Writing Fiction as Law: The Story in Grágás By Thomas J. McSweeney



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Writing Fiction as Law: The Story in Grágás

By Thomas J. McSweeney1
Abstract

Medieval Icelandic law has been appropriated for modern purposes as diverse as creating a history for European democracy and proving that a libertarian legal system can work in practice. It has been put to so many modern uses because it presents us with a picture of the Icelandic Commonwealth (ca. 930-1262) as a society of free and relatively equal farmers who operated with no king, no nobility, and minimal government. The laws represent Iceland as an exceptional polity, strikingly different from the monarchies and hierarchical societies that dominated Western Europe in the middle ages. This exceptionalism resonates strongly with modern audiences.

In this article, I suggest that one of the major surviving sources of Icelandic law, the body of legal texts we collectively refer to as Grágás, is a work of fiction. The manuscripts of Grágás that have come down to us were written in a period when the Icelandic Commonwealth had been replaced by a hierarchical and centralized society under the control of the king of Norway. The authors of the two Grágás manuscripts set out to critique that society. The Grágás authors took material from a prior legal tradition and—through strategies of inclusion, exclusion, and organization—selected and emphasized certain legal material from the Commonwealth period to present it as a time of freedom and equality.
Introduction: Appropriating Icelandic Law

The statement “Among them [the Icelanders] there is no king, but only law,” written by the eleventh-century German cleric Adam of Bremen, appears in virtually every work on the medieval Icelandic Commonwealth.2 Iceland’s status as one of the few places in medieval Europe that had no king, no nobility, and minimal government has led to a great deal of modern interest in medieval Iceland, an interest disproportionate to its population or relative influence on European society, culture, and politics. Adam’s quote encapsulates a sense of Icelandic exceptionalism that appeals to modern audiences.3 It appeals to people concerned with the rule of law because it presents Iceland as a land where law literally was the ruler. Supporting Adam’s quote about the law is a line from Njal’s Saga, one of the most famous of the medieval Icelandic sagas, “With laws shall our land be built up,” which is now the motto of the Icelandic police force and the Faroe Islands and, I have been told, is written above the entrance to the law school at the University of Copenhagen.4

While focus on the second half of Adam’s sentence has allowed modern Icelanders to tout Iceland as the origin of rule of law in Europe, emphasis on the first half, “they have no king among them,” has also allowed some to tout Iceland as Europe’s oldest democracy. Iceland replaced its king with an assembly of free men and Iceland does indeed hold up its national assembly, the Alþing,5 as the world’s oldest democratic body.6 In other circles Iceland is not haled as the herald of the modern democratic state, but instead as an example of completely stateless society. Adam’s quote can be used, after all, to show that law can exist without an executive. Libertarian scholars, particularly those who describe themselves as anarcho-capitalists, have looked to Iceland as a pristine society that operated with only a single public official and according to rules that allowed for self-help within a legal context.7 David Friedman contends that “medieval Icelandic institutions…might almost have been invented by a mad economist to test the lengths to which market systems could supplant government in its most fundamental functions.”8 A web search for “medieval Iceland” and “libertarian” will bring up a dozen websites, articles, and discussion boards discussing what medieval Iceland has to offer as a historical case for modern libertarianism, many of them quoting Adam of Bremen to represent the view that Iceland had law without any executive office to enforce it.9

For historians, Icelandic nationalists, and libertarian scholars, Adam of Bremen’s quote is central to showing that Iceland was an exceptional place in the middle ages. Their use of the quote, however, is misleading. Rarely does anyone provide a footnote detailing precisely where in Adam of Bremen’s work this quote can be found. That may be because it is extremely difficult to find. Adam did indeed say that the Icelanders “have no king, but only law” in his chronicle of the archdiocese of Hamburg-Bremen, but he did so in one of the scholia, or later additions, to his text.10 In the primary text he says something very different. There Adam tells us that the Icelanders “hold their bishop as king. All the people respect his wishes. They hold as law whatever he ordains as coming from God, or from the Scriptures or even from the worthy practices of other peoples.”11 In Adam’s first version, Iceland’s exceptionalism stems not from the fact that it is a kingless, democratic, or stateless society, but that the Icelanders look to the institutional Church as their secular authority and follow its dictates, a marvelous utopia for a diocesan administrator like Adam. Adam’s original vision of Iceland was as an ideal Christian community, not a proto-democracy or a libertarian community. This earlier version of Adam’s interpretation of Iceland and its law, the one that actually appears in the main text, is not quoted in any secondary source on Iceland that I have come across, while the later version, which Adam scribbled in the margin, has become a staple of scholarship and has entered into the popular perception of medieval Iceland. It is not difficult to see why. The quote from the main text does not have a modern constituency. It presents us with an Icelandic theocracy, not with Europe’s first democracy. “There is no king, but only law,” on the other hand, provides a pithy statement upon which to build either a democratic national history or a libertarian past.

