Narrating Law and Laws of Narration in Medieval Scandinavia 3110662329, 9783110662320, 9783110661811

Table of contents :
Roland Scheel, Foreword v
List of Contributors ix
Roland Scheel, Narrating Law and Laws of Narration: Introduction 1
Part A. Narrating Law: Legal Texts – Narrative Texts – Contexts
Jón Viðar Sigurðsson, Chieftains and the Legal Culture in Iceland c. 1100–1260 39
Hans Jacob Orning, Making King Hákon Great Again: Law, God, Morality and Power in Björgvin, 1223 57
Ármann Jakobsson, Law Personified. The Ignored Climactic Speeches of "Brennu-Njáls saga" 77
Part B. Laws of Narration: Narratological Approaches
Hannah Burrows, Court Poetry: Assemblies and Skaldic Verse 91
Kyle Hughes, What is "Good Law"? Law as Communal Performance in the "Íslendingasögur" 117
Roland Scheel, Revenge or Settlement? Law and Feud in Early Sagas of Icelanders 135
Part C. Narrating Law: Discourses on Social Norms
Keith Ruiter, Berserks Behaving Badly: Manipulating Normative Expectations in "Eyrbyggja saga" 171
Daniela Hahn, Social and Diegetic Hierarchies in Cases of Thievery. A Study of "Mǫðruvallabók" 185
Part D. Narrating Law: Mythological Traditions
Heike Sahm, Feudal Law and Archaic Order: The Discussion of Different Social Systems in the Queens’ Dispute in the "Nibelungenlied" 205
Jiří Starý, History or Idea? The Legendary Laws of Old Norsemen 225
Anne Irene Riisøy, Vǫlundr – a Gateway into the Legal World of the Vikings 255
Matthias Teichert, Týr, Fenrir and the Brísingamen. Tales of Law, Crime and Violence in Eddic Mythology and their Indo-European Subcontexts 275
Name Index 289
Places Index 295

Citation preview

Narrating Law and Laws of Narration in Medieval Scandinavia

Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde

Herausgegeben von Sebastian Brather, Wilhelm Heizmann und Steffen Patzold

Band 117

Narrating Law and Laws of Narration in Medieval Scandinavia Edited by Roland Scheel

ISBN 978-3-11-065421-9 e-ISBN (PDF) 978-3-11-066181-1 e-ISBN (EPUB) 978-3-11-066232-0 ISSN 1866-7678 Library of Congress Control Number: 2019952561 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2020 Walter de Gruyter GmbH, Berlin/Boston Typesetting: Integra Software Services Pvt. Ltd. Printing and binding: CPI books GmbH, Leck www.degruyter.com

Foreword This volume presents the results from the international workshop ‘Narrating Law and Laws of Narration in Medieval Scandinavia’ which was held at the Georg-AugustUniversität in Göttingen in March 2017. The meetings took place at the Historical University Library adjacent to the Paulinerkirche, thereby connecting to the noble history of the institution, as Jacob Grimm was professor and law librarian at Göttingen between 1830 and 1837. Not only did the workshop coincide with the 180th anniversary of the constitutionalist protestation by the Göttingen Seven and the subsequent end of Grimm’s career in the Kingdom of Hanover, but it also tied in with Grimm’s interests and the beginnings of Scandinavian Studies at Göttingen. Jacob Grimm was one of the first scholars who systematically combined legal and narrative texts, including sagas, in order to reconstruct ‘Germanic’ law in his ‘Deutsche Rechtsalterthümer’. While his concept of a ‘Germanic’ continuum proved to be problematic indeed and does not provide a frame of reference for this book, his idea of analysing both law books and narrations of disputes and legalities makes his work a distant forerunner of legal anthropology and the way ‘law’ is conceptualised and discussed in the following contributions. I would like to thank the Fritz Thyssen Stiftung für Wissenschaftsförderung for the financial support of the workshop and the copyediting process and to personally thank Stella Lammers and Michael Rauser for their work in the preparation of this volume. Roland Scheel, May 2019

https://doi.org/10.1515/9783110661811-202

Contents Foreword

V

List of Contributors

IX

Roland Scheel Narrating Law and Laws of Narration: Introduction

1

Part A Narrating Law: Legal Texts – Narrative Texts – Contexts Jón Viðar Sigurðsson Chieftains and the Legal Culture in Iceland c. 1100–1260

39

Hans Jacob Orning Making King Hákon Great Again: Law, God, Morality and Power in Björgvin, 1223 57 Ármann Jakobsson Law Personified. The Ignored Climactic Speeches of Brennu-Njáls saga

77

Part B Laws of Narration: Narratological Approaches Hannah Burrows Court Poetry: Assemblies and Skaldic Verse

91

Kyle Hughes What is ‘Good Law’? Law as Communal Performance in the Íslendingasögur 117 Roland Scheel Revenge or Settlement? Law and Feud in Early Sagas of Icelanders

Part C Narrating Law: Discourses on Social Norms Keith Ruiter Berserks Behaving Badly: Manipulating Normative Expectations in Eyrbyggja saga 171

135

VIII

Contents

Daniela Hahn Social and Diegetic Hierarchies in Cases of Thievery. A Study of Mǫðruvallabók 185

Part D Narrating Law: Mythological Traditions Heike Sahm Feudal Law and Archaic Order: The Discussion of Different Social Systems in the Queens’ Dispute in the Nibelungenlied 205 Jiří Starý History or Idea? The Legendary Laws of Old Norsemen Anne Irene Riisøy Vǫlundr – a Gateway into the Legal World of the Vikings

225

255

Matthias Teichert Týr, Fenrir and the Brísingamen. Tales of Law, Crime and Violence in Eddic Mythology and their Indo-European Subcontexts 275 Name Index

289

Place Index

295

List of Contributors Prof. Dr. Ármann Jakobsson Háskóli Íslands Íslensku- og menningardeild Árnagarður / Sturlugata 1 101 Reykjavík Iceland E-Mail: [email protected] Dr Hannah Burrows University of Aberdeen Centre for Scandinavian Studies College Bounds Aberdeen, AB24 3FX United Kingdom E-Mail: [email protected] Dr. des. Daniela Hahn Ludwig-Maximilians-Universität München Institut für Nordische Philologie Amalienstraße 83 80799 München Germany E-Mail: [email protected] Dr Kyle Hughes Trinity College Dublin School of English Dublin 2 Ireland E-Mail: [email protected] Prof. Dr. Jón Viðar Sigurðsson Universitetet i Oslo Institutt for arkeologi, konservering og historie Postboks 1008 Blindern 0315 Oslo Norway E-Mail: [email protected]

https://doi.org/10.1515/9783110661811-204

Prof. Dr. Hans Jacob Orning Universitetet i Oslo Institutt for arkeologi, konservering og historie Postboks 1008 Blindern 0315 Oslo Norway E-Mail: [email protected] Dr. Anne Irene Riisøy Universitetet i Sørøst-Norge Institutt for kultur, religion og samfunnsfag Postboks 235 3603 Kongsberg Norway E-Mail: [email protected] Dr Keith Ruiter University of Nottingham School of English University Park Nottingham, NG7 2RD United Kingdom E-Mail: [email protected] Prof. Dr. Heike Sahm Georg-August-Universität Göttingen Seminar für Deutsche Philologie Käte-Hamburger-Weg 3 37073 Göttingen Germany E-Mail: [email protected] JProf. Dr. Roland Scheel Georg-August-Universität Göttingen Skandinavisches Seminar Käte-Hamburger-Weg 3 37073 Göttingen Germany E-Mail: [email protected]

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List of Contributors

PhDr. Jiří Starý, Ph.D. Univerzita Karlova Filosofická fakulta Ústav germánských studií Nám. Jana Palacha 2 116 38 Praha 1 Czech Republic E-Mail: [email protected]

apl. Prof. Dr. Matthias Teichert Georg-August-Universität Göttingen Skandinavisches Seminar Käte-Hamburger-Weg 3 37073 Göttingen Germany E-Mail: [email protected]

Roland Scheel

Narrating Law and Laws of Narration: Introduction The title of this book addresses a characteristic problem concerning every narrative text which treats legal matters. Not only is legal action unfolded in the process of narration, in a series of declarative sentences, but the narration itself is subject to ‘laws’ of narration – literary conventions– pertaining to a certain genre. This even applies to law texts themselves with their often decidedly ‘anti-rhetorical’ or in any case highly specific rhetoric.1 The consequences of this twofold refraction in the literary mimesis of social practice can hardly be overestimated when it comes to defining law and legal practice or legal culture, especially in pre-modern societies which do not share post-Enlightenment, Western concepts of ‘law’.2 With a marked focus on disputes, their potential to escalation and their resolution, the ‘classical’ genres of Old Norse-Icelandic prose literature – the family sagas, contemporary sagas and kings’ sagas – might be among the most prominent medieval texts posing this problem. It is underlined by the fact that legal anthropologists discovered the sagas quite early as excellent source material for the mentalities of the society they describe.3 Consequently, the sagas and their narrations of behaviour in disputes came to dominate legal history of the Nordic Middle Ages in the widest sense at the expense of written law during the last decades, at least in the case of Iceland.4 There are obvious reasons for this, as the status of the law book of the Icelandic Commonwealth known as Grágás is unclear; its procedural law is extremely extensive and complicated and appears utterly unpractical to the contemporary beholder.5 What is more, the constraints the law places on revenge as a possible reaction to a violation of one’s personal rights is not mirrored in saga narrative, and neither is the threat of ‘lesser outlawry’ (fjǫrbaugsgarðr) for a large number of transgressions.6 As a rule of thumb, saga characters seem much more inclined to revenge and even more to arbitration and settlements than the Grágás

1 Cf. Augsberg 2012, pp. 20f. 2 Luhmann 1995, pp. 38–45, 88–90. 3 Cf. Turner 1971, esp. p. 358; Hastrup 1985 and 1990; Durrenberger 1991, and the critical overview in Böldl 2005, pp. 28–37 as well as Esmark/Orning 2013, pp. 23–28. 4 Cf. Byock 1982, pp. 24–46; Andersson/Miller 1989, pp. 44f.; Miller 1990, esp. pp. 179–247; Meulengracht Sørensen 1993, pp. 113–115; Vésteinn Ólason 1998, pp. 166–173; Oestmann 2006, pp. 398, 405–413; Jón Viðar Sigurðsson/Pedersen/Berge 2008, pp. 48–54; Firth 2012; Jón Viðar Sigurðsson 2013. 5 On the status of the text, see Jón Steffensen 1985, pp. 80–82; Naumann 1998; cf. also Heusler 1937, pp. XXIIf., XXVIf.; von See 2006b, pp. 379f. 6 Miller 1990, p. 223f.; Strauch 2011, p. 245. https://doi.org/10.1515/9783110661811-001

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supposes, ignoring the rigor legis.7 A similar effect is to be observed in continental Scandinavia. Even after the establishment of laws issued by the rising central power, like the Jyske Lov in Denmark from 1241 and the Landslǫg in Norway from 1274–1276,8 sources of documentary nature demonstrate that the legal practice comprised different strategies and competing institutions, such as the traditional local assemblies and royal officials. In the comparatively tightly organised realm of Norway, people made use of an existing legal pluralism allowing for a conscious choice of disputing strategies in order to reach their goal even after A.D. 1300.9 It is one of the decisive merits of legal anthropology, socio-legal studies or dispute studies to have made the vast array of narrative texts and their ‘legalities’ – ‘meanings, sources of authority, and cultural practices that are commonly recognised as legal’10 – accessible to legal history, which from the historian’s point of view has thus become more than just Verfassungsgeschichte.11 Nevertheless, the result is that we are today dealing with two discourses: normative texts are rather addressed as the ‘ideal’ formulated by experts, while narrative texts are often supposed to represent socio-legal ‘reality’. The inherent problem is obvious, as normative texts are turned into fiction, while the literary mimesis of history with an undefined connection to social reality – that of the past society, that of the present society projected upon the past? – becomes reality.12 This effect is facilitated by saga style: the narrator is externally focalised and his narration is action-centred; feelings and thoughts are only expressed through utterings in direct speech and bodily signs. Furthermore, the narrator as a rule never comments upon the events and actions he describes. This and the perspective of a bystander effectively turn him into a sort of ‘participating observer’, obviously triggering identification by modern anthropologists.13

7 This was already noted by Heusler 1911, pp. 38–41; cf. Heusler 1912, pp. 31–35; Miller 1990, pp. 192–194, and the critical view by Jón Viðar Sigurðsson 1999, pp. 159–161, who views arbitration as being more important than revenge (cf. Koszowski 2014, pp. 343f.); Oestmann 2006, pp. 398–413. 8 On Denmark, see Vogt 2014 and Fenger 2002, pp. 220–226, 278–282, 337–340; on Norway Hagland 2011; Jón Viðar Sigurðsson/Pedersen/Berge 2008, pp. 52–54; Bagge 2010, pp. 179–227. 9 Berge 2007, pp. 198f. 10 Ewick/Silbey 1998, p. 22; cf. Cowan/Wincott 2015, pp. 14–17; for a definition of ‘legalities’ in saga literature, see Burrows 2009 and the comprehensive overview over assembly scenes in family sagas in Burrows 2015, pp. 73–75. 11 The statement refers first and foremost, but not exclusively, to Cheyette 1978; Dilcher 2002, pp. 111–121, 128–153; Brown/Gorecki 2003; Hyams 2003; Hudson 2013. 12 This approach, taking the different saga genres as a witness of the same society, is especially prominent in Miller 1990, who aims at explaining the reasons for historical Icelanders’ actions; cf. the criticism in Meulengracht Sørensen 1993, pp. 322–324. Differences between the ‘worlds’ of the Íslendingasögur and the Samtíðarsögur are addressed by Jón Viðar Sigurðsson 1999 and Firth 2012. 13 On saga style, cf. Sävborg 2017, pp. 112–115; Þórir Óskarsson 2005, pp. 364–366; on anthropology Turner 1971.

Narrating Law and Laws of Narration: Introduction

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As a result, anthropological approaches are facing a risk of (mis-)taking the narrative for a faithful mirror of social reality and mentality, a mere provider of data. To the historian, this is a problem pertaining to source criticism, and consequently, legal anthropologists are distinguishing between the narrated events, which need not have happened, and the legal concepts mirrored through the narration. In other words: narrative texts such as sagas are treated as Überreste (‘relics’) rather than sources in the proper sense,14 and actually, legal anthropology has been interested in recurrent attitudes and features of disputes as well as in narrative patterns beyond the scope of single texts. It is argued that the sum of what is thinkable and sayable in narrative texts is a faithful mirror of the mindset of a society, no matter whether the described events actually happened that way or not, as members of the respective society could imagine and confide them to parchment the way they did, obviously expecting the intended recipient to understand the inherent, inferential logic.15 One decisive blind spot, however, lies in the approach to narrations as a ‘relic’, because it addresses a fully intentional text as something essentially and structurally beyond the control of an author. This is already questionable if one looks beyond the scope of a single genre: in the Riddarasögur, prose versions of French and Anglo-Norman romances, written at the same time as the family sagas, the narrator is capable of self-reflexion concerning the way he tells the story, and in earlier historiography as well as translations from Latin, the authorial voice intervenes repeatedly in the texts, effectively interrupting the narrator who evokes a scene with direct speech.16 Since a very small group of writers produced all these texts, it becomes apparent that the way the voices in a text are concerted is a conscious choice and a question of genre which the authors must have been aware of. It tends further to be forgotten that conceptualising social practices in texts like sagas in itself was a social practice involving experts who themselves were not only versed in literary techniques but – to make the task even more intricate – also in the law, and that they probably had an agenda of their own when it came to the representation of law. An example may highlight the problem: Snorri Sturluson, the famous author of the Prose Edda and (most likely) of Heimskringla, Lawspeaker of Iceland (lǫgsǫgumaðr) between 1215–1218 and 1222–1231 and thus a legal expert, is portrayed rather unfavourably as a major political figure in Íslendinga saga, a contemporary saga, and in Hákonar saga Hákonarsonar, both written by Snorri’s nephew Sturla Þórðarson.17 Snorri was all but an impartial bystander of the rapid developments of power in Icelandic society and around the Norwegian king, and therefore, we may expect that there is a decisive bias in his representation of for instance royal rule, most probably one that serves the interests of himself and his social group at the court. It was 14 15 16 17

Esmark/Orning, p. 13; cf. Bagge 1992, pp. 63–75. Miller 1990, pp. 44–51; Orning 2013, pp. 243–258; Esmark/Orning 2013, p. 12–16. Glauser 2005, pp. 382–385; Hermann 2004; pp. 21–24; Scheel 2017, pp. 191–200. Cf. Nordal 1920, pp. 71–81; Óskar Guðmundsson 2009, pp. 233–246.

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certainly not in favour of hereditary monarchy and continental taste introduced under King Hákon Hákonarson’s rule, which would have rendered Icelandic expertise in Skaldic court poetry useless.18 This bias is underlined by a comparison with other compendia of kings’ sagas such as Morkinskinna, which is very much in favour of courtly kings, just as the Latin Lex Castrensis, a law of the Danish royal court allegedly made by Knud the Great, but actually written in the late 12th century by Sven Aggesen, who also was a historiographer.19 The latter texts quite openly and self-evidently connect to a pan-European discourse of the time, while Heimskringla does not. May we, therefore, still treat Heimskringla in its structure as an Überrest,20 or should we rather be alert to the differences between individual kings’ sagas and the way they unfold a king’s desirable qualities and his relation to his followers? The same question may be applied to the relationship between Icelandic family sagas among themselves and greater common (legal) structures, and it demonstrates that the ‘laws of narration’ refer to more than just questions of source criticism. Essentially, we are confronted with a classical problem of cultural history, as it has to reconstruct the context of a textual witness out of the text itself, with only few, if any, controlling sources available. This approach has already met with fundamental criticism in the case of research in rituals, which is actually dealing with narrative reconstructions of rituals.21 While this does by no means disqualify cultural history as such, it prompts some fundamental questions: Are action-centred, narrative texts before literary naturalism, such as sagas or chronicles, capable of addressing and representing every-day normality? Are they actually addressing expected behaviour, or does the narrative hinge on exceptional situations in which norms and their enforcement are put to the test? How can differences in the representation of norms between legal and narrative texts be explained, then? What are the consequences of emplotment for the source value with respect to social practice and mentality? Is it possible to find a single, holistic formula for socio-legal patterns in disputes uniting the texts, or are they rather manipulating a common discourse, which consequently never will be found in its ‘pure’, ideal form? The questions concern historians and philologists in equal measure. It was the aim of the workshop and it is the aim of the resulting contributions to this volume to address the intersection between law in its anthropological sense and literature from the perspectives of both disciplines and thus to address the fundamental literariness of the sources. The diversity of perspectives and the polyphony of voices in the treatment of legalities in texts of the Nordic Middle Ages, which has necessarily been neglected in functionalistic studies, is where the philologists’ expertise comes into play and the transgression of disciplinary boundaries becomes fruitful. 18 Von See 1993, pp. 161–172; Wanner 2008, pp. 151–161. 19 Münster-Swendsen 2012, pp. 102–104; Ármann Jakobsson 2014, pp. 251–256, 320–341. 20 Cf. Bagge 1991, pp. 23–25, 61–63, 192–251. 21 Cf. Buc 2001, pp. 253–260.

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‘Scandinavia’ and ‘Europe’ So far, the impression might arise that this volume focuses exclusively on saga texts and thus on texts predominantly written in Iceland and virtually exclusively transmitted in Icelandic manuscripts, which would indeed mirror the focus of interest in legal anthropology.22 Nevertheless, the label ‘Scandinavia’ in the title, which is meant to include Iceland, is chosen for more than just commercial reasons. First, it mirrors a self-descriptive conceptualisation of interconnected social and geographical spaces: the “Danish tongue” (dǫnsk tunga) is thought of as a space of shared cultural memory already in 11th century Skaldic verse, Heimskringla explicitly connects it to the ‘countries of the North’ (Norðrlǫnd), and the regna aquilonis in Ælnoth’s life of St Knud, his father and his brothers, written in Odense in the early 12th century, express a similar imagination of what may be called a medieval concept of Scandinavia.23 Second, the contributions repeatedly refer to law texts and historiography beyond Iceland and Norway. Although the intersection between law and literature quite naturally entails a focus on sagas, it is apparent that Latin chronicles from Denmark offer the same potential,24 even if the results of one workshop will not cover all the aspects that are of interest, such as the implicit legal philosophy in Sven Aggesen’s or Saxo’s chronicles,25 which nevertheless are addressed occasionally, even though the focus is onesided. Third, the Scandinavian perspective beyond the frame of single social communities is inherent in the quantitatively dominant Icelandic texts themselves, in so far as Icelanders always conceptualise royal rule in continental Scandinavia as well as their own society without it, often even within the frame of one saga text, both in a distant past as well as in the present up to the acceptance of the Norwegian king’s rule in 1262/64 and the ensuing change in legal culture. The consciousness of historical difference remains intact afterwards, and the old laws of Iceland are remembered and evoked in narrative, for instance in Brennu-Njáls saga and Bandamanna saga, which were written rather late in the 13th century.26 Main characters in history are used to switching between different legal systems and adapt their disputing strategies accordingly.27 As a result, there is always a transcultural element inherent in the texts on a conscious level. The same applies to mythological traditions, which apart from Danish chronicles are only transmitted in Icelandic textual witnesses, but connect to a 22 Cf., however, Esmark 2013; Hermanson 2013; Esmark 2014 and Orning/Esmark 2013, pp. 25–27. 23 Dǫnsk tunga: Sigvatr Þórðarson, Víkingarvísur, st. 15, p. 555f. Norðrlǫnd: Snorri Sturluson, Heimskringla 1, p. 3. Regna aquilonis: Ælnoth: Gesta Swenomagni regis et filiorum eius et Passio gloriosissimi Canuti regis et martyris, p. 82. 24 Cf. especially Starý’s contribution. 25 Cf. Andersen 2012; Münster-Swendsen 2012; Vogt 2012. 26 Cf. Andersson 2006, pp. 169–182; McKinnell 1993, pp. 126–130. 27 This is especially conspicuous in the Íslendingaþættir (Harris 1972; Ármann Jakobsson 2014, pp. 139–193, 275–292), but also in family sagas like Egils saga Skalla-Grímssonar (cf. Orning’s contribution).

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tradition transgressing the scope of an exclusively Icelandic and even Scandinavian cultural memory.28 Besides these fundamental and inherent transgressions of the respective local perspectives regarding the thinking of law and legal practice, transcultural effects are of course present on the level of ideas, pertaining to narrative concepts as well as legal thought. The Norðrlǫnd or ‘Scandinavia’ and ‘Europe’ – in this context traditionally thought of as the post-Carolingian world and the British Isles without everything east of the Romano-German Empire29 – do actually no longer form a pair in the sense of two distinct cultural areas in the High Middle Ages. The old idea of a more or less completely indigenous Old Norse-Icelandic literature is not viable anymore, especially if one takes into account the cultural and literary context in which the ‘classical’ genres are situated and takes a look at the learned networks established during the 11th and 12th centuries.30 Snorri Sturluson’s conceptualisation of Scandinavian peculiarities, hinted at above, is witness to a carefully invented rather than a merely inherited Nordic identity within a global framework, which nevertheless recurs to and repositions contents of local cultural memory. This phenomenon pertains especially to the representation of law and legalities.31 On the one hand, the law bears considerable, if not decisive weight for cultural identity, which may already be observed in Ari Þorgilsson’s Íslendingabók, the oldest surviving witness of historiography in Old Norse. Especially pre-Christian history is presented as a series of law improvements following the settlement of Iceland, and the acceptance of Christianity as the sole religion is vested in a speech by the law speaker (lǫgsǫgumaðr), turning the conversion into and securing it by the making of new laws.32 The prominent position of law in narrative texts negotiating identities on the other hand implies that the authors were aware of what they were doing at a time when the reception of Roman law and the professionalisation of canon law had gained considerable momentum.33 As a result, the question how ‘Nordic’ the Nordic laws actually are comes to mind, which has been posed to the legal texts themselves,34 but is no less relevant for literary representations and imaginations of law and disputes. The fact that the ius commune influences the provincial laws and probably also the Icelandic Grágás underlines the problems inherent in the dichotomy

28 Cf. Sahm’s, Riisøy’s, and Teichert’s contributions. 29 Cf. the critical perspective in Bartlett 1993, pp. 269–291; Oschema 2006, pp. 31f. 30 See for instance Münster-Swendsen 2007 and 2013; Boje Mortensen 2000 and 2015; Eriksen (ed.) 2016; Waßenhoven 2006. 31 Von See 1964, pp. 187–193; von See 1993, pp. 141–158. 32 Hermann 2007, Gustafsson 2011; Scheel 2012, pp. 130–144. 33 Cf. Berman 1983, esp. pp. 273–294, 516–19; Reynolds 2003, pp. 365f.; Landau 2004, esp. pp. 135–147; Winroth 2012. 34 Tamm/Vogt (eds.) 2005; Andersen et al (eds.) 2014; cf. Münster-Swendsen (ed.) 2006; Korpiola 2011.

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‘Scandinavia’ and ‘Europe’.35 Certainly, sagas may be addressed as witnesses to older legal concepts no more or less than for instance Saxo’s Gesta Danorum, which display a sound knowledge of canon law and also project current legal discourse upon the distant past, which in turn forms part of the historiographic concept.36 The effect is neatly demonstrated by the famous formula ‘Með lǫgum skal land (várt) byggja.’ (‘With law shall the/our land be built.’) It is found in both legal texts and sagas from all over Scandinavia, including the Icelandic Járnsíða from 1271, the first royal law of Iceland.37 In its occurrence in the prologue of Jyske Lov from 1241,38 however, the context, which in the following consists of a mosaic of quotations from the Decretum Gratiani, clearly hints at Roman roots.39 In the Codex Iustinianus, Pomponius states in his story of how the Law of the Twelve Tablets, the laws of the Roman Republic and thus the republic as a polity came into being: ‘Civitas fundaretur legibus’.40 While the background in the Digests is obvious from the Roman context of this quotation, which is to be considered the oldest,41 it is quite likely that the masterly translation spread in the North during the following decades, to Upplandslagen, Västmannalagen and Hälsingelagen from Sweden as well as Frostuþingslǫg from Norway and then to Járnsíða, until it is finally uttered as a proverb by the wise Njáll in Brennu-Njáls saga and becomes part of legal reasoning in a narrative text, probably mirroring the current change in the Icelandic laws.42 Personal networks within clerical and secular elites facilitated such transfers. Already the Icelandic Veraldar saga, a world chronicle written at the time of

35 Cf. Andersen 2006; Vogt 2005, pp. 113–138, 307–314; Sveinbjörn Rafnsson 1977; Hoff 2012, pp. 177–378. 36 Vogt 2012. 37 Járnsíða, Þingafararbálkr 3, p. 65. 38 Jyske Lov, p. 3: ‘Mæth logh scal land byggæs.’ In the prologue, the law is dated, although the prologue itself seems to be finished after 1252 and thus to be added a little later: Tamm/Vogt (eds.) 2016, p. 238. 39 Tamm 1988. Olsen 1946 attempts to explain the formula as an old indigenous proverb, taking his departure in the West Norse addition ‘en eigi með ólǫgum eiða’ (‘and not destroyed through lawlessness’) and the association of byggja with peace and order in poetry and proverbs (cf. von See 1964, pp. 189–195), but Olsen can only enumerate vague parallels in older poetry which do not mention ‘lǫg’ at all. The alignment of a successful translation with the local idiom and its semantics, however, is not surprising. 40 Digesta I.2.2.4. 41 Cf. von See 1964, p. 191, note 28. 42 Upplandslagen, Wiþerbo balkær I, p. 215 (confirmed in A.D. 1296); Västmannalagen, Praefatio, p. 69 (dependent on Upplandslagen); Hälsingelagen, Praefatio, p. 3, Wiþerbo balkær, p. 71 (early 14th century). The Swedish laws are written with knowledge of the prologue of Jyske Lov (Östgötalagen och Upplandslagen, p. 11). Frostuþingslǫg I.6, p. 128, at the end of the introductory part. The oldest known manuscript was written between 1260 and 1269. For Járnsíða, see note 37. Brennu-Njáls saga, pp. LXXVIIIf.; ch. 70, p. 172; cf. Burrows 2015, pp. 67f.

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Friedrich Barbarossa (1152–90), explicitly mentions the Codex Iustinianus and even briefly touches upon its composition.43 The time before Roman law and its sense of proportion penetrated legal habits was ended for good when the Scandinavian literatures emerged.44 Although no definite proof is possible, the resemblance to the Roman principle in our example above is striking, and together with the early witnesses to Roman law in the North, it might therefore serve to highlight that the Latin and the vernacular discourse were tightly interwoven. One might even wonder whether the Scandinavians would have been able to conceptualise and thus write about or have their historical characters speak about law as ‘law’, a distinctive corpus of rules in its relation to justice, honour and equity, without the exposition to Roman thought.45 In any case is the legal culture found in narrative texts everything but ‘pure’, let alone ‘purely Germanic’. It is always a result of cultural adoptions and their merging with older, indigenous, in themselves again ‘hybrid’, transculturally inscribed traditions, from the idea of writing historiography to the principles behind patterns of (literary) actions. In other words: we are certainly not dealing with ‘Germanenrechte’46 when it comes to medieval Scandinavian texts, and Iceland, remote as its geographical situation may be, is no more a Germania germanicissima than for instance Denmark or Lombardy. Here lies a decisive difference to the approach by Jacob Grimm, who in his Deutsche Rechtsalterthümer from 1828 took the innovative step of combining prescriptions in law texts with literary descriptions of legalities in order to enlighten legal practice in past societies. Grimm’s approach, inspired by Romanticism and the assumption of a specifically ‘Germanic’ cultural essence, geographically and temporally spanning from Tacitus to the sagas, had its wellknown effect on generations of scholars.47 Nevertheless, research of the last decades has demonstrated that the most typical uniting, continuous characteristic of law texts in Germanic languages, if there is any, lies in the ongoing and multifaceted adoption of Roman law.48 Therefore, Scandinavian law and its literary mimesis in this volume is not primarily treated as a hand lead into the past, but rather addressed as a highly relevant access to cultural and legal history in the respective synchronous contexts, as is demonstrated by the comparative look at stories about nomopoietic moments. 49 This comparative view also explains the 43 Veraldar saga, p. 65. 44 Cf. note 33; Dilcher 2006, pp. 35–37. 45 This applies already to the early Leges barbarorum (Kroeschell 2008, pp. 22f., 47–49); cf. von See 1964, pp. 174–187, who also treats earlier (Eddic and Skaldic) occurrences of lǫg in the sense of set rules. 46 Cf. Kroeschell 1998 and 2008, pp. 47–49; Lück 2003, p. 212; Dilcher 2006, pp. 20–39; von See 2006a, pp. 161–165; Tamm 2011. 47 Cf. the criticism by von See 1972 and the overview in Kroeschell 1998. 48 Lück 2003, p. 212; Kroeschell 1998. 49 Cf. Starý’s contribution.

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inclusion of the Nibelungenlied, which certainly connects to heroic legend shared by communities speaking Germanic languages, but demonstrates the relevance of the specific social climate in which narrative tradition is given its textual form too. This comparative angle again helps to evaluate how useful ‘Scandinavia’ as a reference is when it comes to law and literature, and in how far the constant re-invention of Scandinavian-ness in a global context by Snorri, Saxo and their less well-known or anonymous contemporaries resembles shared peculiarities, or whether one should rather speak of Iceland and the rest of the world. Medieval Scandinavia, its legal cultures and their expression in its literatures are in any case addressed as a part of a Europe which is in many ways interwoven, and different chronological layers of cultural transfer interact within the texts. Thus, every aspect of memorialised knowledge and practice, including the local pre-Christian era, is only visible from the perspective of this medieval culture and its own concepts of the (legal) past.50

What is ‘Law’? The intricate and often contradictory relationship between normative texts and the representation of normative thought as well as legal practice in narrative genres underlines that whoever attempts to write legal history on the basis of the laws alone has got just one end of the stick, and probably the wrong one. The fact that texts like Njáls saga contain ‘mistakes’ when they represent the Grágás51 does not prove that its picture of legalities is historically irrelevant, as the two spheres are not operative hermetic.52 Obviously, medieval authors and lawspeakers had not read Luhmann. This entails, however, that the concept of ‘law’ becomes fuzzy, necessitating a preliminary definition. As has been hinted at, the status of the laws themselves is often not clearly defined. The royal competence to issue laws and to alter the law is something which is just evolving in the course of the 13th century and under the influence of Roman legal thought, while the early provincial law books, either written without a clearly recognisable royal initiative and thus often addressed as ‘private’ collections, or issued by the king with the advice of the ‘best men’,53 are not subject to royal disposition. The result is a co-existence of law books, royal ordinances or amendments, such as Knud VI’s Ordinance on Homicide

50 Cf. von See 2006a; Brink 2018, p. 185–188. This explicitly includes the awareness of the material transmission of law books: Rohrbach (ed.) 2014. 51 Lehmann/Schnorr von Carolsfeld 1883, esp. p. 137f. 52 Luhmann 1995, pp. 38–123. 53 Thus Jyske Lov, p. 18: ‘allæ bestæ menz rath thær i hans rikie waræ’ (‘the advice of all the best men who were in his realm’).

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from 1201, and canon law, entailing the aforementioned pluralism as well as the uncertain status and practical validity of the laws.54 Legal anthropology offers a way to re-define ‘law’ and its sources in pre-modern societies, reacting to the problem, but initially coping with the challenge of finding law in (semi-)oral societies.55 The decisive definitory border of the law is that the result of a dispute is reached in a formalised procedure, separating ‘law’ in a historical sense from ethics and convention. Yet, this border is never clearly outlined, as legal practice is formed by habits, resulting in the well-known tension between consuetudo and lex.56 The solution is that law is defined as the reaction to a perceived wrong or a transgression of norms, in so far as it consists of (habitually) repeated actions on the basis of ethics and religious norms shared within the social group.57 This again implies that not only normative values recognisable in legal texts, but also social capital in the sense of Bourdieu come into play: comparatively stable patterns of (disputing) behaviour are also shaped by resources such as personal honour and the necessity to defend or enhance it, just as well as by the social capital provided by the network of relatives and friends, which again hinges on other material and immaterial resources just as well as the explicitly legal definition of kinship. These factors interlock with a mentality shaped by emotions.58 As early as the 9th century, authors of the Carolingian world are aware of this and do not view the law as an absolute and ultimate truth. Hinkmar, the archbishop of Reims, an expert in canon law, wrote in his De ordine palatii in 882 that a king should rule by terror, ordinatio et amor, by fear, order, which implies legal order, and by love.59 This text is a king’s mirror and a law of the palace, and even here, social order is not exclusively guaranteed by the law. It stands beside the king’s arbitrary behaviour, and both are obviously equally relevant when it comes to social practice. Scandinavian literature constitutes no exception to this rule. In the emergence and the further course of conflicts, the decisions of protagonists, be they kings or Icelandic magnates, are influenced by envy, a perceived loss of honour compared to a peer,60 or by harmr, ‘pain’ or ‘grief’ at the loss of a relative in the course of a dispute.61 The overlaps with both heroic epic and Christian doctrine are obvious. In many biographies, especially the skald sagas, love in the sense of eros comes to play a crucial part in shaping disputing practices.62

54 Vogt 2008; Andersen 2006, pp. 152–226. 55 Cheyette 1970; Weitzel 1997; Kannowski 2002; Dilcher 2006, pp. 39–41. 56 Köbler 1971; Dilcher 1992. 57 Dilcher 2002; Brown/Górecki 2003, pp. 1f., 6–26; Lück 2003, pp. 211f.; Schenck 2013, pp. 13–18. 58 Cf. Miller 1990, pp. 179–190; Miller 1993, pp. 93–130; Meulengracht Sørensen 1993, pp. 291–327. 59 De ordine palatii, ch. 3, p. 52. 60 Miller (note 58). 61 Sif Rikhardsdottir 2017, pp. 68–71. 62 Poole 2001; Bredsdorff 1971, esp. pp. 134–140.

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All these aspects contribute to the legal practice which is called ‘feud’ in modern research, which is not or at least not completely visible from the law books alone and which only becomes comprehensible through narrative imaginations of the social space. Dispute studies have developed a number of definitions, partly in an effort to grasp a global pre-modern phenomenon, partly specifically for Scandinavian societies, especially for Iceland.63 Decisive features include that the action transgresses violent self-help or revenge – ‘customary violence’ – as the reaction to a perceived wrong, which is partly allowed or even demanded in the law books.64 In a ‘feud’, for which the medieval Scandinavian languages possess no special word but call ‘legal dispute’ (mál, sǫk, deild), two disputing groups have to form, which hold themselves accountable and strive for equivalence in a sort of negative gift exchange. This exchange is ritualised or consists of patterns which demonstrate the righteousness of actions. While the ultimate aim of the violent actions is to ‘get even’ and thereby to establish a peaceful equilibrium, the involved emotions and sense of honour provoke the well-known spiral of escalation, as both parties are usually not simultaneously convinced by the correct measure of action one side has taken. This often demands the involvement of arbitration by a third party in order to reach a settlement.65

Feud, Habitus, and the Place of Law It is hardly surprising that in the reasons for taking violent action and the potential development of disputes, a circle closes to heroic epic. The sense of heroism displayed by characters in Eddic poetry plays an important part also in the habitus and thus in the way characters in sagas and Latin chronicles take legal action in an anthropological sense, not necessarily, but occasionally through emulation.66 The overlapping motivations and the similarities in the inherent logic shed a different light on the laws’ obvious aim to curb revenge and to make the escalation of feuds

63 Miller 1990, pp. 180f. 64 Halsall 1998, p. 28. He stresses the difference between this customary and thus legal reaction to a transgression and feud. The Gulaþingslǫg, ch. 152, p. 60, most probably written down in the earlier 12th century, view revenge as the first and the acceptance of compensation as the second option, but allow the acceptance of the latter only three times before the injured party has to take revenge (ch, 186, p. 68). It is the only Scandinavian law book containing such a prescription; cf. the narrow constraints on permitted revenge in the Icelandic Grágás 1, pp. 147f., equally going back to a written collection from the early 12th century. 65 The definition is based upon Hyams 2003, pp. 8f.; Helgi Þorláksson 2007, pp. 70–76. Cf. Büchert Netterstrøm 2007, pp. 37–64. 66 Cf. Andersson 1970; Vésteinn Ólason 1999; Heller 1976, pp. 12–14, 113–118; von See 1976, pp. 166–172.

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impossible – and vice versa. At a closer look, the development of the plot in Íslendinga saga, a contemporary saga relating the events which led to the end of Icelandic independence in 1262/64, mirrors exactly that phenomenon.67 None of this is new, of course. Generations of scholars have noticed these peculiarities of medieval Scandinavian literature and tried to explain it as an expression of a ‘Germanic’ mentality, usually dividing between an ‘old’ set of norms and values of pagan origin, stressing the necessity to take revenge, and a ‘new’, essentially alien Christian normativity.68 Andreas Heusler even distinguished between different layers of time represented in the sources, which allegedly witnessed a depravation of ‘old’ pagan heroism and ‘chivalry’ between the Íslendingasögur’s Saga Age and the 13th century described by the Samtíðarsögur.69 Germanophile and Germano-manic approaches from the earlier 20th century implied a critique of medieval Christian culture, as it allegedly had deprived Scandinavian and ultimately also Icelandic culture of its former ‘purity’. The interest in a ‘Germanic’ or ‘Nordic’ antiquity and its (alleged) legal properties worked as a sort of inverted medievalism70 and directed scholars’ attention to texts which appeared least ‘medieval’, texts which were remotest from the global discourse of the High Middle Ages, which again contributed to the formation of the canon as it is today. In contrast to this, the so-called Icelandic School, which came to dominate research around the middle of the 20th century, focused on saga texts predominantly as singular literary monuments from the Middle Ages and on aspects of positivistic source criticism,71 which in turn generated a new demand for holistic syntheses in the last decades. At this stage, structuralist approaches in literary criticism and the anthropological turn reinforced each other in the search for overall principles. The patterns of action in saga texts, at least in a number of canonical family sagas, resemble that of a ‘feud’ outlined above: a transgression of norms is followed by a violent escalation of a dispute, which results in an equally violent retaliation, followed by a reconciliation. Although the actual arrangement of actions may vary from text to text, ‘feuding patterns’ and elements found by philologists support the findings of legal anthropology.72 William Ian Miller’s ‘Bloodtaking and Peacemaking’ from 1990 is a landmark in this approach, underlining that ‘the bloodfeud informs every aspect 67 Cf. Nordal 1998, pp. 182–227, and Scheel’s contribution to this volume. 68 Cf. for instance Grønbech 1909, pp. 57–107; Heusler 1934; Gehl 1937, esp. pp. 33–44, 143–157. The division was retained in later research. Cf. the critisicm in Meulengracht Sørensen 1993, pp. 296–313, and the modification by Vilhjálmur Árnason 2009, pp. 234–238, who views ‘unconditional honour’ as more deeply rooted in the social structure and thus as ‘older’, while seeking peace and reconciliation is ‘doomed to failure’ (ibid., p. 238). 69 Heusler 1912, esp. pp. 8–17. 70 Cf. Zernack 2005, pp. 141–145. 71 Clover 2005, pp. 241–253. 72 Andersson 1967, pp. 3–30; Lönnroth 1976, pp. 68–82; Byock 1982, pp. 49–54, Vésteinn Ólason 1998, pp. 133–209.

