period. The owner of a goðorð was a goði who was free to sell or gratuitously transfer his chieftaincy. In addition to his secular duties of calling the Thing to order and naming the judges, the goði was originally the priest of the pagan temple as well. Njal was unable to find a chieftain willing to sell his chieftaincy to Hoskuld.
- See also text infra, at note 65.
- Lehmann and von Carolsfeld express the view that transfer of the fostering responsibility, even in accordance with Hoskuld's direct wish, would be contrary to the nature of the legal relationship. Fostering is essentially a fiduciary responsibility so that substitution of fiduciaries without the agreement of all parties, including Thorgerd, is improper. See supra note 12, p. 92.
- It is odd that Njal does not foresee the ultimate disaster when his sons kill Hoskuld.
- Lehmann and von Carolsfeld inform us that the engagement and the immediate marriage are both legally and socially erroneous. There was no reason for Thrain to ask Hoskuld for Thorgerd's hand, as Hallgerd had the right to act in that role. Moreover, customarily the engagement period was considerable, so that the rapidity with which the marriage follows the engagement is a breach of normal conduct. See supra, note 12, p. 40.
- The scene is among the most entertaining in the saga. The sound of Skarp-Hedin's axe bumping the wall awakens Njal who finds his sons and Kari dressed for battle. Njal asks Skarp-Hedin where he is going.
- “To look for sheep,” he replied.
- “You said that once before,” said Njal, “but then you hunted men.”
- Skarp-Hedin laughed and said, “Do you hear that? He's not so innocent, the old man.”
- Kari asked, “When was the other time you said that?”
- “When I killed Sigmund the White, Gunnar's kinsman,” replied Skarp-Hedin.
- “What for?” asked Kari.
- “He had killed Thord Freedmansson, my foster-father,” said Skarp-Hedin. (ch. 92).
- The duel challenge is not a permissible legal procedure, as Hrut well knows. Seech. 22. The author undoubtedly shares this knowledge, see discussion supra at note 43. The duel challenge, once again, serves a literary and social criticism function. While the reader may feel that Hrut is merely getting his due, the law once more has broken down. Even the people who wish to avoid bloodshed are prepared to resort to violence when—as Gunnar feels here—they cannot rely on the judicial system to serve the ends of justice.
- Compare discussion in Lehmann and von Carolsfeld, supra note 12, pp. 68–71, supporting this position on the basis of material in the Grágás.
- Some Njal's Saga scholars have theorized that Njal's Saga is an amalgamation of several discrete sagas. In addition to the Christianization episode, chapters 100–105, and the Brian episode, chapters 154–157, which scholars commonly trace to other sources, they hypothesize the existence of separate Gunnar's and Njal's sagas. See the translators' notes to the English edition, supra note 9, pp. 216 and 341; see also note 2, p. 255 and note 6, p. 439 of Brennu Njáls Saga, supra note 9, concerning the Christianization and Brian episodes. Of course, the existence of separate sagas would account for the radical change in pacing and style that occurs following Gunnar's death. Note, however, that the pace decelerates again following the burning of Njal, so that one might conclude that the repeated change in pace results from a conscious decision concerning narrative technique.
- According to Lehmann and von Carolsfeld, Mord could not destroy the case against Njal's sons in this manner. See supra, note 43, and text infra at note 71.
- Outlawry carried with it penalties of forfeiture of property and temporary exile. The law allowed the outlaw some time to prepare for his exile. Upon expiration of the grace period, anyone was permitted to kill him without legal penalty for the killing or entitlement to revenge. Gunnar agreed to exile and outlawry in the last of his settlements (ch. 74). When he failed to leave the country (ch. 75), he became fair game. Since the Icelandic judicial system lacked an enforcement mechanism, interested parties were forced to rely on their own devices to enforce the judgment. Killing Gunnar proved no easy task (chs. 76·77). Not all forms of outlawry were identical; some carried milder penalties than others. On Icelandic penal law during the saga age, see Andreas Heusler, Das Strafrecht der Isländersagas (Leipzig, 1911).
- See text infra, at note 66.
- Of course, many would say the same of modern American legal proceedings. Only a small minority of legal disputes become lawsuits, and only a small portion of those go to judgment.
- Parallels to modem American jurisprudence are striking.
- Consider the two duel challenges. Hrut challenges Mord Fiddle in ch. 8, and Gunnar challenges Hrut in ch. 24. And see supra, note 54.
- Compare text supra, at note 35.
- See, for example, chs. 143·44.
- Other sources do not support this account of the establishment of the Fifth Court. See supra, note 47.
- It is stimulating to discover that some things remain constant; litigation still centers frequently on resolution of procedural rather than substantive matters.
- Judging from Sturlunga Saga, the collapse of the judicial system during the Sturlung age was nearly complete. The Sturlunga Saga is gorier than the family sagas. Bloodshed is ubiquitous. See supra, note 14.
- This perception of the author's apparent objectivity is familiar to saga scholarship. Compare Lönnroth's discussion of the saga as assuming a stance with respect to events that transpire in the course of the narrative. Lönnroth, supra note 3, pp. 82–99. Lönnroth points out:
- [o]ur impression of “objectivity,” then, must at least in part be illusory. If we look more closely at the narrative technique inherent in the action patterns and structural components, we discover a variety of traditional devices whereby the narrator leads us to accept his point of view.
- Id. at 82.
- Compare Njal's reaction when Flosi offers him the opportunity to leave the burning house because he has no disagreement with Njal. “‘I have no wish to go outside,’ said Njal, ‘for I am an old man now and ill-equipped to avenge my sons; and I do not want to live in shame’” (ch. 129).
- Einar, supra note 25, p. 181 et seq.
- Id. at 184–85.
- Lönnroth, supra note 3, pp. 104–64.
- Id. at 243.
- Iceland became part of Norway around 1262, and Njal's Saga generally is dated to the latter part of the 13th century. If the dating is accurate, the author would have known this history when he composed the saga. The Norwegian crown introduced a new legal system to Iceland based on Norwegian law, specifically introducing the lawbook called Járnsðda around 1271. See Vilhjalmur Finsen's introduction to Grágás. Skálholtsbók (Copenhagen, 1883, reprinted Odense, 1974), p. iii. And compare Lönnroth, supra note 3, p. 165 and p. 188 concerning the Fifth Court and 13th century law reform.
Law & Literature
Volume 3, 1991 - Issue 1