Moderns like to talk about medieval Iceland as a place of unique freedom and equality. The problem, however, is that apart from a few early statements like Adam’s, all of the evidence we have for a system where Icelanders were free and equal comes from a period when they were not. The texts we use to reconstruct the Icelandic commonwealth were mostly written in the thirteenth century and later, the period when Icelandic society was subject to vast inequalities and when Icelanders were becoming subjects to ever more powerful chieftains and, finally, the king of Norway. Texts written in the thirteenth century may not reflect Icelandic legal practice of the tenth, eleventh, and twelfth centuries so much as they reflect thirteenth-century anxieties, concerns, and desires. In this article, I suggest that one of the major surviving sources of Icelandic law, the body of legal texts we collectively refer to as Grágás, is a work of fiction. Scholars have relied on Grágás as a source of law for the Commonwealth period. Even scholars that reject the sagas as historical sources on the ground that they are primarily works of fiction written in the thirteenth century, and cannot provide firm ground for historical analysis, generally accept Grágás as a reliable source for the legal system of the Commonwealth.

This is partly because of the expectations that genres create. We expect a narrative text like a saga to be fictional. The law code is a genre that we expect to be truthful. Even if we cannot assume that the code perfectly reflects practice, we assume that it reflects the laws as they were laid down. This article suggests that the Icelanders who wrote the Grágás manuscripts were constructing legal texts that were meant to serve not as practice manuals, but as statements of who they were as Icelanders in a period when their identity was being challenged by an ever more aggressive Norwegian monarchy. The two full manuscripts of Grágás— both written in the second half of the thirteenth century, when the Icelandic Commonwealth was falling apart—tell a story of a Commonwealth composed of and ruled by free, independent, and relatively equal farmers. At the time the manuscripts’ authors put pen to parchment, the Norwegian crown and the “big chieftains” were introducing large inequalities and strong ties of hierarchical dependence into Icelandic society. Farmers who owned their own land were becoming beholden to more powerful people. My aim in this article is to show that the authors of the Grágás manuscripts, given the political environment in which they were writing, had reason to distort the picture of how Icelandic law actually worked. They did so in order to critique the perceived failures of the society in which they were living. They used the Grágás texts to tell a story about an Iceland that may never have existed. We therefore need to be careful about relying on these texts as raw data for arguments about the way Iceland operated in the middle ages. They surely tell us something about Icelandic law between the settlement in the ninth century and the fall of the Commonwealth in the 1260s, but they do so to serve a thirteenth-century purpose. Their authors did not invent Icelandic law, but they did present it in a way that emphasized the freedom, independence, and equality that they believed they lacked. In this limited sense, the Grágás texts are works of fiction.


Grágás

The term Grágás does not refer to a single text or even a particular, authoritative body of rules. It is a collective term for the body of law used by Icelanders before 1271. It is not even a contemporary term: the name Grágás—which simply means “gray goose” and has nothing to do with the substance of the laws—was only applied to the law of the Icelandic Commonwealth in the 17th century.12 Two full texts of this law survive, Konungsbók (hereinafter K.) and Staðarhólsbók (St.), as well as several small fragments. Both full manuscripts date to the second half of the thirteenth century.

The great mystery of the two surviving texts of Icelandic law before the Norwegian takeover is why they were written. Paleographers date K. to the period between about 1250 to 1270 and date St. approximately ten years later, to about 1260 to 1280.13 The Icelanders gradually submitted to the Norwegian Crown between the years 1262 and 1264. In 1271, Grágás was replaced with a new law code, Járnsíða, which diverged from previous practice in significant ways. By 1281, that law code had been replaced by another, Jónsbók, which would, with modifications, last into the eighteenth century.14 There is thus a strong possibility that our two surviving manuscripts were written after the new laws were introduced by the king of Norway, meaning they would have been of little value to someone who actually wanted to know what the law was at the time they were made. By the time the surviving manuscripts were written, Grágás was most likely dead letter. If that is the case, these texts would have been worthless as practice manuals. They must have been made to serve some other purpose.