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of Icelandic political and legal life’.73 Law and literature as well as philology and legal history meet again at this juncture, and they again result in a pronounced antimedievalism in so far as research just as in earlier times, albeit from a different angle, calls into question the validity of global Christian ethics dominant in Latin discourse as well as some decidedly medievalist interpretations of Scandinavian literature.74 The result is that Scandinavian, in this case Icelandic, uniqueness in the pursuit of honour and the subordination of other values is stressed. The re-establishment or enhancement of honour in the ‘feud’, then, would be the predominant ‘law’ in an anthropological sense, while ‘the laws’, the corpus of rules and procedures recognisable in legal texts, appears as an important, yet subordinate set of tools which may also be applied within the habitual, brazen logic of the ‘feud’. This has even been underlined by statistical analyses since the early 20th century, which prove that in narrative texts, revenge occurs more often than a legal process,75 making the question regarding the tension between literature and social practice all the more urgent. Miller’s, as well as other works in the field of dispute studies, offers a coherent picture of Icelandic society and its mental as well as its legal ‘constitution’. But this achievement comes at a price: first, the action taken by literary characters is generally viewed as a faithful representation of viable options and as functional.76 While this is a necessary reaction to older premises which viewed acephalic societies and ‘feud’ as inherently dysfunctional because the future would belong to the emerging ‘state’, it bears the risk of accepting all sorts of action as acceptable and productive, although many disputing strategies described in narrative texts may be viewed as decidedly anomalous, unanimously condemnable and/or plainly stupid by the ethical standards of the society which produced and consumed these texts.77 This may admittedly be hard to make out due to the characteristics of the saga narrator, but more often than not, the narrative context clarifies the matter. With the question of context, the second problem arises, as anthropological approaches usually take smaller narrative units from larger (saga) contexts in order to explain patterns of legal action. In this procedure, the alterity of the ‘saga world’ is stressed, which leads to a preference for examples contradicting classical virtues and Christian doctrine.

73 Miller 1990, p. 179. Cf. however the reservation uttered by Sawyer 1987, p. 36: ‘The bloodfeud flourished best, not in the real world, but in the fictions of poets, storytellers and lawyers.’ 74 Cf. Miller 2014, pp. 73–87, 225–247, 301–307. A good example for the effect is the debate on Hrafnkels saga Freysgoða: Hermann Pálsson 1971; von See 1981; Andersson 2006, pp. 175–182; Miller 2017, pp. 181–215. 75 Heusler 1912, p. 20. 76 Cf. Esmark/Orning 2013, pp. 14–17. 77 Cf. Würth 1999; Andersson 2006, p. 182, and the contributions by Ármann Jakobsson and Scheel.

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A case of pre-emptive killing may underline this: in Þórðar saga kakala, a contemporary saga written around 1270 and treating the struggle for power between the big Icelandic families in the time when Þórðr kakali led the Sturlungar clan (1242–49), a certain Ásbjǫrn Guðmundarson, one of Þórð’s followers, kills Atli Hjálmsson, an adversary of Þórð’s in West Fjords, after Atli had been seized. Immediately afterwards, he seizes Atli’s totally uninvolved brother Þormóðr, who asks for his life and argues that a settlement would always be possible, and has him put to death as well.78 Ásbjǫrn’s argument is absolutely pragmatic and in flagrant contrast to modern moral instinct: as Ásbjǫrn had killed the brother before, Þormóðr would never be ‘trustworthy’ (trúan).79 To Miller, Ásbjǫrn’s actions are ‘extraordinarily coldblooded’80 and represent the more violent end of the spectrum of options, but a valid proof that killers ‘in any event’81 considered deadly vengeance as a sort of natural law. In other words: Ásbjǫrn’s actions were pragmatic and adhered to the mechanisms of the society he lived in. Actually, however, his killings were as conventional as those of a murderer in today’s society. Although Miller stresses the importance of context, it is not mentioned that Ásbjǫrn is a pathological character: he is originally an einhleypingr (‘lonely man’)82 without social relations and especially without friends, which is a bad sign despite his bravery, he resorts to illegal violence deviating from patterns of disputing behaviour found elsewhere from the first moment of his appearance, he takes delight in mistreating and killing people, and he is unreliable, as he deserts Þórðr after a dispute ignited by his arrogance.83 His actions therefore constitute not only a worthless, but a misleading example when it comes to law as habitually repeated patterns of disputing behaviour. While Ásbjǫrn’s case underlines the diversity of characters represented in literary mimesis and the consequence of character for the plot, he goes beyond the border of normativity in his defective ‘insight’ into the mechanisms of potential feuding. Other characters, in the very few cases where pre-emptive killings are considered, explicitly deny killing innocent people as a pre-emptive measure.84 The two inherent problems in holistic anthropological approaches – functionalism and the isolation of actions from their narrative micro-cosmos – lend antimedievalist approaches a manipulative potential, which sometimes causes irritating organisational blindness. For instance, the saying that a character does not ‘want to carry his brother/son in a purse’ (‘vilja bera bróður/son sinn í sjóði’),

78 Þórðar saga kakala, ch. 14, pp. 27f. 79 Ibid, p. 28. 80 Miller 1990, p. 190. 81 Ibid. 82 Þórðar saga kakala, ch. 6, p. 12. 83 Ibid, ch. 6, pp. 12f., ch. 14, pp. 27f., ch. 21, pp. 41–43. 84 Cf. Guðmundar saga dýra, ch. 18, p. 199.

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implying that revenge is more honourable than accepting compensation,85 is found in two family sagas. These are, however, written at a late date, and in the more famous case, Þorsteins saga hvíta, the utterance by the protagonist addresses the killer of his son, but is only added for dramatic effect.86 Actually, Þorsteinn does not only renounce compensation, but revenge altogether and accepts the killer in the place of his son. His actions are the perfect opposite of the mentality he invokes through the saying. It is only a dark mirror. The latter fact, the original meaning behind the very scene, has been concealed. This one-sided manipulation of diversity, resulting in the representation of the ‘saga world’ as something inherently exotic, is fuelled by an undoubted overrepresentation of problematic, deviant or one-sided characters in the sagas, who provide fuel to action-centred narrative,87 and the superficially impartial narrator discussed above. Thus, the cynical aspects of saga disputes tend to be overstressed in the search for ‘law’, resulting in a picture of Scandinavian, especially Icelandic society as Social Darwinist. There are reasons to a considerable disagreement among scholars as far as the habitual importance of physical force opposed to peaceful arbitration and settlement is concerned.88 The question how the often cynical pragmatism of the characters connects to ethical standards of the surrounding society as well as how dominant legal structures are compared to individual interests and dispositions of character – in other words: where the place of the law is – will be addressed in the following contributions. It concerns not only cases of killings, but also other disputes. The third issue pertaining to dispute studies regards unity. It is notoriously difficult to subsume the spectrum of actions by very diverse characters even within one genre like the Íslendingasögur under one set of rules or ‘laws’. The solution has so far been that canonical texts dominate the analysis at the expense of less wellknown ones, which then only provide ‘chunks’ of actions, such as Þórðar saga kakala.89 The canon has not changed in the last century, and the blind spots remained more or less the same. A good example is found in Reykdœla saga ok Víga-Skútu, one of the earliest sagas of Icelanders, most probably written around 1220. In this rather unknown text, we are not presented with a classical feud, but a wise chieftain who manages to suppress the escalation of numerous disconnected conflicts started by his nephew.90 His forbearance and abstinence from employing physical force does not damage his honour and reputation, and when he is finally killed in

85 Miller 1990, p. 190. Þorsteins saga hvíta, ch. 7, p. 17; Grettis saga Ásmundarsonar, ch. 24, p. 84. 86 Cf. Beck/Böttcher 1978, pp. 95f. 87 Cf. Ármann Jakobsson 1997, pp. 191–239; Andersson 1994, pp. 58–66. 88 Jón Viðar Sigurðsson 1999, pp. 159–161; Jón Viðar Sigurðsson 2013; Firth 2012 stressing the importance of arbitration in opposition to Heusler 1911 and 1912; Miller 1990. 89 Cf Miller 1990, p. 190. 90 Cf. Scheel’s contribution, pp. 146–152.

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an escalation provoked by his nephew, his last wish to abstain from taking revenge is actually respected by everyone present. Naturally, this first part of the saga has led to irritation. The statement by Walter Heinrich Vogt, who translated the saga into German in 1921, is typical. He maintains that the author’s understanding of the ‘old reality of the farmers’91 had evaporated, that he has no sense for the refined feeling of honour, that he ridicules the actual protagonist of the history behind the text, namely the aggressive nephew, as a simpleton, and that the author does so because he lacks true feeling for the society – which Vogt himself obviously thought to possess, having studied later (!) family sagas.92 By declaring the author removed from reality and thus inept, the literary phenomenon is conveniently explained away. Reykdœla saga is only one text among many which do simply not feature in in-depth analyses of dispute structure. Other sagas have continuously escaped their integration into larger patterns of interpretation, either because their representations of disputes are ambivalent or because they relate to the discourse by putting to ridicule disputing strategies and attitudes found in other texts. There is neither any stable connection between strategies chosen by the figures and the ends they pursue. Legal pettifogging may be used in order to destroy a just case or to avert an unjust accusation; there are good and evil and intransigent legal tricksters,93 and consequently, their choice of strategy appears in a very different light under the differing narrative circumstances. Differences in the characters’ approach to the transgression of norms – essentially between resorting to violent escalation and peaceful settlement – have traditionally been viewed as a mirror of conflicting value systems of different age and provenance, as has been hinted at: an honour-centred ‘genuine’ demand for revenge and blood and an ‘imported’ demand for peace and forgiveness. At second glance, the situation is not that clear. On the level of historicity directly addressed in the texts, there is a keen conscience of historical lawmakers who introduced just and peace-preserving laws,94 just as Icelanders do in some, though not all family sagas. Nevertheless, the opposition of archaic and contemporary is true at least as far as images of the pagan ‘heroic age’ are concerned, although it remains a matter of discussion how far archaic traits are ‘prolonged echoes’ from former times or ‘overlays’ resulting from conscious archaization.95 Be that as it may: Ásbjǫrn’s highly problematic and antisocial reasoning in Þórðar saga kakala finds a counterpart in Brynhild’s

91 Ranisch/Vogt (eds.) 1921, p. 23: ‘Verständnis für die alte Bauernwirklichkeit’. 92 Ibid., pp. 23–25. An identical view in Gehl 1937, p. 18. 93 Cf. Berger 1979, who speaks of ‘lawyer sagas’ as a sub-genre; Burrows 2009. 94 See Starý’s contribution. 95 The terms are borrowed from van Wezel 2000; cf. Teichert 2008, pp. 59–83. While these studies treat mythological aspects, the opposition between continuous tradition and a consciously crafted historicity might as well be applied to legal aspects, especially in the rare cases where historical law-making is addressed or law and religion are linked.

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advice to Sigurðr Fáfnisbani in Vǫlsunga saga, which repeats the contents of the Eddic Sigrdrífumál and warns the hero never to trust the brother or son of a man he has killed.96 The idea of old, heroic law is similarly evoked in the family sagas, for instance in classics like Laxdœla saga, where the shrewd peacemaker Snorri goði states that ættvíg (‘family killing’, often translated into ‘blood revenge’) has to stop,97 implying that the ‘blood feud’ between clans, including the killing of the enemies’ uninvolved relatives, constitutes an inherited habitus. Nevertheless, the term is extremely rare in Old Norse prose – as well as the social practice – and it appears surprisingly late,98 while the only occurrence in poetry (from the 11th century) means killings within the same family. Its deviant and clearly extra-normative nature is quite clear.99 Thus, the meaning of ‘blood revenge’ is secondary, while the word historically carries highly pejorative semantics. The first mention of such ‘family killings’ in a law text is made in King Hákon IV’s amendment to the Frostuþingslǫg, the Norwegian provincial law for the Trøndelag, from A.D. 1260. It is found again verbatim in Járnsíða, the royal law for Iceland from 1271100 – just as the proverb ‘Með lǫgum skal land byggja.’ – but neither in Grágás nor in earlier provincial laws. This highlights a fact already pointed out by Preben Meulengracht Sørensen: while the heroic age by virtue of its properties encapsulates the warlike aspect of honour and disputes, the two options always exist perfectly synchronically side by side within the medieval texts.101 They are corresponding to two equally synchronous concepts of honour, which are invoked according to situation, social constellation and individual character. It would therefore be misleading and a reiteration of essentialist, Germano-centric approaches to simply subtract everything recognisable from common ‘European’ discourse in order to retrieve something ‘indigenous’ or ‘old’.102 Moreover, these conflicting values and voices within single texts, the

96 Vǫlsunga saga, ch. 22, pp. 152/154; Sigrdrífomál, st. 35, p. 196. Cf. Riisøy’s contribution, pp. 260–262. 97 Laxdœla saga, ch. 59, p. 177. 98 The Ordbog over det norrøne prosasprog (http://onp.ku.dk/onp/#c772869) only lists five occurrences: Hákonar saga Hákonarsonar, mentioning his laws (below), Heimskringla, in the mythological part of Ynglinga saga (a prophecy on the consequences of a murder), Orkneyinga saga (in a scene obviously parallel to Heimskringla), Stjórn (a translation of the Old Testament, here 2 Sam 16), and Laxdœla saga as the only (!) family saga. The oldest occurrence would thus be in Orkneyinga saga and Heimskringla (early 13th century). Cf. Beck/Böttcher 1978. 99 Sigvatr Þórðarson, Erlingsflokkr, st. 7, p. 639. A synonym used in the stanza is frændsekja (‘attack on kindred’). Orkneyinga saga and Heimskringla (above) use ættvíg in the same meaning. 100 Frostuþingslǫg, ch. I.8, p. 123; Járnsíða, Þingfararbálkr, ch. 3, p. 65. 101 Meulengracht Sørensen 1993, pp. 291–327. Cf. von See 1976, pp. 166–172; Sawyer 1987, p. 36; Ebel 1995, pp. 104f.; McKinnell 2009, pp. 184f., 193f. 102 Cf. Beck/Böttcher 1978, pp. 84f., 98–100.

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simultaneity of concepts appearing non-simultaneous eo ipso, are by no means exclusive to Scandinavian literatures or the sagas, as this volume also demonstrates.103 It would be equally delusional in turn to view the Christian world outside Scandinavia or even modernity as devoid of these conflicting value systems. Even a Ferdinand Lassalle, Prussian socialist in favour of a strong state that he was, could die from a wound received in a duel instigated by himself as late as 1864. The abundance of figures in modern literature acting according to the laws of honour or their own sense of justice and thereby violating the positive laws of their community need not be mentioned, and in so far, current Scandinavian crime fiction is a distant mirror of saga narrative. What our texts demonstrate instead of a genuine archaism is the repeated endeavour to unite the conflicting concepts and the characters which voice and enact them into a ‘communal performance’.104 Fundamental differences between individual narrative texts also lie in the degree to which the text focuses on the connection between character, law and legalities. A focus on the biography of an exceptional historical person often leads to the neglect of the systemic implications of singular, memorable deeds, while other sagas explicitly focus on exactly this connection between disputing behaviour and legal norms.105 Unity on the level of individual action is rather found in the continuous appearance of figures who try to utilise procedural law in the widest sense than in habitual patterns of concrete actions, and then across genre borders: compare the end of Njáls saga106 with the process against Isǫnd in Tristrams saga ok Ísǫndar.107

Law, Literature, and the Medieval Author All this implies is that also anthropological analysis should be alert to the way described actions are connected to their wider context, within the text itself and beyond the text, and to the way they connect to law as the immanent whole of habitual actions in disputes. While the authorial voice never explains the mode of narration, it is often clear from the narrative itself that the actions of several characters unfolded by the narrator and their dialogues connect to this immanent whole not in a literal, but in a tropic mode. This means that we must reckon with sarcastic inversion in the application of patterns such as whetting, with hyperbolic or even cynical use of legal terminology or the discourse of honour, or with ironic,

103 Cf. Sahm’s contribution to this volume. 104 Cf. the title and the results of Hughesʼ contribution. 105 Compare for instance Gísla saga and Grettis saga to Eyrbyggja saga and its focus on legal change. 106 Cf. Ármann Jakobsson’s contribution. 107 Tristrams saga ok Ísǫndar, chs. 55–60, pp. 69–74.

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carnivalesque descriptions of the elite’s habitus.108 Sometimes, watersheds in a narration are marked by paradoxical behaviour, for instance when characters cite verses at the thing assembly, which is strictly prohibited by law, in order to highlight injustice.109 The relationship between the single monument, even the single scene, its literariness and the immanent whole of the law is situated in the core of research in law and literature, which has been dominated by Anglo-American scholars and mostly aimed at post-Enlightenment authors.110 Thus, Richard Weisberg states that the conscious difference between normative speech and immoral objectives is a feature of the modern novel after secularisation, which he finds in Dostoevsky, Flaubert, Camus and Melville and interprets as an implicit self-criticism of narrative procedure.111 It comes as no surprise that this feature of letting the law fail as well as ‘poetic justice’ are ascribed modernity and explained as a phenomenon resulting from the dissolution of pre-modern order.112 The underlying picture of the premodern era, which has largely not been in the focus of research in law and literature,113 corresponds to ideas by Mikhail Bakhtin – namely that medieval texts are monologic in the sense that the unmediated co-existence of dissenting voices within one text was impossible.114 Only modern texts could be polyphonic. It appears from these introductory remarks, which take into account the findings and hypotheses of the contributions, that this total image of a bygone, distant epoch may be called into question by looking exactly at the Scandinavian corpus of texts treated in this volume from precisely the intersection between law and narration. Such a hypothesis raises the fundamental issue of how to deal with the concept of the author and the question how much space an individual, if such a concept existed in the Middle Ages,115 had for manipulating the immanent whole of a ‘society’ and its set of implicit and explicit legal and ethical rules in disputes, as well as for exploiting collective memory, which is often referred to as ‘oral tradition’. Does it, therefore, make sense to speak of (anonymous) authors at all? Is the author dead, had he indeed not been born yet in medieval Scandinavia, or is he even an undead revenant, mirroring a deficiency in literary theory in medieval studies? Admittedly, while there are good reasons to reckon with individual manipulations of the discourse in the respective sources, the notion of an author requires a datable

108 For instance in Bandamanna saga, Hœnsa-Þóris saga and (less unambiguously) in Hrafnkels saga (Durrenberger 1992; Würth 1999; Andersson 2006, pp. 162–182). 109 Cf. Burrowsʼ contribution. 110 Cf. e.g. Weisberg 1992; Nussbaum 1995; Ward 1995; Weitin 2010. 111 Weisberg 1984, esp. pp. 177–179. 112 Cf. Weitin 2010, pp. 20–36. 113 For a discussion of medievalist perspectives, see Schenck 2013, pp. 23–29. 114 Bachtin 1979, pp. 192–219, 309–337; cf. Martínez 1999, pp. 430–438. 115 Cf. the scepticism by Gurevich 1978, pp. 335–350; Steblin-Kamenskij 1973, pp. 58–63.

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text which we do not possess. Material philology has pointed out that while surviving manuscripts prove a consciousness of genre and style, which is also scrutinised here, it is notoriously hard to draw conclusions about their origin and its context on basis of the preserved material, which exists in its own right.116 The task of dating and discerning literary developments, which necessarily were part of a developing discourse on norms and laws, is not made easier by the absence of names of authors, which is a genre feature of Íslendingasögur, but is also valid for other branches of saga literature.117 Nevertheless, certain groups of sagas, sometimes across genre borders, display remarkable features when it comes to questions of ‘law’ in an anthropological sense.118 Connections between the changes which took place from the ‘Saga Age’ to the Age of the Sturlungs and the differences between family sagas and contemporary sagas are undeniable,119 as well as connections between the crisis of Icelandic society in the 13th century, the transfer of rule to the Norwegian king, the introduction of new laws and the view on law in sagas from different decades and regions.120 These clusters of texts in return, just as well as recurrent patterns of action, demonstrate the unifying force counteracting literary freedom, exerted by laws of narration and, ultimately, by a common fiction of law beyond its letter, closing the circle to the actual matter of this book. The contributions unite the expertise of history and philology from this perspective, and they demonstrate that law and literature in medieval Scandinavia and its literary heritage is an ideal field to rethink historical concepts of law.

The Contributions to This Volume The character of legal culture in Iceland and the problem of defining its sources are directly addressed in the first contribution by Jón Viðar Sigurðsson. The legal system of the Icelandic community as Grágás presents it is first developed and then confronted with the narrative representation of disputes in the contemporary sagas, in this case Þorgils saga ok Hafliða, demonstrating that the solution to a dispute lay in an arbitrated settlement, which is the dominant phenomenon in saga texts. Neither judgement after the prescriptions on homicide (Vígslóði) nor the accountability of the family according to the ‘Wergild Ring List’ (Baugatal), alluding to the

116 Cerquiglini 1989, pp. 18–29, 73–101; Nichols 1990; Würth 1999, pp. 198–206. For legal manuscript culture in the North, cf. Rohrbach (ed.) 2014. 117 On dating, see Glauser 2013; Mundal 2013; cf. Nordal 1953, pp. 244–254. 118 Berger 1979; Burrows 2009; Andersson 2006, pp. 162–182. 119 Jón Viðar Sigurðsson 1999, pp. 17–62; Firth 2012, pp. 144–147, 165–168. 120 McKinnell 1993, pp. 124–131; Andersson 2006, pp. 102–118, 150–203, Berger 1977.

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‘blood feud’ mentioned above, are of significant importance. The handling of law, on the one hand, appears rather to be part of the power game between opponents among the magnates, which proved useful in the acquisition of resources. On the other hand, this demonstrates that law in the sense of normative prescriptions was extremely powerful besides the fact that negotiated settlements did not take it into account. Moving away from the letter of the law, the actions of saga characters demonstrate that they were anxious to secure the lawfulness of their business and their deeds. As a result, ‘law’ appears as a set of rules which are not sharply defined and not identical with the written laws, but exercise a great power on the actions of people as a force in the background based upon shared knowledge among the elite and the law’s readiness to be converted into a powerful resource. This peculiar status of the law is underlined in Hans Jacob Orning’s analysis of the large meeting in Bergen in A.D. 1223, which confirmed Hákon Hákonarson as the sole king of Norway, whose rule had been contested by his relative Skúli Bárðarson since the former’s election in 1217. The status of the law in this meeting of the bishops and magnates, which is described in detail in Hákonar saga Hákonarsonar, is precarious. All of the five claimants to the throne presented proofs, and besides inheritance contracts, the ‘old’ as well as the ‘new’ law of royal succession, introduced in 1163/64, were invoked, underlining that ‘law’ was not a sharply defined text, which would have rendered any discussion useless, but a corpus of rules open to negotiation. Nevertheless, the power game at the meeting was vested in legal garments according to Hákonar saga. A side glance at Egils saga Skalla-Grímssonar and at Egil’s legal dealings with the king, represents the other side of the scale, where law is only a puppet of raw power. The space between these options is also mirrored by the ambiguity of God’s will, revealed through the interpretation of ordeals, and the unclear relationship between rituals and the ideal they are supposed to express, which is also demonstrated by examples from courtly literature. As a result, cynical pragmatism as well as the adherence to a shared ideal come to the fore when it comes to negotiating the right to exert rule. ‘Law’ in this case again proves to be a powerful fiction hovering over and informing the actions of the involved persons, as it decisively contributes to the shaping of a moral community which has to be convinced and thus stabilises itself. While the Icelandic as well as the Norwegian case demonstrate the indirect, yet comprehensive and omnipresent power of the law beyond a sharply delineated system, four philological approaches underline the fundamental interdependence of law, its representation and shaping through narrative practice. Ármann Jakobsson concentrates on lengthy ‘courtroom’ speeches at the Alþingi in the last quarter of the famous Njáls saga, which is coined by the ‘sound of law’. Modern criticism has been perplexed by this, as it all seems to belong to a rather insignificant aftermath of the actual ‘feud’ and its climax in the burning at Bergþórshváll. If this last part, however, is read as the climax of the saga, it reveals a discourse on the interdependence between law and character, as it puts the preoccupation with legalities throughout the

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whole saga into perspective. From the view of legal expertise culminating in the speeches, three embodiments of law come to the fore, Mǫrðr gígja Sighvatsson, Njáll Þorgeirsson, and after him Mǫrðr Valgarðsson, the grandson of his older namesake. The failure of the verbose younger Mǫrðr to make his case in the end marks the failure of law and justice in society, while Njál’s success is explained through the careful, far-sighted exertion of his power in the background. Njáll as a literary character thus embodies in his person exactly the role law plays from the historian’s perspective in 13th century Norway and Iceland. The projection of the status of law and equity on single characters demonstrated in the most famous family saga underlines further the decisive dependence of pre-systemic law on individual character traits. Njáls saga, more precisely the aftermath of the very fight at the Alþingi following Mǫrð’s failure mentioned above and thereby the same context charged with legalities, is also the point of departure in Hannah Burrows’ study of court poetry. Here, Kári Sǫlmundarson mocks the lawspeaker Skapti Þóroddsson for his inefficiency in the fight in a Skaldic lausavísa (‘loose stanza’). Such stanzas are remarkable in a legal context, as they are explicitly forbidden in Grágás and sanctioned with full outlawry (skóggangr), but uttered in the very context of the central assembly which made these laws. Law and poetry also are antagonistic with regard to their aesthetic form, which is utilised in order to mark the disagreement of characters with inefficient legal practice, in Njáls saga, highlighting the failing justice also underlined by Ármann Jakobsson, as well as in Konungasögur, where assembly men voice their disagreement in verse. Poetic pleading, fastening certain facts of a case in memory in the context of a court scene, is also found, but only in pre-Christian settings outside Iceland, underlining that there was a universal conscience of the development as well as the spatial peculiarity of legal regimes, while poetic duelling and its legal repercussions are a recurrent theme in skald sagas. Commemorating poetry on processes at an assembly is equally found in both family sagas and contemporary sagas and likewise serves the evaluation of the events. As the quotation of Skaldic stanzas in the context of þing assemblies is a rather rare phenomenon and would obviously have been dangerous as well as unpractical given the demands of legal language prescribed by the law and also practiced by skilled experts in the sagas, court poetry appears to be the result of a 13th century literary practice. Most of the scandalous and exceptional stanzas found in these contexts were most probably not composed by the historical persons behind the characters, and therefore, the literary effect of highlighting the arbitrary relationship between law and justice through the juxtaposition of law and poetry may be addressed as a conscious strategy. It is exactly this arbitration between legal principles and a communal consensus to a just solution of a dispute that lies at the heart of Kyle Hughes’ contribution. Taking its departure in the mentioned bias in dispute studies and the disagreement regarding the relative importance of vengeance opposed to settlements, following

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Jón Viðar Sigurðsson’s insight that settlements (sætt) statistically dominate dispute resolution by far, it aims at explaining the role of law on the way to these settlements. Hughes demonstrates that the semantics of law (lǫg) in the family sagas are inextricably interwoven with the polity and thus with communal performance. This corporate aspect, which is guaranteed by the inclusion of supporters and arbitrators, makes law ‘good’ in the sense that the community finds a balance between personal honour and social stability. Sagas focus on moments of stress to the community, and different examples show that escalations in the form of a feud are preceded by an alienation from this community. The result seems paradoxical at first glance, as the effective settlements are extra-legal, i.e. do not enforce the Grágás laws, but they are based upon interpretations of these laws and they constitute law in so far as they repeatedly and by the majority of cases prove effective. The legal performance on the way to settlements with its different voices, then, appears to be an extremely effective literary device representing Icelandic identity, and as result, ‘law encodes the narrative conflict’.121 Once more and from a narratological perspective, law proves to be a very powerful force in the background of social, in this case literary practice. Roland Scheel’s contribution is dedicated to the differences between individual family sagas in their representation of disputing strategies and the resulting image of law, equity and appropriate behaviour in conflicts. Stressing the fact that regarding the narration of disputes, the genre is inherently polyphonic, the modern predilection for texts with parallels to heroic legend and unfolding ‘feuds’ is underlined. This picture is contrasted with an analysis of disputes, their structure and their inherent logics in three family sagas from north-east Iceland (Reykdœla saga ok VígaSkútu, Víga-Glúms saga, Ljósvetninga saga), which were not only most likely written at Munkaþverá monastery, but are also considered to be early representatives of the genre. The result is that these sagas not only markedly differ from the ratio between judgements, settlements and acts of vengeance found for the genre as a whole, but that the relationship between law, violence and arbitration is extremely dependent on the characters. Despite differences here, the three sagas are united by an episodic, sequential structure with series of disconnected or loosely connected disputes, which has so far been interpreted as a sign of weak composition in ‘preclassical’ texts. In contrast to this, it is shown that this structure is the result of an intended focus on the mechanisms of peacemaking and averting the violent escalation of disputes. It is suggested that this focus, entailing a paraenetic effect, mirrors a discourse on law and equity at the beginnings of the genre, which precedes the escalation of the conflict between the big families during the 1230s, when the power game changed scale and character and altered the view on the past. As a

121 Hughesʼ contribution, p. 117.

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consequence, the Íslendingasögur may also have their roots in a common European discourse on law and equity. That law and the way it is unfolded in narrative is not only dependent on character and contemporary thought regarding law and equity, but also dependent on social standing and gender is mirrored in the studies on law and social norms by Keith Ruiter and Daniela Hahn. Ruiter focuses on the manipulation of social norms and the varying options of doing so different characters have at hand. Three main aspects of normativity, which means the degree to which a character conforms to a set of norms, come to the fore, pertaining to moral, law and honour. A closer analysis of ch. 28 of Eyrbyggja saga demonstrates the way normativity may be manipulated. The text relates that Víga-Styrr, an overbearing and unjust character, who often resorts to violence and even killings in his strive for resources, is given two berserks as a gift by his estranged brother. As one of the berserks in search for a wife wants to marry Styr’s daughter, he has to accept it because their berserkishness would render dissent useless. As such a mésalliance would do damage to Styr’s honour, he kills them both in his bath-house, where he had invited them, with the advice of the wise Snorri goði, who marries his daughter instead. Due to his social standing, Styrr is able to manipulate the norms to his own ends and even to enhance his normativity in all three aspects, widening his control and social network and getting rid of a potential danger to the region, whereas the social standing of the berserks as dangerous members of his household excludes them from a normative existence. While Ruiter’s contribution shows how social standing enabled certain characters to manipulate norms and thus even to improve their standing, Daniela Hahn looks at disputing strategies from the other end of the scale. Analysing fourteen cases of theft and robbery in Íslendingasögur transmitted in the 14th century Mǫðruvallabók collection, she focuses on the relationship between social and diegetic hierarchies and the law. In cases of rán (robbery), revenge appears statistically much more likely than in cases of þjófnaðr (theft), which includes the concealment of one’s actions. All in all, the Grágás laws are applied within the narrative of seven out of the fourteen cases. Usually, thieves are socially inferior to their victims, making them dependent on powerful supporters in order to avert a trial. In turn, accusing a superior character of theft proves extremely risky because it is understood as a direct attack on the superior’s honour. This social bias is mirrored in a narrative bias towards the figures: while powerful protagonists are three-dimensional characters, the ‘little men’ remain minor stereotypes. This explains why in saga narrative, which is a self-adulation of the upper class, not everyone is the same before the law, as Grágás suggests, although the legal text is more important to the narrative in cases of property offences than in killings. While the chapters so far deal almost exclusively with prose material in Old Norse treating Norway and Iceland, the last four contributions are dedicated to witnesses of mythological traditions in the broadest sense, which entails a wider scope

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of source material, including Eddic poetry, the Nibelungenlied and also Saxo Grammaticus’s Gesta Danorum. The studies gathered here are united by a concentration on narratives referring to the heroic age and its laws in the meaning developed above. Consequently, the societies depicted in the relevant source corpus are not addressed as a direct mimesis of the ones producing the texts. Within this uniting frame, the objectives are quite different: Heike Sahm and Jiři Starý analyse the narrative and theoretical implications of laws which appear or are told to be ‘old’, while Anne-Irene Riisøy and Matthias Teichert focus on the traditional substance of mythological stories and what they reveal on legal thought preceding the time of writing. In her analysis of the dispute between Prünhilt and Kriemhild in the Nibelungenlied, which leads to the killing of Sîvrit, Heike Sahm views the two female characters as representatives of two conflicting normative systems. While Prünhilt defends her and her husband’s superiority over Kriemhilt and Sîvrit resorting to feudal law and pointing out Sîvrit’s legal status as a vassal, Kriemhild has traditionally been viewed as the passive part, stressing Prünhilt’s aggression. In contrast to this, the importance of the gift economy and of the resulting power of distributing gold is underlined here, and from this perspective, Kriemhilt’s constant exploitation of the gift economy in order to consciously outmanoeuvre the rulers in Worms provokes Prünhilt to resort legal argument and to call Sîvrit a vassal (eigenholde). Again, analogous to concepts of honour and legal community in the sagas, the ‘archaic’ norms of gift exchange and synchronous feudal law are confronted within one narrative frame. Sahm makes the case that this confrontation is not simply caused by different historical layers of tradition, but consciously crafted in order to discuss competing norms which were at work in the present court society. Thus, the Nibelungenlied applies a strategy of archaization in a discourse on identity. The age of the laws – and their origin – is also at the heart of Jiři Starý’s chapter. While law texts before the official royal lawbooks, such as the earlier provincial laws, as a rule do not relate longer stories of their emergence and do not centre on a single creator, narrative texts repeatedly do exactly that. They present legendary lawmakers with great power, situated in the distant heroic past, both in ‘laws’ like Sven Aggesen’s Lex Castrensis, but first and foremost in historiography, both in Latin like Saxo’s Gesta Danorum and in kings’ sagas. This phenomenon, usually including the story of a crime committed by the lawgiver himself, which calls his own law into question, causing a crisis which is then averted and finally creating a status of eunomia, is viewed from a comparative position. The motif is in fact recurrent in ancient Greek texts (as well as Old Indian and vernacular texts from the Middle Ages), but a closer analysis reveals that despite significant similarities, there is (at least in most cases) no clear indication of direct literary dependencies. Some exclusively Scandinavian features are pointed out, and they suggest that the ‘stock stories’ of legendary lawgivers may have developed independently or semi-independently from other models. Furthermore, the fictions about the genesis of law do not imply

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that at least some of the laws themselves were not existing in contemporary reality. The function of the stories ‘on the threshold of myth’, then, is to provide explanations for existing laws and concepts, their intentions and purposes. While Sahm and Starý focus on the contemporary discourse on social and legal norms and thus treat explicit negotiations of concepts, Anne Irene Riisøy concentrates on Eddic poetry as a medium of cultural memory, preserving legal thought from the Late Iron or ‘Viking’ Age in an implicit form, which is embedded in the story, in this case Vǫlundarkviða. The capture of Vǫlundr the smith and the theft of his precious ring and sword by King Níðuðr is followed by the smith’s cruel revenge, when he kills Níðuð’s sons and impregnates the king’s daughter before he escapes. The plot has so far mostly been viewed as exorbitant and deviating from usual stories of revenge in heroic legend, where human beings avenge the killing of family members instead of an elf cruelly avenging a wrong done to himself. In her study on Vǫlundarkviða, however, Riisøy views Vǫlund’s acts as a mirror of preChristian legal thought. This diachronic and referential reading is based on four main arguments. First, material and pictorial evidence as well as linguistic considerations make it likely that the preserved textual witness from the 13th century resembles the form the lay had in the Late Iron Age. Second, Níðuð’s deeds, it is argued, constitute a níðingsverk and thus an irredeemable crime, entitling Vǫlundr to act accordingly. Third, the demand for vengeance, documented in sagas as well as Norwegian, if not Icelandic, laws could also include innocent members of the perpetrator’s family. Fourth, the oath Níðuðr has to swear that he will not do any harm to his daughter relates to the punishment women had to expect when they had a child with a slave, which is also mirrored in the earliest Scandinavian provincial laws. All in all, Vǫlundarkviða’s story line is viewed as a representative of Viking Age law, which first and foremost seems represented in the oldest provincial laws from Norway. The plot of mythological stories preserved in Eddic poetry, Snorra Edda and Fornaldarsögur is also the point of departure in Matthias Teichert’s contribution. He concentrates on two mythological narrations which share the transgression of legal norms as a common feature at their respective cores. In the case of Týr and Fenrir, the gods outwit Fenrir, who is bound with the fetter Gleipnir in order to avert disaster caused by the creature, while Fenrir bites off Týr’s right hand which was placed in the wolf’s mouth to reassure him. Taking up hypotheses which view the ‘mythless’ Týr as the principal deity before Óðinn in the pre-Viking pantheon, Teichert interprets Týr’s function in Northern Germanic mythology in line with the bright and quiescent ‘Apollonian’ function in Dumézil’s idéologie tripartite, corresponding to Vedic and Roman mythology. The case of Freyja and her precious necklace or belt, the Brísingamen, which is stolen by Loki, is harder to trace, as it is not related in the context of the Eddas. Nevertheless, Freyja also appears to be a ‘bright’ goddess, who at the same time represents fertility as well as sexuality and lust, connected to her belonging to the tribe of the Vanir. The theft of her necklace is read as

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the sign of an enforced assimilation to the more ‘civilised’ order established by the dominant Æsir, which put restraints on female sexuality. If the two mythological stories are read in this way – which rests upon the reconstruction of the plot and the identification of ‘archaic’ traits as well as younger additions – they reveal structural violence in one case of a broken oath and ensuing bodily harm and one case of theft. Both stories view these transgressions of law as necessary in order to save and guarantee order, in this case the order established by the Æsir. The finding constitutes a highly interesting counterpoint to the significance of settlements and equity in face of law, justice and personal honour in saga literature. The world of the gods does not only seem to represent older layers of cultural memory, which might even go back to pre-Viking times, but also seems to address the appropriateness of vengeance and pre-emptive use of force as stabilising factors. The remoteness and otherness of mythological worlds thus seems to allow to invoke and consider the implications of conflicting, yet present principles in a purified form and to take them to their extremes. The story of Vǫlundr has extreme avarice ending in extreme vengeance and deep despair; the story of Freyja and the Brísingamen points to the fear of uncontrolled female sexuality and the perceived necessity of controlling it even by violent means, while the story of Týr and Fenrir shows deceit and perjury as a desperate means of averting danger, which nevertheless constitutes one more step on the Æsir’s road to inevitable perdition. The twelve contributions to this volume cover a broad span of texts and approaches. In spite of this diversity, ranging from 13th century legal practice to mythological implications of oath violations, they constitute a synthesis which goes beyond the coherence provided by a book casing. This coherence is guaranteed by medieval Scandinavian law. Even if the contents of the law books did not form part of an autonomous and hermetic system and did not constitute ‘law’ in an exclusive way, the studies in law and literature joined in this book, departing from the letter of the law book only to occasionally return to it, demonstrate one uniting insight: if law possessed any structural autonomy, it lay in the massive aligning power it exerts in the background, on actions of figures, thus on the narration, thereby on the laws of narration and ultimately on the (Scandinavian) identities of the communities, while in the foreground literary characters seem to act extra-legally in disputes more often than not. This intricate relationship between law and literature in medieval Scandinavia was accompanied by fundamental changes in government and power structure and by massive developments in the history of European legal thought. One might wonder whether this consciousness in its Scandinavian peculiarities and the ensuing ways of memorialising local pasts was made possible in the first place by the conceptual thought developing in the ‘legal revolution’ of the 12th century.

