Dark Ages Re-Creation Company
Njáls saga opens with the betrothal of Hrút to Unn, the daughter of Mord Fiddle, a well-respected chieftain. This marriage is soon split, and when Mord sues for the return of Unn's dowry, Hrút challenges the old man to single combat, illegally shaming the lawyer and retaining Unn's dowry. This sets the tone for the rest of the story, a 159-chapter-long masterpiece in which the law fails every test, eventually resulting in a pitched battle at the Althing.
The heavy legal language in Njáls saga is often seen as a hindrance to the enjoyment of the text. The editors of the 1955 English translation of Njáls saga, in fact, believe that the "excessive space given to the law" in the saga works "to the detriment of our enjoyment of the saga as a work of art."1 However, the law is not so easily passed over. Richard Allen notes that "no one can fail to note how events in Njáls saga are grouped around law suits."2 And, he makes sure to point out, while insult-vengeance-compensation is a cookie-cutter saga formula, "no other saga is quite so concerned with the attempts to contain the violence of blood feuds within a lawful settlement."3 Why this preoccupation? Theodore Andersson has recently suggested that, rather than writing the crowning achievement of Icelandic saga culture, the author intended to subvert the literary traditions of his predecessors. Here, the law "is subject to repeated perversions," feuds are "an endemic state" rather than a "temporary upheaval," and the "trajectory of the plot leads not to peace and tranquility but rather to a haunting disillusionment."4 The author - writing in about 1280 - casts the glorious age of Iceland's independence as a time of unrelenting violence, the law failing utterly to prevent, constrain, or even properly punish killings. In doing so, he presents the Norwegian takeover of Iceland, which had happened less than a decade before the writing of the saga, in a positive light. This can also explain the conspicuous absence of the customary saga prelude of the settlement of Iceland, as this stock introduction tended to portray the Norwegian kings as tyrants.
In this essay, I will first discuss the author himself and the thirteenth-century setting of the writing of the saga. Then the three main issues the law faces in Njáls saga will be addressed. First, the suits in "Gunnar's saga", which are settled by violence or by the threat of violence because the law is inadequate. Second, the creation of the Fifth Court, in which the strongly moral peacekeeper Njál perverts the law in order to gain an office for his foster-son. Third, the latter half of "Njál's saga", a farcical court scene to punish those who burned Njál and his family in their home, which collapses into violence as the Battle of the Althing. Throughout, the saga-writer demonstrates the incredibly form-over-substance approach of Icelandic law, which leads to deadlocks or unsatisfied justice. The author, writing to show Icelanders that they are better off with Christian law, under Norwegian control, uses his saga to denounce the Icelanders' most cherished national institution. The disorder and lack of justice in the saga is used to cast a kinder light on the new Norwegian regime.
The author and settingAs has been noted above, Njála was written shortly after Iceland had come into the sphere of the Norwegian kings, and within living memory of much more dangerous times in which powerful chieftains vied against one another for power. The Althing was corrupt and violent. Indeed, as Lönnroth suggests, "the period preceding Iceland's loss of independence was so filled with internal strife that the Norwegian take-over must have been a blessing to much of the population."5 This saga was likely meant to solidify that sentiment.
Further, it is generally supposed that the author was somehow associated with the Svínfellings - powerful descendants of Flosi, the burner of Njál - as his knowledge of the southeast is much better than his knowledge of the more western areas of Iceland where most of the action takes place.6 As such, this saga can be seen as "propaganda" used to correct the highly negative image of Flosi presented by tradition: Flosi is shown to be a good Christian, willing to accept settlements, and only unwillingly pushed into killing Njál; his positive connections with the clans of Gunnar and Njál are also emphasized.7 It must be noted here that the Svínfellings became even more powerful after the loss of independence than they had been in the Sturlung Age: they served the Norwegian king and received critical appointments from him.8 From this evidence, it is clear that the validation of Norwegian control was very important to the writer of Njála - and what better way to show it than to portray the "Golden Age" of Iceland's independence as a bloody time, sliding towards anarchy in the face of the failure of the law?