Using the single term Grágás to refer to the texts of the law makes for a neat parallel to Iceland’s later, royally sanctioned law codes, Járnsíða (1271) and Jónsbók (1281). It is problematic, however, because it creates a sense of unity that did not exist for Icelandic law before 1271.15 In reality, Icelandic law before Járnsíða was an inchoate set of texts, oral and written, that could be combined in different ways for different purposes. We should therefore think of Grágás not as a code, but as a legal tradition. It is like canon law in the twelfth century, before the great authoritative collections of the thirteenth century were made and given papal approval: a set of texts and ideas that could be combined in different ways and expounded upon by different authors.

The first law that we hear of for Iceland is a law, based on the law of the Norwegian Gulaþing, introduced by a man named Úlfljótr at the first Alþing in 930.16 We have no evidence that this law was ever written down. Instead, the law seems to have remained purely oral for the next two centuries. The K. manuscript tells us that the lawspeaker, the Icelandic community’s only public official, was tasked with reciting the law every year at the Alþing. He was to recite the assembly procedures section every year and split the rest of the law over the three years of his term, so that he would have recited “all the sections (þáttr) of the law over three summers.”17 K. does not envision the law as a set text, however. Different lawspeakers might recite different versions of the law, as the text tells us that the lawspeaker “shall recite the sections (þáttr) so extensively that no one knows them more extensively.”18 If the lawspeaker’s “knowledge does not stretch so far,” K. provides that he is to meet with men learned in the law twenty-four hours before reciting the law to learn as much law as he can.19 These provisions do not even present uniformity as an aspiration: the law is a set of sections or topics that may have more or less content depending on who is reciting them.

In the twelfth century, the law was recorded in writing for the first time. Ari Thorgilsson says in Islendingabók, a chronicle of Iceland’s early centuries, that, in 1117, the law assembly charged several wise men with the task of recording the laws in a book over the following winter:

The first summer which Bergthor recited the law, the innovation was made that our law should be written in a book at Haflidi Marson’s during the following winter according to his dictation and counsel, and that of Bergthor, and of other wise men who were designated for the task. They were to make new provisions in the law wherever they considered such to be better than the old ones. The laws were to be recited the next summer in the Lögrétta, and all those to be enacted which the majority of the people then did not oppose. And this came to pass that the Manslaughter section and many other portions of the law were written down and recited by clerics in the Lögrétta the following summer. And all were well pleased with it, and no one spoke against it.20
The manuscript produced as a result of this process was called Hafliðaskrá after Hafliði Másson, the chieftain who hosted the law-writing sessions at his home during the winter of 1117-1118 and who, ironically, comes close to overthrowing the law by riding with a huge force to the Alþing in The Saga of Thorgils and Hafliði.21

Sometime after the laws were written down, written law became the norm. The writing process was apparently not just a process of writing down texts that had been remembered orally in their entirety. Scholars who have looked for evidence of orality in Grágás have largely been disappointed; the laws have very little of the rhyme, alliteration, and assonance that are usually taken as signs of oral transmission.22 The K. manuscript of Grágás itself tells us that “what is found in books is to be law” and refers to Hafliðaskrá, as well as several others:23 But even with the advent of written law, K. does not imply that the law will be uniform. The K. author tells us:

It is also prescribed that in his country what is found in books is to be law. And if books differ then what is found in the books which the bishops own is to be accepted. If their books also differ, then that one is to prevail which says it at greater length in words that affect the case at issue. But if they say it at the same length but each in its own version, the one which is at Skálaholt is to prevail. Everything in the book which Hafliði had made is to be accepted unless it has since been modified, but only those things in the accounts given by other legal experts which do not contradict it, though anything in them which supplies what is left out there or is clearer is to be accepted.

If there is argument on an article of law and the books do not decide it, the Law Council must be cleared for a meeting on it.24


This provision assumes that law is a textual activity.25 Non-textual sources (i.e., the Law Council) only come into play when all of the possible textual sources have been exhausted. There is no single code, however. Hafliðaskrá has a special status, although even this original law book can be supplemented by clearer explanations by “other legal experts.”26 In the less authoritative law books, the book which discusses the topic at greater length has more authority.27 The rule of clarity and the rule of length (i.e., that the clearer and longer explanation of the law is more authoritative) show us that the Icelanders did not think that the law was contained in a particular formulation of words. Rather, the words were used to embody a law that existed outside of the individual text, and could embody it with greater or lesser clarity and at greater or lesser length.

