Njal Week Four

Njal's Saga, Week Four:

Here is this week's reading, and here is next week's.

I should say something about "outlawry," because it comes up in this week's readings, and will be of great importance later in the saga as well. There was no death penalty in Icelandic law of the period. Indeed, until this week, we haven't seen anything like criminal law employed at all -- the lawsuits have been more like our civil suits, where people are awarded damages and compensation, but no one is physically punished by the state.

This is a delightful feature of medieval Icelandic law, which contrasts sharply with the law as practiced everywhere else (including in Viking societies with kings, such as Norway or Denmark). Nevertheless, there were occasions when the Icelandic courts could authorize force. This was done by declaring a man to be an "outlaw." The court does not physically punish the outlaw. It merely removes the protection of the law from him -- not usually forever, but for a period of time. During that period, if he is killed, the courts take no notice. Normally men went into exile during their period of outlawry, so as to avoid being killed; but some outlaws were dangerous enough that they felt no need to do so, and lived pleasantly in Iceland in spite of their status. The most famous of these is Grettir Ásmundarson, or "Grettir the Outlaw," about whom there is also a famous saga.

If this is a 'criminal penalty,' it comes up for reasons that may sometimes strike us as strange. Dozens have been killed so far without it ever being invoked; but we see what seems like a pretty minor offense threatened with outlawry this week.

"What!" says Geir, "wilt thou challenge me to the island as thou
art wont, and not bear the law?"

"Not that," says Gunnar; "I shall summon thee at the Hill of Laws
for that thou calledst those men on the inquest who had no right
to deal with Audulf's slaying, and I will declare thee for that
guilty of outlawry."

This is a procedural violation -- Geir has simply involved the wrong people in the inquest. That doesn't merely invalidate his complaint, but also makes him subject to the penalty of outlawry. Why?

The reason is that defying the rules of the court is being punished symmetrically: if you don't play by the rules of the law, you lose the protection of the law. In Anglo-Saxon law, where there was also a concept of outlawry that was somewhat similar, ignoring a summons to appear at court one of the common ways to be declared Caput gerat lupinum (lit. "one who bears a wolfish head," or 'a wolf's head' -- i.e., someone who could be killed like a wolf, with no penalty).

A second matter: there are two references to priests in this week's reading. Geir "the Priest" is one of the actors, and Gunnar promises to make an oath before a priest. Note that the 'priesthood' being referenced here is heathen! We will read about the Conversion of Iceland later in the saga.

The word being translated as "priest" is usually goði. There were often female Gyðja. Their legal and political function is more important than their religious function, and the office continued to exist for these purposes even after the conversion. Somewhat like notaries public, they held special powers to witness, etc., based on the respect due their office. Before the Conversion, they might -- but did not necessarily -- maintain privately-owned temples, called hoffs.