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Bibliography Primary Sources Ælnoth: Gesta Swenomagni regis et filiorum eius et Passio gloriosissimi Canuti regis et martyris. In: Vitæ sanctorum Danorum, ed. by Martin Clarentius Gertz (1908–1912). København, pp. 77–136. Brennu-Njáls saga, ed. by Einar Ól. Sveinsson (1954): Íslenzk fornrit, 12. Reykjavík. De ordine palatii. In: Hinkmar von Reims: De ordine palatii, ed. by Thomas Gross/Rudolf Schieffer (1980): Monumenta Germaniae Historica. Fontes iuris Germanici antiqui in usum scholarum separatim editi, [3]. Hannover. Frostuþingslǫg [Den ældre Frostathings-Lov]. In: Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltrædelse i 1263, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania, pp. 119–258. Grágás: Islændernes Lovbog i Fristatens Tid. Förste Del. Text 1, ed. by Vilhjálmur Finsen (1852). København. Grettis saga Ásmundarsonar. In: Grettis saga Ásmundarsonar. Bandamanna saga. Odds þáttr Ófeigssonar, ed. by Guðni Jónsson (1936): Íslenzk fornrit, 7. Reykjavík, pp. 1–290. Guðmundar saga dýra. In: Sturlunga saga. Fyrra bindi, ed. by Jón Jóhannesson/Magnús Finnbogason/Kristján Eldjárn (1946). Reykjavík, pp. 160–212. Gulaþingslǫg [Den ældre Gulathings-Lov]. In: Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltrædelse i 1263, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania, pp. 1–118. Hälsingelagen. In: Codex Iuris Helsingici, Codicis iuris Smalandici pars de re ecclesiastica, et iuris urbici antiquior. Helsinge-Lagen, Kristnu-Balken af Smålands-Lagen, och Bjärköa-Rätten, ed. by D. C. J. Schlyter (1844): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges Gamla Lagar, 6. Lund, pp. 1–93. Járnsíða og Kristinréttur Árna Þorlákssonar, ed. by Haraldur Bernharðsson/Magnús Lyngdahl Magnússon/Már Jónsson (2005). Reykjavík. Jyske Lov. In: Danmarks gamle Landskabslove med Kirkelovene 2. Jyske Lov. Text 1: NkS 295 8°, ed. by Peter Skautrup (1933). København. Laxdœla saga. In: Laxdœla saga. Halldórs þættir Snorrasonar. Stúfs þáttr, ed. by Einar Ólafur Sveinsson (1934): Íslenzk fornrit, 5. Reykjavík, pp. 1–248. Sigrdrífomál. In: Edda: Die Lieder des Codex Regius nebst verwandten Denkmälern 1, ed. by Gustav Neckel/Hans Kuhn (1983). 5th edition. Heidelberg, pp. 189–197. Sigvatr Þórðarson: Erlingsflokkr [Flokkr about Erlingr Skjálgsson], ed./transl. by Judith Jesch. In: Poetry from the Kings’ Sagas 1,2, ed. by Diana Whaley (2012): Skaldic Poetry of the Scandinavian Middle Ages, 1. Turnhout, pp. 629–643. Sigvatr Þórðarson: Víkingarvísur, ed./transl. by Judith Jesch. In: Poetry from the Kings’ Sagas 1,2, ed. by Diana Whaley (2012): Skaldic Poetry of the Scandinavian Middle Ages, 1. Turnhout, pp. 533–556. Snorri Sturluson: Heimskringla 1, ed. by Bjarni Aðalbjarnarson (1941): Íslenzk fornrit, 26. Reykjavík. Þórðar saga kakala. In: Sturlunga saga. Síðara bindi, ed. by Jón Jóhannesson/Magnús Finnbogason/Kristján Eldjárn (1946). Reykjavík, pp. 1–86. Þorsteins saga hvíta. In: Austfirðinga sǫgur. [. . .], ed. by Jón Jóhannesson (1950): Íslenzk Fornrit, 11. Reykjavík, pp. 1–19. Tristrams saga ok Ísǫndar. In: Die nordische und die englische Version der Tristan-Sage 1. Tristrams saga ok Ísondar, ed. by Eugen Kölbing (1878). Heilbronn.

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29

Upplandslagen. In: Codex Iuris Uplandici. Uplands-Lagen (1834): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges Gamla Lagar, 3. Lund. Västmannalagen. In: Codex Iuris Vestmannici. Westmanna-Lagen, ed. by D. C. J. Schlyter (1841): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges Gamla Lagar, 5. Lund. Veraldar saga, ed. by Jakob Benediktsson (1944): Samfund til Udgivelse af gammel nordisk Litteratur, 61. København. Vǫlsunga saga. The Saga of the Volsungs. The Icelandic Text According to MS Nks 1824 b, 4°. With an English Translation, Introduction and Notes, ed. by Kaaren Grimstad (2000): Bibliotheca Germanica. Series Nova, 3. Saarbrücken.

Secondary Sources Andersen, Kasper H. (2012): Fædreland og folk i Gesta Danorum – Studier i Saxos anvendelse af patria og natio. In: Andersen, Per/Heebøll-Holm, Thomas Kristian (eds.): Saxo og hans samtid. Århus, pp. 215–240. Andersen, Per (2006): Lærd ret og verdslig lovgivning. Retlig kommunikation og udvikling i middelalderens Danmark. København. Andersen, Per et al. (eds.) (2014): How Nordic are the Nordic Medieval Laws? Ten years after. Proceedings of the Tenth Carlsberg Academy Conference on Medieval Legal History 2013. København. Andersson, Theodore M. (1967): The Icelandic Family Saga. An Analytical Reading (Harvard Studies in Comparative Literature 28). Cambridge (Mass.). Andersson, Theodore M. (1970): The Displacement of the Heroic Ideal in the Family Sagas. In: Speculum, 45, pp. 575–593. Andersson, Theodore M. (1994): The Politics of Snorri Sturluson. In: The Journal of English and Germanic Philology, 93, pp. 55–78. Andersson, Theodore M. (2006): The Growth of the Medieval Icelandic Sagas (1180–1280). Ithaca (N.Y.)/London. Andersson, Theodore M./Miller, William Ian (1989): Law and Literature in Medieval Iceland. Ljósvetninga saga and Valla-Ljóts saga. Stanford. Ármann Jakobsson (1997): Í leit að konungi. Konungsmynd íslenskra konungasagna. Reykjavík. Ármann Jakobsson (2014): A Sense of Belonging. Morkinskinna and Icelandic Identity, c. 1220 (The Viking Collection 22). [Odense]. Augsberg, Ino (2012): Innen des Außen des Innen: Verfaltungen zwischen Rechts- und Literaturwissenschaft. In: Augsberg, Ino/Lenski, Sophie-Charlotte (eds.): Die Innenwelt der Außenwelt der Innenwelt des Rechts. Annäherungen zwischen Rechts- und Literaturwissenschaft (Literatur und Recht 6). Paderborn, pp. 11–24. Bachtin, Michail M. (1979): Die Ästhetik des Wortes, ed./tansl. by Rainer Grübel. Frankfurt am Main. Bagge, Sverre (1991): Society and Politics in Snorri Sturluson’s Heimskringla. Berkeley. Bagge, Sverre (1992): From Sagas to Society: The Case of Heimskringla. In: Gísli Pálsson (ed.): From Sagas to Society: Comparative Approaches to Early Iceland. Enfield Lock, pp. 61–75. Bagge, Sverre (2010): From Viking Stronghold to Christian Kingdom. State Formation in Norway, c. 900–1350. København. Bartlett, Robert (1993): The Making of Europe. Conquest, Colonization and Cultural Change 950–1350. London. Beck, Heinrich/Böttcher, Hartmut (1978): Blutrache. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexikon der Germanischen Altertumskunde 3. Berlin/New York, pp. 81–101.

30

Roland Scheel

Berge, Anders (2007): Local Disputes and the Role of the Royal Judiciary in Early 14th-Century Norway. In: Pan-Montojo, Juan/Pedersen, Frederik G. (eds.): Communities in European History: Representations, Jurisdictions, Conflicts (States, Legislation, Institutions 2). Pisa, pp. 191–201. Berger, Alan J. (1977): Old Law, New Law, and Hœnsa-Póris saga. In: Scripta Islandica, 27, pp. 3–12. Berger, Alan J. (1979): Lawyers in the Old Icelandic Family Sagas: Heroes, Villains and Authors. In: Saga-Book of the Viking Society, pp. 70–79. Berman, Harold J. (1983): Law and Revolution. The Formation of the Western Legal Tradition. Cambridge (Mass.)/London. Boje Mortensen, Lars (2000): The Nordic Archbishoprics as Literary Centres Around 1200. In: FriisJensen, Karsten/Skovgaard-Petersen, Inge (eds.): Archbishop Absalon of Lund and his World. Roskilde, pp. 131–157. Boje Mortensen, Lars (2015): Comparing and Connecting: The Rise of Fast Historiography in Latin and Vernacular (12th–13th cent.). In: Medieval Worlds, 1, pp. 25–39. Böldl, Klaus (2005): Eigi einhamr. Beiträge zum Weltbild der Eyrbyggja und anderer Isländersagas (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 48). Berlin/New York. Bredsdorff, Thomas (1971): Kaos og kærlighed. En studie i islændingesagaers livsbillede. København. Brink, Stefan (2018): Law. In: Glauser, Jürg/Hermann, Pernille/Mitchell, Stephen A. (eds.): Handbook of Pre-modern Nordic Memory Studies. Interdisciplinary Approaches 1. Berlin/ Boston, pp. 185–197. Brown, Warren C./Górecki, Piotr (2003): What Conflict Means: The Making of Medieval Conflict Studies in the United States, 1970–2000. In: Brown, Warren C./Górecki, Piotr (eds.): Conflict in Medieval Europe. Changing Perspectives on Society and Culture. Aldershot/Burlington (VT), pp. 1–35. Buc, Philippe (2001): The Dangers of Ritual. Between Early Medieval Texts and Social Scientific Theory. Princeton/Oxford. Büchert Netterstrøm, Jeppe (2007): The Study of Feud in Medieval and Early Modern History. In: Büchert Netterstrøm, Jeppe/Poulsen, Bjørn (eds.): Feud in Medieval and Early Modern Europe. Aarhus, pp. 9–67. Burrows, Hannah (2009): Cold Cases: Law and Legal Detail in the Íslendingasögur. In: Parergon, 26, pp. 35–55. Burrows, Hannah (2015): Some Þing to Talk About: Assemblies in the Íslendingasögur. In: Northern Studies, 47, pp. 47–75. Byock, Jesse L. (1982): Feud in the Icelandic Saga. Berkeley/London. Cerquiglini, Bernard (1989): Éloge de la variante. Histoire critique de la philologie. Paris. Cheyette, Fredric L. (1970): Suum cuique tribuere. In: French Historical Studies, pp. 287–299. Cheyette, Fredric L. (1978): The Invention of The State. In: Lackner, Bede Karl/Philip, Kenneth Roy (eds.): Essays in Medieval Civilization. The Walter Prescott Webb Memorial Lectures. Austin/ London, pp. 143–178. Clover, Carol (2005): Icelandic Family Sagas (Íslendingasögur). In: Clover, Carol/Lindow, John (eds.): Old Norse-Icelandic Literature. A Critical Guide. Toronto et al., pp. 239–315. Cowan, David/Wincott, Daniel (2015): Exploring the ‘Legal’. In: Cowan, David/Wincott, Daniel (eds.): Exploring the ‘Legal’ in Socio-Legal Studies. New York, pp. 1–31. Dilcher, Gerhard (1992): Mittelalterliche Rechtsgewohnheit als methodisch-theoretisches Problem. In: Gerhard Dilcher et al.: Gewohnheitsrecht und Rechtsgewohnheit im Mittelalter. Berlin (Schriften zur Europäischen Rechts- und Verfassungsgeschichte 6), pp. 12–65.

Narrating Law and Laws of Narration: Introduction

31

Dilcher, Gerhard (2002): Die Zwangsgewalt und der Rechtsbegriff vorstaatlicher Ordnungen im Mittelalter. In: Cordes, Albrecht/Kannowski, Bernd (eds.): Rechtsbegriffe im Mittelalter (Rechtshistorische Reihe 262). Frankfurt am Main et al., pp. 111–153. Dilcher, Gerhard (2006): Leges – Gentes – Regna. Zur Rolle normativer Traditionen germanischer Völkerschaften bei der Ausbildung der mittelalterlichen Rechtskultur: Fragen und Probleme. In: Dilcher, Gerhard/Distler, Eva-Marie (eds.): Leges – Gentes – Regna. Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schriftkultur bei der Ausbildung der frühmittelalterlichen Rechtskultur. Berlin, pp. 15–42. Durrenberger, Edward Paul (1991): The Icelandic Family Sagas as Totemic Artefacts. In: Samson, Ross (ed.): Social Approaches to Viking Studies. Glasgow, pp. 11–17. Durrenberger, Edward Paul (1992): The Dynamics of Medieval Iceland: Political Economy & Literature. Iowa City. Ebel, Uwe (1995): Integrität oder Integralismus. Die Unterwerfung des Individuums zum Asozialen als Seinsgrund sagaspezifischer Heroik (Wissenschaftliche Reihe 6). Metelen/Steinfurt. Eriksen, Stefka Georgieva (ed.) (2016): Intellectual Culture in Medieval Scandinavia, c. 1100–1350 (Disputatio 28). Turnhout. Esmark, Kim (2013): Disputing Property in Zealand: The Records of the Sorø Donation Book. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/Boston, pp. 181–218. Esmark, Kim (2014): The Settlement of Disputes by Compromise According to Some Early Danish Charters. In: Hundahl, Kerstin/Kjær, Lars/Lund, Niels (eds.): Denmark and Europe in the Middle Ages, c.1000–1525. Essays in Honour of Professor Michael H. Gelting. Farnham/ Burlington (VT), pp. 11–26. Esmark, Kim/Orning, Hans Jacob (2013): General Introduction. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/ Boston, pp. 1–28. Ewick, Patricia; Silbey, Susan S. (1998): The Common Place of Law. Stories from Everyday Life. Chicago/London. Fenger, Ole (2002): Kirker rejses alle vegne: 1050–1250 (Gyldendals og Politikens Danmarkshistorie 4). København. Firth, Hugh (2012): Coercion, Vengeance, Feud and Accommodation. Homicide in Medieval Iceland. In: Early Medieval Europe, 20, pp. 139–175. Gehl, Walther (1937): Ruhm und Ehre bei den Nordgermanen. Studien zum Lebensgefühl der isländischen Saga (Neue Deutsche Forschungen. Abteilung deutsche Philologie 3). Berlin. Glauser, Jürg (2005): Romance (Translated Riddarasögur). In: McTurk, Rory (ed.): A Companion to Old Norse-Icelandic Literature and Culture. Oxford, pp. 382–387. Glauser, Jürg (2013): What is Dated, and Why? Saga Dating in the Histories of Old-Norse Icelandic Literature. In: Mundal, Else (ed.): Dating the Sagas. Reviews and Revisions. København, pp. 9–30. Grønbech, Vilhelm (1909): Vor Folkeæt i Oldtiden 1. Lykkemand og Niding. København. Gurevich, Aron Yakovlevich (1978): Das Weltbild des mittelalterlichen Menschen. Dresden. Gustafsson, Harald (2011): Islands kristnande – en kritisk undersökning. In: Scandia, 77, pp. 18–37. Hagland, Jan Ragnar (2011): Frå landskapslov til landslov. In: Maal og Minne, 2, pp. 52–66. Halsall, Guy (1998): Violence and Society in the Early Medieval West: An Introductory Survey. In: Idem. Violence and Society in the Medieval West. Woodbrige, pp. 1–45. Harris, Joseph C. (1972): Genre and Narrative Structure in Some Íslendinga þættir. In: Scandinavian Studies, 44, pp. 1–27.

32

Roland Scheel

Hastrup, Kirsten (1985): Culture and Society in Medieval Iceland. An Anthropological Analysis of Structure and Change. Oxford. Helgi Þorláksson (2007): Feud and Feuding in the Early and High Middle Ages. Working Descriptions and Continuity. In: Büchert Netterstrøm, Jeppe/Poulsen, Bjørn (eds.): Feud in Medieval and Early Modern Europe. Aarhus, pp. 69–94. Heller, Rolf (1976): Die Laxdœla saga: Die literarische Schöpfung eines Isländers des 13. Jahrhunderts (Abhandlungen der Sächsischen Akademie der Wissenschaften zu Leipzig, Philologisch-Historische Klasse 65,1). Berlin. Hermann, Pernille (2004): Hungrvaka og islændingesagaer. Traditionalitet og konventionalitet. In: Maal og Minne, pp. 21–40. Hermann, Pernille (2007): Íslendingabók and History. In: Quinn, Judy/Brink, Stefan/Hines, John (eds.): Reflections on Old Norse Myths. Studies in Viking and Medieval Scandinavia. Turnhout, pp. 17–32. Hermann Pálsson (1971): Art and Ethics in Hrafnkel’s saga. København. Hermanson, Lars (2013): How to Legitimate Rebellion and Condemn Usurpation of the Crown: Discourses of Fidelity and Treason in the Gesta Danorum of Saxo Grammaticus. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/Boston, pp. 107–140. Heusler, Andreas (1911): Das Strafrecht der Isländersagas. Leipzig. Heusler, Andreas (1912): Zum isländischen Fehdewesen in der Sturlungenzeit (Abhandlungen der Königlich Preußischen Akademie der Wissenschaften, Philosophisch-Historische Classe 1912,4). Berlin. Heusler, Andreas (1934): Die Herrenethik in der isländischen Saga. In: Andreas Heusler. Germanentum. Vom Lebens- und Formgefühl der alten Germanen. Heidelberg: Winter (Kultur und Sprache 8), pp. 63–76. Heusler, Andreas (ed.) (1937): Isländisches Recht. Die Graugans (Germanenrechte 9). Weimar. Hoff, Hans Henning (2012): Hafliði Másson und die Einflüsse des römischen Rechts in der Grágás (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 78). Berlin/Boston. Hudson, John (2013): Legal History and the History of Disputes. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/ Boston, pp. 333–341. Hyams, Paul (2003): Rancor and Reconciliation in Medieval England. Ithaca (N.Y.). Jón Steffensen (1985): Grágás, vanmetin og misskilin heimild. In: Árbók hins Íslenzka Fornleifafélags, 82, pp. 79–83. Jón Viðar Sigurðsson (1999): Chieftains and Power in the Icelandic Commonwealth. Odense. Jón Viðar Sigurðsson (2013): The Role of Arbitration in the Settlement of Disputes in Iceland c. 1000–1300. In: Jón Viðar Sigurðsson/Småberg, Thomas (eds.): Friendship and Social Networks in Scandinavia c. 1000–1800 (Early European Research 5). Turnhout, pp. 125–135. Jón Viðar Sigurðsson/Pedersen, Frederik G./Berge, Anders (2008): Making and Using the Law in the North, c. 900–1350. In: Lottes, Günther/Medijainen, Eero/Jón Viðar Sigurðsson (eds.): Making, Using and Resisting the Law in European History (States, Legislation, Institutions 3). Pisa, pp. 37–64. Kannowski, Bernd (2002): Rechtsbegriffe im Mittelalter: Stand der Diskussion. In: Cordes, Albrecht/Kannowski, Bernd (eds.): Rechtsbegriffe im Mittelalter (Rechtshistorische Reihe 262). Frankfurt am Main et al., pp. 1–27. Köbler, Gerhard (1971): Das Recht im frühen Mittelalter. Untersuchungen zu Herkunft und Inhalt frühmittelalterlicher Rechtsbegriffe im deutschen Sprachgebiet (Forschungen zur deutschen Rechtsgeschichte 7). Köln et al.

Narrating Law and Laws of Narration: Introduction

33

Korpiola, Mia (2011): Some Evidence of the Use of Roman Law in Medieval Sweden. In: Andersen, Per et al. (eds.): Liber amicorum Ditlev Tamm: Law, History and Culture. København, pp. 173–184. Koszowski, Maciej (2014): Medieval Iceland: The Influence of Culture and Tradition on Law. In: Scandinavian Studies, 86, pp. 333–351. Kroeschell, Karl (1998): Germanen, Germania, Germanische Altertumskunde C. Recht. In: Beck, Heinrich/Steuer, Heiko/Timpe, Dieter (eds.): Reallexikon der Germanischen Altertumskunde 11. Berlin/New York, pp. 395–408. Kroeschell, Karl (2008): Deutsche Rechtsgeschichte 1. Bis 1250. 13th edition. Köln/Weimar/Wien. Landau, Peter (2004): The Development of Law. In: Luscombe, David/Riley-Smith, Jonathan (eds.): The New Cambridge Medieval History 4: c. 1024 – c. 1198. Part 1. Cambridge, pp. 113–147. Lehmann, Karl; Schnorr von Carolsfeld, Hans (1883): Die Njálssage insbesondere in ihren juristischen Bestandtheilen. Ein kritischer Beitrag zur altnordischen Rechts- und Literaturgeschichte. Berlin. Lönnroth, Lars (1976): Njáls saga. A Critical Introduction. Berkeley/Los Angeles/London. Lück, Heiner (2003): Recht. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexikon der Germanischen Altertumskunde 24. Berlin, pp. 218–223. Luhmann, Niklas (1995): Das Recht der Gesellschaft (Suhrkamp-Taschenbuch Wissenschaft 1183). Frankfurt am Main. Martínez, Matías (1999): Dialogizität, Intertextualität, Gedächtnis. In: Arnold, Heinz Ludwig/ Detering, Heinrich (eds.): Grundzüge der Literaturwissenschaft. 3rd edition. München, pp. 430–445. McKinnell, John (1993): Man’s Law and Godʼs Justice in Icelandic Literature, ca. 1130-ca. 1300. In: Buschinger, Danielle (ed.): Le droit et sa perception dans la littérature et les mentalités médiévales (Göppinger Arbeiten zur Germanistik 551). Göppingen, pp. 117–132. McKinnell, John (2009): The Ideology of Vengeance in Old Norse Mythology. In: Lambert, T. B./ Rollason, D. W. (eds.): Peace and Protection in the Middle Ages (Durham Medieval and Renaissance Monographs and Essays 1). Durham/Toronto, pp. 181–194. Meulengracht Sørensen, Preben (1993): Fortælling og ære. Studier i islændingesagaerne. Aarhus. Miller, William Ian (1990): Bloodtaking and Peacemaking. Feud, Law and Society in Saga Iceland. Chicago. Miller, William Ian (1993): Humiliation. And Other Essays on Honor, Social Discomfort, and Violence. Ithaca (N.Y.)/London. Miller, William Ian (2014): ‘Why is your axe bloody?’ A Reading of Njáls Saga. Oxford. Miller, William Ian (2017): Hrafnkel or the Ambiguities: Hard Cases, Hard Choices. Oxford. Mundal, Else (2013): The Dating of the Oldest Sagas About Early Icelanders. In: Mundal, Else (ed.): Dating the Sagas. Reviews and Revisions. København, pp. 31–54. Münster-Swendsen, Mia (ed.) (2006): Law and Learning in the Middle Ages. Proceedings of the Second Carlsberg Academy Conference on Medieval Legal History. København. Münster-Swendsen, Mia (2007): Skandinaviens placering i det europæiske lærde netværk. En tentativ undersøgelse af de anglo-danske forbindelser c. 1000–1150. In: Hermanson, Lars et al. (eds.): Vänner, patroner og klienter i Norden 900–1800. Rapport till 26:e Nordiska historikermötet i Reykjavík den 8–12 augusti 2007 (Ritsafn Sagnfræðistofnunar 39). Reykjavík, pp. 37–56. Münster-Swendsen, Mia (2012): Saxos skygge – Sven, Saxo og meningen med Lex castrensis. In: Andersen, Per/Heebøll-Holm, Thomas Kristian (eds.): Saxo og hans samtid. Aarhus, pp. 91–112. Münster-Swendsen, Mia (2013): Educating the Danes. Anglo-Danish Connections in the Formative Period of the Danish Church, c. 1000–1150. In: Jón Viðar Sigurðsson/Småberg, Thomas (eds.):

34

Roland Scheel

Friendship and Social Networks in Scandinavia c. 1000–1800 (Early European Research 5). Turnhout, pp. 153–174. Naumann, Hans-Peter (1998): Grágás. In: Beck, Heinrich/Steuer, Heiko/Timpe, Dieter (eds.): Reallexikon der Germanischen Altertumskunde 12. Berlin/New York, pp. 569–573. Nichols, Stephen G. (1990): Introduction. Philology in a Manuscript Culture. In: Speculum, 65, pp. 1–10. Nordal, Guðrún (1998): Ethics and Action in Thirteenth-Century Iceland (The Viking Collection 11). Odense. Nordal, Sigurður (1920): Snorri Sturluson. Reykjavík. Nordal, Sigurður (1953): Sagalitteraturen. In: Idem (ed.): Nordisk Kultur VIII: B. Litteraturhistorie. Norge og Island. Stockholm et al., pp. 180–273. Nussbaum, Martha C. (1995): Poetic Justice. The Literary Imagination and Public Life. Boston. Oestmann, Peter (2006): Blutrache und Fehde in isländischen Quellen. In: Dilcher, Gerhard/Distler, Eva-Marie (eds.): Leges – Gentes – Regna. Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schriftkultur bei der Ausbildung der frühmittelalterlichen Rechtskultur. Berlin, pp. 391–413. Olsen, Magnus (1946): Með lǫgum skal land byggja. In: Maal og Minne, pp. 75–88. Ordbog over det norrøne prosasprog. https://onp.ku.dk/, last access 25th May 2019. Orning, Hans Jacob (2013): Feuds in Fact and Fiction in Late Medieval Iceland. In: Imsen, Steinar (ed.): Legislation and State Formation. Norway and Its Neighbours in the Middle Ages (‘Norgesveldet’. Occasional Papers 4). Oslo/Trondheim, pp. 229–262. Oschema, Klaus (2006): Europa in der mediävistischen Forschung – eine Skizze. In: Schwinges, Rainer Christoph/Hesse, Christian/Moraw, Peter (eds.): Europa im späten Mittelalter. Politik – Gesellschaft – Kultur (Historische Zeitschrift. Beihefte 40). München, pp. 11–32. Óskar Guðmundsson (2009): Snorri. Ævisaga Snorra Sturlusonar 1179–1241. Reykjavík. Poole, Russel (2001): Introduction. In: Idem (ed.): Skaldsagas. Text, Vocation, and Desire in the Icelandic Sagas (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 27). Berlin/New York, pp. 1–24. Ranisch, Wilhelm/Vogt, Walter Heinrich (eds.) (1921): Fünf Geschichten aus dem östlichen Nordland (Thule. Altnordische Dichtung und Prosa 11). Jena. Reynolds, Susan (2003): The Emergence of Professional Law in the Long Twelfth Century. In: Law and History Review, 21, pp. 347–366. Rohrbach, Lena (ed.) (2014): The Power of the Book. Medial Approaches to Medieval Nordic Legal Manuscripts (Berliner Beiträge zur Skandinavistik 19). Berlin. Sävborg, Daniel (2017): Style. In: Ármann Jakobsson/Sverrir Jakobsson (eds.): The Routledge Research Companion to the Medieval Icelandic Sagas. London/New York, pp. 111–126. Sawyer, Peter (1987): The Bloodfeud in Fact and Fiction. In: Hastrup, Kirsten/Meulengracht Sørensen, Preben (eds.): Tradition og historieskrivning. Kilderne til Nordens ældste historie (Acta Jutlandica. Humanistisk serie 61). Århus, pp. 27–38. Scheel, Roland (2012): Lateineuropa und der Norden. Die Geschichtsschreibung des 12. Jahrhunderts in Dänemark, Island und Norwegen (Frankfurter Kulturwissenschaftliche Beiträge 6). Berlin. Scheel, Roland (2017): Anfänge ohne Archäologie: Zu Narrativierungsstrategien von Anfängen und Übergängen im hochmittelalterlichen Norden. In: Literaturwissenschaft und Linguistik, 47, pp. 181–216. Schenck, Mary Jane (2013): Reading Law as Literature, Reading Literature as Law: A Pragmatist’s Approach. In: Cahiers de recherches médiévales et humanistes, 25, pp. 9–29. Sif Rikhardsdottir (2017): Emotion in Old Norse Literature. Translations, Voices, Contexts. Cambridge.

Narrating Law and Laws of Narration: Introduction

35

Steblin-Kamenskij, M. I. (1973): The Saga Mind, transl. by Kenneth H. Ober. Odense. Strauch, Dieter (2011): Mittelalterliches nordisches Recht bis 1500. Eine Quellenkunde (Reallexikon der Germanischen Altertumskunde. Ergänzungsband 73). Berlin/New York. Sveinbjörn Rafnsson (1977): Grágás og Digesta Iustiniani. In: Einar G. Pétursson/Jónas Kristjánsson (eds.): Sjötíu ritgerðir. Helgaðar Jakobi Benediktssyni 20. júlí 1977 (Stofnun Árna Magnússonar á Íslandi. Rit 12). 2 vols. Reykjavík, vol. 2, pp. 720–732. Tamm, Ditlev (1988): Med lov skal land bygges eller om dansk og fremmed ret. In: Ugeskrift for Retsvæsen, pp. 313–321. Tamm, Ditlev (2011): How Nordic are the Old Nordic Laws? In: Idem. The History of Danish Law: Selected Articles and Bibliography (Bibliotek for ret og kultur 5). København, pp. 25–40. Tamm, Ditlev/Vogt, Helle (eds.) (2005): How Nordic are the Nordic Medieval Laws? (Medieval Legal History 1). København. Tamm, Ditlev/Vogt, Helle (eds.) (2016): The Danish Medieval Laws. The Laws of Scania, Zealand and Jutland. London/New York. Teichert, Matthias (2008): Von der Heldensage zum Heroenmythos. Vergleichende Studien zur Mythisierung der nordischen Nibelungensage im 13. und 19./20. Jahrhundert (Skandinavistische Arbeiten 24). Heidelberg. Þórir Óskarsson (2005): Rhetoric and Style. In: McTurk, Rory (ed.): A Companion to Old NorseIcelandic Literature and Culture. Oxford, pp. 354–371. Turner, Victor W. (1971): An Anthropological Approach to the Icelandic Sagas. In: Beidelman, T. O. (ed.): The Translation of Culture: Essays to E. E. Evans-Pritchard. London: Tavistock, pp. 349–374. Van Wezel, Lars (2000): Mythic Elements in Hrafnkels saga Freysgoða: Prolonged Echoes and Mythological Overlays. In: Barnes, Geraldine (ed.): Old Norse Myths, Literature and Society. Proceedings of the 11th International Saga Conference, 2–7 July 2000. Sydney, pp. 541–555. Vésteinn Ólason (1998): Dialogues with the Viking Age. Narration and Representation in the Sagas of Icelanders. Reykjavík. Vésteinn Ólason (1999): Gísli Súrsson – a Flawless or a Flawed Hero? In: Toftgaard Andersen, Stig (ed.): Die Aktualität der Saga. Festschrift für Hans Schottmann (Reallexikon der Germanischen Altertumskunde. Ergänzungsband 21). Berlin/New York, pp. 163–175. Vilhjálmur Árnason (2009): An Ethos in Transformation: Conflicting Values in the Sagas. In: Gripla, 20, pp. 217–240. Vogt, Helle (2005): Slægtens funktion i nordisk højmiddelalderret. Kanonisk retsideologi og fredsskabende lovgivning. København. Vogt, Helle (2008): The King’s Power to Legislate in Twelfth- and Thirteenth Century Denmark. In: Andersen, Per/Münster-Swendsen, Mia/Vogt, Helle (eds.): Law and Power in the Middle Ages. Proceedings of the Fourth Carlsberg Academy Conference on Medieval Legal History. København, pp. 1–10. Vogt, Helle (2012): Saxo og kanonisk ret. In: Andersen, Per/Heebøll-Holm, Thomas Kristian (eds.): Saxo og hans samtid. Aarhus, pp. 35–50. Vogt, Helle (2014): Regional or Central? Legislation and Law in Thirteenth-Century Denmark. In: Hundahl, Kerstin/Kjær, Lars/Lund, Niels (eds.): Denmark and Europe in the Middle Ages, c. 1000–1525. Essays in Honour of Professor Michael H. Gelting. Farnham/Burlington (VT), pp. 203–214. Von See, Klaus (1964): Altnordische Rechtswörter. Philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen (Hermaea Germanistische Forschungen. N.F. 16). Tübingen. Von See, Klaus (1972): Kontinuitätstheorie und Sakraltheorie in der Germanenforschung. Antwort an Otto Höfler. Frankfurt am Main.

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Von See, Klaus (1976): Germanische Heldensage. Stoffe, Probleme, Methoden. Eine Einführung. Frankfurt am Main. Von See, Klaus (1981): Die Hrafnkels saga als Kunstdichtung. In: Idem: Edda, Saga, Skaldendichtung. Aufsätze zur skandinavischen Literatur des Mittelalters (Skandinavistische Arbeiten 6). Heidelberg, pp. 486–495. Von See, Klaus (1993): Snorris Konzeption einer nordischen Sonderkultur. In: Wolf, Alois (ed.): Snorri Sturluson. Kolloquium anläßlich der 750. Wiederkehr seines Todestages (ScriptOralia 51). Tübingen, pp. 141–177. Von See, Klaus (2006a): Altnordische Rechtssprache als mittelalterliche Fachsprache. In: Dilcher, Gerhard/Distler, Eva-Marie (eds.): Leges – Gentes – Regna. Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schriftkultur bei der Ausbildung der frühmittelalterlichen Rechtskultur. Berlin, pp. 159–166. Von See, Klaus (2006b): Selbsthilfe und öffentlicher Strafanspruch im mittelalterlichen Norden. In: Dilcher, Gerhard/Distler, Eva-Marie (eds.): Leges – Gentes – Regna. Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schriftkultur bei der Ausbildung der frühmittelalterlichen Rechtskultur. Berlin, pp. 377–390. Wanner, Kevin J. (2008): Snorri Sturluson and the Edda. The Conversion of Cultural Capital in Medieval Scandinavia. Toronto. Ward, Ian (1995): Law and Literature. Possibilities and Perspectives. Cambridge. Waßenhoven, Dominik (2006): Skandinavier unterwegs in Europa (1000 – 1250). Untersuchungen zu Mobilität und Kulturtransfer auf prosopographischer Grundlage (Europa im Mittelalter 8). Berlin. Weisberg, Richard H. (1984): The Failure of the Word. New Haven/London. Weisberg, Richard H. (1992): Poethics and Other Strategies of Law and Literature. New York. Weitin, Thomas (2010): Recht und Literatur (Literaturwissenschaft – Theorie und Beispiele 10). Münster. Weitzel, Jürgen (1997): Versuch über Normstrukturen und Rechtsbewußtsein im mittelalterlichen Okzident 450–1100. In: Lampe, Ernst-Joachim (ed.): Zur Entwicklung von Rechtsbewußtsein. Frankfurt am Main, pp. 371–402. Winroth, Anders (2012): The Legal Revolution of the Twelfth Century. In: Noble, Thomas F. X./van Engen, John (eds.): European Transformations: The Long Twelfth Century. Notre Dame (Ind.), pp. 338–363. Würth, Stefanie (1999): Parodistische Transgression in der Hœnsa-Þóris saga. In: Toftgaard Andersen, Stig (ed.): Die Aktualität der Saga. Festschrift für Hans Schottmann (Reallexikon der Germanischen Altertumskunde. Ergänzungsband 21). Berlin/New York, pp. 235–262. Zernack, Julia (2005): Altertum und Mittelalter bei Andreas Heusler. In: Glauser, Jürg/Zernack, Julia (eds.): Germanentum im Fin de siècle. Wissenschaftsgeschichtliche Studien zum Werk Andreas Heuslers (Studien zur Geschichte der Wissenschaften in Basel. Neue Folge 3). Basel, pp. 120–145.

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Chieftains and the Legal Culture in Iceland c. 1100–1260 Most scholars in the nineteenth century had faith in both the Icelandic family sagas and the collection of laws known as Grágás as reliable sources. It therefore caused a problem when it was found impossible to reconcile the picture of Icelandic society depicted in the family sagas with the political and legal structure of the Free State in Grágás.1 The assembly system and the court system described in Grágás appear as ambiguous traces in the sagas, and the number of chieftains (goðar) and chieftaincies (goðorð) is much higher there than it should have been according to the laws. To solve this problem, scholars argued that the family sagas were literature, and the laws echoed the reality.2 By separating the sagas and the laws in this way, it was possible to save the two most important symbols of Icelandic culture. The family sagas now became the study field for Old Norse philologists and literary scholars, whereas the laws became the study field for legal historians and historians. The difference between the Sturlunga saga compilation, describing the period c. 1120–1260, and Grágás is just as great as the difference between the laws and the Icelandic family sagas. However, it was not possible to use the ‘literature argument’ against the Sturlunga saga compilation. In contrast to the Icelandic family sagas, most of the sagas in Sturlunga saga were penned only a few decades after the events took place. Most scholars considered Sturlunga saga to be trustworthy, and it thus became the main source for the period after 1100, and Grágás for the previous period. In the 1980s, with the social anthropological turn, the source value of the Icelandic family sagas was reconsidered.3 Scholars now started to rely more on them as historical sources, using them, for example, to analyse patterns of disputes and dispute settlement.4 The legal culture of the Free State thus came into greater focus, a track we will follow in this chapter along with an examination of how the chieftains formed this culture in the twelfth and thirteenth centuries.

1 See e.g. Maurer 1852; Heusler 1911; Ólafur Lárusson 1932; Lúðvík Ingvarsson 1970. 2 See e.g. Sigurður Nordal 1940), pp. 66–70. 3 For a source critical discussion about the sagas, see for example Helgi Þorláksson 1987; Helle 2009; Helle 2011; Ghosh 2011; Jón Viðar Sigurðsson 2017, pp. 110–115. 4 See e.g. Byock 1982, and Miller 1990, which are focused mainly on the Icelandic family sagas, and Jón Viðar Sigurðsson 1999, which is focused more on the period after c. 1120. Cf. Jón Viðar Sigurðsson 2005, pp. 107–123. https://doi.org/10.1515/9783110661811-002

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The Political and Legal Structure of the Free State According to Grágás According to Íslendingabók, written by Ari fróði Þorgilsson c. 1125, it was the Norwegian Úlfljótr who brought the first law to Iceland, modelled on the Norwegian Gulaþingslög. In Íslendingabók Ari describes the introduction of a countrywide calendar (misseratal), the division of the country into quarters around year 965, the introduction of Christianity, the foundation of the supreme Fifth Court in 1005, the establishment of Skálholt as the seat of the bishop of Iceland, and the introduction of tithes in around 1097. He further states that the laws were written during the winter of 1117–18 at Breiðabólstaður, under the direction of the chieftain Hafliði Másson.5 Íslendingabók’s list of the most important laws introduced between the foundation of the Free State (c. 930, with the foundation of the general assembly, Althing, at Þingvellir) and c. 1120 gives the impression that the Free State society was based on law. Nothing is preserved from the law book made at Breiðabólstaður, and indeed only two pages remain of the twelfth-century law codes.6 Grágás is preserved in two main manuscripts: Konungsbók, from the middle of the thirteenth century, and Staðarhólsbók, probably penned twenty years later. There are great differences between these two manuscripts. Konungsbók contains the well-known constitutional provisions sections (Þingskapaþáttr, Lögréttuþáttr, and Lögsögumannsþáttr), Rannsóknarþáttr (Investigation Section) and Baugatal (the Wergild Ring List). Staðarhólsbók, however, is generally more detailed and contains paragraphs not found in Konungsbók. Besides that, there are differences in the formulation of the paragraphs found in both manuscripts, and they often have different arrangements of sections and provisions.7 There are also differences in the number of sections in Konungsbók and Staðarhólsbók. In his 1992 edition, Gunnar Karlsson lists a total of fifteen sections, only seven of which appear in Staðarhólsbók:8 1. Kristinna laga þáttr, the Christian Law Section (Konungsbók, Staðarhólsbók) 2. Arfaþáttr, the Inheritance Section (Konungsbók, Staðarhólsbók) 3. Ómagabálkr, the Poor Law Section/the Dependents Section (Konungsbók, Staðarhólsbók) 4. Festaþáttr, the Affiance Section/the Betrothals Section (Konungsbók, Staðarhólsbók)

5 Íslendingabók, Landnámabók, pp. 6–24. 6 Ólafur Lárusson 1958, pp. 122–123; Foote 1984, pp. 158–161; Sigurður Líndal 1984, p. 129. 7 Ólafur Lárusson 1958, pp. 124–127; Ólafur Lárusson 1960; Sandvik/Jón Viðar Sigurðsson 2005, pp. 224–229. Both manuscripts were written by the same scribe. 8 Grágás. Lagasafn íslenska þjóðveldisins, p. xix.