The laws themselves had also changed by the time of the saga's writing in order to conform to "God's law". The bishops of Iceland had found discrepancies between Iceland's laws and the laws required by Christian standards of morality. In 1253, to remedy this, the Icelanders subordinated their laws to the foreign laws of God and Rome.9 This gives the saga-writer yet another reason to depict the earlier law as unstable, thereby lending credence to the authority of the new law. At the end of the saga, the two remaining feuding characters, Kári and Flosi, finally end the violence of the saga by reconciling - and going on a pilgrimage to Rome.10 By doing so they symbolize the peace that can be achieved by subordinating the Viking tradition of feud to the everlasting authority of the Church.
While no saga analysis truly seems complete without a discussion about the validity of using sagas as sources, both the debates over "bookprose" and "freeprose" and arguments about the historicity of the law in the saga are irrelevant for this paper. As Allen notes in his critical analysis of the saga, "these discrepancies, nagging as they may be to historians, do not affect the use made of law within the saga itself."11 It is the author's use of law, and his opinions of it, that are important.
Gunnar's sagaLawsuits are introduced very early on in the saga, the first being overruled by Hrút's threat of violence. This suit does not stop there, however, and resumes in chapter 21. Unn, after having "wasted all her substance", goes to her kinsman Gunnar for help. Gunnar has to resort to trickery - and alcohol - to learn the exact wording that must be used to summon Hrút so that he may reopen the case. The exact wording is necessary in Icelandic law, and this form-over-substance approach is often criticized by the saga-writer as evildoers escape punishment on absurd technicalities. When Hrút declares the suit void at the Althing because Gunnar has not produced the requisite three witnesses - the first of many suits in this saga voided on a technicality - the law is again overridden, as Gunnar challenges Hrút to the holm, and Hrút declines as Mord did. Gunnar does this even though Njál, the finest lawyer in Iceland, offers to save the case with his expertise; it is easier for him to settle the issue with a sword. As Allen points out, not only does this episode show how the proper course of law can be avoided by resorting to violence, the violence itself is derided in a more symbolic way. Unn uses the recovered dowry to attract a new husband, of whom no one approves, and it is this marriage that produces the man - Mord Valgardsson - who will intentionally plot the deaths of Gunnar and Njál's family, and unintentionally cause the battle at the Althing.12 The legitimacy of the law itself is thrown into doubt, as well, as Njál and Gunnar have to resort to trickery to re-open a just case. How can the other lawyers behave, if one as upright as Njál defaulted to guile? William Pencak sums up this episode as an "utter confusion of moral and legal rights ... [t]he best men ... prostituting law to family connections."13
In the next law suit, in which Gunnar is called to the Assembly because his wife has stolen from a neighbour, violence very nearly breaks out again. Otkel, Gunnar's opponent, had earlier refused an offer of recompense and took the suit to the Assembly in order to humiliate Gunnar. This was not an unusual incident; William Miller notes that law proceedings were often instigated to shame the defendant, and as such were just another method of feuding.14 Hrút counsels Gunnar to "challenge Gizur the White [Otkel's most powerful supporter] to the holm if they do not offer to let you make the award ... There will be men available to attack Otkel and his band too, as we now have such a large force that you can accomplish anything you wish."15 In this the failure of law is not quite the same as the earlier challenges to the holm - in this case, the proper course of law, that being compensation given by Gunnar for his wife's actions, has been rejected by the victim of the crime, who has instead chosen to use the law to shame his opponent. However, the end is the same - the law, perverted though it was by Otkel's purposes, has been further perverted by threats of violence. In Icelandic law, the ends often justified the means, however irregular or illegal; as Miller puts it, "Victory at law, as everyone knew, was simply perceived as another offense in the feuding process which would elicit repayment at a later date."16 The Icelanders had no illusions about their law's ability to contain violence, and they were not keen to exchange their blood for money.17
