Cold Cases: Law and Legal Detail in the Islendingasogur (Three Old Norse Saga Studies) (Essay‪)‬

Theodore M. Andersson states: 'Legal density is characteristic of the sagas about early Icelanders'. (1) Indeed, it is a commonplace in discussions of the Islendingasogur to make an observation along the lines that 'a saga without lawsuits, law making, execution of sentences, [or] transmission of oral law-lore is simply unthinkable'. (2) Such generalizations, however, obscure the literary effects of the use of law in individual sagas, and in this essay I will offer a fuller and more nuanced reading of the function of law in the Islendingasogur. While I would not deny the importance of legal themes to saga narrative--for example, legal disputes, lawyer characters, and the Alping [General Assembly]--I will demonstrate that individual sagas in fact vary greatly with respect to the extent to which they can be said to be 'legally dense': that is, containing what I will label here as 'legalities'. I use this term to refer to the quotation of specific articles of law and technical details of legal process, akin to William Ian Miller's definition of 'law' as 'the formal legal process and the rules applied and enforced in the courts'. (3) I will present here three case studies of sagas with differing incidences of legalities, and explore their differing effects on each narrative. Much scholarly time and attention, particularly in the late nineteenth and early twentieth centuries, was devoted to scrutinizing the legalities in the Islendingasogur and comparing them to articles in the law code Gragas [lit. 'Grey Goose'], either in the attempt to work out what actually was law during the Commonwealth period, or to attack the historicity of the sagas or laws, if discrepancies could be identified. (4) However, these attempts have shown that such issues are often impossible to resolve; moreover, actual reality--by which I mean the (often irrecoverable) law as it was practised--does not necessarily equate to the problematic 'Gragas reality'--that which the extant law texts profess was practised. Further investigation of such issues is not the aim of the present essay. Rather, I will focus on the way legalities function as part of the framework of saga narratives, and on the literary and stylistic uses to which they are put by saga authors. In this context, I would suggest that the veracity of a particular detail is not of primary concern, as long as it works within the world of the saga, and it will be part of my task to demonstrate how various saga narrators establish their own 'saga law', so that the actual legal competence of the audience (or indeed, author) is not especially an issue.