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5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

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Um fjárleigr, the Land Leasing Section/On Hire of Property (Konungsbók, Staðarhólsbók) Vígslóði, the Treatment of Homicide (Konungsbók, Staðarhólsbók) Landabrigðiaþáttr, the Redemption of Property Section/the Land Claim Section (Konungsbók, Staðarhólsbók) Þingskapaþáttr, the Assembly Procedures Section (Konungsbók) Baugatal, the Wergild Ring List (Konungsbók) Lögsögumannsþáttr, the Lawspeaker’s Section (Konungsbók) Lögréttuþáttr, the Law Council Section (Konungsbók) Rannsóknaþáttr, the Investigation Section/Search Section (Konungsbók) (Um hreppa skil), on Commune Obligations (Konungsbók) (Stakir þættir), individual sections (Konungsbók) Um tíundargjald, tithe regulation (Konungsbók)9

If we now try to summarise what these sections focus on, we can claim that they try to regulate the following matters: political, legal, and communal organisation (8, 10, 11, 12, 13), compensation for killings and injuries (6, 9), economic transactions and poverty relief (2, 3, 4, 5, 7), and Christianity (1, 15). There is to some degree consensus among scholars regarding the political and legal structure of the Free State attested in Grágás and Íslendingabók: When the Althing was established in 930, the number of chieftaincies was 36. Around 965, when the country was divided into quarters and the quarter courts were introduced, three new chieftaincies were established in the Northern Quarter, which then had twelve chieftaincies while the other three each had nine, the total number being 39. To create a balance between the quarters at the Althing, the Eastern, Southern, and Western Quarters each made themselves three additional chieftains. The nine chieftains already established in each of these quarters chose the men who took on the task. The total number of chieftaincies at the Althing thus became 48, thereby establishing twelve chieftains in each quarter. In the quarters, spring assemblies were organised, and three chieftains would host such an assembly jointly, so that the Western, Southern, and Eastern Quarters each had three, while the Northern Quarter had four spring assemblies.10

9 This order does not reflect the actual order of the sections in the manuscripts. 10 Maurer 1874, pp. 35–68, 142–220; Maurer 1882, pp. 70–190; Maurer 1907–1938, 4, pp. 213–451; Vilhjálmur Finsen 1888, pp. 6–98; Boden 1905, pp. 47–58, 67; Finnur Jónsson 1930; Ólafur Lárusson 1932, pp. 10–106; Ólafur Lárusson 1958, pp. 81–90; Gregersen 1937, pp. 52–97; Gísli Gíslason 1944, pp. 121–224; Einar Arnórsson 1945, pp. 35–109, 125–134; Jón Jóhannesson 1956, pp. 72–102; Björn Þorsteinsson 1966, pp. 87–105; Jakob Benediktsson 1974, pp. 173–184; Hastrup 1985, pp. 118–130; Byock 1988, pp. 51–71; Byock 2001, pp. 170–184; Jón Viðar Sigurðsson 1989, pp. 18–23; Miller 1990, pp.17–22; Lúðvík Ingvarsson 1986–1987, 1, pp. 11–108; Gunnar Karlsson 2004, pp. 63–86.

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In the court system the spring assembly courts (várþingsdómar), the quarter courts (fjórðungsdómar), and the Fifth Court (fimtardómr), after its foundation in 1005, were the basic units, and the chieftains the leading participants. The spring assembly courts took place in the spring in each quarter assembly. Each of the three chieftains in attendance nominated twelve judges, so that there were 36 in total. If a case could not obtain a majority of 31, then it would have to be brought to the relevant quarter court at the Althing, the one which dealt with cases from the quarter to which the defendant belonged. For each quarter court one man was nominated by each of the 27 chieftaincies in the Eastern, Southern, and Western Quarters, while the twelve chieftaincies of the Northern Quarter nominated only nine men, so that there were 36 judges in each quarter court. If 31 of these judges could not agree on a judgment, the case went on to the Fifth Court, the highest court of the Free State. For the Fifth Court, one man was nominated by each of the 48 chieftains. The defendant and the plaintiff could each reject six men. If the defendant waived this right, the plaintiff had to reject all twelve or else the case would be dismissed. A simple majority of the 36 judges was sufficient to decide the outcome.

Law Council (lögrétta)

Lawspeaker (lögsögumaðr)

Fifth Courts (fimtardómr)

Eastern Quarter

Southern Quarter

Western Quarter

Northern Quarter

Quarter Courts (fjórðungsdómar)

3 spring assemblies 9 chieftains

3 spring assemblies 9 chieftains

3 spring assemblies 9 chieftains

4 spring assemblies 12 chieftains

Spring Assembly Courts (várϸingsdómar)

autumn assembly (leið)

autumn assembly (leið)

autumn assembly (leið)

autumn assembly (leið)

Fig. 1: The political and legal structure of the Free State according to Grágás (Jón Viðar Sigurðsson).

Besides participating in court cases, as described above, all 48 of the chieftains sat in the Law Council (lögrétta), each with two assembly men to advise them. The chieftains and their chosen men thus made up the 144 members of the Law Council. In addition, the Lawspeaker (lögsögumaðr) and, later, the country’s two bishops, brought the total to 147, but only the 48 chieftains had the right to vote. The Law Council had four main tasks:

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– To ‘make right their laws’: that is, to interpret the laws when there was disagreement about them and to determine their correct application. – To make new laws (nýmæli). – To grant various kinds of exemptions from the laws. – To elect the Lawspeaker. This is the Free State’s legal and political framework, but was it ever used? Before we address this question and the legal culture in Iceland in general, let us have a look at one of the best-known conflicts in Icelandic Medieval history, the one between the chieftains Þorgils Oddason and Hafliði Másson.11

The Dispute Between Hafliði and Þorgils The skirmish started in 1117 when Hafliði’s nephew, Már Bergþórsson, and Jörundr of Oddbjarnareyjar, one of Hafliði’s assembly men (þingmaðr), killed Hneitir of Ávík, who was also Hafliði’s assembly man. Jörundr drowned as he was sailing back home after the murder. Hneitir’s widow did not turn to her late husband’s chieftain Hafliði, since Már was staying with him. She instead went to the chieftain Þorgils Oddason, who was related to Hneitir, and asked him to take on the case. Þorgils was rather reluctant because all those involved were Hafliði’s assembly men. In the end he gave in, however, and agreed to pay the widow twelve hundreds (one hundred equalled the price of a cow, twelve hundred the price of twelve cows) and in return receiving any fines that might be imposed in the case. Hafliði saw this as an attack on his honour: it looked as though he was unable to settle disputes between his assembly men, one of the most important tasks for a chieftain. Before the Althing met in 1118, both chieftains prepared cases for the assembly: Þorgils about the murder of Hneitir and Hafliði a case against Óláfr Hildisson, who lived with Þorgils at Staðarhóll. Óláfr had travelled north to Strandir to acquire wealth and found employment on a boat ran by Már Bergþórsson. They had a falling out, and Már refused to pay Óláfr the wages which they had agreed to, Óláfr went to Þorgils, who incited him to kill Már. He then went back to Strandir, but the attempted murder failed and Már was only slightly wounded. Óláfr then turned to Þorgils for help, and Már to Hafliði. Arbitration took place at the assembly in 1118. Both chieftains were willing to come to a settlement, and in the end they reached an agreement. 30 hundreds were to be paid for the murder of Hneitir and nine hundreds for the injuries suffered by Már. Óláfr was declared an outlaw and was given three years to leave the country,

11 Þorgils saga ok Hafliða.

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but during this time he would have sanctuary in the company of Þorgils and on his own landed property. Þorgils tried to obtain a crossing for Óláfr from Iceland, but he failed. Instead Óláfr went to stay with Þorgils at Staðarhóll. When this became known, Már tried, without success, to have him killed. In the winter of 1119–20 Óláfr took part in the games in Saurbær, where he fought against Grímr Snorrason. Óláfr was stronger than Grímr, treated him badly and made fun of him. Grímr felt insulted and went to Már Þormóðarson in Sælingsdalstunga, a relative of Hafliði Másson. Together they went to see Hafliði, who gave Grímr weapons and exhorted him to kill Óláfr. Grímr did so, and immediately afterwards Hafliði organised his escape from Iceland. In the spring of 1120 Ketill, an outlaw, came to Þorgils and asked for work at Staðarhóll. His request was granted, and soon afterwards Þorgils sent him to Breiðabólstaður to kill one of Hafliði’s workmen. Ketill did so, and after the deed was done he went back to Staðarhóll. Both cases were prepared for consideration by the court at the Althing. At the assembly, an attempt at mediation took place but to no avail. It looked as though Þorgils had got the upper hand over Hafliði when it was confirmed that Óláfr had been killed on his land. However, Hafliði managed to turn defence into attack by claiming that Þorgils could have eight hundreds for his honour and prestige but that this was a gift, not a fine. The case rested there, with both parties dissatisfied with the results. Hafliði did not think that he ought to pay any compensation at all and Þorgils would rather have received modest compensation rather than a gift that would have to be reciprocated. ‘Each thought his honour at stake whether it was expressed or not. And they were so at odds that they came to no reconciliation.’12 Since they had not been reconciled, the matter had to be dealt with by a court at the Althing. Hafliði tried to disperse the court (hleypa upp dóminum) and there was a clash between the two men and their supporters.13 Many wise men attempted to mediate. Hafliði repeated his offer, but Þorgils turned it down. Instead he attempted to kill Hafliði but failed and cut one of his fingers off. Then the fight stopped. Afterwards, Hafliði tried to nominate a court to deal with Þorgils’ attack on him, but he was unsuccessful at first because of Þorgils’ opposition. Hafliði and his men finally succeeded, however, and in this court Þorgils was declared an outlaw. After the verdict, Hafliði was to confiscate Þorgils’ property. Hafliði went to Staðarhóll with 120 men, while Þorgils awaited him with 480 men. Before they began to fight, a third group of 240 men had assembled under the leadership of the chieftains Þórðr Gilsson of Fell at Fellsströnd and Húnbogi Þorgilsson from Skarð at Skarðsströnd and other góðgjarnir menn (honourable men). This group prevented Hafliði and Þorgils from fighting one another.

12 Þorgils saga ok Hafliða, p. 32: ‘Ok þótti þar hvárum sín virðing við liggja, hvárt heldr væri þat kallat, ok stóð þat í milli, at eigi urðu sættirnar.’ 13 Þorgils saga ok Hafliða, p. 34.

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Before the Althing in 1121, Hafliði and his allies mustered 1,440 men, while Þorgils and his allies had gathered 1,080 men. Hafliði arrived first at the Althing and wanted to prevent Þorgils, now an outlaw, from riding to the assembly. Before both sides could engage in battle, many góðgjarnir menn, led by the priest Ketill Þorsteinsson of Möðruvellir in Eyjafjörður and Bishop Þorlákr Rúnólfsson of Skálholt, tried to mediate. Þorgils wanted to ride to the Althing and offer Hafliði suitable reconciliation for his honour, with the understanding that if Hafliði rejected this offer, Þorgils was willing to fight him. By doing so, he hoped to have the verdict quashed, and after difficult negotiations, Hafliði agreed to Þorgils riding to the assembly. At this point mediation recommenced. Hafliði wanted to be allowed to pass the sentence himself, according to the legal principle known as ‘self-judgment’ (sjálfdæmi). Þorgils accepted this, on the conditions that Hafliði could name as large a fine as he wished to demand but could not make a judgement involving outlawry or loss of chieftaincies or estates. Hafliði refused and wanted consent to pass the sentence unconditionally. Ketill the priest, however, convinced him otherwise, and mediation started again. In the end, it was agreed that Hafliði should ask for as high a fine as he wanted, but could not claim chieftaincies or estates as was offered in the first place. He did so and asked for 240 hundreds in compensation. Thus the conflict between the chieftains Hafliði Másson and Þorgils Oddason ended.

The Chieftains and The Legal Culture The dispute between Þorgils Oddason and Hafliði Másson contains most of the hallmarks of the legal culture in the Free State society in the twelfth and thirteenth centuries. Householders in conflicts asked their chieftains for help, because without their support it was impossible to gain protection and any compensation in disputes. In a society without any central power capable of guaranteeing legal rights and punishing offenders, the householder had to rely on the protection of his chieftain. Between the chieftains and the householders there existed a strong mutual friendship (vinátta). The householder was expected to support his chieftain in his disputes, in return for his protection.14 There are very few instances in the sagas of cases being dealt with by a court. The quarter courts are mentioned in Bandamanna saga (c. 1250), Brennu-Njáls saga (c. 1271–1281), Vöðu-Brands þáttr (second half of the thirteenth century) and Íslendinga

14 Jón Viðar Sigurðsson 2017, pp. 11–36. In recent years there has been an intense discussion about the term ‘legal culture’. Even though there is no scholarly consensus regarding its definition, the focus has shifted from the ‘letter of the law’ to ‘everyday life and the cultural meaning of social action.’ Silbey 2010, p. 474. Cf. Roberts 1979; Comaroff 1981; Silbey 2010; Mautner 2011; Michaels, Ralf (forthcoming).

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saga (c. 1270). The Fifth Court, Fifth Court law, Fifth Court cases and Fifth Court judgements are only mentioned in Brennu-Njáls saga, while the Fifth Court oath is mentioned in Brennu-Njáls saga, Þorgils saga ok Hafliða (c. 1240), Sturlu saga (before c. 1230), Önnur jarteinabók Þorláks (The Second Miracle Collection of Bishop Þorlákr, c. 1210), and Íslendinga saga (c. 1270). Brennu-Njáls Saga is the only saga that describes a case being dealt with in the Fifth Court, and it shows quite clearly that the majority principle was not used.15 As we saw in the dispute between Þorgils and Hafliði, the court played an important role. It is, however, important to point out that probably all of the men in the court that sentenced Þorgils to outlawry were nominated by Hafliði, and were therefore his friends. The little information that the sagas provide about appointments to the courts does not tally with Grágás. It looks as though the chieftains in most cases appointed all the judges to a court, in clear contradiction with Grágás. The main reason why the sections in Grágás concerning appointments to the courts were not used is that the number of chieftains and chieftaincies never tallied with Grágás. Between c. 1150 and 1220 the number of chieftains was reduced from c. 26 to seven or eight, yet Grágás does not reflect any changes in the political situation.16 The chieftains controlled the Althing, so why should they bother to change the law in accordance with a new political situation which might affect themselves? What was important for the chieftains and their friends was local peace, and if we look at the Icelandic society in the Free State period it can be argued that it was one of the most peaceful parts of Europe. A legal structure existed, but not in the way that is described in Grágás. Spring assemblies, for example, were probably often arranged as ad hoc meetings. In most parts of the country, a single chieftain controlled one or two spring assemblies, and could therefore determine the courts’ decision in all cases. He appointed all the men in the court, and as all of them were his friends (vinir) and assembly men, they would comply with his wishes. The political and legal structure in Grágás is founded on the idea of the 39 chieftains. If we go to the sagas, both the Icelandic family sagas and Sturlunga saga, we see that the number of chieftains does not at any given time in the history of the Free State correspond with Grágás. The number of chieftains and chieftaincies is significantly higher in the Icelandic family sagas and much lower in Sturlunga saga than what is assumed in the laws. And Grágás, as mentioned, does not try to adjust the political and legal structure to the political reality.17 In the Free State society almost all disputes, and especially the more important ones, as we saw in the conflict between Þorgils and Hafliði, were settled through arbitration (gerð). The parties named the arbitrator(s); they each appointed the same number of men; and they empowered them to give arbitration judgements. It

15 Jón Viðar Sigurðsson 1999, p. 170. 16 Jón Viðar Sigurðsson 1989, pp. 45–70. 17 Jón Viðar Sigurðsson 1999, pp. 39–83.

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was mostly friends and relatives of the involved parties who were appointed, usually chieftains, and more rarely bishops: in other words, people who were at least as powerful as or more influential than the parties involved. Arbitration was the best and most effective way of establishing a lasting settlement. It was done quickly and, in most cases, to the satisfaction of the parties concerned. The arbitrators were not bound by any rules of evidence. They knew about the details of the conflicts, how they had arisen and developed. Their task was first and foremost centred upon determining an appropriate fine that would satisfy both parties in the dispute.18 In my studies of the dispute settlements process, including most of the Icelandic family sagas and the sagas in Sturlunga saga, in only ten disputes out of almost two hundred was the court’s decision the final and decisive verdict. In nine of these ten cases, one party was a chieftain and the other party a householder, who was not supported by his chieftain. In the remaining case a weak chieftain and his client had to give way to a more powerful chieftain.19 As we saw in the dispute between Þorgils and Hafliði, the summons to court was primarily a means of putting pressure on the opponent, and as such was an important tool in the power game. Another good example of this is reported from the end of the second decade of the thirteenth century, when Snorri Sturluson summoned the chieftain Magnús Guðmundarson for full outlawry at Þverárþing. Magnús claimed that the summons was invalid because Þverárþing was not his local assembly. Snorri nevertheless brought this case to a successful conclusion, and Magnús was sentenced to outlawry. However, they were reconciled at the Althing, and Snorri gained honour (virðing) from this.20 Because Magnús was unable to defend himself at Þverárþing, it was therefore easy for Snorri, appointing all the men to the court, to have Magnús outlawed. Snorri could do this because he was more powerful than Magnús. However, as we saw in the dispute between Þorgils and Hafliði, to have someone sentenced to be outlawed by a court was one thing; it was another to make people respect the court’s decision. In Iceland, lacking any central authority, it was the plaintiffs themselves that had to carry out sentences, and that could be problematic, especially if there were chieftains on both sides of a dispute. It could therefore have been problematic for Snorri to carry out the sentence. Magnús, however, having been declared an outlaw, was put in a difficult situation. Not only was he prevented from carrying out his duties as chieftain at the Althing, but also anyone, with the law on his side, could kill him without running the risk of paying any compensation. Magnús’ only way back to ‘normal’ life was probably to give Snorri sjálfdæmi, even though this is not mentioned in Íslendinga saga, thus stressing Snorri’s superiority.

18 Jón Viðar Sigurðsson 2013, pp. 128–129. 19 Jón Viðar Sigurðsson 1999, pp. 151–185; Jón Viðar Sigurðsson 2013, pp. 123–132. 20 Íslendinga saga, pp. 268–269.

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Hafliði Másson received 240 hundreds (the price of 240 cows, or twelve average size farms) in compensation for his finger, the highest fine ever paid for an injury or killing in the Free State. Some 60 years later another chieftain, Hvamm-Sturla Þórðarson, asked for the same compensation when his opponent’s wife tried to stab out one of his eyes. She did not succeed, but injured him in the face. However, the claim of Hvamm-Sturla, who like Hafliði was given sjálfdæmi, was not accepted. His opponent, another chieftain, received support from the most powerful chieftain in the country, Jón Loptsson, who forced Hvamm-Sturla to reduce his demands. Afterwards, however, he invited Hvamm-Sturla’s son, Snorri, to become his foster son, and invited Hvamm-Sturla himself to the anniversary of the church in Oddi, during which he bestowed him with gifts. The fine was then altered and reduced to 30 hundreds.21 Grágás contains two sections dealing with compensation for killings and injuries: Baugatal and Vígslóði. Baugatal contains elaborate regulations for paying compensation and the right to receive it, including kindred as far-removed as fourth cousins. However, as Bertha Phillpotts pointed out more than a hundred years ago, ‘We never hear of any division of wergeld, on Baugatal lines, between the various classes of kindred, nor of any dispute about wergeld shares, either between kinsmen of the two opposing parties, or among the recipients or payers themselves.’22 Phillpotts notes that, given the circumstances regarding the settlement of Iceland in the period c. 870–930, the existence of fourth cousins was not a biological possibility for nearly a century.23 ‘It seems then to be quite unthinkable that Baugatal was ever actually followed in Iceland. The groups of kindred do not pay or receive wergild in accordance with it, and the amounts of the wergild do not vary in accordance with it.’24 Phillpotts’ conclusion left an enduring mark on the discussion about Baugatal; all scholars have since ignored it when discussing dispute settlement in Iceland.25 Vígslóði, the first set of laws to be penned in Iceland in the winter of 1117–18 at Breiðabólstaður, is usually considered to be more trustworthy than Baugatal. Peter Sawyer claims, for example, that the sagas ‘correspond much more closely’ to Vígslóði than Baugatal.26 Vígslóði develops a hierarchy of injury and compensations, distinguishing between a blow (drep), an injury caused with a blunt object, and a wound (sár), an injury inflicted with a bladed weapon. Wounds are divided into major wounds (hin meiri sár), and minor ones (hin minni sár).27 However, if we go to the sagas there is not a single episode which shows that the paragraphs in Vígslóði were used when it came to deciding a fine after a killing or

21 22 23 24 25 26 27

Sturlu saga, p. 114. Phillpotts 1913, p. 14. Phillpotts 1913, pp. 36–37. Phillpotts 1913, p. 37. Miller 1990, p. 144–145; Meulengracht Sørensen 199, pp. 169–170. Sawyer 1982, p. 44. Lawing 2016, p. 70.

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injury.28 Each case was judged on its individual merits. Compensation depended on the prestige of the parties involved, and not the letter of the law, as will be discussed below. We see this clearly in the dispute between Þorgils and Hafliði. Hafliði was able to claim such a high compensation because he was the most influential chieftain; the compensation thus showed his social position and not least the prestige he brought to this case. Þorgils, with aid from many men, paid what Hafliði demanded. On top of that, to show his wealth he gave Hafliði good gifts, and the result was an enduring friendship such that the two men were thenceforth always on the same side in all issues.29 In a society where honour was crucial, it was important for a chieftain to have his demands accepted, thereby increasing his prestige. The higher status would make him stronger in the next case, and more householders would want to become his assembly men.

Law and the Power Game Laws were important in the power game, and the chieftains could use them in many ways, not only to summon their opponents to court, but also to gain access to wealth. In 1206 Snorri Sturluson gained control over the church at Reykholt, one of the three most valuable farms in the country. Magnús, the priest who lived there, was an old man unable to manage the farm, and it was unlikely that his sons would be able to do so. With the help of his powerful position, Snorri got proof of authority (heimildir) over the farm from those who had a hereditary right to it. He thereafter negotiated with Magnús, and they agreed that Snorri should take over Reykholt and look after Magnús, his wife and their sons. Snorri then moved from Borg to Reykholt.30 The people who had inheritance rights to Reykholt did not oppose Snorri. For them it was more important to become his friends and receive help from him in the future. As for Snorri, it was important to gain control over Reykholt legally, because otherwise some of his future opponents could possibly receive authority from the men who had hereditary rights there and contest the validity of his control. Another good example which clearly shows how important it was to have the law on your side is the story of how King Hákon Hákonarson and his son gained control over Iceland. An important aspect of the power struggle in Iceland in the period after c. 1100 was the growth of ríki (domains). In the process of establishing these, it was necessary for the chieftains to obtain authority over all the individual chieftaincies in the ríki they controlled. This was a formal and necessary procedure if they

28 Heusler 1911; Lúðvík Ingvarsson 1970; Jón Viðar Sigurðsson 1999, pp. 151–185. 29 Þorgils saga ok Hafliða, p. 50 30 Íslendinga saga, pp. 242, 407.

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were to gain full control of the area that comprised the ríki in question. In the power struggle after 1220 the chieftains sought support from the Norwegian king. With his backing, they were able to wield greater power in Iceland. Hákon’s support, however, came with a cost, in that the chieftains had to hand over their authority and receive it back from the king. Thereafter, the chieftains would be controlling their ríki on behalf of the king. By about the year 1250, King Hákon had acquired proof of authority over, or ownership of, almost all the chieftaincies in the Northern Quarter, the Western Quarter, and the Southern Quarter; and in the course of the next ten years he also secured control of the remaining chieftaincies. That was the precondition for Iceland’s subjugation to Norwegian rule in the years 1262, 1263 and 1264.31 For the chieftains it was important to be well versed in the laws or to have legal advisers, lawmen (lagamenn/lögmenn), among their friends. In the First Grammatical Treatise from the middle of the twelfth century we read: ‘The skalds are the authorities in all [matters touching the art of] writing or the distinctions [made in] discourse, just as craftsmen [are in their craft] or lawmen [lögmenn] in the laws’.32 In Þorgils saga ok Hafliða we have this description of Hrólfr on Skálmarnes: ‘He was a good friend of Þorgils Oddason [a chieftain] and his assembly man. He was a notable lawyer, experienced in lawsuits; he was also a historian and wrote fine poetry [. . .]’.33 In Íslendingabók Ari tells us of the introduction of Christianity, where we find the well-known description of the decision of the lawspeaker whose task was to decide whether or not the country should become Christian: ‘En nú þykkir mér þat ráð,ʼ kvað hann, ʻat vér látim ok eigi þá ráða, es mest vilja í gegn gangask, ok miðlum svá mál á miðli þeira, at hvárirtveggju hafi nakkvat síns máls, ok hǫfum allir ein lǫg ok einn sið. Þat mon verða satt, es vér slítum í sundr lǫgin, at vér monum slíta ok friðinn.’ En hann lauk svá máli sínu, at hvárirtveggju játtu því, at allir skyldi ein lǫg hafa, þau sem hann réði upp at segja. Þá var þat mælt í lǫgum, at allir menn skyldi kristnir vesa ok skírn taka, þeir es áðr váru óskírðir á landi hér; en of barnaútburð skyldu standa en fornu lǫg ok of hrossakjǫtsát. Skyldu menn blóta á laun, ef vildu, en varða fjǫrbaugsgarðr, ef váttum of kvæmi við. En síðarr fám vetrum vas sú heiðni af numin sem ǫnnur. ‘And it now seems advisable to me,’ he said, ‘that we too do not let those who most wish to oppose each other prevail, and let us arbitrate between them, so that each side has its own way in something, and let us all have the same law and the same religion. It will prove true that if we tear apart the law, we will also tear apart the peace.’ And he brought his speech to a

31 Jón Viðar Sigurðsson 2014, pp. 181–184. 32 The First Grammatical Treatise, pp. 224–227, ‘Skalld erv hofvndar allrar rynní ęða máálſ greinar ſem ſmiðir [ſmíðar] ęða lǫgmenn laga.’ 33 Þorgils saga ok Hafliða, p. 14, ‘Hann var vinr góðr Þorgils Oddasonar [a chieftain] ok var þingmaðr hans, lagamaðr mikill ok fór mjök með sakir. Hann var ok sagnamaðr ok orti skipuliga . . . ’. According to Njáls saga, ‘Eyjólfr Bölverksson was the third greatest lögmaðr [lawman] in Iceland (inn þriðji mest lögmaðr á Íslandi)’: Brennu-Njáls saga, p. 363.

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close in such a way that both sides agreed that everyone should have the same law, the one he decided to proclaim. It was then proclaimed in the laws that all people should be Christian, and that those in this country who had not yet been baptized should receive baptism.34

From this story, and from Adam of Bremen’s statement that Icelanders did not have any king, but rather just the law (Apud illos non est rex, nisi tantum lex),35 we are given the impression that Icelanders respected the laws. We have seen that laws were important in the sagas, but what was really the law of the Free State? There is a general consensus among scholars that the two manuscripts of Grágás are not an official collection of laws; they are either a private collection, or a collection of ‘rights’ that may not necessarily have been adopted as law. 36 The existence of a number of different registers (skrár) clearly displays the ambiguity about what the prevailing laws actually were. Lǫgréttuþáttr has a detailed paragraph about the precedence of law registers if they contained regulations that contradicted one another. It starts by saying that what is prescribed in registers should be the law in the country. If the registers differed, those of the bishops at Skálholt and Hólar were to decide the matter. If they disagreed, the one that treated the issue in the most detail was to be chosen. However, if both were equally detailed but had different formulations, the register in Skálholt was to be followed.37 In the second of the paragraphs from Gizurarsáttmáli c. 1264 it is stated that in return for the subjugation of Icelanders under the Norwegian crown, the king should let the Icelanders ‘enjoy peace and the Icelandic laws’ (ná friði ok íslenzkum lögum).38 However, what this means is unclear. It is likely that ‘Icelandic law’ (íslenzk lög) is not a reference to any specific Icelandic laws, but rather is a request to the king that he should give the Icelanders new laws. He did so in 1271, with Járnsíða.39

34 Íslendingabók, Landnámabók, p. 17, translation from Íslendingabók. Kristni saga. The Book of the Icelanders. The Story of the Conversion, p. 9. In Brennu-Njáls saga we find a similar statement: ‘With the law our land shall be built up, and by lawlessness, destroyed.’ (Með lǫgum skal land várt byggja, en með ólǫgum eyða) (Brennu-Njáls saga, p. 172). For discussion of the saying ‘með lǫgum skal land várt byggja, en með ólǫgum eyða’ see Einar Ólafur Sveinsson (Brennu-Njáls saga), pp. lxxviii-lxxix, 172 footnote 6 and scholars he refers to. Cf. See (1964), pp. 55–56, 88–89, 187–188; Hastrup (1985), pp. 205–206; Líndal (1984), pp. 150–151. 35 Hamburgische Kirchengeschichte, p. 273. 36 Ólafur Lárusson 1958, pp. 124–127; Ólafur Lárusson 1960. 37 Grágás 1a, p. 213. For discussion about the interpretation of this paragraph see Ólafur Lárusson 1932, p. 60; Foote 1984, pp. 155–164; Sigurður Líndal 1984, pp. 128–136. It was not unusual in the Middle Ages for different versions of the same law to exist (Collins 1985). Some laws were only known by a small group of specialists (Brennu-Njáls saga, pp. 389–390). 38 Diplomatarium Islandicum 1, no. 152; Diplomatarium Islandicum 9, no. 1. 39 Jón Viðar Sigurðsson 2014, p. 187.

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Conclusion Icelanders, especially the chieftains, were preoccupied with laws. However, it is uncertain what the law of the Free State society actually was. It is likely that there were regional differences, and that these were shaped by the political developments in the twelfth and thirteenth centuries. It is in this period that the so-called ríki (domains), with rather clear geographical boundaries, evolved. The number of chieftains was reduced from some thirty c. 1100 to about ten some hundred years later. Around 1200 the major families, Haukdælir, Ásbirningar, Svínfellingar, Austfirðingar and Oddaverjar, had established their domains. The formation of domains continued at the end of the twelfth century. In Eyjafjörður and Þingeyjarþing it began in 1188 and had been completed by 1215. In Borgarfjörður it started in the early thirteenth century and had been completed by 1220. Around 1220, almost all the domains had taken shape. This rise of domains changed the pattern of conflict at a local level. Disputes between farmers did not come to a halt, but there was a change in the way in which they were resolved. All those living in the same domain were the assembly men of the same chieftain, whose duty it was to maintain the peace. He could not allow lengthy, bloody disputes between his friends. Obviously, there were laws or rules that were valid for the whole country, e.g. those regarding inheritance and marriage.40 However, respect for laws is a different matter. Because chieftains could use all laws as instruments in the power game, it was important for them to have good legal skills. This is why the sagas, in describing the chieftains, stress their cleverness.41 We are thus looking at a legal culture where laws, and actually all laws and not only those accepted at the Althing, were the main tools, and applied by the chieftains to achieve their goals, and increase their honour. Paradoxically, the Icelanders’ strong focus on the law in general existed alongside the scant respect they often showed for the laws that affected them. In his article ‘The development of law’ in The New Cambridge Medieval History, Peter Landau identifies the twelfth and thirteenth centuries as the ‘foundation period’ in legal history, stating that ‘western legal culture had three elements: legislation, sometimes reforming legislation, which culminated in comprehensive lawbooks such as the Liber extra of Gregory IX; authoritative decisions by the highest courts in a hierarchical organisation; and the academic discipline of jurisprudence, which created a class of university-educated lawyers.’42 It is not possible to apply this definition to the Free State society of Iceland. The laws of the Free State were more ambiguous than we have hitherto thought, and it was probably possible for chieftains to change

40 Scholars argue that the Law Council seems to have had the main responsibility for legislation, but many important laws, such as the Tithe Law of 1096/97, were passed by all the members of the assembly (Líndal 1984, pp. 138–147). 41 Jón Viðar Sigurðsson 2011, pp. 72–78. 42 Landau 2008, p. 147.

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and even make laws in their own chieftaincies. Therefore, the bottom line when it comes to the legal culture in Iceland is that it was formed and shaped by chieftains.

Bibliography Primary Sources Brennu-Njáls saga, ed. by Einar Ólafur Sveinsson (1954): Íslenzk fornrit, 12. Reykjavík. Diplomatarium Islandicum. Íslenzkt fornbréfasafn, [. . .] 1, ed. by Jón Sigurðsson (1857). København. Diplomatarium Islandicum. Íslenzkt fornbréfasafn, [. . .] 9, ed. by Jón Þorkelsson (1913). Reykjavík. Grágás. Islændernes Lovbog i Fristatens Tid 1a, ed. by Vilhjálmur Finsen (1852). København. Grágás. Lagasafn íslenska þjóðveldisins, ed. by Gunnar Karlsson et al. (1992). Reykjavík. Hamburgische Kirchengeschichte. Magistri Adam Bremensis Gesta Hammaburgensis ecclesiae pontificum, ed. by Bernhard Schmeidler (1917): Monumenta Germaniae historica. Scriptores rerum Germanicarum in usum scholarum seperatim editi, [2]. 3rd edition. Hannover/Leipzig. Íslendingabók. Kristni saga. The Book of the Icelanders. The Story of the Conversion, transl. by Siân Grønlie (2006): Viking Society for Northern Research, Text Series, 18. London. Íslendingabók, Landnámabók, ed. by Jakob Benediktsson (1986): Íslenzk fornrit, 1. Reykjavík. Íslendinga saga. In: Sturlunga saga 1, ed. by Jón Jóhannesson/Magnús Finnbogason/Kristján Eldjárn (1946). Reykjavík, pp. 229–534. Sturlu saga. In: Sturlunga saga 1, ed. by Jón Jóhannesson/Magnús Finnbogason/Kristján Eldjárn (1946). Reykjavík, pp. 63–114. The First Grammatical Treatise. Introduction, Text, Notes, Translation, Vocabulary, Facsimiles, ed. by Hreinn Benediktsson (1972): University of Iceland, Publications in linguistics, 1. Reykjavík. Þorgils saga ok Hafliða. In: Sturlunga saga 1, ed. by Jón Jóhannesson/Magnús Finnbogason/ Kristján Eldjárn (1946). Reykjavík, pp. 12–50.

Secondary Sources Björn Þorsteinsson (1966): Ný Íslandssaga. Reykjavík. Boden, Friedrich (1905): Die isländische Regierungsgewalt in der freistaatlichen Zeit. Breslau. Byock, Jesse L. (1982): Feud in the Icelandic Saga. Berkeley. Byock, Jesse L. (1988): Medieval Iceland. Society, Sagas, and Power. Berkeley. Byock, Jesse L. (2001): Viking Age Iceland. London. Collins, Roger (1985): ‘Sicut Lex Gothorum continent’: Law and Charters in ninth- and tenth-century León and Catalonia. In: The English Historical Review, 100, pp. 489–512. Comaroff, John L./Roberts, Simon (1981): Rules and processes: the cultural logic of dispute in an African context. Chicago. Einar Arnórsson (1945): Réttarsaga Alþingis. Saga Alþingis 1. Reykjavík. Finnur Jónsson (1930): Det islandske altings historie 930–1271. In: Aarbog udgivet af danskislandsk samfund, 3, pp. 5–57. Foote, Peter Godfrey (1984): Aurvandilstá (Norse Studies. The Viking Collection 2). Odense.

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Ghosh, Shami (2011): Kings’ Sagas and Norwegian History. Problems and Perspectives (The Northern World. North Europe and the Baltic c. 400–1700 AD. Peoples, Economies and Cultures). Leiden. Gísli Gíslason (1944): Íslenzkt stjórnarfar síðustu öld þjóðveldisins. Reykjavík. Gregersen, Aage (1937): L’Islande. Son statut à travers les âges. Paris. Gunnar Karlsson (2004): Goðamenning. Staða og áhrif goðorðsmanna í þjóðveldi Íslendinga. Reykjavík. Hastrup, Kirsten: (1985): Culture and History in Medieval Iceland. An Anthropological Analysis of Structure and Change. Oxford. Helgi Þorláksson (1987): Að vita sann á sögunum. Hvaða vitneskju geta Íslendingasögurnar veitt um íslenskt þjóðfélag fyrir 1200? In: Ný saga, 1, pp. 87–96. Helle, Knut (2009): Den primitivistiske vendingen i norsk historisk middelalderforskning. In: Historisk tidsskrift, 88, pp. 571–609. Helle, Knut (2011): Hvor står den historiske sagakritikken i dag? In: Collegium Medievale, 24, pp. 50–86. Heusler, Andreas (1911): Das Strafrecht der Isländersagas. Leipzig. Jakob Benediktsson (1974): Landnám og upphaf allsherjarríkis. In: Sigurður Líndal (ed.): Saga Íslands 1. Reykjavík, pp. 153–196. Jón Jóhannesson (1956): Íslendinga saga 1. Þjóðveldisöld. Reykjavík. Jón Viðar Sigurðsson (1989): Frá goðorðum til ríkja: Þróun goðavalds á 12. og 13. öld (Sagnfræðirannsóknir B 10). Reykjavík. Jón Viðar Sigurðsson (1999): Chieftains and Power in the Icelandic Commonwealth. (The Viking collection 12). [Odense]. Jón Viðar Sigurðsson (2005): Noen hovedtrekk i diskusjonen om det islandske middelaldersamfunnet etter 1970. In: Collegium Medievale, 18, pp. 106–143. Jón Viðar Sigurðsson (2011): Kings, Earls and Chieftains. Rulers in Norway, Orkney and Iceland c. 900–1300. In: Steinsland, Gro et al. (eds.): Ideology and Power in the Viking and Middle Ages. Scandinavia, Iceland, Ireland, Orkney and the Faeroes (The Northern World. North Europe and the Baltic c. 400–1700 AD. Peoples, Economies and Cultures). Leiden, pp. 69–108. Jón Viðar Sigurðsson (2013): The Role of Arbitration in the settlement of Disputes in Iceland c. 1000–1300. In: Andersen, Per et al. (eds.): Law and Disputing in the Middle Ages. Proceedings of the Ninth Carlsberg Academy Conference on Medieval Legal History 2012. Copenhagen, pp. 123–135. Jón Viðar Sigurðsson (2014): The making of a ‘Skattland’: Iceland 1247–1450. In: Imsen, Steinar (ed.): Rex Insularum. The King of Norway and his ‘skattlands’ as a political system c. 1260–c.1450. Bergen, pp. 181–225. Jón Viðar Sigurðsson (2017): Viking Friendship. The Social Bond in Iceland and Norway, c. 900–1300. Ithaca. Landau, Peter (2008): The development of law. In: Luscombe, David/Riley-Smith, Jonathan (eds.): The new Cambridge Medieval History. Volume 4 c. 1024–c. 1198. Part 1. Cambridge, pp. 113–147. Lawing, Sean B. (2016): Perspectives on Disfigurement in Medieval Iceland: A Cultural Study based on Old Norse Laws and Icelandic Sagas for the PhD. PhD, University of Iceland. Lúðvík Ingvarsson (1970): Refsingar á Íslandi á þjóðveldistímanum. Reykjavík. Lúðvík Ingvarsson (1986–1987): Goðorð og goðorðsmenn 1–3. Egilsstaðir. Maurer, Konrad (1852): Die Entstehung des Isländischen Staats und seiner Verfassung. München. Maurer, Konrad (1874): Island von seiner ersten Entdeckung bis zum Untergange des Freistaats. München.

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Maurer, Konrad (1882): Upphaf allsherjarríkis á Íslandi og stjórnarskipunar þess, transl. Sigurður Sigurðarson. Reykjavík. Maurer, Konrad (1907–1938): Vorlesungen über altnordische Rechtsgeschichte 1–5. Osnabrück. Mautner, Menachem (2011): Three Approaches to Law and Culture. In: Cornell Law Review, 96, pp. 839–868. Meulengracht Sørensen, Preben (1993): Fortælling og ære. Studier i islændingesagaerne. Aarhus. Michaels, Ralf (forthcoming): Comparative Law. In: Basedow, Jürgen/Hopt, Klaus/Zimmerman, Reinhard (eds.): Oxford Handbook of European Private Law. Oxford, Forthcoming. Miller, William Ian (1990): Bloodtaking and Peacemaking. Feud, Law, and Society in Saga Iceland. Chicago. Ólafur Lárusson (1932): Yfirlit yfir íslenska rjettarsögu. Reykjavík. Ólafur Lárusson (1958): Lög og saga. Reykjavík. Ólafur Lárusson (1960): Grágás. In: Brønsted, Johannes et al. (eds.): Kulturhistorisk leksikon for nordisk middelalder 5. København, cols. 410–412. Phillpotts, Bertha Surtees (1913): Kindred and clan in the middle ages and after: a study in the sociology of the teutonic races. Cambridge. Roberts, Simon (1979): Order and dispute: an introduction to legal anthropology. Harmondsworth. Sandvik, Gudmund/Jón Viðar Sigurðsson (2005): Laws. In: McTurk, Rory (ed.): A Companion to Old Norse-Icelandic Literature and Culture. Oxford, pp. 223–244. Sawyer, Peter H. (1982): Kings and Vikings. Scandinavia and Europe AD 700–1100. London. See, Klaus von (1964): Altnordische Rechtswörter philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen. Tübingen. Sigurður Líndal (1984): Lög og lagasetning í íslenzka þjóðveldinu. In: Skírnir, 158, pp. 121–158. Sigurður Nordal (1940): Hrafnkatla (Studia Islandica 7). Reykjavík. Silbey, Susan S. (2010): Legal culture and cultures of legality. In: Hall, John R./Grindstaff, Laura/ Lo, Ming-cheng Miriam (eds.): Handbook of cultural sociology (Routledge international handbooks). London, pp. 470–479. Vilhjálmur Finsen (1888): Om den oprindelige ordning af nogle af den islandske fristats institutioner. København.