By the end of the commonwealth, Icelanders had been developing their law for over three centuries. For the last century and a half, they had had a written legal tradition. We have two surviving manuscripts that purport to record that legal tradition, both of which come from the very end of the Commonwealth period. The similarities between the two texts of Grágás confirm the assertions of Ari and of the Grágás authors themselves that there was some common legal tradition. The texts share enough in common that there must have been a core from which both authors could draw. On the level of organization, for instance, the two manuscripts contain many of the same section divisions. Ari’s Islendingabók and two sections of the K. manuscript agree that the section (þáttr) was the basic unit of the law, both before and after the law was first written down.28 The section divisions, then, were probably set by at least the beginning of the twelfth century, when Ari was writing. The common core of Icelandic law went beyond a common set of section divisions, however. Much of it likely developed after the law had become written. In fact, K. and St. probably have some common written source, an ancestor text that is in both of their lines of transmission, since they both include some of the same scribal errors.29

But while the similarities between the texts show us that they draw from a common tradition, the differences show us that the authors used their own creativity and judgment to craft their texts. They were not merely copying from an earlier source. K. contains more sections than St., but St. provides more detail in the sections it contains (which, ironically, would have made it the more authoritative text according to the author of K.).30
Writing Fiction as Law

The sagas, texts of narrative historical fiction mostly written in the thirteenth century, display subtle and not-so-subtle criticism of the changes that were taking place in the thirteenth century. Sagas are more accessible to us than the legal texts because the fictional-historical genre encourages us to look for literary themes and political critiques that we would not look for as readily in a legal text like Grágás. As a result, the sagas have a longer history of textual criticism than Grágás. Opinions of the sagas coalesced in the nineteenth and twentieth centuries into two different schools of saga scholarship, called free prose and book prose, the former of which sees the sagas as essentially accurate accounts of historical events and the latter of which sees them largely as works of historical fiction, the product of the active imagination of thirteenth-century saga authors.31 The debate thus focuses on whether sagas can tell us anything about the earlier centuries of the Icelandic Commonwealth, or only about the century in which they were written. The type of skepticism applied by book prose scholars to sagas has not been applied to Grágás. The authors of Grágás, however, saw the potential of the legal genre to tell a story of Icelandic ideals that may have largely been products of the thirteenth century.

Law and literature scholarship, like the scholarship on medieval Iceland, has placed most of its emphasis on narrative texts, particularly the trial and the legal opinion. This emphasis is understandable. The trial, and particularly the criminal trial, “most fully engages the public’s narrative desires and the scholar’s narrative speculations.”32 Lawyers, witnesses, and the press all produce their own trial narratives. In the realm of fiction, the trial, again the criminal trial in particular, is the subject of narratives in books, movies, and television. While it does not serve the same purposes as the trial narrative, the judicial opinion likewise has been a popular locus for law and literature scholarship because of the key role opinions play in Anglo-American common law as authoritative texts and as teaching tools. Judges use narrative and rhetorical strategies to paint their decisions as reasonable or even inevitable. Some medieval authors actually used the legal case format purely for entertainment. In his De Amore, a humorous manual addressed to a young nobleman seeking advice about women, the twelfth-century cleric Andreas Capellanus included an entire section of cases on the laws of love written in the form of jurists’ consilia.33 The use of the legal form to write about love, apparently to entertain the reader, was common for several centuries, and was institutionalized in organizations of lawyers who wrote briefs in this genre, called the “gay science,” in sixteenth-century France.34 Andreas and the authors in the gay science tradition were not writing law codes. They were writing about cases, which any first-year law student can tell you can be entertaining even when the legal format is being used for a practical purpose.

Codes, on the other hand, have not drawn nearly as much attention as narrative or rhetorical works for the simple reason that they generally do not have colorful plots like narrative or make persuasive arguments like rhetoric. Because they are written in a very matter-of-fact style that bears little resemblance to fictional genres, we tend to take them at face value and believe that, even if law codes do not accurately represent legal practice at the time they were written, they at least represent society’s ideals of conduct. Genres create certain expectations. William Ian Miller recognized this when he observed that there is an “unspoken sense that the truth value of a source varies inversely with how much pleasure it gives the reader.”35 Miller was speaking about scholars’ tendency to discount the historical value of the sagas, but his observation could apply equally to the scholarly tendency to give too much credence to Grágás. We expect legal texts to be true; we expect fiction, even historical fiction like the sagas, to be invented. We are thus less inclined to look to texts like Grágás for the story they are trying to tell.