The next suit follows almost immediately afterwards, beginning in chapter 53 and resolving in chapter 56. Otkel injures Gunnar, and Skamkel, Otkel's unsavoury friend, insults him. Later, Skamkel is heard telling all who will listen that this incident caused Gunnar to cry. Gunnar, in revenge, kills Otkel and Skamkel, as well as Hallbjorn the White and Audólf, their riding companions. When a suit is brought against him for the four cases of manslaughter, Gunnar is legally able to invalidate the entire suit and declare Geir Goði, the prosecutor, a lesser outlaw - on a technicality. The lawful prosecutor of Audólf's case was in Norway, yet Geir Goði had attempted to prosecute it himself. As an outlaw, Geir Goði could be killed without consequence. While Gunnar would be following the letter of the law if he invalidated the suit against him and declared Geir Goði an outlaw, Njál and Gizur the White convince Gunnar that the case should be submitted to arbitration. The implications of this are clear: Icelanders, who answer to no king and have created their own law, are finding that it is so incapable of containing their violence that they have to break off the legal proceedings - thereby ignoring the law that they have created - to resolve a case by peaceful means. Following the letter of the law in this instance would have actually involved more violence, not less. Again, Miller notes that this was not an isolated incident created for the purposes of the saga: the law, peaceful though the ideal was, was far more violent and risky than submitting a case to arbitration. Indeed, Njál sets up Gunnar's next defence with that in mind, transferring some of his cases to Gunnar so that they will offset Gunnar's killings, fully aware that, faced with Gunnar's perfect legal defence, members of the Assembly will force an arbitration to avoid bloodshed.18
People preferred arbitration to the proper course of law so much that sometimes they did not forward an absolute defence, instead using their defence as "leverage to induce the other side to enter into some kind of arbitrated settlement."19 This is exactly what happens in Gunnar's last suit, in chapters 73 and 74. The arbitrators decide that Gunnar must be outlawed for three years for the public good, but when he refuses to leave, his enemies ambush and kill him. They do this with the full blessing of the law, as it is entirely legal to kill outlaws who fail to leave the country, but this leaves even Njál's sense of justice lacking, and he - the peace-keeping, law-abiding Icelandic role model - advises Gunnar's friends "that it would be more advisable to do them [Gunnar's killers] some damage by killing some men in revenge for Gunnar."20 No one is surprised by this advice; the Icelanders themselves are aware that there is a significant disjunction between their law and their sense of justice. As Pencak asks: "If Njál must abandon law to do justice, what hope is there for anyone else?"21 These examples from Gunnar's part of the saga show a constant downward slide in the effectiveness of the law to contain violence; the story ends in a spiral of ambush and death rather than any concrete, satisfying justice.
The Fifth CourtAnother means by which Njál perverts the law is in the creation of the Fifth Court. He wanted to provide the best match he could for Hoskuld Thráinsson, his foster-son, and set his eye on Hildigunn, Flosi's niece, who was regarded as the best match in the district. However, Hildigunn would marry no less than a goði, and no one was willing to sell a goðard. To procure a goðard for his foster-son, Njál gives bad advice to everyone who comes to him at the next Althing, resulting in "a good deal of wrangling", "so that both prosecution and defense came to naught."22 Here again the author demonstrates the law's inability to solve true problems, and how easily a single man with knowledge of the law could turn it to his own selfish ends.
By the next Assembly, people are so frustrated that they would rather solve their problems with iron. Njál intervenes, chastising the Icelanders for their disregard of the law. His solution to the problem he himself has incited is the creation of a Fifth Court, which would try the cases that could not be settled in the Quarter Courts. This required the creation of new goðards - one specifically for Hoskuld, which the assembled Icelanders grant "by unanimous consent".23 This is not simply an instance in which the law is perverted in practice: this shows how the creation of one of the very cornerstones of Icelandic law was created for base reasons - to make a match for Njál's foster-son. Furthermore, its creation was cloaked in the guise of the common good, for, as Njál tells the Icelanders, "it would be intolerable to have no law in the land."24 Pencak is so taken in by this that he makes no mention of the fact that it was Njál himself that brought about the legal deadlock, and writes that "this may seem like nepotism ... [b]ut Njál plausibly presents the new court as a last-ditch effort to save the Althing and the republic."25
This action will eventually backfire on Njál and Hoskuld, however: Mord Valgardsson, the goði at Hof, finds his power eroded by Hoskuld, as his men leave him for the new goði. In revenge, Mord incites Njál's sons to kill Hoskuld, and Hoskuld's avengers eventually kill Njál's entire household by setting fire to their house. In this way poetic justice is served to those who benefited from the debasement of Icelandic law.