Hans Jacob Orning

Making King Hákon Great Again: Law, God, Morality and Power in Björgvin, 1223 In the summer of 1223, a large meeting was arranged in Björgvin in western Norway in order to find out who was rightful king of Norway. Hákon Hákonarson had been acclaimed king in 1217, but because he was only a teenager at that time (he was born in 1204) and there had been protracted rebellions since then, there was ‘mikill fjölði manna er mjök váru tvídrægir hverjum þjóna vildi.’ (‘many men who were dubious about whom to serve,’ Hák 1, p. 256)1 More generally, Norway had suffered from succession struggles more or less continuously since the mid-12th century, which since 1196 had been a struggle between two parties: the ‘Birchlegs’ (birkibeinar) led by King Hákon’s grandfather Sverrir Sigurðarson, and the ‘Croziers’ (baglar).2 Archbishop Guttormr was the convener of the meeting in 1223, which fittingly commenced on the feast day of the national saint, Olav (29 July). ‘Svá hafa vitrir menn mælt, þeir er þá váru í Björgyn, at eigi hafi á þeira dögum betra mannval saman komit í Nóregs konungs ríki,’ (‘So have wise men said, they who were in Björgvin, that at no time in their lives has a better group of people come together in the kingdom of Norway,’ Hák 1, p. 258) according to Sturla Þórðarson, the author of the saga about King Hákon Hákonarson, writing some forty years after the incident. He himself named 60 prominent men – earls, royal officials and clerics – from the four different regions of the realm: Gulaþing (western Norway), Þrændalög (the northern part), Víkin (the eastern coastline) and Upplönd (the eastern interior) (Hák 1, pp. 257–258).3 For three weeks meetings were held, some between the chieftains, whereas others took place between the chieftains and their advisors. Finally, on 20 August, everyone was summoned to the great royal hall to discuss the matter of kingship. At the initial proceedings of the assembly, the king introduced his claim, before encouraging the archbishop to ‘give his opinion’ (‘hafa nökkurn órskurð’) because he ‘eruð bæði skipaðir af Guðs hálfu ok manna höfðingjar [. . .] óttask engan at því at segja þat er þér vitið satt vera.’ (‘is set as chieftain on behalf of both God and men [. . .] and fear nothing when it comes to telling the truth,’ Hák 1, p. 259) The archbishop presented the candidates, concluding that ‘En þó at vér vitim hverjum vér viljum fylgja um þetta mál þá viljum vér þó heyra fleiri manna tillögur.’ (‘Even if We know whom We will support in this matter, We will nevertheless hear what others

1 All translations from Hákonar saga Hákonarsonar are mine. 2 On the political development, see Helle/Kouri/Olesen (eds.) 2003; Bagge 2010. 3 On Sturla’s sources, see Bjørgo 1967, pp. 185–229. Since Sturla was probably not very well versed in Norwegian conditions, he would have been dependent upon informants. See Wærdahl 2017, pp. 107–119. https://doi.org/10.1515/9783110661811-003

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have to say,’ Hák 1, p. 260) However, before the representative lawmen of each region were allowed to voice their opinions, which all favoured Hákon, there ensued a quarrel between Hákon and Skúli Bárðarson, who was an earl and the real governor of the realm (Hák 1, pp. 261–265). Finally, the archbishop concluded that ‘þó at sína leið hafi hverr þeira greint þá hafa þeir þó allir eitt sagt sem vér vissum áðr at satt var, ok því játum vér gjarna at Hákon konungr er ein réttkominn til alls Nóregs eftir föður sinn ok forellri af þeim mönnum öllum er nú lifa.’ (‘even if they [the lawmen] have argued in various ways, they have said the same, which We knew in beforehand was true. And We willingly concur that of all living men, only King Hákon is rightful heir to the realm of Norway after his father and his forebears,’ Hák 1, p. 266) This meeting is of interest, not only because it is described in unusual detail in Hákonar saga Hákonarsonar, but more so because it was considered necessary to arrange a meeting to determine the legal status of an already-acclaimed king at all. This peculiarity offers an opportunity for discussing how law, in consideration to its interaction with religion, morality and power facilitated in the creation of truth claims at a time when Norway stood on the threshold of becoming a more centralized kingdom.4

Law The meeting in 1223 concerned who should be king of Norway. There were five claimants to the Norwegian throne. Hákon Hákonarson was the sitting king and of royal descent exclusively through the male line. The king’s earl, his father-in-law Skúli Bárðarson, claimed to be successor to his brother, the deceased King Ingi Bárðarson, with whom he shared a father. Guttormr, King Ingi’s illegitimate son, was also a contender, as was Knútr, the legitimate son of Ingi’s half-brother, Earl Hákon galinn. Finally, Sigurðr ribbungr claimed a royal pedigree as the son of Erlingr steinveggr, himself the alleged son of King Magnús Erlingsson. One aspect of the dispute concerned the reliability of information. Hákon had previously been required to prove that he was in fact the son of King Hákon Sverrisson, which his mother had proved by carrying hot iron (Hák 1, pp. 216–220). The only other questionable claim was Sigurðr’s, since both his claim to be the son of Erlingr steinveggr and Erlingr’s claim to be the son of Magnús Erlingsson were in serious doubt (Hák 1, p. 308). Yet even though the other contenders had claims which were not susceptible to doubt, they offered proofs, such as written statements or oaths from compurgators (Hák 1, pp. 259–260).

4 On the historical situation in the 1220s, see Helle 1974, pp. 105–111.

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One significant difficulty in deciding who should be king was the question of who to recognise as legitimate kings. Skúli Bárðarson argued that he was the closest successor because he was the brother of the previous King, ‘samfeðri ok skilgetinn.’ (‘with the same father and born in wedlock,’ Hák 1, p. 260) Hákon responded that Skúli was the rightful heir to Ingi, but only in Ingi’s capacity as a private person, not as a king, ‘því at Ingi konungr var settr til at gæta mér til handa minnar föðurleifðar.’ (‘because King Ingi was appointed to guard my paternal inheritance,’ Hák 1, pp. 260) Hákon’s argument here was that Ingi was only a guardian of the realm, and not a legitimate king, since he was not the son of a king. We have only Hákon’s own statements in Hákonar saga for this. According to the saga, when Ingi and Hákon galinn made an agreement on succession in 1208, Hákon Hákonarson – aged 3 or 4 – exclaimed it to be void, arguing that ‘þar var engi minn umboðsmaðr at svara af minni hendi.’ (‘there was no representative there to plead my case,’ Hák 1, p. 184), his representative being God. This information is not confirmed in Böglunga sögur, which is our main source for the period 1202–17, but we know from both sagas that the election of Ingi was disputed because he was not a king’s son and he was not born in wedlock.5 Even if Ingi was regarded as a legitimate king, the legitimate successor should not have been Skúli, nor Ingi’s illegitimate son Guttormr, but Ingi’s halfbrother Hákon galinn’s legitimate son, Knútr. This was stipulated upon an agreement struck between the brothers Ingi and Hákon galinn in 1208, which stated that whichever one of them lived longest or had a son born in wedlock should inherit the throne.6 Since Ingi’s son Guttormr was born out of wedlock, according to this agreement Knútr as a legitimate son of Hákon galinn would be the rightful king, followed by Guttormr. However, neither Knútr nor Guttormr were seriously discussed as royal candidates at the meeting in 1223. This demonstrates that the case of kingship pertained to more than just issues concerning legal rights. A more fundamental complexity at the meeting in 1223 concerns what should be regarded as law. In his opening statement, Hákon Hákonarson referred to his right to royalty ‘at fornu ok nýju.’ (‘after old and new law,’ Hák 1, p. 259) These concepts are fairly clear to us in posterity. ‘Old law’ refers to the custom of choosing a new king from among the sons of a former king, independently of whether a son was the

5 Ingi’s mother Cecilia, King Sverris’s sister, had divorced Folkviðr Lawman and married Bárð Guttormson (Ingi’s father) while Folkviðr was still alive. Ingi claimed that the archbishop had supported this, while the bishops in 1208 claimed that Ingi was not legitimate because his father was not a king. Adding to the complexities, Earl Filippus, the leader and former king of the Croziers (1207–08), continued to call himself king after the settlement in 1208 (Bögl, p. 42). Hákon galinn was son of Cecilia and Folkviðr, born in wedlock, but having a Swedish father was not regarded favourably (Hák 1, p. 173). 6 Bögl, p. 41, Hák 1, p. 183. The saga states that the agreement was written, but this document has not survived. Hákon galinn died in 1214.

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eldest or born in wedlock; and often the realm would be divided.7 ‘New law’ refers to the law of succession from 1163/64, which introduced a set of new principles regarding succession: sole rule, legitimacy (i.e. birth within wedlock), and the concept of suitability, that was to be decided by a jury of bishops and wise men.8 King Hákon referred to old and new law, yet without specifying what he meant, and these laws were not mentioned by anyone else at the meeting. The reason for this might be that no law entirely served the interests of any of the candidates. For King Hákon, the issue of royal birth loomed large, but he was not legitimate. Skúli, on the other hand, was born in wedlock, but he was not a king’s son. The law most frequently invoked on this occasion was the so-called Saint Ólafr’s Law. In the Gulaþing law, there is a division between ‘Ólafr-text’ (attributed to Saint Ólafr) and ‘Magnús-text’ (attributed to Magnús Erlingsson), which can be interpreted as evidence of ‘old’ and ‘new’ law. Saint Ólafr was perceived of as the great law-maker in Norway. However, the laws attributed to Ólafr are probably the newer ones, and the attribution to Ólafr must be regarded as a legal fiction.9 Hence, the vagueness of referring to specific laws need not be a result of pragmatic deliberations, but of a view that law was a societal reservoir of norms, of which written laws were only a partial and incomplete expression.10 If ‘law’ was not regarded as identical with written law, but rather as an expression of informal norms, then ‘law’ was not fixed once and for all – even if it could be perceived to be so. Since written law was only an incomplete expression of an ideal norm, in case, if it should be found to be lacking in some respect one could argue that it was not binding in a particular situation but needed to be corrected. This understanding of law is precisely what underlies the discussions at the meeting in 1223. Had law been considered as a formally binding body of text, the meeting would not have been necessary at all, since Hákon Hákonarson had already been elected as king in 1217. This had taken place at the assembly at Eyraþing, which was considered the ‘king-making’ assembly according to traditional custom

7 On this custom, see Andersen 1977, p. 275. Joint kingship had previously been practiced in Norway for long periods, see Bjørgo 1970. The latest instance of joint rule was in 1136–57, when Haraldr Gilli’s sons reigned together. However, King Sverrir proposes joint rulership to King Magnús in Sverris saga (Sv 70), and in reality, the division of the realm between Birchlegs and Croziers after 1204 was a kind of joint rulership, as confirmed by Filippus’ persistence in calling himself king (Bögl, p. 124). 8 Bagge/Helle/Smedsdal (eds.) 1973, pp. 32–35. This law is among the most discussed documents in Norwegian history, mainly because of the issues of church influence and the scope for judging a candidate to be unfit. For a summary, see Krag 1975. 9 This is no unique Norwegian case. The importance of investing laws with the legitimacy of age is demonstrated by the frequency with which a mythological law-maker is found in Europe. Cf. Starý’s article in this anthology. 10 Norseng 1991.

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as well as the succession law from 1163 (Hák 1, p. 196).11 Moreover, he had been proclaimed king at Gulaþing later in 1217 (Hák 1, p. 203). The underlying cause for the troubles that Hákon experienced during the royal election and the subsequent years up to the meeting in 1223 has to do with power. Skúli Bárðarson was unsuccessful in becoming king in 1217, but he was appointed earl, and he had a strong position, since in contrast to Hákon, he was an adult, and an experienced war leader. This had been revealed in the years after 1217, when Skúli was successful in reaching an agreement with the Croziers in 1218, as well as in fighting various rebel groups in the eastern part of the realm subsequently. In Hákonar saga Hákonarsonar, his attempts at challenging Hákon are depicted as illegitimate and clandestine attacks on a God-chosen king, but the facts rendered in the saga speak for themselves. As long as Skúli had the power to bolster his claim to the throne, he could persist with his declarations as the rightful claimant to the throne, while garnering support from others.12 Is this a universe of raw power clothed in legal garments? One argument in favour of such an interpretation comes from another saga written at roughly the same time as the meeting in 1223, but from an altogether different angle than that of King Hákon’s saga, namely Egils saga Skalla-Grímssonar. Egils saga is a Saga of Icelanders considered to have been written around 1220, possibly by Snorri Sturluson, the author of Heimskringla.13 The saga’s protagonist is the Icelandic warrior and skald Egill, who opposed the Norwegian King Eiríkr blóðöx in the early 10th century, c. 300 years previous to the writing of the saga. The saga’s description of its hero Egill, and more generally the picture it gives of the society in which he operated, is not historically accurate, as has been emphasised by modern scholars.14 However, the saga can be used as a source for the historical context around 1220, when it was written. Of particular interest here is the description of a court case in Gulaþing in Norway between Egill and his brother-in-law Berg-Önundr concerning the inheritance after their respective wives. The occasion for the case is that Önundr has appropriated the whole inheritance after the death of his father-in-law, therein denying Egill his portion of the inheritance. The rationale for this was based upon his living abroad (in Iceland), his wife’s contested legitimacy (her mother was not married to her father), as well as Egill being outlawed in Norway as a result of his enmity with King Eiríkr and

11 The only missing element was the ritual of swearing upon the relics of St. Ólafr at the ÓlafrShrine in Niðaróss Cathedral, which had been locked up by the bishops who opposed Hákon (Hák 1, p. 196). 12 See Orning 2018, pp. 202–224. 13 Hallberg 1969, pp. 23, 36. 14 See for instance Helle 2001, pp. 25–28, 42–43.

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Queen Gunnhildr.15 After both parties have presented their case at the assembly, Önundr states: En þú, Egill, ætlar at fara hér, sem hvarvetna annars staðar, þess er þú hefir komit, með ofkapp þitt ok ójafnað; nú mun þér þat hér ekki týja, því at Eiríkr konungr ok Gunnhildr dróttning hafa mér því heitit, at ek skal rétt hafa af hverju máli, þar er þeira ríki stendr yfir. (Eg 155) But thou, Egil, thinkest to go on here, as everywhere else, with thy fierceness and wrongful dealing. This will not avail thee now; for king Eric and queen Gunnhilda have promised me that I shall have right in every cause within the bounds of their dominion.16

One might think that this statement would put an end to the case. Yet here it forms the occasion for further legal arguments, and it is not until Egill’s patron Arinbjörn wants compurgators to make an oath to confirm Egill’s claim that things are brought to a head. Now the king hesitates, whereas the queen rushes forward, saying, Þetta er undarligt, konungr, hvernig þú lætr Egil þenna inn mikla vefja mál ǫll fyrir þér; eða hvárt myndir þú eigi móti honum mæla, þótt hann kallaði til konungdómsins í hendr þér [. . .] skal ek þat eigi þola, at Egill troði svá undir fótum vini mína, at hann taki með rangendi sín fé þetta af Ǫnundi. Great wonder is this, sir king, that thou lettest this big Egil make such a coil of the whole cause before thee [. . .] yet will not I brook this, that Egil tread under foot our friends and wrongfully take the property from Onund. (Eg 157)

She follows up with an order to cut the ribbons ‘ok lát eigi dœma rangendi þessi.’ (‘and let them not give this wrong judgement,’ Eg 157) thereby terminating the assembly.17 The Norwegian historian Knut Helle held that the description of this case is neither historically correct nor useful as a source for contemporaneous Norwegian legal practice, however, he does go on to state that it does bear some relevance for contemporaneous Icelandic legal practice.18 Whereas the first and last statements are easy to agree with, Helle’s dismissal of Norwegian relevance is harder to swallow. First, Norwegian and Icelandic legal practices were probably not that different in the early 1220s.19 Second, even if the description is stylised, it need not be without historical value. One could argue that whereas Hákonar saga enmeshes political

15 The latter fact of course made his appearance at an assembly problematic, and might be the reason why his opponent yelled at him, both when he advertised the case and later at the assembly, referring to his outlawry and calling him arrogant. 16 Translation from Green, 2011. 17 The saga specifies that the sacred space of the assembly was demarcated with sticks and ribbons. 36 appointed jurors (twelve farmers from each of the three districts of Hörðaland, Sogn and Firðir) were seated inside the site (Eg 154). 18 Helle 2001, pp. 26–28. 19 Jón Viðar Sigurðsson 2008, p. 101.

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strife in a web of legality, Egils saga does the opposite, therefore, making it an issue of pure power. Each saga renders a lopsided image of the relationship between right and might, but viewed together their respective biases neutralise one another. Court trials were certainly not autonomous legal processes, but neither were they a simple product or reflection of power relations.

God What, in the last instance, could stop those who were most powerful? Well, God could. When Archbishop Guttormr began his speech at the meeting in 1223, ‘þess biðjum vér ok bjóðum af Guðs hálfu at allir menn segi þat er þeir vitu sannast fyrir Guði’ (‘he asked and urged everyone on behalf of God to say what they think is right before God,’ Hák 1, p. 259) on the issue of who was the rightful king. Everything, including law, originated with God. Hence, even if law was not specified in a written form that protected it from the vagaries of power and greed, it was protected by the requirement that it should conform to the will of God. In addition to being ‘old’, law should be ‘good’.20 The next question is: If God was the fount of law, who had access to that source? The obvious answer was the archbishop, as leader of the Church. In accordance with this, King Hákon stated that the archbishop had a particular responsibility for finding a solution to the problem (Hák 1, p. 259). However, the king also had access to God, and in Hákonar saga, Hákon’s connection with God (in contrast to Skúli’s) is stressed on several occasions.21 Nor was access to God limited to the archbishop and the king; it also had a more ‘democratic’ quality, as formulated in the archbishop’s request that everyone should consult with God on ‘þat er þeir vitu sannast fyrir Guði.’ (‘what they think is right before God,’ Hák 1, p. 259) This does not however imply that literally anyone who wanted to decipher God’s will in a legal context could do so, as this ability correlated with being acquainted with the law, and thus was connected to the office of lawman. Here again age and position mattered, so that Gunnarr grjónbak, the oldest lawman of the most prestigious law area (Þrændalög) ranked first (Hák 1, p. 261). God’s judgement was unwavering. As King Hákon formulated it, the archbishop as God’s representative should ‘óttask engan at því at segja þat er þér vitið satt vera, hvárt sem er ljúft eða leitt.’ (‘fear no one when it comes to speak the truth, whether it is bright or sad,’ Hák 1, p. 259) The archbishop also claimed at the outset that ‘vér vitim hverjum vér viljum fylgja um þetta mál’ (‘We know who We will follow in this case,’ Hák 1, p. 260) – though without specifying who that

20 On ‘good’ and ‘old’ law, see Kern 1968. 21 For examples, see Hák 1, pp. 184, 192; 2, p. 87. More generally on the issue, see Bagge 1996, pp. 94–106.

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was. However, if God’s opinion was unwavering, the meeting in 1223 would have been superfluous, because God had already rendered his opinion on this matter in 1218, when Hákon’s mother Inga had performed the ordeal to prove her son’s royal paternity. Hákon had agreed to arrange the ordeal because he ‘em öruggr um þann dómarann er þetta mál er undir skotit,’ (‘trusted the judge to whom this case is directed,’ Hák 1, p. 218) and its successful outcome had been confirmed by friends and foes alike (Hák 1, p. 220).22 An ordeal is an elaborate, dramatic, public ritual intended to elicit divine sanction, usually to confirm the truth claim of an oath.23 The swearing of oaths implied that the form of the ordeal, not least the oath formula, was decisive.24 Ordeals were once viewed as a sign of medieval superstition, since they presuppose that God can interfere in human affairs on command. Moreover, the prohibition against ordeals at the Fourth Lateran Council in 1215 has been regarded as a sign of a growing secularisation and rationalisation in Western thought.25 However, objections can be raised against this view. First, ordeals were not terminated because people stopped believing that God could interfere in response to human needs, but because it was thought inappropriate to pressure God to answer in a given case.26 The prohibition also had a class component, as the high clergy feared that people could abuse ordeals, just as commoners tended to proclaim saints at such a speed that the Pope decided to establish procedures of sanctification in order to block popular initiatives.27 Second, ordeals were not brought into play at a whim: a case had to be important, and it had to be difficult in terms of deciding guilt. If those conditions did not apply, an ordeal was less likely to be incurred. Thus, ordeals were invoked in cases where a community was in great need for a solution to an urgent problem.28 Third, whereas ordeals might seem unambiguous from the outside, their implementation and interpretation were actually enmeshed in ambiguities. This goes for all considerations that would have a decisive influence upon the outcome of the test, such as what the conditions for an ordeal should be, where it should be performed, and who should interpret the results.29 The reason for this is that ordeals

22 Actually, an attempt to arrange an ordeal had been proposed already in 1217, but then the hot iron had been thrown away so that the ordeal could not be performed (Hák 1, pp. 193–194). 23 Brown 1975; White 1995. 24 Hyams 1981, pp. 90–126. 25 Moore 2000, pp. 160–198; Wickham 2016, pp. 141–169. 26 Bartlett 2008, pp. 1–34. 27 Gurevich 1988, pp. 39–77; Geary 1994, pp. 95–115; Bartlett 2013, pp. 602–608. 28 Bartlett 1986, pp. 13–14, 26, 33; Thomas 1971, p. 247. 29 The list of examples is long, but just to mention some central cases: During Erlingr steinveggr’s ordeal in 1204, Bishop Nikulás implied he could ensure a favorable outcome; when the widowed queen Margrét was to perform an ordeal to prove that she had not killed King Hákon by arson in 1204, she chose ordeal by proxy – and the proxy (not she) was killed when the ordeal went wrong;

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were a political weapon that was usually brought into play in situations of intense political strife. Here even the proposal of an ordeal could be effective, since it implied a threat to take a conflict to a new level of intensity. Accordingly, ordeals were more frequently proposed than actually implemented.30 The ambiguities concerning ordeals border on what we, contemporarily speaking, would call cheating. A year before the ordeal in 1218, a first attempt to arrange an ordeal had been planned, however, it was aborted because ‘þá er járnit skyldi bera var því í brot skotit, ok vissi engi hvar komit var.’ (‘the iron had been thrown away, and nobody knew where it was,’ Hák 1, p. 194) The saga strongly hints that Skúli is responsible for the confusion, but, in any case, it demonstrates the close connection between this ritual and power. Moreover, just before the ordeal in 1218 was to be performed, King Hákon’s advisor, Dagfinnr bóndi, was approached by one Sigarr from Brabant, who was introduced as a wise man. Sigarr secretly proposed a ruse which would guarantee a successful outcome of the ordeal, and Dagfinnr lauded Sigarr by invoking God in his thanksgiving (Hák 1, pp. 218–219). However, after Sigarr revealed that his advice was to rub Inga’s skin with ordinary grass, Dagfinnr reversed course and deemed it as sorcery, emanating from the devil (Hák 1, p. 219). Dagfinnr’s feeling of having been tricked is understandable, but his initial goodwill towards Sigarr testifies to a pragmatic, not to say cynical, view of ordeals. This pragmatic attitude towards the ordeal is further explored in Tristrams saga ok Ísöndar, which according to the prologue of the saga was translated into Old Norse at the initiative of King Hákon in 1226. Thus, the saga is a contemporary source for the meeting in 1223, and considering the substantial freedom that translators enjoyed, there is no doubt that the translation can shed light on the target culture.31 In the saga, an ordeal is proposed after rumours of Tristram’s and Ísönd’s love have become widespread, but are still not possible to prove. Upon being charged, Ísönd answers that she is willing to undergo the ordeal, since she knows that she is innocent (Trist, pp. 144–147). Thereafter she ponders a plan, which entails having Tristram dress like a poor pilgrim, unrecognisable to everyone, and carry her over a ford in public view (Trist, pp. 148–149). When her jurors are quarrelling about the oath formula, she grasps the opportunity to formulate it herself, and swears: ‘Aldri var sá karlmaðr fæddr af kvennmanni, at nær mér nökkviðri kæmi nema þú, kóngr, ok sá hinn píndi pílagrímr, er bar mik af bátnum ok fell á mik, öllum yðr ásjáöndum’ (‘There was never a man born of woman who got next to my naked flesh except you, king, and that poor pilgrim who carried me from the

when Ólafr Haraldsson was canonised in 1031, his successor’s mother Alfífa tried to annul it and quarrelled about the terms of the ordeal. 30 White 1995. For an analysis of ordeals that emphasises their strategic scope, see Esmark 2010. 31 On translation theory, see Toury 1995. On applying the theory, see Eriksen 2014.

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boat and who, in sight of you all, fell on top of me,’ Trist, pp. 150–151).32 As a result, she successfully carries the hot iron. It is difficult not to conclude from this case and from the advice of Sigarr in Hákonar saga that people had an extremely cynical view of the ordeal. This is also how many historians have interpreted this and other instances of ordeals.33 The ordeal was not different from law, in that it gave no definite answers that could stand the test of time and the interests of varying power constellations. Even if God had intervened upon direct request in 1218, this was not sufficient. Both God and Law were prisoners of the present, and previous verdicts were of little value if not backed by force. As the Norwegian historian Kåre Lunden wrote, ‘The other side of the coin that every conflict of interest was perceived as a judicial issue was that every judicial issue was ultimately settled with power.’34

Morality The description of the meeting in 1223 in Hákonar saga reads like a legal and religious ossification of political rules, where solemn rituals were brought into play in order to buttress King Hákon’s right to rule. However, when reading Hákonar saga in light of Egils saga and Tristrams saga, right evaporates in face of might, and faith gives way to cynicism. Is this a universe of unrestricted power and cynicism? Take the example of the bond of friendship, which is sanctified in Hávamál’s praise of unwavering friendship as the backbone of society in verses 43–44 (my translation): Vin sínum/skal maðr vinr vera,/þeim ok þess vin;/en óvinar síns/skyli engi maðr/vinar vinr vera. (A man must be a friend/to his friend,/for himself and for the friend,/but no man must/ be a friend of a friend/of his foe.) Veiztu, ef þú vin átt,/þann er þú vel trúir,/ok vill þú af honum gott geta,/geði skaltu við þann blanda/ok gjǫfum skipta,/fara at finna opt. (Know, if you have a friend/in whom you have faith,/and you wish to get something good from him,/you must share with his mind/and exchange gifts,/and go often to seek him out.)

Friendship was holy and not to be broken, since to do so would smother the expectations without which society could not operate. However, for all its praise, Hávamál

32 Translation from Kalinke 1999. 33 Monclair 2004. The cynical character of the behavior is underlined in Gottfried of Strassburg’s Tristan, where the author adds: ‘Thus it was made manifest and confirmed to all the world that Christ in his great virtue is pliant as a windblown sleeve.’ Tristan, p. 248. 34 Lunden 1976, p. 402 (my translation). A related approach to law is adopted in Bagge 2001, pp. 73–85.

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is curiously silent on what concrete obligations inhered in being a good friend, and how far a friend could be expected to go to support his friends. These were crucial issues in practical politics, as we see repeatedly that a patron unable to fulfil his obligations was deserted by his supporters – a principle so self-evident that it was hardly reflected upon. For instance, after Skúli Bárðarson lost a decisive battle to Hákon Hákonarson in 1240, most of his men abandoned him. Some took mercy from their opponents, while some others told Skúli that they wanted to go elsewhere. However, the vast majority just disappeared. This desertion can only be inferred from the fact that when Hákon’s men arrived in Niðaróss some weeks afterwards, just a handful of men had stayed with Skúli (Hák 2, pp. 109–113). Even in a ‘state-like’ conflict such as this, desertion was completely normal and expected.35 Thus, not specifying the conditions of friendship was not due to a norm of unconditional friendship, but rather subject to pragmatic limitations so self-evident that they needed no mention. This combination of an absolute ideal and a variable practice is no Old Norse peculiarity. The German historian Gerd Althoff has recently drawn attention to the ‘variability of ritual’ in the Holy Roman Empire, linking it to an oral culture characterised by diffuse, all-encompassing obligations.36 This variation accords well with the ‘power’-argument from the 1223 meeting: Everything can be negotiated and re-negotiated, since there are no precise definitions of obligations, and since even formal institutions and procedures are subject to the circumstances of the immediate context. However, this flexibility was not unlimited, even if its limits were not a function of formal institutions or procedures. The limits were rather a result of a more fluid and ill-defined principle of essentialism. We have already encountered it in the ideal of friendship in Hávamál, the idea that friendship entailed obligations that were absolute and (therefore?) not subject to further definition or clarification. Essentialism was rooted in the medieval presupposition that everything in the universe carried meaning.37 God had created the world, and it unfolded according to his plan, from the Fall to the Day of Final Judgement. The challenge was how to

35 The same mechanism of desertion from a losing side applied to King Hákon Hákonarson, as after his side had lost a battle to Skúli earlier in 1240, the saga exclaimed that people thought that no one could stand up against Skúli (Hák 2, p. 184). 36 Althoff 2002, pp. 71–88. However, this variability could linger on into the written medium. Specific obligations are not only conspicuously absent from the ‘oral’ Hávamál, but also from The Law of the Retinue from 1277. Even in this written legal source formulated after monarchy had been strengthened, the obligations of each retainer group towards the king are utterly nonspecific, separated from the Weberian ideal type of a bureaucracy by an ocean-wide gulf. For the Law of the Retinue, see Orning 2010, pp. 276–281. 37 Flint 1991, pp. 8–9; Le Goff 1988, pp. 330–335; Mitchell 2011, pp. 35–38 on medieval Scandinavia. Robert Bartlett cites Peter of Cornwall (c 1200), ‘There are many people who consider only what they can see and do not believe there are good and bad angels nor that the soul of man lives on after the death of the body nor that there are any other spiritual and invisible things,’ adding that ‘These were

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interpret the signs from God, since after the advent of Christ he no longer communicated directly through the prophets. This ‘enchanted’ view of the universe was, however, not a Christian property, but grounded in what can be termed a ‘magical’ or ‘mythical’ world view.38 One example of concurrence between Christian and Old Norse conceptions of essentialism is etymology. Isidor of Seville’s Etymologiae from c. 600 was standard literature in medieval Europe, tracing the origin of words according to a conviction that they were not random labels but were connected to the essence of their objects.39 A similar belief was entrenched in Old Norse society. For example, in Eyrbyggja saga, a boy is named Grímr, but the father adds the prefix Þór- to ensure that his friend, the god Þórr, will help him and his son.40 Tristram receives his name because he has entered the world under sad (‘triste’) conditions, his father dying before Tristram is born (Trist, pp. 46–49). More generally, this worldview meant that portents such as dreams were considered to be real incidents.41 Typically, the rumour about Tristram and Isönd’s illicit love affair originates in a dream of Tristram’s companion, which turns his trust in his friend upside-down and makes him his worst critic (Trist, pp. 132–135). In order to discover the right connections between outward appearance and inner essence in this enchanted universe, rituals played a decisive role, because they linked appearance to essence.42 Rituals have usually been studied primarily in the religious field, dealing with ‘grand rituals’ and viewing them as representations of a higher order. We have encountered these types of rituals in the ordeals found in Hákonar saga and Tristrams saga, which were arranged in order to disclose whether or not disputed claims were connected to truth. However, as recent ritual studies have underlined, rituals should not be thought of as being limited to religious matters or grand occasions, because efforts to draw such links also apply to what can be termed ‘everyday ritual’.43 Moreover, rituals aim not only at representing the connection between an action and its meaning, but also at influencing it. The medieval consciousness, and indeed uneasiness, about utilising and trusting

presumably the people who believed in needles but not in angels dancing on them.’ Bartlett 2008, p. 110. 38 Wax/Wax 1962, pp. 179–188; Lévi-Strauss 1986, pp. 206–231. 39 A Christian expression of this logic is the principle of transubstantiation, whereby the host and the wine consumed during the Communion are perceived of as being the flesh and blood of Christ in a literal sense. 40 Jón Viðar Sigurðsson 2017, pp. 124–126. 41 On the European learned view of dreams, see Keskiaho 2015. On Old Norse conceptions, see Lönnroth 2002. 42 In Plato’s Symposion, people were originally made as twins, but as a result of hubris they were split into two. Man’s search was therefore a search for the lost half to which his real half belonged, and the symbol was ‘a reference to a lost unity.’ See Le Goff 1988, p. 330. In modern scholarship, this view goes back to Émile Durkheim: see Durkheim 1984. 43 Enfield 2009, pp. 51–80.

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rituals has been emphasised by Philippe Buc, who draws attention to their widespread manipulation.44 This aspect is very clear in the aforementioned examples, where agents use ordeals quite cynically to fabricate truth claims. However, this cynicism and widespread scepticism towards ritual would be meaningless if medieval people had not also believed in the power of rituals. The belief in a correspondence between appearance and essence could go perfectly hand in hand with all kinds of suspicion towards attempts at proclaiming such correspondences. What was at stake was to operate within the confines of the trustworthy; to avoid being regarded as a truth-breaker. Oaths were not only used to establish past facts (iuramentum veritate), but also to secure future compliance or loyalty (iuramentum credulitate).45 Tests of loyalty aiming at establishing a connection between present and future action so as to determine and predict future behaviour are unusually prevalent in Old Norse sources from the 1220s. Tristrams saga presents an array of rituals, ranging from portents and informal tests to formal legal procedures. Although the rumour about Tristram and Isönd’s illicit love affair starts with Tristram’s companion having a dream that raises his suspicions (Trist, pp. 132–135), the saga also specifies that it takes a long time before the rumours reach the king. When they do, he decides to test Ísönd’s loyalty by telling her that he will go abroad, to see if she shows joy at the news; and he appoints Tristram to be her guardian (Trist, pp. 134–137). Ísönd nearly betrays herself by rejoicing, but her bright maid detects the ruse in time and has Ísönd express grief at his journey and resentment towards Tristram for previously having killed her relative. The king is temporarily mollified, but when Ísönd does not want him to send away Tristram, allegedly because she does not want him to suffer innocently, his suspicion is once more aroused (Trist, pp. 136–141). So far, the tests in Tristrams saga have a timeless quality to them which accords with most tropes of cuckoldry. However, in the saga the suspicion is framed in a legal idiom. At one point, the king detects the couple together, but in compliance with legal procedure

44 Buc 2001. However, what Buc pejoratively labels ‘manipulation’ of ritual could equally well be described in a more morally neutral way as the strategic scope of influencing ritual. For applications of these insights in a Nordic setting, see contributions in Jezierski 2015. See also Clunies Ross 1998, p. 138. 45 ‘Juramenta veritate’ were oaths about the truthfulness of a claim, referring to past events. Through the oath, the oath-swearer and his compurgators would guarantee that events had happened in accordance with what they swore. ‘Juramenta credulitate’ were oaths on probability, which could typically be formulated as oaths of fidelity or allegiance, sworn to guarantee or secure that the oath-taker would behave according to standards formulated in the oath. As such, oaths of fidelity concerned the future, whereas oaths of truthfulness were related to past events. The former are the subject of Nordby 2019.

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he needs witnesses in order to proceed against them.46 In another instance, a trace of blood shows that someone has visited Ísönd’s bed at night, but the king cannot prove that it is Tristram’s blood (even though he has slept in the neighbouring bed): ‘Vissi hann ekki, hvat sannast var, nema af blóði því, sem hann þá sá, ok var þat ekki sannleiks sök né skilvís raun.’ (‘He didn’t know the complete truth, only about the blood that he had seen, but that wasn’t a real charge or clear proof,’ Trist, pp. 144–145) The decisive task in Tristrams saga is to find the right connection between signs and events, between outer appearance and inner essence. This is partly a legal enterprise in terms of the preoccupation with proof and partly a religious one, in the presupposition of a concordance between sign and essence. An obsession with tests that seek to bring out the connection between signs and events is also characteristic of Morkinskinna, a kings’ saga written around 1220 by an anonymous Icelander. A typical example to that effect is shown when King Haraldr harðráði receives news about an Icelander called Brandr, whose generosity garners him the reputation as one suitable for becoming the king of Iceland. ‘Þat skal ek nú reyna’, (‘I am now going to test that,’ Mork 1, 231)47 says King Haraldr, and sends envoys demanding gifts of him: his cloak, his axe and finally his tunic. Each time Brandr gives away without hesitation that which the king demands, but on the king’s last demand, he keeps one sleeve of the tunic for himself. The king accepts Brandr’s reluctance, uttering: ‘Þessi maðr er bæði vitr ok stórlyndr. Auðsét er mér hví hann hefir erminni af sprett: Honum þykkir sem ek eiga eina hǫndina ok þá þó at þiggja ávallt en veita adrigi.’ (‘This man is both wise and self-assertive. It is clear to me why he detached one sleeve. It seems to him that I have only one arm, and that one made only to receive and never to give,’ Mork 1, 232)48 He then summons Brandr and endows him lavishly. Why did the king go to such extreme measures before he would accept Brandr as a friend, and why did Brandr accept being treated so exquisitely unfair? This type of almost absurd testing of men is no isolated instance in Morkinskinna, which contains a string of such episodes, which go both ways, in which kings test others, while being themselves tested.49 When discussing why Morkinskinna put so much emphasis on such tests, one alternative that can be ruled out is to view them as representative of normal behaviour or expectations about loyalty, since they so clearly transcend the scope of realism. In my view, the tests should be regarded as instances of exemplary action. Confronting men with almost impossible tests provides them

46 The king could not confront the damaging rumours, since he had not caught them in the act (‘þér hafit ekki fundit þau í þeim verkum, at þér getið sannat opinberliga sakir þeira’, Trist, p. 144). Cf. the stipulation in Gulaþing law 59 that one witness is valueless, whereas two are as good as ten. 47 Translation from Andersson/Gade 2000, 219. 48 Andersson/Gade 2000, 220. 49 For a sample of tests described in Morkinskinna, see Mork 1, 29–42, 132–133, 133–134, 134–137, 211–214; 2, 12–16.

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with the opportunity to demonstrate their true nature. The more unreasonable a test is, the more it is apt it is in bringing forth the best in them.50 The examples put forward are an ideal standard where truly big men are generally willing to act uncompromisingly, irrespective of pragmatic concerns. The paradox lies in the unbelievability of the scenario. No one is expected to bow unconditionally to kings, least of all not to kings making obviously unreasonable demands. Moreover, no one would remain steadfast indefinitely, regardless of loss or risk. Nevertheless, the stories are indicative of an ideal behaviour one should seek to emulate.51 So why idealise behaviour that is so blatantly at odds with ‘normal’ behaviour? Because rituals not only ‘represent’ or reflect social order; they also construct and in a certain mode also invent it. And in line with what Philippe Buc has emphasised, rituals are always rendered in a narrative form, a form that in Morkinskinna borders on the unreal. Earlier we saw that the attitude of those involved in ordeals could border on cynicism, as in the case of Tristrams saga, where Ísönd stage-manages a ritual in order to deceive others into thinking she is innocent, or when in Hákonar saga Sigarr from Brabant offers to help Inga pass an ordeal through trickery. Yet, even if these instances might seem cynical, they are not only so, and they are less so than we are inclined to think, as we are accustomed to thinking that nothing is sacred. For medieval people, everything was sacred, or at least could be viewed from a sacral perspective. In the case of Tristram and Ísönd, they perceive themselves as innocent, and the author also gives good reasons for this being so, since they drank a love potion which has overtaken their own wills. As for Hákon Hákonarson, he himself, his councillors and the saga author were convinced that he was the son of King Hákon Sverrisson and therefore the legitimate successor to the throne. The fact that these persons were morally blameless justified utilising all possible means in order to demonstrate their innocence, including deceit. The question is whether we can label this conduct ‘trickery’ when it serves a worthy purpose. Medieval people acknowledged numerous forms of truth – the historical/literal, the allegorical, the moral, and the anagogic /eschatological52– and since reality was merely a vague and incomplete reflection of eternity, literal truth ranked below the allegorical one. This implies that a statement could be literally true, but still be untrue when viewed from a transcendental perspective, in

50 Even the obviously unreasonable king gains from the situation, as King Ólafr kyrri after the successful test rewards Crow-Karl munificently, and in the saga the episode leads up to a poem celebrating the king’s generosity (Mork 2, 12–16). 51 Such stories can also be found in the sagas of Icelanders, for instance in Gísli Súrsson’s protracted course of action in the face of unsurmountable resistance. No one would act like Gísli in real life, but he was still a powerful ideal. On the moral character of the Sagas of Icelanders, see Vilhjálmur Árnason 1991. 52 On these forms of reading, see Boynton/Reilly 2011; Liere 2014.

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which case the latter truth would overrule the former one.53 Thus, even if there is no doubt that medieval people behaved pragmatically in relation to rituals, using any opportunity to stage them so as to yield a favorable result, this scope was not unlimited, and it was not perceived to be so, because it was encircled by what was morally true.

Back to 1223 To return to the meeting in 1223 and the question that it elicits: Was it all about power? Yes, of course it was, as are all political tugs-of-war. And of course, it was wrapped up in legal clothing, so that it could fulfil the requirements of immemorial custom and eternal justice. But if law is a fiction, it is a necessary fiction in order to make a community function. The Norwegian political community anno 1223 was built on shaky ground, which was fully revealed when Skúli rebelled in 1239. Still the illusion of unity was important, and it was also self-reinforcing. When King Hákon emerged victorious from the struggle with Skúli, this was not only because he was the most successful player in the game; it was also a sign that he was the rightful king and Skúli the usurper. The victor always writes the history, but the interesting point is how he writes it. King Hákon had his natural/ legal/divine right to rule written into the script from the very start. It did not have to await external confirmation before its validity, and the story in Hákonar saga is nothing but the unfolding of this right to rule. It is an easy task to deconstruct this myth, yet that does not mean that everything can be reduced to power and cynicism. To acknowledge that it is possible to influence the connections between sign and meaning, appearance and essence, is not synonymous with saying that the scope for manipulation is unlimited, because it all was done against the backdrop of a moral community that needed to be convinced. Juxtaposing Hákonar saga with other sagas from the same period allows us to expose the frailty not only of royal power, but also of truth claims in an age that saw the co-habitation of essentialism and pragmatism, conviction and cynicism. Before the state built robust legal institutions, other means were used to establish connections between appearance and essence. Instead of reducing such alternatives to law vs. power, the sagas from the 1220s show how a mix of law, God, morality and power interacted to establish truth – in this case in making King Hákon great (again).