This is a problem common to “practical” works. In his study of the Drogon sacramentary, a liturgical manual, Niels Rasmussen detected an odd pattern. This high-quality manuscript contains masses both for the bishop and for the village priest, but does not contain a full set of masses for the liturgical year for either. Indeed, the liturgies the book provides are so disparate that the book must have been practically useless to any single clergyman; it was as useless to the bishop in his cathedral as it was to the priest in his country parish. Rasmussen concluded from this textual evidence that the sacramentary was not actually intended for liturgical use, but served some other function, and was probably copied by a lettered monk for his own or for his patron’s edification rather than as a guide to good practice.36 Grágás is not so different from the Drogon sacramentary. Neither text is a work of narrative fiction or of high analytical theory. They both appear, on their face, to be eminently practical texts, meant to guide the reader through a process and to show him how to do something.

The medieval Icelander, who was accustomed to think of the polity in which he lived as vár log—our law—would have been better equipped to see Grágás less as a statement of his society’s laws and how to navigate them than as a subtle critique the values of the late thirteenth century.37 The Grágás authors certainly did not sit down to write a wholly fictional law code, the product of their own imaginations; they were drawing upon an earlier tradition of written law. Given that prior tradition, however, they did have the ability to modify the way it was presented at the margins through strategies of inclusion, exclusion, and ordering. These strategies could change the way that system appeared to the readers of the text. The people who created the Grágás manuscripts picked certain legal provisions from a larger universe of legal texts. They may have intentionally arranged them so as to present Iceland as a land composed of free, independent farmers who were beholden to no king. In doing so, they reflected a world that may only have existed in the minds of those thirteenth-century Icelanders who were displeased with the way their society was operating. The Icelandic exceptionalism that is so well-known today could thus have been, at least in part, a construct of thirteenth-century authors and a recognition that the system was not actually working that way.

St. is generally the better-edited text.38 The author of that manuscript was more deliberate in what he chose and how he presented it. The St. author cuts much of the archaic material found in K.: St., for instance, lacks the sections on the lawspeaker and the law council, neither of which existed at the time of its writing. The author did not purge all references to archaic institutions—some of the material on the procedures of the now-dead Alþing appear in sections on other matters—but he did seemingly choose to remove the least relevant material. There are signs that the author of K. was deliberate as well, although in different ways. The K. manuscript is more comprehensive than St.: it contains the archaic sections on the lawspeaker and the law council as well as a great deal of other material that the St. author cut. The St. author was inclined to cut entire sections of the law that he found to be of little value and to treat those that he kept at greater length. The author of K. was inclined to retain sections, but to cut specific material. K. contains many passages that either simply contain the title or first few words of the law, omitting the law itself.39 “If that man inherits…and so on to…kinship was mistaken,” is a fairly common pattern.40 The words of the law itself are in Norse, but the Latin usque (and so on to) is added in the middle to indicate that the copyist omitted text.41 The St. author included the same passage in his text, with the same beginning and ending words, but also included the material in-between.42

Both authors made decisions about what to include and what to exclude. Some of those decisions may have had no significance beyond the scribe’s desire to retire for the evening while he had a long and boring passage before him. Others may be signs of a general plan for the texts and that the authors of K. and St. set out to tell particular stories.

St., in many ways, appears to leave the past behind. It looks to the future, omitting those passages that have to do with institutions, like the Alþing, the lawspeaker, and the law council, that had been rendered irrelevant by decades of strife and the Icelanders’ final surrender to the king of Norway. Its author seems to be primarily concerned with two things: disorder and property. While he omitted much other material from the Icelandic legal tradition, he included material on homicide and other wrongs, as well as on inheritance, land claims, investments, and relationships that implicate family wealth.43 Whether this reflected a concern with the disorder of the last few decades or simply a judgment on the part of the author that these were the issues most relevant to an Icelander living under the law of the Norwegian king is anyone’s guess. K. is more interesting in this respect. The author of K. certainly knew how to cut specific portions out of his text, how to turn a chapter into an “usque.” And yet he left quite a bit of material that would have been archaic by the 1250s, let alone the 1280s. Although his organization is rough and his themes are difficult to follow, the author of K., in his decisions about what to include and what to exclude, tells a story about an Iceland of free and equal farmers.




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