The Battle at the AlthingAs mentioned above, Njál's underhanded dealings resulted in a blood feud, which lead to his death and the death of his family. The chapters that follow the Burning are concerned with the gathering of allies on the part of Kári, Njál's avenger, and Flosi, Njál's killer. Flosi bribes both Hallbjorn and Bjarni to stand with him at the Assembly, while in chapter 135 Kári gathers the friends of Njál together and turns the prosecution of the suit against Flosi to Mord Valgardsson - who has to be threatened with the divorce of his beloved wife before he will take up such a difficult case. Thórhall, Njál's protégé, is to go with them to the assembly, because "he was one of the three greatest lawyers in Iceland."26 Along with lawyers, both sides gather a considerable contingent of warriors: Flosi has his one hundred Burners, and Mord summons every man he can find who can bear arms, and is later joined by both Thorgeir Skorargeir, the new head of Njál's clan, and Gizur the White; both have a large following.
Even before the Assembly has begun there are threats of violence; when the plaintiffs arrive they are in full battle array, and they nearly come to blows with Flosi's men. Ásgrím, a powerful friend of Njál's, averts an incident by riding away from the confrontation, but this chapter's - chapter 137 - implications are clear: if the law could not restrain or prevent violence in the previous cases of the saga, it will not be able to do so now. Later, before the climax of the case, Ásgrím and his allies go from booth to booth, again looking for supporters, for they know that the case will degrade into violence.27 As Miller notes, "a litigant needed more than just a lawyer's skills and friendly judges to get him through the complex maze of Icelandic procedure; he needed force."28
Flosi obtains his lawyer by the same methods he gained the services of his supporters Hallbjorn and Bjarni: outright bribery.29 The lawyer he picks is Eyjólf Bolverksson, said to be the best lawyer in the Western Quarter. Eyjólf is understandably wary of getting involved in such a bloody case, especially seeing as he has no compelling reason to do so. He reacts in a fury when Flosi suggests that he organize his defence, but is immediately won over by the offer of a gold armring worth twelve hundred yards of brown-striped homespun. It is clear that the author sees this act as dishonourable; Eyjólf reminds Flosi that "If the suit comes before the Fifth Court, you must be particularly careful not to mention that you have paid me for my help."30 Whether or not this "gift" would have been considered to be a bribe in saga Iceland is immaterial: the saga-writer sees it as such, and it is just another way in which the law is subverted in his saga.
Once the case gets underway, the saga-writer mocks the earlier law not only by directly showing it to be ineffective, but also by highlighting its flaws using embedded narrative devices. The fortunes of the defence and the prosecution swing back and forth as new technicalities are raised to declare the suit valid or invalid, and the crowd's opinion swings back and forth as well, assuming parodic dimensions. When Eyjólf declares two of Mord's witnesses invalid because they are too closely related to him, "all the people spoke up and declared that Mord's suit had been quashed, and all agreed that the defense was in a stronger position than the prosecution."31 However, once Thórhall advises Mord that Eyjólf has blundered by disqualifying the jurors for the wrong reasons, the popular opinion swings the other way: "all said that Thórhall had the best of it, and now all were of the opinion that the prosecution was in a stronger position than the defense."32 This happens again and again, casting a comic light on what ought to have been a tense and serious event. And again, as with the cases of "Gunnar's saga", each side fights to disqualify the other by a greater display of obscure law. Who killed whom and why is nearly irrelevant compared to the precise wording used to make a summons and the exact status of the jurors, none of which matters in the end, as the Icelanders resort to violence.