53 Nowhere is this line of thought more evident than in medieval forgeries. Medieval forgers did not conceive of themselves as tricksters, because what they did was simply to adjust earthly facts to the celestial truths, which were of course primordial. See Clanchy 1993, pp. 149, 298, 318; more generally in Hiatt 2004. On Norway, see Lunden 197 pp. 22–27.

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Coda: Arne Larsen Økland In 1981 the Norwegian soccer player Arne Larsen Økland made what looked like a goal for Bayer Leverkusen against Bayern München. But when the referee pointed to the midfield, declaring it a goal, Økland objected and insisted that the ball had never been inside the goal, but had just slipped into it through the side net. The referee paused briefly and then annulled the goal. Økland’s manoeuver has become widely famous for his honesty (it must undoubtedly have been easier to tell the referee since Økland had already made a hat-trick, securing Leverkusen a safe [but unexpected] lead). However, many were critical of Økland, saying that he should not have interfered with the referee. Football is a game regulated by a set of specific rules. Still, it goes without saying that everyone tries to manipulate the rules to their own advantage. To continue the football analogy, the Argentinian player Diego Maradona was never reproached for not admitting that he had scored an illegal goal with his hand against England in the World Cup. To the contrary, he called his hand ‘God’s hand’, hinting at a higher truth being in play when he managed to conceal his infraction of the rules. When Arne Larsen Økland called for honesty, he in reality stripped the ritual called ‘football’ of all its aura and magic. What he really said was that honesty is more important than winning, and thus, alas, that football is not really important in itself. Arne Larsen Økland killed the illusion behind the play, the illusion that makes football into what it is: a simulacrum that people all around the world consider to be important. As the sociologist Émile Durkheim stated, every society needs something to be viewed as holy, and this sphere is infused in ritual. Breaking the rules maintaining this illusion would amount to challenging the basis of society. The Norwegian playwright Henrik Ibsen said the same in a different way: ‘Take the life-lie away from the average man and straight away you take away his happiness’. Rituals are rituals precisely because they are considered important: holy. Yet rituals are always played with. If not, they are not rituals anymore, only ossified observances. By the same token, on the football pitch the play must take place within a ritual context, not outside it, as the latter would undermine it. The same goes for medieval rituals: People were intensely aware that rituals could be influenced or even manipulated. However, that did not take away the power or the magic of the ritual. To the contrary, it strengthened the ritual and confirmed the connections between sign and essence, the event and its transcendental counterpart, underlying the ritual. People will always prefer the lying victor to the honest loser.

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Bibliography Primary Sources Bögl: Bo̧glunga saga. In: Hákonar saga Hákonarsonar 1, ed. by Þorleifur Hauksson/Sverrir Jakobsson/Tor Ulset (2013): Íslenzk fornrit, 31. Reykjavík, pp. 1–146. Eg: Egils saga Skalla-Grímssonar, ed. by Sigurður Nordal (1933): Íslenzk fornrit, 2. Reykjavík. Eg: Egil’s Saga, transl. by W. R. Green (2011). Overland Park, KS. Hák: Hákonar saga. In: Hákonar saga Hákonarsonar, ed. by Sverrir Jakobsson/Tor Ulset (2013): Íslenzk fornrit, 31–32. Reykjavík, vol. 1, pp. 169–329; vol. 2, pp. 1–267. Háv: Hávamál. In: Eddukvæði 1. Goðakvæði, ed. by Jónas Kristjánsson/Vésteinn Ólason/Þórður Ingi Guðjónsson (2014). Reykjavík, pp. 322–355. Mork: Morkinskinna, ed. by Þórður Ingi Guðjónsson/Ármann Jakobsson/Tor Ulset (2011). 2 vols.: Íslenzk fornrit, 23–24. Reykjavík. Mork: Morkinskinna: The Earliest Icelandic Chronicle of the Norwegian kings (1030–1157), transl. by Theodore M. Andersson/Kari Ellen Gade (2000): Islandica, 51. Ithaca. Sv: Sverris saga, ed. by Þorleifur Hauksson (2007): Íslenzk fornrit, 30. Reykjavík. Trist: Tristrams saga ok Ísöndar. In: Norse Romance 1: The Tristan Legend, ed. by Marianne E. Kalinke, transl. by Peter Jorgensen (1999). Cambridge, pp. 23–226. Tristan by Gottfried of Strassburg, transl. A.T. Hatto (1960). Harmondworth.

Secondary Sources Althoff, Gerd (2002): The Variability of Rituals in the Middle Ages. In: Althoff, Gerd/Fried, Johannes/Geary, Patrick J. (eds.): Medieval Concepts of the Past: Ritual, Memory, Historiography. Washington, pp. 71–88. Andersen, Per Sveaas (1977): Samlingen av Norge og kristningen av landet: 800–1130. Bergen. Bagge, Sverre/Helle, Knut/Smedsdal, Synnøve Holstad (eds.) (1973): Norske middelalderdokumenter. Bergen. Bagge, Sverre (1996): From Gang Leader to the Lord’s Anointed: Kingship in Sverris saga and Hákonar saga Hákonarsonar. Odense. Bagge, Sverre (2001): Law and Justice in the Middle Ages: A Case Study. In: Bisgaard, Lars/Nyberg, Tore/Bagge, Sverre (eds.): Medieval Spirituality in Scandinavia and Europe: A Collection of Essays in Honour of Tore Nyberg. Odense, pp. 73–85. Bagge, Sverre (2010): From Viking Stronghold to Christian Kingdom: State Formation in Norway, c. 900–1350. København. Bartlett, Robert (1986): Trial by Fire and Water: The Medieval Judicial Ordeal. Oxford. Bartlett, Robert (2008): The Natural and the Supernatural in the Middle Ages. Cambridge. Bartlett, Robert (2013): Why Can the Dead do Such Great Things?: Saints and Worshippers from the Martyrs to the Reformation. Princeton. Bjørgo, Narve (1967): Om skriftlege kjelder for Hákonar saga. In: (Norwegian) Historisk Tidsskrift, 46, pp. 185–229. Bjørgo, Narve (1970): Samkongedøme kontra einekongedøme: ein analyse av norsk kjeldemateriale i historiografisk perspektiv. In: (Norwegian) Historisk Tidsskrift, 49, pp. 1–33. Boynton, Susan/Reilly, Diane J. (2011): The Practice of the Bible in the Middle Ages: Production, Reception & Performance in Western Christianity. New York. Brown, Peter (1975): Society and the Supernatural: A Medieval Change. In: Daedalus, 104, pp. 133–151.

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Buc, Philippe (2001): The Dangers of Ritual: Between Early Medieval Texts and Social Scientific Theory. Princeton. Clanchy, Michael T. (1993): From Memory to Written Record: England 1066–1307. Oxford. Clunies Ross, Margaret (1998): Prolonged Echoes: Old Norse Myths in Medieval Northern Society 2: The Reception of Norse Myths in Medieval Iceland. Odense. Durkheim, Émile (1984): The Division of Labour in Society. London. Enfield, Nick J. (2009): Everyday Ritual in the Residential World. In: Senft, Gunter/Basso, Ellen B. (eds.): Ritual Communication. Oxford, pp. 51–80. Eriksen, Stefka Georgieva (2014): Writing and Reading in Medieval Manuscript Culture: The Translation and Transmission of the Story of Elye in Old French and Old Norse Literary Contexts. Turnhout. Esmark, Kim (2010): Hellige ben i indviet ild: den rituelle sanktifikation av kong Knud IV, 1095. In: Orning, Hans Jacob/Esmark, Kim/Hermanson, Lars (eds.): Gaver, ritualer, konflikter: et rettsantropologisk perspektiv på nordisk middelalderhistorie. Oslo, pp. 165–210. Flint, Valerie I. J. (1991): The Rise of Magic in Early Medieval Europe. Princeton. Geary, Patrick J. (1994): Humiliation of Saints. In: Geary, Patrick J.: Living with the Dead in the Middle Ages. Ithaca, pp. 95–115. Gurevich, Aron Ya (1988): Medieval Popular Culture: Problems of Belief and Perception. Cambridge. Hallberg, Peter (1969): Den isländska sagan. Stockholm. Helle, Knut (1974): Norge blir en stat: 1130–1319. Bergen. Helle, Knut (2001): Gulatinget og Gulatingslova. Leikanger. Helle, Knut/Kouri, E. I./Olesen, Jens E. (eds.) (2003): The Cambridge History of Scandinavia: Prehistory to 1520. Cambridge. Hiatt, Alfred (2004): The Making of Medieval Forgeries: False Documents in Fifteenth-century England. London. Hyams, Paul R. (1981): Trial by Ordeal: The Key to Proof in the Early Common Law. In: Arnold, Morris S. (ed.): On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne. Chapel Hill, pp. 90–126. Jezierski, Wojtek et al. (eds.) (2015): Rituals, Performatives, and Political Order in Northern Europe, c. 650–1350. Turnhout. Jón Viðar Sigurðsson (2008): Det norrøne samfunnet: vikingen, kongen, erkebiskopen og bonden. Oslo. Jón Viðar Sigurðsson (2017): Skandinavia i vikingtiden. Oslo. Jón Viðar Sigurðsson/Sverrir Jakobsson (eds.) (2017): Sturla Þórðarson: Skald, Chieftain, and Lawman. Leiden. Kern, Fritz (1968): Kingship and law in the Middle Ages. Oxford. Keskiaho, Jesse (2015): Dreams and Visions in the Early Middle Ages: The Reception and Use of Patristic Ideas, 400–900. Cambridge. Krag, Claus (1975):Skikkethet og arv i tronfølgeloven av 1163. In: (Norwegian) Historisk Tidsskrift, 54, pp. 153–180. Le Goff, Jacques (1988): Medieval Civilization 400–1500. Oxford. Lévi-Strauss, Claude (1986): Structural Anthropology 1. Harmondsworth. Liere, Franciscus A. Van (2014): An Introduction to the Medieval Bible. Cambridge. Lunden, Kåre (1976): Norge under Sverreætten, 1177–1319: Høymiddelalder. Oslo. Lönnroth, Lars (2002): Dreams in the Sagas. In: Scandinavian Studies, 74, pp. 455–464. Mitchell, Stephen A (2011): Witchcraft and Magic in the Nordic Middle Ages. Philadelphia. Monclair, Hanne (2004): Fortidens grunnleggende annerledeshet? In: (Norwegian) Historisk tidsskrift, 83, pp. 482–504. Moore, Robert I. (2000): The First European Revolution, c. 970–1215. Oxford.

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Nordby, Ole-Albert Rønning (2019): The Judicial Oath in Medieval Norway: Compurgation, Community and Knowledge in the Thirteenth Century. Ph.d. in History, University of Oslo. Norseng, Per (1991): Law codes as a source for Nordic history in the early middle ages. In: Scandinavian Journal of History, 16, pp. 137–166. Orning, Hans Jacob/Esmark, Kim/Hermanson, Lars (eds.) (2010): Gaver, ritualer, konflikter: et rettsantropologisk perspektiv på nordisk middelalderhistorie. Oslo. Orning, Hans Jacob (2010): Det rettsantropologiske perspektivet og staten. In: Orning, Hans Jacob/ Esmark, Kim/Hermanson, Lars (eds.): Gaver, ritualer, konflikter: et rettsantropologisk perspektiv på nordisk middelalderhistorie. Oslo, pp. 251–290. Orning, Hans Jacob (2018): Feud in the State: The Conflict between Haakon Haakonsson and Skule Baardsson. In: Gilbert, Kate/White, Stephen D. (eds.): Emotion, Violence, Vengeance and Law: Essays in Honour of William Ian Miller. Leiden, pp. 202–224. Southern, Richard W. (1953): The Making of the Middle Ages. New Haven. Thomas, Keith (1971): Religion and the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth Century England. London. Toury, Gideon (1995): Descriptive Translation Studies and Beyond. Amsterdam. Vilhjálmur Árnason (1991): Morality and Social Structure in the Icelandic Sagas. In: Journal of English and Germanic Philology, 90, pp. 157–174. Wax, Rosalie/Wax, Murray (1962): The Magical World View. In: Journal for the Scientific Study of Religion, 1, pp. 179–188. White, Stephen D. (1995): Proposing the Ordeal and Avoiding it: Strategy and Power in Western French Litigation, 1050–1100. In: Bisson, Thomas N. (ed.): Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe. Philadelphia, pp. 89–123. Wickham, Chris (2016): Medieval Europe. New Haven. Wærdahl, Randi Bjørshol (2017): Gautr Jónsson of Mel: craftsman of battle and chief oral source of Hákonar saga. In: Jón Viðar Sigurðsson/Sverrir Jakobsson (eds.): Sturla Þórðarson: Skald, Chieftain, and Lawman. Leiden, pp. 107–119.

Ármann Jakobsson

Law Personified. The Ignored Climactic Speeches of Brennu-Njáls saga An Unacknowledged Climax? The word ‘dry’ has the habit of rearing its head when an adjective seems needed to accompany ‘legal text’.1 Even today and even though the speaker could still spend many hours a week watching courtroom dramas on television, the idea persists that legal texts are somehow not a proper part of literature. And yet legal dramas have been an important part of popular entertainment for the last century, with films and television not only examining every aspect of the courtroom but also drawing a vast law-obsessed audience to the screens in every corner of the world.2 The medieval Sagas of Icelanders may perhaps provide some of the best evidence that the entertainment value of law is far from a recent discovery, in particular Brennu-Njáls saga which will be the main subject of this study.3 Uniquely among the Sagas of Icelanders, Brennu-Njáls saga exists in as many as 21 parchment manuscripts from the 14th, 15th and 16th century.4 The manuscript preservation points to the saga being held in high regard throughout its long reception history: manuscripts demonstrate relatively little variance and certainly do not point towards any parts of the text being seen as less compelling than others at the time of the manuscript transmission. This is not necessarily paralleled in the modern era where complaints are frequent about the end segment of the saga, after the burning of Njáll and his sons.

1 On this trope, see Lavery 1922, p. 271. 2 Thus far there is scant comprehensive study about how the law functions in a film or television setting but for an interesting overview see Bergman/Asimow 1996; a more focused analysis can be found in the articles of the Journal of Law and Society 2001. 3 Initially, in the 19th century, there was scant interest in the function of the law within the sagas, more on the sagas as possible but essentially flawed sources for legal history. This changed in the late 20th century when scholars such as Byock 1982 and Miller 1990 began to utilise the sagas as important sources for a more subtle understanding of the free state legal system. Partly inspired by those studies, Pencak 1995 used the sagas for a more abstract discussion on justice. In a recent analysis of legal procedures of Njáls saga, Clover 2018 demonstrates that the saga contains interesting narratives about the collection of evidence, standards of proof, and the founding of trials, i.e the pre-procedural work of the law. This study takes up that particular baton in being most concerned with the law as a structural element in the saga. 4 The best published review study of this manuscript tradition is still Einar Ól. Sveinsson 1952. The ongoing project at Árnastofnun, led by Svanhildur Óskarsdóttir, aims at further illuminating the tradition, in preparation for an electronic text archive of Njáls saga, a computer-assisted reconsideration of the Njála stemma and, eventually, a new critical edition. https://doi.org/10.1515/9783110661811-004

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Some modern editors of Njáls saga who have wanted to reach a young audience have even left out some of the ‘boring bits’, including much of the last quarter of the saga.5 The abridged Njáls saga is a testament to how baffled many modern readers may be by the last quarter of the saga and not least its strong focus on the legal procedures at the Alþingi that, for example, take up the entire (and lengthy) Chapters 141 to 144 in the standard edition. There is no economy in these medieval courtroom scenes; they are lengthy and verbose and direct speech is dominant, indicating that these should, in spite of lack of current popularity, be regarded as highly significant parts of the saga. I will provide an example out of many: Mǫrðr Valgarðsson nefndi sér vátta ok bauð til hlutfalla þeim mǫnnum, er skóggangssakir áttu at sœkja í dóminn, hverr sína sǫk skyldi fyrst sœkja eða fram segja eða hverr þar næst eða hverr síðast; bauð hann lǫgboði at dómi, svá at dómendr heyrðu. Þá váru hlutaðar framsǫgur, ok hlaut hann fyrstr fram at segja sína sǫk. Mǫrðr nefndi sér vátta í annat sinn, – ’nefni ek í þat vætti, at ek tek miskviðu alla ór máli mínu, hvárt sem mér verðr ofmælt eða vanmælt. Vil ek eiga rétting allra orða minna, unz ek kem máli mínu til réttra laga. Nefni ek mér þessa vátta eða þeim ǫðrum, er neyta eða njóta þurfu þessa vættis.’ Mǫrðr mælti: ‘Nefni ek í þat vætti, at ek býð Flosa Þórðarsyni eða þeim manni ǫðrum, er handselda lǫgvǫrn hefir fyrir hann, at hlýða til eiðspjalls míns ok til framsǫgu sakar minnar ok til sóknargagna þeira allra, er ek hygg fram at fœra á hendr honum; býð ek lǫgboði at dómi, svá at dómendr heyra um dóm þveran.’ Mǫrðr mælti: ‘Nefni ek í þat vætti,’ sagði hann, ‘at ek vinn eið at bók, lǫgeið, ok segi ek þat guði, at ek skal svá sǫk þessa sœkja sem ek veit sannast ok réttast ok helzt at lǫgum ok ǫll lǫgmæt skil af hendi inna, meðan ek em á þessu þingi.’ Síðan kvað hann svá at orði: ‘Þórodd nefnda ek í vætti, annan Þorbjǫrn nefnda ek í þat vætti, at ek lýsta lǫgmætu frumhlaupi á hǫnd Flosa Þórðarsyni á þeim vættvangi, er Flosi Þórðarson hljóp lǫgmætu frumhlaupi til Helga Njálssonar, þá er Flosi Þórðarson særði Helga Njálsson holundar sári eða heilundar eða mergundar, því er at ben gerðisk ok Helgi fekk bana af. Talða ek hann eiga at verða um sǫk þá sekjan skógarmann óalanda, óferjanda, óráðanda ǫllum bjargráðum; talða ek sekt fé hans allt, hálft mér, en hálft fjórðungsmǫnnum þeim, er sektarfé eigu at taka eptir hann at lǫgum. Lýsta ek til fjórðungsdóms þess, er sǫkin á í at koma at lǫgum; lýsta ek lǫglýsing; lýsta ek í heyranda hljóði at lǫgbergi; lýsta ek nú til sóknar í sumar ok til sektar fullrar á hǫnd Flosa Þórðarsyni. Lýsta ek handseldri sǫk Þorgeirs Þórissonar. Hafða ek þau orð ǫll í lýsingu minni, sem nú hefi ek í framsǫgn sakar minnar. Segi ek svá skapaða skóggangssǫk þessa fram í Austfirðingadóm yfir hǫfði Jóni, sem ek kvað at, þá er ek lýsta.’ Mǫrðr mælti: ‘Þórodd nefnda ek í vætti, annan Þorbjǫrn nefnda ek í þat vætti, at ek lýsta sǫk á hǫnd Flosa Þórðarsyni um þat, er hann særði Helga Njálsson holundar sári eða heilundar eða mergundar, því sári, er at ben gerðisk, en Helgi fekk bana af, á þeim vættvangi, er Flosi Þórðarson hljóp til Helga Njálssonar áðr lǫgmætu frumhlaupi. Talða ek hann eiga at verða um sǫk þá sekjan skógarmann, óalanda, óferjanda, óráðanda ǫllum bjargráðum; talða ek sekt fé hans allt, hálft mér, en hálft fjórðungsmǫnnum þeim, er sektarfé eigu at taka eptir hann at lǫgum. Lýsta ek til fjórðungsdóms þess, er sǫkin á í at koma at lǫgum; lýsta ek lǫglýsing; lýsta ek í heyranda hljóði at lǫgbergi; lýsta ek nú til sóknar í sumar ok til sektar fullrar á hǫnd Flosa Þórðarsyni. Lýsta ek handseldri sǫk Þorgeirs Þórissonar. Hafða ek þau orð ǫll í lýsingu minni, sem nú hefi ek í framsǫgn sakar minnar. Segi ek svá skapaða skóggangssǫk þessa fram í Austfirðingadóm yfir hǫfði Jóni, sem ek kvað at, þá er ek lýsta.’

5 See e.g. Njáls saga, ed. Gunnar Finnbogason.

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Lýsingarváttar Marðar gingu þá at dómi ok kváðu svá at orði, at annarr talði vætti fram, en báðir guldu samkvæði, at – ‘Mǫrðr nefndi Þórodd í vætti, en annan mik, en ek heiti Þorbjǫrn’ – síðan nefndi hann fǫður sinn – ‘Mǫrðr nefndi okkur í þat vætti, at hann lýsti lǫgmætu frumhlaupi á hǫnd Flosa Þórðarsyni, er hann hljóp til Helga Njálssonar, á þeim vættvangi, er Flosi Þórðarson veitti Helga Njálssyni holundar sár eða heilundar eða mergundar, þat er at ben gerðisk, en Helgi fekk bana af. Talði hann Flosa eiga at verða um sǫk þá sekjan skógarmann, óalanda, óferjanda, óráðanda ǫllum bjargráðum; talði hann sekt fé hans allt, hálft sér, en hálft fjórðungsmǫnnum þeim, er sektarfé eigu at taka eptir hann at lǫgum. Lýsti hann til fjórðungsdóms þess, er sǫkin átti í at koma at lǫgum; lýsti hann lǫglýsing; lýst hann í heyranda hljóði at lǫgbergi; lýsti hann nú til sóknar í sumar ok til sektar fullrar á hǫnd Flosa Þórðarsyni. Lýsti hann handseldri sǫk Þorgeirs Þórissonar. Hafði hann þau orð ǫll í lýsingu sinni, sem hann hafði í framsǫgu sakar sinnar ok vit hǫfum í vitnisburð okkrum. Hǫfu vit nú rétt borit vætti okkart ok verðum báðir á eitt sáttir; beru vit svá skapat lýsingarvætti þetta fram í Austfirðingadóm yfir hǫfði Jóni, sem Mǫrðr kvað at, þá er hann lýsti.’.6 ‘Mǫrðr Valgarðsson named his witnesses and offered decision by hazard to those men who were prosecuting outlaw cases to the court as to who to prosecute and speak first and who last; he offered this legally at the court in front of the judges. Then the lots were cast and he was the first to speak his case. Mǫrðr named his witnesses for the second time: ‘They will attest to the fact that it will not matter whether I misspeak, whether I add or forget something. I want to be able to correct myself until I speak my case in the proper court. I name these witnesses for myself and also for those others who will benefit or need this testimony.’ Mǫrðr said: ‘I will say before these witnesses that I offer to Flosi Þórðarson or whomever who has undertaken his legal defense to listen to my oaths and to the prosecution of my case and to all those prosecution facts that I will offer against him; I offer this legally at the court so that the judges will hear from their place in the court.’ Mǫrðr said: ‘I say in front of the witnesses that I swear an oath at the book, a legal oath, and say that to God that I will state this case as I know it to be true and just and in accordance with the law and all legal duties will I pursue while I am at this court.’ Then he said: ‘I name Þóroddr as a witness and also Þorbjǫrn will I name that I declared legal action against Flosi Þórðarson in the very place where Flosi Þórðarson took action against Helgi Njálsson, when Flosi Þórðarson wounded Helgi Njálsson with a wound to the head or to the body or to the marrow that proved fatal and led Helgi to his death. I declared that he should be for this action a guilty man and an outlaw who should not be fed or helped or harboured in need. I claimed that his money should be forfeit, half to me but half to those men of the quarter who should get his forfeited money by law. I declared this to the correct quarter court in which the action should be prosecuted by law. I declared this legally. I declared this in front of witnesses at the law hills. I declared now this action this summer and for full prosecution against Flosi Þórðarson. I declared the action handed to me by Þorgeirr Þórisson. I used all the same words in my declaration that I have now used in this declaration. I now declare this suit of outlawry in the Eastfjords court over the head of John as I uttered it when I declared it.’ Mǫrðr said: I named Þóroddr as a witness and also Þorbjǫrn I named to witness that I declared legal action against Flosi Þórðarson for the fact that he wounded Helgi Njálsson with a wound to the head

6 Brennu-Njáls saga, ed. Einar Ólafur Sveinsson, pp. 379–82. All textual references to the saga are to this edition. The following translation is by the author.

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or to the body or to the marrow that proved fatal and led Helgi to his death in the very place where Flosi Þórðarson attacked Helgi Njálsson as was previously legal. I surmised that he should be for this action a guilty man and an outlaw who should not be fed or helped or harboured in need. I claimed that his money should be forfeit, half to me but half to those men of the quarter who should get his forfeited money by law. I declared this to the very quarter where the case belongs. I declared this legally. I declared this in front of witnesses at the law hills. I declared this action this summer and for full prosecution against Flosi Þórðarson. I declared the action handed to me by Þorgeirr Þórisson. I used all the same words in my declaration that I have now used in this declaration. I now declare this suit of outlawry in the Eastfjords court over the head of John as I uttered it when I declared it.’ Mǫrðr’s witnesses now stepped to the court and spoke in the way that one offered testimony that both agreed to this that ‘Mǫrðr named Þóroddr as a witness but also me and my name is Þorbjǫrn’ – and then he named his father – ‘Mǫrðr named us as witnesses to the fact that he declared legal action against Flosi Þórðarson for the fact that he attacked Helgi Njálsson in the very place where Flosi Þórðarson wounded Helgi Njálsson with a wound to the head or to the body or to the marrow that proved fatal and led Helgi to his death. He surmised that he should be for this action a guilty man and an outlaw who should not be fed or helped or harboured in need. He claimed that his money should be forfeit, half to him but half to those men of the quarter who should get his forfeited money by law. He declared this to the quarter where the case belonged. He declared this legally. He declared this in front of witnesses at the law hills. He declared this action for this summer and for full prosecution against Flosi Þórðarson. He declared the action handed to him by Þorgeirr Þórisson. He used all the same words in his declaration that he now has used in his prosecution of the case and that we have used in our testimony. We have now testified correctly and are both agreed that we bring forth this just testimony in the Eastfjords court over the head of John as Mǫrðr uttered it when he declared it.

There is more of this: all in all the rare words for wound types, ‘heilund’, ‘holund’ and ‘mergund’, prominent in Mǫrðr Valgarðsson’s speech but otherwise only found in Grágás, a collection of Iceland’s commonwealth laws already outdated at the time of the writing of the saga,7 each appears ten times in the saga, which is dominated by such legal phraseology for almost fifty pages (pp. 354–401) in the Íslenzk fornrit edition. What the modern audience notes first are the repetitions: three speeches of striking similarity, perhaps dull to a lone reader having to gather them through print but which gain much potency if they are recited in full to a large gathering, as the present author experimented with himself three times before an audience of 80–90 people in Reykjavík in November 2016. When read in full by a speaker not in a hurry and with confidence in the text, they eventually gain a poetic potential, both on account of repetition and rhyming but also the long paratactic sentences that demand much of the speaker – none of which would be immediately apparent to a reader with a printed book in hand. One may imagine a medieval audience

7 On the language of Grágás, see McGlynn 2009.

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listen in rapture, transfixed by the sound of law. In the late Middle Ages, these passages would with certainty not have been left out.8 Indeed, though the saga may focus on other matters, it could be argued that, by themselves, these lengthy passages do not have the appearance of being superfluous at all; rather, when read out aloud they sound much like the very climax of the narrative. Why else spend this amount of space on it? That this climactic nature of the trial evades many a modern reader does not necessarily mean that it was similarly dull to its late medieval audiences even though they would have been listening to outdated laws. Thus, it could be argued that the role of the modern interpreter is to try to understand its meaning, rather than summarily dismissing it as of no interest. What follows is such an attempt.

Law Personified as a Saga Character The rhythm of the text is one logical path to choose in order to begin the journey towards an understanding of these lengthy parliament scenes in Njáls saga that fill so much space in the second half of the saga. They have their own aesthetic value, if carefully scrutinised. Another revealing truth of the scenes is that they deal with legal interpretation and the ambiguity of law, and they could provide a good case study illustrating the fact that legal texts can be as tricky to interpret as any other texts.9 Furthermore, it can be argued that these court scenes are also significant in the larger context of Njáls saga where law plays a primary role. Even though the saga’s first half does not have scenes of equal length or legal dialogue, possibly since the author has been saving them for the climax, the saga as a unity still reveals a preoccupation with law, lawsuits and legal thought, and perhaps not least legal heroes, indicating that the law should be regarded as a major agent in the saga from the outset.

8 While scholars have often ignored these passages, a notable exception is Miller who, although he does not spend much time on them, acknowledges their appeal to the medieval audience: ‘The author is not writing for lawyers, but for people who enjoy trial drama. It is remarkable how well the Njála author anticipated modern courtroom dramas” (2014, p. 267). His reading of the saga is very law orientated and he has many interesting things to say about how law is construed in the saga (pp. 260–265). 9 As Dworkin 1982 famously argued, interpretation is always among the major facets of law, and consequently, it stands to reason that laws are like all other types of literature in that there is room for ambiguity and often several possible interpretations, although laws, somewhat unlike some other literary texts, do not strive to be ambiguous or multi-layered. Nevertheless, they often become so, also on account of their long survival through different generations with different sets of interpretation codes.

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Concerning beginnings, the saga opens with the maternal grandfather of that very Mǫrðr who is the main character in the passage above, also named Mǫrðr. This former Mǫrðr possesses such a legal mind that judgements at the Alþingi are said to lose their validity if he is not present (Brennu-Njáls saga, p. 5). Thus, he seems to embody the very institution of law. Of course, it can also be argued that the statement about his stature at parliament also foreshadows the aforementioned lengthy Alþingi scenes where his grandson and namesake gets the floor and keeps it. Thus, from the very beginning the saga suggests its climax will be in the legal drama of the parliament. The figure of this first Mǫrðr is also very important in the saga, even though he himself dies relatively early, since his heirs as legal embodiments keep appearing at crucial moments in the saga. After the first Mǫrðr is humiliated at the legal assembly, þing, in a brutal legal dispute rooted in his son-in-law’s impotence, Hrútr Herjólfsson briefly becomes the dominating magnate of the narrative. The wise Hrútr is still more hero than lawyer and perhaps this is why he is also vanquished soon, again at the legal assembly, by the heroic Gunnarr of Hlíðarendi who is supported by the intricate legal machinations of Njáll, the titular character of the saga, who much like the first Mǫrðr seems to more or less embody the law in his own person and indeed continues to manipulate it right until he manages to overhaul the legal system of the country near the middle of the saga. To sum up, Mǫrðr is introduced and built up as a central figure, then humiliated, and next replaced by Njáll who, unlike him, has the wisdom to avoid taking centre-stage as the embodiment of the law, but who willingly plays a supporting role, always behind the heroic Gunnarr, manipulating people, events and entire conversations from a distance, for example in the Kaupa-Héðinn episode where he and Gunnarr compose a whole play for Gunnarr to act out in order to trick and humiliate Hrútr (Brennu-Njáls saga, pp. 58–65). By lurking in the shadows, Njáll thus evades becoming the focus of any magnate’s wrath.10 Most of the first half of the saga is dominated by Gunnarr’s endless disputes with regional nabobs, usually culminating in an Alþingi scene where Njáll’s schemes prove victorious and Gunnarr emerges with even more honour than before (see e.g. Brennu-Njáls saga, pp. 68, 133, 146, and 166). After Gunnarr’s death, the one event Njáll is unable to prevent, one might think that the patron had lost his purpose and he is indeed visibly shaken. However, he soon acquires a new client, Hǫskuldr Þráinsson; this time lavishing such attention and affection on his protégée that his own biological sons end up disaffected and only too ready to become foils for the machinations of Mǫrðr Valgarðsson, grandson of the former Mǫrðr, another formidable legal mind who has for a long while been displeased with his meager role in

10 Though he later draws the ire of his friend’s wife Hallgerðr who resents the friendship of the unlikely duo of Gunnarr and Njáll.

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society (Brennu-Njáls saga, pp. 275–280). It is when making sure Hǫskuldr gets the best possible wife that Njáll’s manipulations reach a new high: the saga reveals that the entire institution of the Fifth Court was created on account of him giving bad advice in a court case. This leads to strife and chaos that Njáll then conveniently solves by suggesting a new court of last resort, a circumstance that also means a new chieftaincy, goðorð, for his favourite. Though the Lawspeaker, lǫgsǫgumaðr, formally instigates the Fifth Court, in the saga he is revealed to be mere putty in the hands of Njáll the masterful legal manipulator (Brennu-Njáls saga, pp. 240–246).11 The establishment of the Fifth Court happens right after the middle of the saga, just before the Christianization of Iceland (c. 1000), another focal point of a saga that sometimes seems to be imagined as a history of Iceland.12 While most of the major Sagas of Icelanders deal only with regional or family conflict, Njáls saga is supra-regional in scope and follows the Íslendingabók of Ari Þorgilsson the Learned in keeping its focus on the Alþingi at Þingvellir and the office of the Lawspeaker (uniquely, three such appear in Njáls saga), even though this sole official of the Icelandic ‘free state’ tends in this saga to be eclipsed by other legal geniuses such as Mǫrðr, Njáll, and Þórhallr Ásgrímssson who take turns being the best ‘unofficial’ legal mind of Iceland.

The Mantle of Mǫrðr The importance of law as an entity in Njáls saga has thus been firmly established long before the legal disputes following the burning of Njáll. There is a significant difference in the way that legal phraseology is folded naturally into the feuds of the saga’s first half and the way, in the second half, that law and legal proceedings begin to dominate to the extent that the lengthy scenes seem almost to stem from a fetishization of legal proceedings, legal logic, and legal language. And yet it is hardly useful to succumb to the temptation of many modern readers and deem them insignificant for the narrative. It seems more logical that they cannot be: they are too many, too long, and too close to the theme of the saga. On the contrary, they could be seen as the actual climax of the saga to its late medieval audience. Even though the first Mǫrðr is only on stage very briefly in the saga, one may see the rest of it as the fight for his mantle. His status within the institution of law was such that he had to be always present for a verdict to be legal. Such a hyperbolic statement is not made about anyone after that, but Njáll’s presence throughout the saga makes it clear that he is the true heir of Mǫrðr, in his each and every

11 On the conflicting views of the lawspeaker Skapti Þóroddsson in the sagas, see Ármann Jakobsson 2014. 12 Cf. Andersson 2006, pp. 183–203.

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machination, the climax of which must be his unofficial foundation of the Fifth Court as a kind of Taj Mahal for his loved one: a whole new level of courts just to ensure that the favourite gets the best possible matrimony. In that scene, Njáll is as firmly in control of law itself as Mǫrðr is at the beginning of the saga. There is simply nothing he cannot achieve. This overwhelming presence of a legal genius leads to a vacuum after the burning of Njáll, when he is no longer present at the assemblies to win every case.13 One possible heir of Mǫrðr and Njáll would seem to be Njáll’s foster-son Þórhallr Ásgrímsson who becomes an important character only late in the saga but is introduced early as having been taught so well by Njáll that he becomes, respectively, the best or the third best legal mind in the country (Brennu-Njáls saga, pp. 74, 279 and 359).14 And yet Þórhallr is hampered by a foot infection so that he cannot take part in the climactic legal debate at parliament (Brennu-Njáls saga, p. 359) and thus the mantle of chief prosecutor falls momentarily on Mǫrðr Valgarðsson who before that moment had been presented as envious, villainous and cowardly, if also often able and effective both in detection, propaganda and counsel. Now, however, he has become an ally of the family of Njáll through having incited his sons to kill Hǫskuldr Þráinsson. Thus, the main role as the law incarnate has now passed, through Njáll, from Mǫrðr to Mǫrðr. That the later Mǫrðr, arguably the villain of the saga, has such prominence in these scenes seems at first paradoxical but, as argued by Robert Cook,15 Mǫrðr very remarkably does not get his comeuppance at the saga’s end but continues to enjoy his previous status and is even partly vindicated, emerging on the side of the good guys, albeit reluctantly. And, if eventually not winning his case, he nonetheless has a grand day in court while the more renowned lawyer Þórhallr is absent and must instead acquit himself well in a battle at the Alþingi (in which Mǫrðr plays only a secondary role). Is Mǫrðr Valgarðsson playing at being Njáll in the lengthy legal disputes at the climactic parliament of the narrative? Or, are they both playing at being the first Mǫrðr? It can be argued that the second Mǫrðr is far from as effective as Njáll in his role as law embodied since a new player has emerged, Eyjólfr Bǫlverksson, an unscrupulous and covetous mercenary more interested in legal technicalities than justice. In the lengthy legal proceedings that follow, justice does not triumph. The absence of Njáll, and that of his student Þórhallr who can only give directions from his sickbed through messengers, is keenly felt. The law, in the final analysis, does not work. In spite of his eloquence, Mǫrðr is not effective. The saga audience can

13 For the purposes of this study, I can pass over the considerable ambiguity whether Njáll emerges victorious or not from his very last parliament or what exactly his plan was there, cf. e.g. Ármann Jakobsson 2007; Tirosh 2014. 14 There does not have to be any contradiction in that: when Njáll and the lawspeaker are still living, he can only be third, but possibly, at some later stage, he reached the pinnacle. 15 Cook 2001.

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hear his voice thundering in direct speech through several chapters and will feel that he must be in control: Law will triumph. But the end result is an anti-climax, as his case is lost through Eyjólfr’s trickery, leading to the more physical climax of the saga, the battle at the alþingi. This would all be far less tragic if the author of Njáls saga had not spent so much energy setting up the legal mind as the hero of the story, even law itself. But this is all thwarted. Þórhallr lies lame when he is most needed, Mǫrðr Valgarðsson is foiled by Eyjólfr, evil triumphs over good, until Þórhallr rises from his sick bed and instigates battle. That this battle is the end result of all the legal verbosity, after the actual courtroom drama is halted, also seems highly suggestive.16 Is the author indicating that law is not as powerful as hitherto believed and that it is eventually secondary to war and bloodshed? There is an underlying ambiguity in the saga’s whole stance towards law, beyond the scope of this study to unravel. However, whatever the message is, the lengthy legal parlance of Mǫrðr in the courtroom scenes of the saga is fundamental to it.

Law and Order: The Legal Hero Njáls saga, as all great works of art, is about many things. One of its main stories is the story of the legal hero that has been outlined in this study, and this is the story that reaches its highlights in the lengthy legal procedures at the end. They are not an excursus since all that has happened before in the saga has led up to them: the conflict between Mǫrðr and Hrútr, the alliance of Gunnarr and Njáll, the establishing of the Fifth Court, the Christianization narrative, the vain attempts of the sons of Njáll to seek support from all the top brass of Iceland’s elite after the killing of Hǫskuldr Þráinsson. The lengthy legal discourse at the Alþingi provides a necessary high point for the story in its entirety. And, in chronicling the breaking down of legal procedure and the resultant battle, the structure of Njáls saga seems to parallel gradual developments in Icelandic society during the 12th and 13th centuries which climaxed in several brutal battles of 1238–46, and eventually led Icelanders to turn to the Norwegian king to keep the peace and, soon after, abolish the legal system portrayed both lovingly and critically in Njáls saga.17

16 That the principal parties seem to have planned for the eventuality of a battle is hardly a lesser indictment over the system as such. 17 Pencak 1995. In this book, he argues that in Njáls saga, the laws as such are not fallible as much as the humans who practice them. There are laws that few people know and there are several examples of cases being thrown out on account of a technical irregularity. As for the legal system that succeeded it, see e.g. Lára Magnúsardóttir 2018.

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If Njáls saga was only the story of the individual Njáll, it might not make sense that the saga goes on for 30 chapters after the death of the protagonist, and it also might seem strange to introduce him in Chapter 20. However, Njáll is only partly the protagonist as an individual. He has the additional role of embodying the law, a role taken over from the first Mǫrðr after his death, a role that after Njáll’s own death is not successfully filled in the last part of the saga, quite possibly a major reason why the law thereafter seems so strangely ineffective, without the proper legal hero to make everything right. Far from being unnecessary, the lengthy legal procedures at the Alþingi after the burning of Njáll and his sons form the main part of an important statement: that law itself is fallible and that it needs the proper person to embody it in order for chaos not to erupt. To the original audience of Njáls saga at the end of the 13th century, gradually becoming accustomed to a new order in which the king embodies law and justice, this would have been an important truth to digest.

Bibliography Primary Sources Brennu-Njáls saga, ed. by Einar Ól. Sveinsson (1954): Íslenzk fornrit, 12. Reykjavík. Njáls saga, ed. by Gunnar Finnbogason (1977). Reykjavík.

Secondary Sources Andersson, Theodore M. (2006): The Growth of the Medieval Icelandic Sagas (1180–1280). Ithaca/ London. Ármann Jakobsson (2007): Masculinity and Politics in Njáls saga. In: Viator, 38, pp. 191–215. Ármann Jakobsson (2014): Tradition and the Individual Talent: The ‘historical figure’ in the medieval sagas, a case study. In: Viator, 45.3, pp. 101–124. Bergman, Paul/Asimow, Michael (1996): Reel Justice: The Courtroom Goes to the Movies. Kansas City. Byock, Jesse L. (1982): Feud in the Icelandic Saga. Berkeley/Los Angeles/Boston. Clover, Carol J. (2018): Telling Evidence in Njáls saga. In: Gilbert, Kate/White, Stephen D. (eds.): Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller. Leiden/Boston, pp. 175–188. Cook, Robert (2001): Mörður Valgarðsson. In: Ásdís Egilsdóttir/Simek, Rudolf (eds.): Sagnaheimur: Studies in Honour of Hermann Pálsson on his 80th birthday, 26th May 2001. Vienna, pp. 63–77. Dworkin, Ronald (1982). Law as Interpretation. In: Critical Inquiry 9, pp. 179–200. Einar Ól. Sveinsson (1952): Um handrit Njálssögu. In: Skírnir 126, pp. 114–152. Journal of Law and Society, 28.1. Special issue: Law and Film (2001). Lavery, Urban A. (1922): The Language of the Law, part II. In: American Bar Association Journal, 8, pp. 269–274.

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Lára Magnúsardóttir (2018): Loftur Helgason fer til Björgvinjar: Atvikalýsing í samhengi við sögu stjórnskipunarbreytinga á síðari hluta 13. aldar. In: Ritið, 18, pp. 65–94. McGlynn, Michael P. (2009): Orality in the Old Icelandic Grágás: Legal Formulae in the Assembly Procedures Section. In: Neophilologus, 93, pp. 521–536. Miller, William Ian (1990): Bloodtaking and Peacemaking: Feud, Law and Society in Saga Iceland. Chicago. Miller, William Ian (2014): ‘Why is Your Axe Bllody?’: A Reading of Njáls saga. Oxford. Pencak, William (1995): The Conflict of Law and Justice in the Icelandic Sagas. Amsterdam/Atlanta. Tirosh, Yoav (2014): Víga-Njáll: A New Approach Toward Njáls saga. In: Scandinavian Studies, 86, pp. 208–226.

Hannah Burrows

Court Poetry: Assemblies and Skaldic Verse Introduction: Poetry, Law and Narrative Varð, þá er víga Njǫrðu vilja þraut at skilja, lítt gekk skáld fyrir skjǫldu, Skapta mart at hapti, er matsjóðar Móða málmrógs flatan drógu, slíkt er allt af æðru, inn í búð at trúðar.1 Much by way of impediment came over Skapti, when they wished to separate the Nirðir of battle [WARRIORS] from the struggle – the skald didn’t go in front of the shields much – when the cooks dragged the Móði of the metal-strife [BATTLE > WARRIOR] flat – all such is from fear – into the juggler’s booth.

This stanza, attributed to Kári Sǫlmundarson in Brennu-Njáls saga, begins to expose several layers of the complex and multifaceted interrelationship that existed between law and poetry, particularly skaldic poetry, in medieval Iceland. First, Kári refers in verse to the serving lawspeaker, Skapti Þóroddsson – and second, explicitly refers to him as ‘skáld’, evoking a special affinity between law and poetry personified in this legal figurehead. Third, the stanza is not laudatory, evoking a third relationship between law and skaldic verse: the famous prohibitions in the medieval Icelandic law text Grágás against composing poetry about another person, of almost any sort whatsoever (‘löst ne löf’ [defamation nor praise]).2 Kári’s versified mockery of Skapti could, according to Grágás, have earned him a sentence of full outlawry.3 Fourth, Kári’s verse is composed about events which occurred at the alþing (General Assembly): the battle that breaks out when it seems the legal argumentation is not going to reach satisfactory resolution in the case for the burning of Njáll and his household. The prose account of the battle has already recounted that Skapti had been on his way to seek help from Snorri goði Þorgrímsson in breaking up the fight when he was speared through both legs by Ásgrímr Elliða-Grímsson and had to be dragged to safety. (A few paragraphs later, however, he has apparently recovered

1 Brennu-Njáls saga, p. 410. Translations throughout are mine unless otherwise stated, and for skaldic verse follow the conventions of the Skaldic Poetry of the Scandinavian Middle Ages project. 2 Grágás Ib, p. 183. 3 ‘Scog gang varðar ef maðr yrkir vm man hálfa víso þa er löstr er í eða haþung’ ([The penalty] will be full outlawry if someone composes half a stanza about someone that is defamatory or has mockery in it) (Grágás Ib, p. 183). https://doi.org/10.1515/9783110661811-005

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enough to intervene in the fighting alongside Snorri goði.) These events, and the stanza, are tied to a setting at an assembly by the explicit reference to the búð into which Skapti was reportedly dragged; Kári’s following stanza refers to ‘loknu þingi’ (the clos[ing] of the assembly).4 Fifth, and finally, according to Njáls saga, the stanza was actually recited at the alþing. It is the second of three verses by Kári, and another by Snorri goði, portrayed as lausavísur spoken in response to Skapti’s criticism of Kári for not wishing to accept settlement in the case. The placing of poetry into a scene set at the alþing seems to me to be an interesting narrative choice. It is doubtful that the stanzas attributed to him are actually the work of an early eleventh-century Kári Sǫlmundarson, or that they were recited in the context the saga claims.5 As is often the case for poetry inserted into the sagas of Icelanders, the relationship between prose, verse and tradition is not seamless: Skapti’s seemingly miraculous recovery is an example of this. Moreover, despite the connections just highlighted between the legal and poetic spheres, in other ways law and poetry seem antithetical in the world of medieval Iceland. The language of Grágás itself has come under scrutiny – essentially for not being more poetic.6 Unlike the medieval provincial laws from mainland Scandinavia, the extant Icelandic law-texts have few traces of alliteration, strict rhythm or other obvious oral mnemonics. The extant legal manuscripts date from some 150 years or more since (some of) the laws were first written down, in 1117–18, which leaves plenty of time for revision. But Peter Foote notes, ‘it remains an improbable assumption that the legal experts (hardly all literate themselves) and the people who recorded and transmitted their words were all so deeply affected by editing and framing principles attributed to the 1117 committee that they comprehensively excised all manner of colourful and forceful expression from the major part [. . .] of their material’.7 Foote concludes that Icelandic legal language, whether oral or written, was ‘plain’, or elsewhere ‘dense [and] business-like’.8 That said, it is hardly surprising Grágás is not more skaldic: skaldic verse is a medium characterised by ambiguity and obscurity. One of Grágás’s clauses cautions: ‘Sua skal vera orð huert sem mælt er. scal ecke at scáldscapar male raða’ (every word will be [taken] as it is said. No [word] will be interpreted according to the language of poetry).9 Falling within the section on words requiring full personal compensation

4 Brennu-Njáls saga, p. 411. 5 Finnur Jónsson 1894–1901, 1, p. 477. The stanzas can, however, be found in manuscripts representing all three main redactions of Njáls saga, meaning they had always or long been associated with its telling. 6 See e.g. Foote 1977b, who, however, finds it in the end not so surprising; cf. McGlynn 2009; McGlynn 2010. 7 Foote 1977a, p. 54. 8 Foote 1977a, p. 54; 1977b, p. 207. 9 Grágás Ib, p. 181.

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(i.e. defamatory speech), this clause seems to imply that cases cannot be brought for offence caused by oblique interpretations of language, and nor can speaking ‘poetically’ be used as a defence, though the case of Víga-Glúmr’s ambiguous oath in the saga bearing his name suggests such a clause could usefully have had wider applicability (Glúmr relies on the homophony between the preposition at and the poetic negative suffix -at, so that his ‘ek vark at þar’ [I was there] sounds identical to ‘ek varkat þar’ [I was not there]).10 Further, as mentioned above, poetry has its own section in Grágás, forbidding the composition or repetition of more than two lines of poetry about another person, whether defamatory or not. So if laws and poetry are in some regards incompatible, even antagonistic, what place might poetry have had at legal gatherings, and/or what place does it have in narratives about legal gatherings? This paper will explore ‘court poetry’ not in its usual sense of poetry recited at the Scandinavian royal courts, but poetry that is said to be recited at a legal assembly, or about one. It is not possible to discuss each stanza in the whole corpus of such poetry, but I will offer case studies from the Íslendingasögur, Konungasögur and Samtíðarsögur, examining how assemblies are narrated in skaldic verse, what this might mean for how poetry could have been used in connection with the law in early Iceland and Scandinavia, and how these scenes are used in constructing narratives. The role of poetry as a ‘tool of public discourse’, as Jonathan Grove has suggested for thirteenth-century Iceland, will be considered in its connection to the legal sphere.11 It is true, of course, that skaldic verse in assembly scenes shares some structural functions with the quotation of poetry in saga narrative in general, i.e. to mark stages in a narrative, as Heather O’Donoghue has observed, or because it is ‘impressive and exciting: it will therefore be placed where the saga-author needs to impress or excite’, as Paul Bibire puts it.12 In this light it is unsurprising that stanzas are localised to an assembly, because assemblies are both potent with drama and often mark the end of a particular conflict, and thus narrative stage. However, it is possible to explore in more detail what stanzas relating to assemblies actually say, and how they contribute to plot and characterisation, or achieve particular effects narratively or socially. To return to Kári, for example. In the high drama of the scene in Njáls saga, and after the chaotic melée of battle, skaldic poetry seems the perfect response: cutting and controlled. Kári is insulting the serving lawspeaker at the alþing. He dares to do so, we can infer, because his contempt for the justice system is unrestrained. He is outraged that the killings in the battle that happened at the alþing, with fault on both sides, are going to be considered to offset the reason both parties are there

10 Víga-Glúms saga, p. 86. 11 Grove 2008, p. 90. 12 O’Donoghue 2005, p. 78; Bibire 1973, p. 3.

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in the first place: the heinous crime of ‘burning in’ Njáll and his family. Skapti, supposedly the wise, moderate peacemaker, and the law which he represents, deserve derision in Kári’s eyes because they have completely failed to achieve justice. They have failed even to preserve the peace of the alþing. The literal crippling of the legal figurehead Skapti that Kári refers to reflects the crippling of the law by its myriad technicalities. Skapti is dragged behind the scenes of the stanza by cooks – those who are themselves behind the scenes – into a juggler’s booth, suggesting the law itself has become a sideshow. What more effective place to articulate these grievances than the alþing, and what more effective way to do it than in a form which risks your own lawful status but, by the very fact of disregarding that threat, immortalises your contempt? For a second example, consider stanza 12 of Sigvatr Þórðarson’s advisory poem Bersǫglisvísur (lit. Plain-Speaking Verses), addressed to the young King Magnús Óláfsson13: Hætts, þats allir ætla – áðr skal við því ráða – hárir menn, es heyrik, hót, skjǫldungi at móti. Greypts, þats hǫfðum hneppta, heldr, ok niðr í feldi – slegit hefr þǫgn á þegna – þingmenn nǫsum stinga. The threat is dangerous when all grey-haired men, as I hear, intend [to revolt] against the ruler; that must be prevented in advance. It’s rather grim when assembly members hang their heads and stick their noses into their cloaks; silence has descended on your followers.14

This stanza is preserved in different narrative contexts. Most sources, namely the various redactions of Magnúss saga ins góða and those of the Separate Saga of St Óláfr, agree that it was part of a longer poem composed when Sigvatr was asked to speak on behalf of Magnús’s advisors to warn the king of discontent among his landholding subjects, in particular ‘en hann brýtr lǫg á oss, þau er setti Hákon konungr inn góði’ (when he breaches our laws, those established by Hákon the good).15 Magnúss saga, in Heimskringla, claims that Sigvatr’s poem causes Magnús to see the error of his ways, thus earning his nickname inn góði (the good): ‘Eptir þetta áminning skipaðisk konungr vel [. . .] konungr átti tal við ina vitrustu menn, ok sǫmðu þeir þá lǫg sín’ (After this reminder the king changed for the better [. . .] the king held talks with the wisest men, and they then agreed their laws).16 As far

13 14 15 16

This stanza is also discussed by Poole 1991, pp. 8–10 and O’Donoghue 2005, pp. 39–42. Sigvatr Þórðarson, Bersǫglisvísur, p. 23. Heimskringla 3, p. 26. On the different medieval sources see Gade 2009. Heimskringla 3, p. 31.

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as can be told (the text is not explicit), Sigvatr’s recitation happens at the king’s court rather than at a public event. Flateyjarbók’s redaction (there is a lacuna here in Morkinskinna) offers a slight alternative, in which the king takes slightly longer to come around, and is further persuaded by later events – though not poetry – at a þing.17 The late twelfth-century Norwegian text Ágrip af Nóregskonungasǫgum, however, has a different account: Hann [Magnús] átti þing í Niðarósi, ok reisti með freku sakargift við Þrœndi alla, ok stungu allir nefi í skinnfeld ok veittu allir flǫgn, en engi andsvǫr. Stóð upp þá maðr, Atli at nafni, ok mælti eigi fleiri orð en þessur: ‘Svá skorpnar skór at fœti mér at ek má eigi ór stað komask.’ Sigvatr kvað þar þegar vísu þessa. He [Magnús] held assembly in Niðaróss and began by acrimoniously making accusations against all the Þrœndir, and they all stuck their noses in their cloaks, and were silent and gave no answer. Then a man named Atli stood up and said no more words than these: ‘So shrinks the shoe on my foot that I cannot move.’ Sighvatr spoke this verse then and there.18

In Ágrip’s account, it is the context of the assembly and Sigvatr’s spontaneous verse ‘then and there’ that causes Magnús to relent, and so earn his nickname. There is unanimous scholarly agreement that the Ágrip scenario is spurious. It is, nonetheless, plausible within the text.19 The use of present tense verbs, including Sigvatr’s first-person observation es heyrik, and the word þingmenn, make the stanza transferable to an immediate context. Of course, the stative usage of these verbs, is equally, if not more plausibly seen as an effective means of persuasion, a rhetorical strategy in the context of a long poem and the scenario Heimskringla and other sources describe: it demonstrates that this unrest is an immediate and present problem. Ágrip’s account, however, is not just ‘more entertaining’, as O’Donoghue observes,20 but foregrounds the political role of the assembly. Matthew Driscoll points out that the author of Ágrip tends to side with lýðrinn, ‘the people’, and in Driscoll’s words is ‘decidedly not an aristocratic work’.21 In the fuller Bersǫglisvísur and its context, Magnús is swayed seemingly behind closed doors by Sigvatr and his other advisors, distant and removed from his people. According to Ágrip, however, Magnús reacts at the þing to the actions of his þingmenn (in the Norwegian context, meaning people belonging to a specific legal district, in this case that of the Þrœndir), presenting those þingmenn as having rightful agency to move the king. Sigvatr’s verse is presented

17 If Snorri Sturluson is indeed the redactor of Heimskringla, the focus on the power of poetry alone in that text would be in keeping with Kevin Wanner’s (2008) interpretation of him as desiring to enhance the ‘cultural capital’ of poetry. 18 Ágrip af Nóregskonungasǫgum, pp. 46f. 19 See also Poole 1991, pp. 10f. 20 O’Donoghue 2005, p. 41. 21 Ágrip af Nóregskonungasǫgum, p. xii.

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not as a ‘prepared intervention’ by the king’s inner circle,22 but as prompted by his immediate observation of Þrœndir allir. ‘Justice’ is seen to happen at its proper and traditional location, a gathering of the people, rather than only among the chosen few inside the royal court.

Poetic Pleading Indeed, there are a few instances in the saga corpus in which poetry is depicted as being presented in the court setting itself; effectively, part of the pleading of the legal case is in verse. Before examining these scenes, it is worth considering briefly the role of what might be called ‘poetic language’ more broadly (rather than skaldic verse proper) in the legal arena. As Foote notes, ‘when you do find heightened language, a style more vivid and rhythmical, in Icelandic laws, it is in passages designed to be uttered not by lawspeakers [. . .] but by actors in the lawsuit: i.e. in oaths, peace speeches, truce speeches’.23 Though Foote argues that legal experts clearly could recall material that is not obviously mnemonic,24 for those not trained in the memory arts (namely Icelandic legal laymen who may be caught up in legal processes from time to time), heightened language likely did aid in the recall of necessary procedures, while at the same time elevating legal language to a special status: this is language with power.25 Skaldic verse is rhetoric on another level, however. Aside from the ‘poetic language’ of truce-speeches and the like, two sagas show skaldic verses being spoken not just at the arena of an assembly, but actually within the court. The first is Hallfreðar saga vandræðaskálds.26 Abroad in the service of King Óláfr, Hallfreðr asks leave to go on a trading voyage and falls into company in Gautland with one Auðgísl. The two take on a third man, Ǫnundr, who, according to the saga’s rather hasty narrative, within the day turns on them both. Dodging Ǫnundr’s axe-blow and overpowering him ‘með fulltingi guðs ok giptu Óláfs konungs’ (with the help of God and the luck of King Óláfr), Hallfreðr receives a confession from Ǫnundr that he has already killed Auðgísl behind the scenes of the saga and runs him through with a sword, later realising that Ǫnundr ‘mundi verit hafa illvirki ok drepit menn

22 23 24 25 26

O’Donoghue 2005, p. 41. Foote 1977a, p. 51. Foote 1977a, p. 55. Cf. Brink 2005, p. 105. References are to the standard edition in the Íslenzk fornrit series.

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til fjár sér’ (must have been a criminal and killed people for their money).27 He is said to recite a verse about the situation, which is quoted: Ólk, þars aldri véla auðgildanda vildak, hyrjar njót á hvítu hrafnvíns féi mínu; vannk til góðs við grenni gunnmǫ́s, sem ek kunna, en f[rið]skerðir fœrði fjǫrtal at mér hjǫrva.28 I nourished the user of the fire of raven-wine [BLOOD > SWORD > WARRIOR] with my white wealth, because I never wanted to betray the property-possessor; I worked for the good of the feeder of the battle-seagull [EAGLE/RAVEN > WARRIOR], as much as I was able, but the swords’ peace-diminisher [WARRIOR] brought mortal deceit to me.

Unluckily, Hallfreðr then encounters a second treacherous character, Bjǫrn, who for no obvious reason attempts to stab Hallfreðr in his sleep. The suspicious-fromexperience Hallfreðr anticipates the move and once again turns the tables on his attacker, but is subsequently caught by members of Bjǫrn’s household. ‘Nú koma menn til fundar þessa at dœma Hallfreð’ (Now people come to a meeting to judge Hallfreðr).29 What they are judging him for is not entirely clear: following the narrative, logic would dictate it was for Bjǫrn’s killing, but the matter under discussion appears to be Ǫnundr’s death and the distribution of his (stolen) property. At the assembly it is agreed ‘at hafa Hallfreð til blóta’ (to have Hallfreðr as a sacrifice).30 Luckily for him, it turns out that the local chieftain, one of the judges, is father to a woman named Ingibjǫrg who, coincidentally, had been married to Auðgísl, and she is also one of the judges. Ingibjǫrg ‘spurði vandliga at um atburði’ (asked [Hallfreðr] carefully about these events).31 Hallfreðr replies by reciting another two stanzas, making it clear that he acted in response to treachery and to avenge Auðgísl: Svá hefk hermila harma, hnig-Baldr, í gný skjalda – baugs erum svipr at sveigi – sárlinns, rekit minna, at lofhnugginn liggja létk sunnr í dyn Gunnar –

27 Hallfreðar saga, pp. 170, 171. 28 Hallfreðar saga, p. 171. The emendation comes from the reading of ms. AM 557 4º (Reykjavík: Stofnun Árna Magnússonar) and is adopted by Den norsk-islandske skjaldedigtning 1, p. 159. 29 Hallfreðar saga, p. 173. 30 Hallfreðar saga, pp. 173f. On the sacrifice of criminals, see Ström 1942. 31 Hallfreðar saga, p. 175.

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ek of hefnda svá okkar – Auðgísls bana daudan. [. . .] Ek brá elda stekkvi ǫlnaskeiðs af reiði; lagdak hendr at hundi hundgeðjuðum undir; stendr eigi sá sendir sídan Hlakkar skíða – bál rauðk Yggjar éla – éls við þjóð á vélum.32 I have so fiercely avenged my sorrows, felling-Baldr of the wound-snake [SWORD > WARRIOR], in the din of shields [BATTLE] – I am deprived of the brandisher of the ring [GENEROUS MAN = Auðgísl] – that I caused the praise-deprived slayer of Auðgísl to lie dead in the din of Gunnr [BATTLE]; so I avenged the two of us. [. . .] I cast down the cur-minded flinger of the fire of the course of the fish [SEA > GOLD > GENEROUS MAN = Ǫnundr] out of anger; I laid my hands on the dog. That sender of the skis of the storm of Hlǫkk [BATTLE > WEAPONS > WARRIOR = Ǫnundr] will no longer stand against people in deceit; I reddened the pyre of the storms of Yggr [BATTLES > SWORD].

Ingibjǫrg responds: ‘Sé ek, at þú munt með sǫnnu fara’ (I see that you must be telling the truth).33 Afterwards, she takes Hallfreðr home with her, and the couple marry. Clearly there is much to be sceptical about in this account – in fact everything, except probably Hallfreðr’s authorship of the stanzas. Sophie Krijn, Dag Strömbäck, Bjarni Einarsson and Russell Poole have all argued against the likelihood of the episode having any basis in historical reality, while not (other than Krijn, on nowrefuted grounds) denying Hallfreðr as composer of the verse.34 Nonetheless, it is interesting that this story in particular – poetry as defence at a legal assembly – should be concocted. There is nothing in the verses to suggest they should be spoken at an assembly, and nor is there any particular legal language in them. As Dag Strömbäck put it, ‘all we can really glean from Hallfreðr’s three stanzas in this part is that he was treacherously attacked by a man who sought his life’.35 However, they do constitute a defence: Hallfreðr does not merely boast of a heroic killing, but clearly rationalises the reason for it. He had behaved exemplarily, working for Ǫnundr’s benefit, but the latter behaved treacherously. Hallfreðr was acting in vengeance, for Auðgísl’s slaying, and for the attempted attack on himself. Not only did Hallfreðr have justifiable reasons to

32 33 34 35

Hallfreðar saga, pp. 174f. Hallfreðar saga, p. 176. Krijn 1931, pp. 126f. Strömbäck 1975, pp. 76f. Bjarni Einarsson 1976, p. 219; Poole 2001, p 143. Strömbäck 1975, p. 77.

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act, claim the stanzas; he has prevented future crimes: ‘Stendr eigi sá [. . .] síðan [. . .] við þjóð á vélum’. It is almost as though, in the absence of any actual witnesses, Hallfreðr’s poetry acts as witness for him: the single stanza at the scene of the killing a declaration of his deed, and the two stanzas at the assembly linking back to that he is said to have spoken at the scene as his own eyewitnesses. For the saga compiler the stylised language of poetry seems to lend Hallfreðr’s words a gravity and credibility that Ingibjǫrg sees or recognises as a truth-claim.36 Another saga scene to present skaldic verse being used in court is the famous account of an occasion at the Gulaþing in Egils saga Skallagrímssonar, to which Egill has summoned Berg-Ǫnundr, the husband of Egill’s wife’s half-sister, for his share of an inheritance from their father-in-law. Egill’s wife Ásgerðr’s cousin, Arinbjǫrn, tells King Eírikr on behalf of Egill that they have a witness who will swear an oath that Ásgerðr had been deemed a lawful heir by her father. When Eiríkr seems unconvinced, Egill speaks the following verse: Þýborna kveðr þorna þorn reið áar horna, sýslir hann of sína síngirnð Ǫnundr, mína; naddhristir, ák nesta norn till arfs of borna; þigg, Auða konr, eiða, eiðsœrt es þat, greiða.37 The thorn of thorns [= Berg-Ǫnundr] calls my vehicle of the river of horns [ALE > WOMAN = Ásgerðr] slave-born; that Ǫnundr is busy with his self-interest; point-shaker [WARRIOR = Eiríkr], I have a norn of sustenance [WOMAN] born to an inheritance; receive, kinsman of Auði [= Eiríkr], straight oaths; that is oath-sworn.38

The stanza, especially with its use of legal terminology, lends Egill’s case, and the scene, extra formal and rhetorical weight.39 The king decides ‘at hann myndi þar hvárki at vinna, at leggja á þat lof eða bann’ (that he would do neither, impose it or

36 On skaldic poetry having the power to expose truth, see also Egill Skallagrímsson, Sonatorrek, st. 24 (Egils saga st. 95). On the evidence of poetry being enough to instigate legal action, see VígaGlúms saga ch. 23; the famous case of Gísli Súrsson’s self-incriminating verse (Gísla saga ch. 18). 37 Egils saga, p. 156 38 For the translations of Egill’s poetry I am indebted to the interpretations of Margaret Clunies Ross, in draft for the Skaldic Poetry of the Scandinavian Middle Ages series, and am grateful to Margaret for allowing me to consult her unpublished material. 39 This is not the only occasion on which Egill uses terms from the legal register in his poetry: Bjarni Markussen (2016) has dubbed the long poem Sonatorrek a ‘legal elegy’, enacting a justice of sorts against the sea that has robbed him of a son, although not performed in a legal context.

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forbid it) with respect to the swearing of oaths in support of Egill’s case.40 The implication is that even this ambivalence is a positive result achieved through the use of poetry to persuade. It serves as a reminder of Egill’s mastery of language, and his power as a skald who can create a permanent record of events hovers as a threat in the air. In the end the court is broken up at the instigation of Queen Gunnhildr and Egill speaks another verse as he departs: Erfingi réð arfi arfljúgr fyr mér svarfa, mœtik hans ok heitum hótun, Þyrnifótar, nærgis simla sorgar slík rǫ́n ek get hǫ́num, vér deildum fjǫ[t] foldar foldværingja, goldi[t].41 The inheritance-conning inheritor of Þyrnifótr [= Berg-Ǫnundr] resolves to ruin the inheritance for me; I meet with his threatening and bullying; whenever such a plunder of the sorrow of oxen [LAND] is repaid, I’ll give him [a few] feet of land; we have quarrelled about the land of the Varangians.

There are a number of problems with the preservation of this stanza, and it is tricky to interpret, but it is clear that it has become more direct in its accusation. BergǪnundr has been immortalised in verse as a bully and a fraudulent heir (arfljúgr; or, in the manuscript variant arflyndr [inheritance-minded], greedy), and as guilty of committing rǫ́n (plunder), a dishonourable crime. The saga relates that King Eiríkr ‘heyrði álykðarorð Egils, þau er hann mælti síðast á þinginu, ok varð hann reiðr mjǫk’ (heard Egill’s closing words, the last he said at the assembly, and became very angry),42 reinforcing the sense that it is poetry that holds the real power. One could say that Eiríkr recognises what speech-act theory would call the performativity of Egill’s poetry. Most skaldic verse, and skaldic performances, implicitly claim that they are describing the world. While Egill no doubt also believes that he is describing truth, his rhetorical virtuosity in the medium of memorability goes over and above that to make the world: whatever the king decrees, the inheritance is seen as Egill’s and Berg-Ǫnundr’s actions now do constitute rǫ́n. This linguistic performativity is taken further in two stanzas attributed to Egill shortly afterwards. These stanzas are not spoken at the assembly, but one while Egill is making his escape from it, and one a while later when he hears that Eiríkr has declared him an outlaw. They draw on legal language, first to consolidate Eiríkr’s and Gunnhildr’s reputations as villains and also to create the conditions in

40 Egils saga, p. 157. 41 Egils saga, p. 159. 42 Egils saga, p. 159.

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which the royal couple are punished for what Egill sees as illegal and anti-legal acts: Svá skyldi goð gjalda, gram reki bǫnd af lǫndum, reið sé rǫgn ok Óðinn, rǫ́n míns fear hǫ́num; folkmýgi lát flýja, Freyr ok Njǫrðr, af jǫrðum, leiðisk lofða stríði landǫ́ss, þanns vé grandar.43 May the gods drive the ruler from his lands, may the powers and Óðinn be angry; so shall the gods repay him for the plunder of my property. Freyr and Njǫrðr, make the people-oppressor [= Eiríkr] flee from his estates; let the land-god [= Þórr] loathe the adversary of men [= Eiríkr], the one who destroys sanctuaries. Lǫgbrigðir hefr lagða, landalfr, fyr mér sjǫlfum, blekkir brœðra sǫkkva brúðfang, vega langa; Gunnhildi ák gjalda, greypt’s hennar skap, þenna, ungr gatk ok læ launat, landrekstr, bili grandat.44 Land-elf [= Þórr], the lawbreaker [= Eiríkr] has laid long roads before me, his bride deceives the wrecker of brothers [= Eiríkr]. I have to repay Gunnhildr for this land-eviction; her temperament is fierce; when young, I was able to impair hesitation and repay treachery.

These stanzas are separated in time and location by the prose narrative, but clearly complement each other. As Sigurður Nordal has observed,45 the invocation of Freyr, Njǫrðr and the landǫ́ss is highly reminiscent of the legal oath hjálpi mér svá Freyr ok Njǫrðr ok hinn almáttki áss ‘may Freyr and Njǫrðr and the all-powerful god help me’ cited in Landnámabók.46 Here Egill draws on language that is not just legally but also supernaturally charged and binding. Eiríkr is now the one guilty of rǫ́n, and what is more his failures to uphold the law and to observe the sanctuary of the assembly (vé) have been commemorated in verse.47 The latter stanzas work like níð in T. L. Markey’s definition of ‘a ritual expression of status reversal’.48 Eiríkr is

43 44 45 46 47 48

Egils saga, p. 163. Egils saga, p. 165. Egils saga, p. 163 n. Íslendingabok. Landnámabók 2, p. 315. On the inseparability of law and cult at the vé or vi, see e.g. Brink 2002. Markey 1972, p. 18.

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not accused of sexual deviance, often a component of insults (though he is depicted as subordinate to his wife Gunnhildr, herself accused of witchcraft), but of severe legal and social deviance.49 The authenticity of at least the stanza invoking the gods has been questioned,50 but issues of its original composition do not detract from the way poetry is used by the saga compiler to build the sense of Egill’s linguistic power over Eiríkr and the use of legal terminology and formulae to perform justice even where justice has failed, through malice and physical force, in the very place it should have been held sanctified.51 It is notable that both these scenes, from Hallfreðar saga and Egils saga, where poetry plays some sort of role in law and justice, are set in the pre-Christian past, when the spoken word was the ultimate source of authority.52 They are also set outside Iceland, where skaldic verse is more usually socially divisive than cohesive. Grágás’s edict ‘scal ecke [orð] at scáldscapar male raða’ (no [word] will be interpreted according to the language of poetry),53 as well as the fact that it is clear legal pleading had a precise form one had to get just right,54 make it highly unlikely that verses would be seen as an acceptable part of legal proceedings to an Icelandic audience. In Norway, however (especially past, pagan Norway), and particularly in an aristocratic setting, poetry as persuasion and even truth may have seemed more plausible.55 Later audiences’ historical understanding of this period as a turbulent one – and of the pastness of this past – perhaps also allows the Icelandic ‘heroes’ greater licence, and warrants their heightened dramatic presentation in special circumstances.

49 On the (difficulties of establishing the) boundaries of níð, see Ström 1974; Meulengracht Sørensen 1983; Finlay 2001. 50 Jón Helgason 1969, p. 157. 51 Brink 2008, p. 26 suggests that in other details Egils saga potentially captures an accurate, rather than fictitious, description of an assembly site. Assuming the stanza said to have been recited at the Gulaþing is genuinely Egill’s, it is not inconceivable that it actually was spoken there, since Egill would plausibly have encountered the king and discussed his case there. In that case the stanza would not necessarily have been spontaneous but could have been prepared in advance. The other contexts for Egill’s verses mentioned here are more likely to involve authorial licence. 52 On the increasing importance of the written word in legal matters (especially in Iceland) from the early twelfth century, see Foote 1977a, Quinn 2000. 53 Grágás Ib, p. 181. 54 See e.g. Njáls saga ch. 97; Miller 2014, pp. 266f. 55 Indeed, as well as the Bersǫglisvísur stanzas, several other Norway-based scenes show skalds using poetry to make a legal point (though outside the context of the legal assembly): in Þorgríms þáttr Hallasonar a praise poem for King Óláfr presented to his son Magnús is said to also contain details of a legal case so that Magnús will find out what has been going on; in Fóstbræðra saga ch. 24 Þormóðr responds in verse to questions about his deeds from King Óláfr. Höfuðlausn (headransom) poems (in Egils saga and Gísls þáttr Illugasonar) may also be seen as acting in place of compensation to their subject for a perceived offence on the part of the skald.

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Poetic Duelling The notion of competitive verse-making is widely found in Old Norse literature, from the wisdom poetry of the Poetic Edda, through the so-called skaldsagas in particular among the Íslendingasögur, to the milieu of thirteenth-century Iceland and beyond.56 Since a legal case taken to an assembly represents a stage in a conflict, it is no surprise to find manifestations of verbal rivalry in saga assembly scenes, in some cases the poetry even working alongside legal action. In Gunnlaugs saga ormstungu, for instance, Gunnlaugr asks for a hearing at Lǫgberg (the ‘Law Rock’) to challenge his love-rival Hrafn to a duel – still a legal option at the time – because ‘þú hefir fengit heitkonu minnar ok dregsk til fjandskapar við mik’ (you have married my betrothed and have drawn yourself into enmity with me).57 The two are said to exchange verses before going out to Öxará to duel, with Gunnlaugr the first to recite: Nú emk út á eyri alvangs búinn ganga, happs unni goð greppi gǫrt, með tognum hjǫrvi; hnakk skalk Helgu lokka, haus vinnk frá bol lausan loks með ljósum mæki ljúfsvelgs, í tvau kljúfa.58 Now I am ready to go with drawn sword out to the island of the assembly ground; may god fully bestow luck on the poet; I shall cleave in two the nape of Helga’s lover; finally with my bright sword I’ll work the skull of the lothario loose from his torso. [Hrafn:] Veitat greppr, hvárr greppa gagnsæli hlýtr fagna; hér’s bensigðum brugðit, búin es egg í leggi; þat mu nein ok ekkja ung mær, þótt vér særimsk, þorna spǫng af þingi þegns hugrekki fregna.59 The poet doesn’t know which poet will rejoice over victory; here wound-sickles [SWORDS] are drawn, the edge is ready for the leg; the spangle of thorns [WOMAN] = Helga], young girl alone and a widow, will learn from the assembly of her man’s courage, though I am wounded.

56 57 58 59

On the senna, the Old Norse term for a ritualised verbal exchange, see Harris 1979. Gunnlaugs saga Ormstungu, p. 92. Gunnlaugs saga Ormstungu, p. 93. Gunnlaugs saga Ormstungu, p. 94.

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These stanzas are clearly paired:60 both use the word greppr ‘poet’; both make mention of Helga (Gunnlaugr by naming her, Hrafn with the phrase ‘ung mær’ and the kenning þorna spǫng); both speak of the physical violence they are (allegedly) gearing up for. Arguably both also explicitly reference their location: ‘á eyri’ in Gunnlaugr’s case, ‘þing’ in Hrafn’s. Although ‘þing’ is translated ‘Thing’, i.e. the alþing, by, for example, Katrina C. Attwood in the The Complete Sagas of Icelanders series, it should be noted that the word is commonly used in skaldic verse to refer to any sort of encounter or meeting, most often a violent one. Though, again, the verses in Gunnlaugs saga are thought to have been composed later than the time the saga portrays, Russell Poole suggests they are still earlier than the composition of the saga in the form in which we now have it.61 In terms of narrative construction, a þing-reference (meaning ‘encounter’) may thus have encouraged the compiler to dramatise the scene at the alþing, placing the verses within it; or the reference (meaning ‘alþing’) may have been included precisely because a setting there was envisaged. In the saga context, the verbal battle between Gunnlaugr and Hrafn prefigures the more physical (and legal) struggle for one-upmanship to follow. Indeed, the verse exchange is quite possibly the more significant encounter, since the duel ends with Gunnlaugr getting a slight scratch on the cheek after one strike by Hrafn: hardly the stuff of edge-bitten legs and loosened heads. Although the saga claims the duel had great consequences for Icelandic legal history – ‘annan dag eptir í lǫgréttu var þat í lǫg sett, at af skyldi taka hólmgǫngur allar þaðan í frá’ (the next day in the lǫgrétta [Law Council] it was made law that all duelling should be disallowed from then on)62 – the stanzas make the encounter the more memorable. Hrafn’s fregna af þingi certainly suggests a hope that news of his heroics would be communicated to Helga, and, perhaps, that his own stanza might be a vehicle for doing so. Rather than being a medium to bring information to the assembly, in this case skaldic verse offers a way of communicating it out. The skaldsagas are unsurprisingly rife with entanglements between law and poetry. Another þing-stanza attributed to Hallfreðr vandræðaskáld makes reference to a legal penalty, that imposed upon him for composing the Gríssvísur, slanderous verses about his opponent for the love of Kolfinna: Auðs hefk illrar tíðar alldrengila fengit, mik hefr gjǫllu golli gramr ok jarl of framðan, ef glapskuldir gjalda, gjalfrteigs ok hefk eigi

60 See further Poole 2001, pp. 167–171, who discusses these stanzas within a group of six. 61 Gade 2001, pp. 72f.; Poole 2001, p. 165 and references. 62 Gunnlaugs saga Ormstungu, p. 95.

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mǫrk, fyr minnstan verka matvísum skalk Grísi.63 I have most honourably gained wealth at a bad time – ruler and earl have advanced me with resonant gold – if I must pay the glutton Gríss a fool’s fine for the least composition, and I do not have the forest of the surge-field [SEA > WOMAN].

According to the prose, Gríss has actually summoned Hallfreðr to the Húnavatnsþing for the earlier killing of Gríss’s kinsman, though the níð verses act as the trigger because Gríss is concerned about rising antagonism. The arbitrator, Hallfreðr’s unclethrough-marriage, Þorkell, decrees that ‘fyrir Gríssvísur skal Hallfreðr gefa Grísi grip einn góðan’ (for the Gríss verses Hallfreðr must give Gríss a good treasure), apparently prompting Hallfreðr’s verse. At this point Þorkell tells him to ‘hætta verkanum – “ok lát fram grip nǫkkurn”’ (stop composing – ‘and give over some valuable treasure’).64 Given that it was poetry that got Hallfreðr into trouble in the first place (and his seeming lack of self-control adds humour to the episode), to respond with more poetry at the scene of the judgement reinforces his contempt for his rival. His stanza manages both to suggest that Gríss is making a fuss about nothing, postulating that his poetry is of little import, while implicitly acknowledging its (and therefore his) power by composing verse which not only reminds us that he has gained great wealth and status from his skaldic skill, but which continues to belittle his opponent. He points out the irony of the situation, and perhaps with it protests the justice of the settlement: poetry is something supposed to win wealth for Hallfreðr, not cause him to lose it. The present tense ‘skalk’ (I must) implies the stanza’s recitation shortly after or even before the judgement; like Kári, daring to shrug off the potential consequences of ‘illegal’ verse-making even at a legal venue. In contrast, it may be noted that not a single one of the insulting verses exchanged between Bjǫrn and Þórðr in Bjarnar saga Hítdœlakappa is quoted by the narrator within an assembly scene, although there is a great deal of legal action surrounding these stanzas, including successful prosecutions for slanderous verse by both parties. This could be simply because the stanzas are already quoted elsewhere in the saga, as they are reputed to happen, which in this case could have been seen as the more important and more exciting narrative context.65 Interestingly, though, on two separate occasions – one a prosecution by Bjǫrn of Þórðr for a verse, another a prosecution by Þórðr of Bjǫrn for another verse – friends of each party are said to advise them ‘þeir myndi heima sættask heldr en fœra svá ljótt mál til alþingis’ (they should reach a settlement between themselves at home rather than bring such an ugly case to the alþing).66 Grágás requires offending verses to be recited in court 63 64 65 66

Hallfreðar saga, p. 193. Hallfreðar saga, p. 193. Cf. Krijn 1931, p. 127 on a similar reason for placement of verses in Hallfreðar saga. Bjarnar saga Hítdœlakappa, p. 156.