Eventually the case will get haggled into the Fifth Court - Flosi accuses Mord of mistrial, Mord having summoned him to the wrong Quarter Court because Flosi had switched allegiances just prior to the hearing of the case so as to stall it in exactly this manner. Mord retaliates by bringing Flosi and Eyjólf to the Fifth Court for giving and accepting a bribe. Seemingly unimportant issues continually prevent the case from moving forward, until Mord missteps and summons the wrong number of jurors - and even Thórhall, who has overturned each of his opponent's accusations by retaliating with yet more minutiae, realizes that the case had failed. The entire case against Flosi comes to nothing simply because Mord failed to exclude six judges from the court. It is in keeping with the author's grim humour and sense of irony that this technicality was created by Njál himself in chapter 97, when he proposed the Fifth Court.
It is Thórhall himself who strikes the first blow of the Battle of the Althing: he rushes to the Fifth Court and spears Grím the Red, a kinsman of Flosi, and a battle to decide the case soon ensues, the law having failed. The battle is broken up just as quickly, when Snorri Goði, Skapti, and Hall rush between the two sides and part them. This does not sound unusual in itself; however, this intervention had been scheduled long before. Ásgrím had gone to Snorri in chapter 139 (six chapters before the battle) to ask him for help in case there was a fight. Snorri promised that, if Flosi and his band were to retreat, he would wait until Ásgrím and his allies had slain as many men as he thought they could pay compensation for without losing their goðards, at which time he would intervene and stop the fighting. In this case, not only have the people involved in the law suit been certain that the law would not be able to settle the case and they would have to resort to violence, but they have also made arrangements for an essentially circumscribed mass killing, the slaughter being carried out in such a way that the punishments would not be too harsh to bear. By the end of this episode, both the law and the fighting have failed to satisfy people, so the case is submitted to arbitration, the deaths of Njál and his household offsetting those of the Burners killed in the Battle of the Althing. However, as Allen notes, "there is no hope that the process will not begin anew unless some shift of values is made."33 The values that the saga-writer is suggesting are those of Christianity and Norwegian control.
That this was not the first Thing-battle is even more significant. The entire organization of the Quarter Courts of Iceland resulted from an earlier battle fought over the prosecution of burners. Thórd Gellir, the prosecutor, had found his case disrupted by violence at both his local assembly and the Althing, and designed the new system to prevent such an occurrence from ever happening again.34 As can be seen from Njáls saga, no system could compete with the disruptiveness of the Icelanders themselves. The law, based on the rationalization of violence, easily descended back into violence.35 The "self-defeating nature of the social system" eventually led to Norwegian domination,36 and the saga-writer justifies this domination by showing Icelanders how they were better off without the old law. "God's law" is what triumphs in the end; Flosi receives absolution in chapter 158, and Kári in 159. Because the Icelanders tended to associate Christianity with the Norwegian king, since it was he who sent missionaries to Iceland, this is yet another instance in which the saga-writer shows how the Norwegian take-over benefited the almost childish Icelanders. After God forgives their pasts, Kári and Flosi are finally able to reconcile, Kári joining Flosi's family by marrying Hildigunn, the widow of the murdered Hoskuld.
ConclusionOver and over again in Njáls saga the law is disgraced by the Icelanders, who are shown to be greedy and corrupt. Where the law does not directly descend into violence, it is overridden by illegal challenges to the holm or blocked by its own strange preoccupation with proper wording and procedure. As Njál's actions in the creation of the Fifth Court show, it was also easily perverted by clever lawyers. Even the strongly moral and peace-keeping Njál is involved in this degradation of order, suggesting that no morals were strong enough to make the law work. In a final slide into complete destruction illustrated by the author's grim humour, a battle erupts at the Althing, a "nationalistic" icon for the Icelanders. This violence is only averted by Christian absolution; Iceland must subjugate itself to Rome and to Norway or be destroyed. In Njáls saga, the "Golden Age" of Iceland is shown to be barbaric, its justice unsatisfying; it ends in "haunting disillusionment" and death.
Footnotes