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when someone wishes to prosecute for them – surely a recipe for trouble – and for them to be recited at Lǫgberg if someone wants to make a summons for the following year.67 Despite prohibitions against the learning and repeating of slanderous verses,68 doubtless in these circumstances the stanzas would immediately get round the entire population of the alþing, and probably thereby the entire country, so little wonder it seemed a bad idea to take such cases to the national stage. Although cases for the verses are said to be taken to the alþing, the saga takes little delight in the scandal of presenting them there. The cases are successfully and seemingly quietly resolved there, in a way bolstering Grágás’s ideal of the law’s power over poetry, the disruptive force of which the saga evinces. Each time, both parties’ acknowledgement of the law – Bjǫrn even has it changed to work in his favour – and their willingness to pay compensation for contravening it is not enough to stop them actually composing insulting verses about each other. Ultimately, Bjǫrn is killed for it, and the saga ends poignantly with the suit for his death. Justice is done, but at a high cost to both sides: too high, the saga intimates, because of the ongoing struggle by poetry – and poets – against the law.

Getting the Last Word For those excluded from the assembly, skaldic verse could offer a means of having one’s voice heard. All three of the outlaw sagas Grettis saga Ásmundarsonar, Gísla saga Súrssonar and Harðar saga ok Holmverjar contain verses by their protagonists following outlawry sentences imposed on them in absentia at assemblies. None of the three characters defends himself in verse (that is, none refutes his guilt), but poetry gives each the opportunity to comment on a situation that is otherwise outside his control. Grettir merely records the fact that he got three pieces of bad news at the same time, in hearing of his outlawry and the deaths of his father and brother upon his return to Iceland from Norway. Although the saga narrator observes, ‘Svá segja menn, at Grettir brygði engan veg skapi við þessar fréttir ok var jafnglaðr sem áðr’ (People say that Grettir’s mood did not change at all with this news and he was equally as cheerful as before), his verse speaks of his ‘sútir’ (sorrows), a more personal reflection.69 Gísli and Hǫrðr both take the opportunity to voice their contempt for those who should have been speaking on their behalf at the þing, but who failed in their tasks. ‘Minn varð mágur [. . .] illr at reyna [. . .] í málafellum’ (My kinsman proved wicked in a lawsuit), says Hǫrðr, upon learning that his brother-in-law

67 See Grágás Ib, p. 184. 68 See Grágás Ib, p. 183. 69 Grettis saga, pp. 147f.

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Indriði was refusing to support him, and afterwards contends that despite being made ‘útlægan á alþingi’ (outlaw at the alþing) he will not be cowed.70 Gísli, too, uses verse to criticise the kinsmen of his wife’s brother Vésteinn (whose death he has avenged on his sister’s husband Þorgrímr), whom he had appointed to make a settlement on his behalf, as well as to warn that he intends to take revenge on those who pursued the case against him. His stanzas indicate that the case should have been resolvable and could have gone otherwise – ‘Myndit þá/á Þorsnesi/meðallok/á minni sǫk,/ef Vésteins væri hjarta/Bjartmárs sonum/í brjóst lagit’ (It would not have been the same conclusion in my suit at the Þorsness assembly, if Vésteinn’s heart lay in the chest[s] of the Bjártmarssons)71 – and in doing so minimises the nature of his own crime, turning the blame on his uncles-in-law.

Commemorating the þing In 1953 Gabriel Turville-Petre noted that Icelandic ‘farmers’, as he puts it, could use skaldic verse to ‘commemorate a local brawl or a scene at the Alþing’.72 Indeed, both the Íslendingasögur and Samtíðarsögur yield hints towards the intentional poetic documentation of particular assemblies. Interestingly, perhaps the most explicit statement of such a purpose appears in the Mǫðruvallabók redaction of the satirical Bandamanna saga. The centrepiece of the saga is a scene at the alþing playing out the resolution of a lawsuit brought by a group of chieftains against Oddr Ófeigsson on a charge of bribing the judges of a previous case. Several chapters are dedicated to unfolding the machinations of Oddr’s father Ófeigr, who succeeds, also through bribery, in changing the loyalties of two of the chieftains, unbeknownst to the others. Ófeigr then takes great pleasure in insulting each of the chieftains in turn while ‘deciding’ which of them should arbitrate the compensation. After having his new allies award the group a meagre sum, we are told: Þá mælti Ófeigr: ‘Nú vil ek kveða yðr vísu eina, ok hafa þá fleiri at minnum þing þetta ok málalok þessi, er hér eru orðin: Flestr mun, Áms ok Austra ek vátta þat sǫ́ttum, malma runnr of minna, mik gœlir þat, hœlask; gatk hǫfðingjum hringa

70 Harðar saga, p. 57. 71 Gísla saga Súrssonar, p. 67. 72 Turville-Petre 1953, p. 45.

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hattar land, en sandi œst í augu kastat, óríkr vafit flíkum.73 Then Ófeigr said, ‘Now I will recite a verse for you, and more people will have it as a reminder of this assembly and the resolution of this case, which have happened here: Many a shrub of metal [WARRIOR] will boast of less, I witness that in the settlement of Ámr and Austri [POETRY], it comforts me; not rich in rings, I managed to wind cloth around the land[s] of the hat [HEADS] of the chieftains, and energetically cast sand in their eyes.

Having Ófeigr speak his verse there and then at the assembly highlights the totality of his victory: the subdued chieftains can only listen as he concludes their humiliation. The events of Bandamanna saga are widely accepted as fictional, and the saga as having been composed as a satire on the corruption and corruptibility of the chieftaincy and legal systems.74 This stanza too is probably an invention by the author of the saga, rather than being actually composed by an eleventh-century Ófeigr in the circumstances the saga claims.75 Yet good satire should have the ring of truth: perhaps Ófeigr and his comically blunt statement of intent to commemorate the scene of his victory – ‘ok hafa þá fleiri at minnum þing þetta ok málalok þessi’ – indeed reflects the behaviour of ‘real-life’ chieftains, and perhaps the author found such poetic recording of legal success self-aggrandising and laughable. Indeed, a stanza found in Bárðar saga Snæfellsáss and Landnámabók (the latter a major source for the former) seems so hyperbolic as to be ripe for mockery by those less impressed by the grandeur of the sons of the settler Hjalti Þórðarson (and even to give pause to wonder whether Snorri Sturluson would have thought it ‘háð, en eigi lof’ [mockery, and not praise]):76 Manngi hugði manna morðkannaðra annat, ísarns meiðr, en æsir almœrir þar fœri, þá er á Þorskafjarðar þing með ennitinglum holtvartaris Hjalta harðfengs synir gengu.77 No one of the battle-acquainted [WARRIORS] would have thought, the trees of iron [WARRIORS], other than that the almighty æsir had come there, when the sons of brave Hjalti went to the Þorskafjörðr assembly with wood-thong [SNAKE] forehead-prow-boards [HELMETS].

73 74 75 76 77

Grettis saga, p. 356. Magerøy 1981, p. xxx–xxxii. Magerøy 1981, p. liii. Heimskringla 1, p. 5. Bárðar saga, p. 171f.

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The stanza is presented neutrally in both texts, however, albeit anonymously, though Bárðar saga points out that the case the Þórðarsynir were defending was over ewe’s milk, a rather mundane subject for the ‘almœrir æsir’ to be concerning themselves with. The Þórðarsynir are acting on behalf of the skald Oddr breiðfirðingr, and Finnur Jónsson suggests that the stanza might just be by Oddr himself.78 If so, it seems he had something of a penchant for composing þing-poetry: Eyrbyggja saga interrupts the action of a scene at the Þórsness assembly (chapter 17) to quote two stanzas by Oddr, relating to the events of the assembly meeting the compiler has just – very briefly – described. The case in question concerns a dowry payment won by Illugi svarti Hallkelsson (the father of Gunnlaugr ormstunga the skald), which causes a fight to break out until the famous Snorri goði Þorgrímsson, a key character in the saga from this point on, arranges a settlement. The first of the verses explicitly references the assembly: ‘Vestr vas þrǫng á þingi/Þórsness’ (There was a throng in the west at the Þórsness assembly).79 The verses then narrate first the initial dowry settlement (the resolution of one conflict), then its breach, and Snorri goði’s intervention (the resolution of another). The stanzas are not presented as commentary from participants or onlookers, however; it is clearly stated in the narrative that the two stanzas come from Oddr’s Illugadrápa (‘Svá kvað Oddr skáld í Illugadrápu’ [So Oddr the poet said in Illugadrápa]80), presumably once a long memorial poem for Illugi, of which only the Eyrbyggja stanzas are now extant. The stanzas are highly unlikely to have been composed on location, then, but are placed into a scene set at the Þórsness assembly as ‘authenticating’ or ‘documentary’ verses, as Diana Whaley and Heather O’Donoghue have, respectively, described them.81 This use of poetry, as opposed to ‘situational’ or dialogue verses, is fairly unusual for the Íslendingasögur in general, as well as for Eyrbyggja saga specifically, in which only seven of thirty-seven verses are documentary, as O’Donoghue has observed.82 She further notes: In the saga prose, the details of the quarrel itself are barely sketched in, and the precise nature of the dispute is not explained. The saga author was not concerned with such incidentals; the verses lend weight to an apparently immaterial episode, because its real significance in the saga is that it marks Snorri’s political début.83

Bibire observes that in fact all seven documentary verses in Eyrbyggja saga ‘serve the general function [. . .] of “pointing” every violent crisis which involves Snorri

78 Finnur Jónsson 1920–24, 1, p. 503. 79 Eyrbyggja saga, p.31. 80 Eyrbyggja saga, p.31. 81 Whaley 1993; O’Donoghue 2005, p. 14. 82 O’Donoghue 2005, p. 78. 83 O’Donoghue 2005, pp. 83f.

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goði’.84 The narrative then tells us, ominously, ‘váru þeir Snorri ok Illugi vinir um hríð’ (Snorri and Illugi were friends for a while).85 The next time we meet Illugi is not until chapter 56, when he and Snorri goði are definitely not friends: he forms part of a 500-strong party that prevents Snorri from travelling south to try and bring an action against Gestr Þórhallasson for the (extremely cursorily-described) killing of Snorri’s father-in-law Styrr. What happens next is even more cursorily sketched out: the case is quashed at the alþing, apparently by Illugi and his son-in-law, Þorsteinn of Hafsfjarðarey. Instead Snorri kills another member of the party, Þorsteinn Gíslason, together with his son. Snorri and Þorsteinn meet at the Þórsness assembly the following spring, and a fight breaks out. Snorri is quick to pay compensation to avoid the matter being referred to the alþing, at which ‘þóttisk hann þó œrnu eiga at svara’ (he thought himself to have enough to answer for).86 At this point the narrator explains, ‘Um þessi tíðendi ǫll saman, víg Þorsteins Gíslasonar ok Gunnars, sonar hans, ok síðan um bardaginn á Þorsnessþingi, orti Þormóðr Trefilsson í Hrafnsmálum vísu þessa’ (About all this news together, the killing of Þorsteinn Gíslason and his son Gunnarr, and then about the battle at the Þórsness assembly, Þormóðr Trefilsson wrote this verse in his Hrafnsmál).87 The stanza is quoted in the narrative. Hrafnsmál has been thought to have been a praise-poem for Snorri goði and his son.88 The enmity between Illugi and Snorri is barely detailed in Eyrbyggja saga, yet these two assembly scenes, 39 chapters apart, are linked by þing-poetry composed for each of the chieftains, and about incidents in which both of them were involved. In a way, this structure and the long poems that underlie the saga’s telling echo the ‘verse conversation’ attributed to Illugi’s son Gunnlaugr and his rival Hrafn in Gunnlaugs saga, and foreshadow the exchanges of the twelfth and thirteeth century that Guðrún Nordal and Jonathan Grove have detailed, and which will be examined further below. Assuming both are genuine, these are early praise-poems for Icelandic chieftains in which different perspectives on events are articulated and communicated by different factions. In any case, of the deeds of the chieftains they commemorate, assemblies in particular are shown by the compiler of Eyrbyggja to be poem-worthy as well as saga-worthy. For the thirteenth century, Grove has described skaldic verse as a ‘tool of public discourse’ in Iceland: ‘a means of articulating and shaping reactions to contemporary events’.89 During this period the alþing grew ever less effective as a scene for dispute resolution, and, as Stephen Tranter has demonstrated, consequently its place in saga

84 85 86 87 88 89

Bibire 1973, pp. 8f. Eyrbyggja saga, p. 33. Eyrbyggja saga, p. 156. Eyrbyggja saga, p. 156. O’Donoghue 2005, p. 84. Grove 2008, pp. 90, 91.

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narrative grows smaller.90 There is no poetry said to be recited there in the Samtíðarsögur documenting this later time (although there are stanzas related to conflicts, settlements and other legal matters), but Þorgils saga ok Hafliða, covering the twelfth century, is a different case. The alþing has a central role in Þorgils saga, and one where it is already under strain.91 Eight of the saga’s 17 stanzas are said to be recited at or in the vicinity of the alþing or are otherwise directly connected with it.92 The content of the stanzas is not especially significant except that it suggests a clear motivation of recording events; the final set of two verses in particular is introduced in the narrative in a manner faintly reminiscent of Bandamanna saga’s Ófeigr: ‘Ok þá er lokit var málum þessum, þá var sjá vísa kveðin’ (And when the case was closed, these verses were recited).93 Another stanza, one of a set of three repeating that Hafliði had to pay compensation to Þorgils, also like Ófeigr’s, rather gloatingly connects poetry with memory: ‘slíkt hefr öld í minni, –/óð gerik oft’ (people will long have such things in mind, and I will make poetry often).94 Guðrún Nordal has suggested that anonymous verses in the Sturlunga saga collection are often used by authors ‘to cloak their commentary on the unfolding action [ . . . and] provide the author with a neutral platform on which to voice his comments’.95 In Þorgils saga ok Hafliða all the poetry favours Þorgils’ side over Hafliði’s, whom it mocks or crows over, in contrast to the prose, of which as Ursula Brown (later Dronke) observed, ‘the impartiality of the narrative in its representation of the two main characters is essential and deliberate’.96 The stanzas then may simply be included as the only poetic sources the author had access to, or may suggest that Þorgils kept skalds around him (one verse is also attributed to him) while Hafliði did not. Although the stanzas’ partiality does not seem to have affected the saga author, they were doubtless intended to be spread around. The skald Ingimundr prestr Einarsson is even said to have composed a helmingr at the alþing in response to being asked for news after Þorgils is outlawed for maiming Hafliði within the court itself.

Conclusions It is likely that poetry played a role in the entertainments at assemblies. Egils saga famously recounts an occasion at the alþing when the skald Einarr skálaglamm Helgason ‘gekk til búðar Egils Skalla-Grímssonar, ok tókusk þeir at orðum, ok kom 90 Tranter 1987. 91 Tranter 1987, pp. 61f. 92 See ch. 8 (3 stanzas), ch. 18 (1 stanza), ch. 24 (1 stanza), ch. 27 (1 stanza), ch. 31 (2 stanzas). 93 Þorgils saga ok Hafliða, p. 49. 94 Þorgils saga ok Hafliða, p. 22. 95 Guðrún Nordal 2001, p. 143. 96 Brown 1952, p. xlix.

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þar brátt talinu, at þeir rœddu um skáldskap’ (went to Egill Skallagrímsson’s booth, and they began talking, and it soon happened that they discussed poetry).97 In Þorsteins þáttr sögufróða, a short anecdote in Morkinskinna, an Icelander is able to relate stories of King Haraldr harðráði’s great deeds because ‘þat var vanði minn [. . .] at ek fór hvert sumar til alþingis á váru landi, ok nam ek svá sǫguna, er Halldórr Snorrason sagði’ (it was my custom [. . .] that I went every summer to the alþing in our country, and so I learnt the story that Halldórr Snorrason told).98 As Judith Jesch notes, Halldórr Snorrason was a skald in Haraldr’s retinue,99 and perhaps his storytelling included some of his own poetry for Haraldr (none of which survives). But this is uncontroversial poetry: older poetry, poetry about other people, not poetry composed in the heat of the moment about people present. Saga authors are much less interested in this sort of activity than modern literary historians are, and do not bother to quote it.100 In fact, the quotation of any skaldic verse actually said to have been recited at an assembly is a comparatively unusual event in the sagas.101 It is notable too that much of the poetry purported to have been composed or recited at an assembly is now thought to be spurious, whether in date, context of composition, or both. This circumstance may reflect the socio-cultural world of medieval Iceland in several ways.102 Although there are a few instances in which poetic evidence is said to be enough to instigate legal action,103 the ambiguities of skaldic verse make it an unsuitable medium for the presentation of cases, which should follow precise procedures and wording. This situation is not quite the same in (early) Norway, where poetry was a common means of communication with powerful individuals, and where skalds and patrons alike had stakes in maintaining the truth-value of skaldic

97 Egils saga, p. 268. 98 Þorsteins þáttr Sögufróða, pp. 335f. 99 Jesch 2015, pp. 174f. 100 Cf. the much-lamented account of a wedding in Þorgils saga: ‘Frá því er nökkut sagt, er þó er lítil tilkváma, hverir þar skemmtu eða hverju skemmt var’ (Þorgils saga ok Hafliða, p. 27. About these [gatherings] it is sometimes related, although it is of little importance, who entertained there or about whom there was entertainment.) 101 Elsewhere (Burrows 2015, pp. 72–75) I have noted that 13% of assembly scenes set in Iceland, in the Íslendingasögur conventionally dated before c.1300, contain quotation of skaldic verse. The present paper considers the whole saga corpus and includes assemblies set abroad, as well as taking a less strict definition of scene and indeed including stanzas that relate to assemblies but are not necessarily recited there. 102 Also relevant of course is the debate on the likelihood that people actually could improvise sophisticated poetry on the spot, in response to unfolding events, but that is beyond the scope of this chapter and has been discussed in, for example, Frog 2009. On poetry actually being used as a way of commenting on situations and events in the twelfth and thirteenth centuries, see Guðrún Nordal 2001; Grove 2008. 103 See n. 34 above.

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poetry. For saga authors at least, that offered the opportunity to present skaldic verse as a powerful tool in legal matters. Further, although a potent venue with a ready audience, an assembly would have been a dangerous arena for the recitation of skaldic verse. Beyond the other prohibitions on composing poetry about other people, Grágás has special provisions against reciting níð against another person at Lǫgberg (which could well suggest it happened on occasion), whereby the offender is not only subject to full outlawry but forfeited their immunity for a year.104 Moreover, and perhaps more pressingly, the chances of offending more people actually present and wanting to take immediate revenge are much higher at an assembly, particularly the alþing. Poetry makes an excellent medium for conveying news and opinions, but it was likely a safer option to save composing it for later, away from the assembly, in the manner that Eyrbyggja saga and Þorgils saga suggest. In narrative terms, however, all this makes excellent material for saga tellers. The comparative rarity of ‘situational’ verse at assemblies makes instances where it is used all the more significant. As the examples I have discussed here demonstrate, whatever the original circumstances of composition, placing verse into an assembly scene is an effective way of heightening tension, allowing for alternate voices, critiquing law and justice and manipulating audience responses. It is shown as a socially-powerful tool for achieving ‘poetic justice’ whatever the legal outcome. Indeed, court poetry – that is þing-poetry – has a special place in Old Norse narrative. After all, Ari Þorgilsson found it fit to record Hjalti Skeggjason’s poetic níð against Freyja, spoken at Lǫgberg as Iceland debated its conversion to Christianity, in Íslendingabók (chapter 7). Ari uses the couplet to full effect: how shocking! How dramatic! How memorable! How heroic! Hjalti promptly gets himself outlawed, but is immortalised by the tactical – or narrative – decision to combine the medium of poetry with Iceland’s biggest public venue. From then on, saga authors and skalds had the perfect model of the narrative power of the juxtaposition of poetry and law.

Bibliography Primary sources Ágrip af Nóregskonungasǫgum: A Twelfth-Century Synoptic History of the Kings of Norway, ed./ transl. by Matthew Driscoll (2008). 2nd edition. University College London. Bárðar saga Snæfellsáss. In: Harðar saga [...], ed. by Þórhallur Vilmundarson/Bjarni Vilhjálmsson (1991): Íslenzk fornrit, 13. Reykjavík, pp. 99–172.

104 See Grágás Ib, p. 184.

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Bjarnar saga Hítdœlakappa. In: Borgfirðinga sögur [...], ed. by Sigurður Nordal/Guðni Jónsson (1938): Íslenzk fornrit, 3. Reykjavík, pp. 109–211. Brennu-Njáls saga, ed. by Einar Ól. Sveinsson (1954): Íslenzk fornrit, 12. Reykjavík. Den norsk-islandske skjaldedigtning. B: Rettet tekst, ed. by Finnur Jónsson (1912–1915). 2 vols. København. Egils saga Skalla-Grímssonar, ed. by Sigurður Nordal (1933): Íslenzk fornrit, 2. Reykjavík. Eyrbyggja saga. In: Eyrbyggja saga [...], ed. by Einar Ól. Sveinsson/Matthías Þorðarson (1935): Íslenzk fornrit, 4. Reykjavík, pp. 1–184. Gísla saga Súrssonar. In: Vestfirðinga sögur [...], ed. by Björn K. Þórólfsson/Guðni Jónsson (1943): Íslenzk fornrit, 6. Reykjavík, pp. 1–118. Grágás: Islændernes Lovbog i Fristatens Tid, udgivet efter det Kongelige Bibliotheks Haandskrift IaIb, ed. by Vilhjálmur Finsen (1852). København. Grettis saga Ásmundarsonar. In: Grettis saga Ásmundarsonar [...], ed. by Guðni Jónsson (1936): Íslenzk fornrit, 7. Reykjavík, pp. 1–290. Gunnlaugs saga Ormstungu. In: Borgfirðinga sögur [...], ed. by Sigurður Nordal/Guðni Jónsson (1938): Íslenzk fornrit, 3. Reykjavík, pp. 49–107. Hallfreðar saga vandræðaskálds. In: Vatnsdæla saga [...], ed. by Einar Ól. Sveinsson (1939): Íslenzk fornrit, 8, pp. 133–200. Harðar saga Grímkelssonar. In: Harðar saga [...], ed. by Þórhallur Vilmundarson/Bjarni Vilhjálmsson (1991): Íslenzk fornrit, 13. Reykjavík, pp. 1–97. Heimskringla 1, ed. by Bjarni Aðalbjarnarson (1941): Íslenzk fornrit, 26. Reykjavík. Heimskringla 3, ed. by Bjarni Aðalbjarnarson (1951): Íslenzk fornrit, 28. Reykjavík. Íslendingabok. Landnámabók, ed. by Jakob Benediktsson (1986): Íslenzk fornrit, 1. 2 vols. Reykjavík. Sigvatr Þórðarson: Bersǫglisvísur, ed./transl. by Kari Ellen Gade. In: Poetry from the Kings’ Sagas 2: From c. 1035 to c. 1300, ed. by Kari Ellen Gade (2009): Skaldic Poetry of the Scandinavian Middle Ages, 2. Turnhout, pp. 11–30. Víga-Glúms saga. In: Eyfirðinga sögur [...], ed. by Jónas Kristjánsson (1956): Íslenzk fornrit, 9. Reykjavík, pp. 1–98. Þorgils saga ok Hafliða. In: Sturlunga saga 1, ed. by Jón Jóhannesson/Magnús Finnbogason/ Kristján Eldjárn (1946). 2 vols. Reykjavík, pp. 12–50. Þorsteins þáttr Sögufróða. In: Austfirðinga sögur [...], ed. by Jón Jóhannesson (1950): Íslenzk fornrit, 11. Reykjavík, pp. 333–336.

Secondary sources Bibire, Paul (1973): Verses in the Íslendingasögur. In: Alþjóðlegt sagnaþing, Reykjavík, 2–8 August 1973: Fyrirlestrar [Preprints of the 2nd International Saga Conference]. 2 vols, individually paginated. 28 pp. in vol. 1. Reykjavík [n. p.]. Bjarni Einarsson (1976): To skjaldesagaer: En analyse af Kormáks saga og Hallfreðar saga. Bergen. Brink, Stefan (2002): Law and legal customs in Viking Age Scandinavia. In: Jesch, Judith (ed.): The Scandinavians from the Vendel Period to the Tenth Century: An Ethnographic Perspective. Woodbridge, pp. 87–127. Brink, Stefan (2005): Verba Volant, Scripta Manent? Aspects of Early Scandinavian Oral Society. In: Hermann, Pernille (ed.): Literacy in Medieval and Early Modern Scandinavian Culture (Viking Collection 16). Odense, pp. 77–135. Brink, Stefan (2008): Law and Society: Polities and Legal Customs in Viking Scandinavia. In: Brink, Stefan/Price, Neil (eds.): The Viking World. London/New York, pp. 23–31.

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Brown, Ursula (1952): Introduction. In: Brown, Ursula (ed.): Þorgils saga ok Hafliða. London, pp. ix–lxii. Burrows, Hannah (2015): Some Þing to Talk About: Assemblies in the Íslendingasögur. In: Northern Studies, 47, pp. 47–75. Finnur Jónsson (1894–1901): Den oldnorske og oldislandske litteraturs historie. 2 vols. København. Finnur Jónsson (1920–1924): Den oldnorske og oldislandske litteraturs historie. 2nd edition. 3 vols. København. Finlay, Alison (2001): Monstrous Allegations: An Exchange of ýki in Bjarnar saga Hítdœlakappa. In: alvíssmál, 10, pp. 21–44. Foote, Peter (1977a): Oral and Literary Tradition in Early Scandinavian Law. Aspects of a Problem. In: Bekker-Nielsen, Hans et al. (eds.): Oral tradition: Literary Tradition. A Symposium. Odense, pp. 47–55. Foote, Peter (1977b): Some Lines in Lǫgréttuþáttr. A Comparison and some Conclusions. In: Sjötíu ritgerðir helgaðar Jakobi Benediktssyni 20. Júlí 1977, 1. Reykjavík, pp. 198–207. Frog (2009): Speech-acts in Skaldic Verse: Genre, Compositional Strategies and Improvisation. In: Dewey, Tonya Kim/Frog (eds.): Versatility in Versification: Multidisciplinary Approaches to Metrics. New York, pp. 223–246. Gade, Kari Ellen (2001): The Dating and Attributions of Verses in the Skald Sagas. In: Poole, Russell (ed.): Skaldsagas: Text, Vocation and Desire in the Icelandic Sagas of Poets (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 27). Berlin, pp. 50–74. Gade, Kari Ellen (2009): Introduction to Sigvatr Þórðarson, Bersǫglisvísur. In: Poetry from the Kings’ Sagas 2: From c. 1035 to c. 1300, ed. by Kari Ellen Gade (Skaldic Poetry of the Scandinavian Middle Ages 2). Turnhout, pp. 11–12. Grove, Jonathan (2008): Skaldic Verse-Making in Thirteenth-Century Iceland: The Case of the Sauðafellsferðarvísur. In: Viking and Medieval Scandinavia, 4, pp. 85–131. Guðrún Nordal (2001): Tools of Literacy: The Role of Skaldic Verse in Icelandic Textual Culture of the Twelfth and Thirteenth Centuries. Toronto/Buffalo/London. Harris, Joseph (1979): The senna: From Description to Literary Theory. In: Michigan Germanic Studies, 5, pp. 65–74. Jesch, Judith (2015): The Viking Diaspora. London/New York. Jón Helgason (1969): Höfuðlausnarhjal. In: Bjarni Guðnason/Halldór Halldórsson/Jónas Kristjánsson (eds.): Einarsbók: Afmæliskveðja til Einars Ól. Sveinssonar 12. desember 1969. Reykjavík, pp. 156–176. Krijn, Sophie (1931): Halfred Vandrædaskald. In: Neophilologus, 16, pp. 46–55, 121–131. Magerøy, Hallvard (1981): Introduction. In: Magerøy, Hallvard (ed.): Bandamanna saga. London/ Oslo, pp. xv–lx. Markey, T. L. (1972): Nordic níðvísur: An Instance of Ritual Inversion? In: Mediaeval Scandinavia, 5, pp. 7–18. Markussen, Bjarni (2016): Law and Elegy in Egil Skallagrímsson’s Sonatorrek. In: Law and Literature, 28, pp. 153–185. McGlynn, Michael P. (2009): Orality in the Old Icelandic Grágás: Legal Formulae in the Assembly Procedures Section. In: Neophilologus, 93, pp. 521–536. McGlynn, Michael P. (2010): Bergþór’s Voice: Orality in the Homicide Laws of the Old Icelandic Grágás. In: Amsterdamer Beiträge zur älteren Germanistik, 66, pp. 75–102. Meulengracht Sørensen, Preben (1983): The Unmanly Man: Concepts of Sexual Defamation in Early Northern Society, transl. Joan Turville-Petre. Odense. Miller, William Ian (2014): Why is Your Axe Bloody? A Reading of Njáls Saga. Oxford. O’Donoghue, Heather (2005): Skaldic Verse and the Poetics of Saga Narrative. Oxford.

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Poole, Russell (1991): Viking Poems on War and Peace: A Study in Skaldic Narrative. Toronto/ Buffalo/London. Poole, Russell (2001): The Relation between Verses and Prose in Hallfreðar saga and Gunnlaugs saga. In: Poole, Russell (ed.): Skaldsagas: Text, Vocation and Desire in the Icelandic Sagas of Poets (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 27). Berlin/ New York, pp. 125–171. Quinn, Judy (2000): From Orality to Literacy in Medieval Iceland. In: Clunies Ross, Margaret (ed.): Old Icelandic Literature and Society. Cambridge, pp. 30–60. Ström, Folke (1942): On the Sacral Origin of the Germanic Death Penalties. Stockholm. Ström, Folke (1974): Níð, ergi and Old Norse Moral Attitudes. (The Dorothea Coke Memorial Lecture in Northern Studies delivered at University College London, 10 May 1973.) London. Strömbäck, Dag (1975): The Conversion of Iceland, transl. Peter Foote. London. Tranter, Stephen Norman (1987): Sturlunga Saga: The Rôle of the Creative Compiler. Frankfurt am Main. Turville-Petre, Gabriel (1953): Origins of Icelandic Literature. Oxford. Wanner, Kevin (2008): Snorri Sturluson and the Edda: The Conversion of Cultural Capital in Medieval Scandinavia. Toronto/Buffalo/London. Whaley, Diana (1993): Skalds and Situational Verses in Heimskringla. In: Wolf, Alois (ed.): Snorri Sturluson. Kolloquium anläßlich der 750. Wiederkehr seines Todestages (ScriptOralia 51). Tübingen, pp. 245–266.

Kyle Hughes

What is ‘Good Law’? Law as Communal Performance in the Íslendingasögur Discovering Attitudes Towards Law in Saga Narrative In the pseudohistorical world of the sagas, law encodes the narrative conflict. Honour is predicated not merely on one’s ability to take revenge for offences, but to do so in a way that is backed by social approval, portraying the would-be avenger as acting for the benefit of his social matrix as well as himself. Indeed, successfully defending oneself and one’s rights in a legal environment is to defend the law itself. However, rarely are these legal conflicts straightforward, and the law itself often appears to be ignored, or at least pushed to one side. Andreas Heusler, for example, compiled in his Das Strafrecht der Isländersagas a list of some 520 conflicts he had identified in the Íslendingasögur. Although first published in 1911, the raw numbers are still telling: 297 conflicts were resolved violently (typically through blood vengeance), 104 went to arbitration, and the remaining 119 were resolved through adjudication.1 Heusler’s study and his numbers still need further fuller and perhaps more sophisticated analysis. Drawn from the Íslendingasögur, they do not account for conflict resolution as portrayed in the Samtíðarsögur. Heusler explored the latter corpus in his Zum isländischen Fehdewesen in der Sturlungenzeit, which yielded a similar ratio, but his examination of the underlying system of feud was more limited in its depth than the Íslendingasögur study.2 This in turn has led recent critics to suggest Heusler ‘recognised that system prevailed in the operation of Iceland’s social order, but he offers little analysis of it,’ and at times ‘evinces scant knowledge of how feud worked as an underlying narrative or social process.’3 Additionally, how Heusler distinguished between disparate conflicts and arrived at his numbers suggests an approach that favoured treating each individual act of violence or conflict as distinct moments of feud, when at times it may have been better to regard them as subordinate parts or episodes in one longer conflict.4 The result of this is a larger body of feud events, but a collection that may not be as accurate a portrayal of overall feud resolution as an approach more specific in its terms. Even acknowledging this, however, the indication in both the Íslendingasögur 1 2 3 4

Heusler 1911, pp. 40–41. Heusler, 1912, p. 20. Byock 1982, p. 6. Jón Viðar Sigurðsson 1999, p. 159.

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and Samtíðarsögur is still clearly that disputants in the sagas more readily turned to other means of resolution than the court system. In his study, drawn from a narrower body of four Íslendingasögur and five samtíðarsögur, Jón Viðar Sigurðsson observed a similar pattern: out of 102 conflicts whose outcomes are known, around 10% were resolved in court, and 90% out of court, with 70% of the latter group ending in an arbitrated settlement, 20% directly negotiated by the principals, and 10% in other ways, including vengeance-taking or single combat.5 This examination does not aim to provide a thorough analysis of each narrative conflict and its resolution, in the vein of Heusler or Jón Viðar Sigurðsson: so detailed a treatment is beyond its present scope. Rather, it aims to consider conflict more generally, touching upon the ways in which opponents, their allies, and eventually the wider public, become actors in a performative feud-resolution framework. While it is tempting at times to see the legal performance as purely a leveraging of power by the strong against weaker opponents, or as bypassing the actual body of law by turning to arbitration, what I hope to show is a coherent, logical process, built upon the law and deriving its power from the law, but steered firmly towards the balancing of individual honour and communal peace. It is true that by choosing extralegal arbitration as its ideal, the system tacitly accepts the advantaging the stronger of two parties.6 However, the process of arbitration is designed with, as we shall see, two chief functions that benefit both sides: it draws in a larger body of actors to secure the resulting sætt, and it provides for a more nuanced resolution that permits both sides some degree of face-saving.

The Community Embodies and Enforces the Law Indeed, it is perhaps the nuanced, adjustable nature of an arbitrated settlement that made it so attractive to saga writers and their characters, and which simultaneously highlighted a potential weakness within the extant legal system. While they disagree on the specific alternatives, both Heusler’s and Jón Viðar Sigurðsson’s numbers at least outwardly suggest that taking cases ‘to court’ through the process of adjudication was decidedly less popular than extralegal violence or an arbitrated settlement. In Heusler’s case, blood vengeance seems preferred to the other two combined, and arbitration – extralegal settlement by a third party – is slightly more popular than the assembly. In Jón Viðar Sigurðsson’s study, arbitration is the clear preference. We will return to Heusler’s numbers in our later consideration of arbitration, and give them a closer inspection, but it is important immediately to acknowledge the overall lack of adjudicated decisions.

5 Jón Viðar Sigurðsson 1999, pp. 160–161. 6 Gunnar Karlsson 2000, pp. 26–27.

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Stemming from their tradition as a literature of conflict exploring particular crisis moments, it is reasonable enough to expect an imbalance of attention leaning towards blood vengeance, but we are interested here in the practice of law and its narrative function as an extension of the broader communal ‘voice.’ Saga narrative is, at its core, constructed around law and dispute, and follows a pattern of dispute that begins as a small matter, often between two individuals, before growing and drawing in larger and larger numbers of characters. The framework of the saga is predominantly one of a larger order attempting to impose itself on a growing chaos: ‘the inclusion of the community is often presented as necessary in order to reach resolution, whether arrived at privately or publicly.’7 While the action is driven by the feuding parties, then, it is the involvement of the community that provides the underlying structure and gives voice to the drama of the saga. The narrator, though not present as a character within the story, is still undeniably present within the saga: the reader is informed not by an omniscient figure hovering above the action and able to discern the motivations of the characters, but rather by a sort of imperfect heterodiegetic narrator,8 capable of being in any location within the narrative, but limited to reporting events, occasionally secondhand, and without insight into the characters’ thoughts. This narrator represents the general knowledge and judgement of the wider community, and it often provides the final commentary on the outcome of an attempted settlement. In light of this, we ought to consider how adjudication and arbitration are portrayed, and how law is itself treated. Dispute-processing is accepted and treated as a complex system in the sagas, and one that is, in situations already moving in reaction to an injury, vulnerable to disruption or manipulation. When more broadly malicious actors seek to subvert or abuse the technicalities of the legal code, they highlight weaknesses in the system, and raise the question: what is ‘good’ law, at least within the context of the sagas? Even the word itself, lǫg, covers a range of semantic possibilities, from law as a written and/or oral code, to the communal practice of that code and its underlying ideals and social nature. Thralls, for example, are only í lǫgum með ǫðrum mǫnnum after they have been freed,9 and both laws and individuals may be said to be ‘brought into law’ through the construction leiða [. . .] í lǫgum,10 with the latter

7 Byock 1984, p. 92. 8 Though somewhat roughly handled here, we use Genette’s (1980, pp. 244–245) distinguishing between heterodiegetic narrative (narrator absent) and homodiegetic (narrator present as a character). 9 Grágás 1a, p. 192, sec. 112. 10 Grágás 1a, pp. 191–192, sec. 112; cf. Brennu-Njáls saga, p. 245. Although the latter is not a work of law, the same construction, í lǫg leiða, is used by Njáll to describe the process of establishing new law by the lǫgrétta.

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denoting the acceptance of new law(s) into the code, and the former denoting full participation in that system, with all the rights and responsibilities inherent in it. In a sense, the law is the polity, and the polity the law, the two becoming inseparable in the concept of lǫg.11 While this use of lǫg as a word with more than one sense is not specific to Icelandic contexts per se, the Íslendingasögur show a marked interest in the meeting point between the two, and especially in the role of the community as defining what is ‘good’ lǫg – both in a written sense, and a sense of communal stability. Law, or lǫg is, essentially, the social compact as well as the written rules. The Icelandic Commonwealth, with its body of goðar and bœndr, viewed itself in the saga-writing period as, according to Patricia Boulhosa, ‘keepers of the ancient Norwegian individual freedom.’12 Or, to put it more simply, Icelandic audiences viewed themselves as the descendants of independent, typically high-born individuals and families. This identity was inextricably connected with their legal and social status, both in their home country and in Norway. How they processed and interacted with the law, and how they portrayed their ancestors as doing so affirms these Icelanders as the recipients of that tradition, and the survival of the Icelandic identity during and after submission to Norway is linked in large part to sagas, which embodied the history of law in action. Thirteenth- and fourteenthcentury Icelanders may, for example, have observed the existence of eleventhcentury Norwegian laws granting them hǫldaréttr rather than the bóndaréttr of other foreigners,13 and viewed them as a recognition of their ancestors’ status, but it is in the sagas that we first and foremost see a full, critical exploration of what that entailed. Saga narrative is fascinated with law, and shows a polity that is keen to engage with law as a living entity, curated by the community. Law in the sagas is a language of social behaviour and expectations. It is a self-aware tradition, one that acknowledges the inherent difficulties of decentralised law, rather than idealising it. At times, the law fails just as spectacularly as it might have succeeded, but when it does fail, the narrative emphasis is on the clash between individual and communal rights: rather than purely a concern with ‘good’ or ‘bad’ characters, what we see in legal episodes is a question of ‘good’ or ‘bad’ law. By the saga’s end, the lǫg has usually reasserted its primacy, and its essential rightness or usefulness, and the Commonwealth has recovered, or at least endured. The degree of this rebalancing’s success, however, depends upon the ability of the lǫg to mediate and/or expel, and

11 Additionally, both dómr and kviðr appear to have similarly dual meanings, signifying ‘judgement’ and ‘verdict’ respectively, along with the body of men responsible for rendering judgement/ verdicts: see transl. Dennis/Foote/Perkins, p.18. 12 Boulhosa 2005, p.154. 13 Boulhosa 2005, p. 194.

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as we shall see, ‘good’ law is portrayed as law that connects the feud of two individuals or parties back to the whole community, which accepts responsibility for peacemaking and utilises a system of social and legal pressure to confound the impulse to feud while limiting any feeling of unmerited dishonour or disrespect. The primary means by which this confounding effect occurs is through the creation or complication of social bonds surrounding the feuding parties. In an arbitrated settlement, this is primarily achieved by the binding of arbitrators into the final sætt, a process that will be explored in greater detail below. In an adjudicated settlement, however, where verdicts are much more punitive and limited in their scope, procedural innovations were required to mitigate the bonds of district loyalty that might otherwise push one or both parties away from the legal process. It was, for example, factionalism in the early Commonwealth that appears to have been the driving force behind the judicial reforms in the 960s. Where formerly jurisdiction in killing cases had been based on the location of the closest local assembly (várþing), the potential now existed to bring them to the quarter courts of the Alþingi. Citing Ari’s example from Íslendingabók of the case between Þórðr gellir and Tungu-Oddr, Jesse Byock suggests that the logic behind this decision seems to have stemmed from a growing awareness that, in cases where principals came from differing jurisdictions, ‘a defendant from outside the district could hardly expect to have his rights upheld in the home territory of his accuser.’14 As such, the new system, which underwent a series of revisions and trials in the first three years, settled upon a panel of randomly-assigned judges, coming from all quarters of Iceland. Moving the action to the Alþingi did more than simply provide an attempt at balancing the scales, however: it recognised the problems inherent in the existing system and accordingly provided a changed framework that the later model of arbitration would build itself upon. Further, it gave a broader public investment into the dispute-resolution mode of the Commonwealth, extending responsibility for the maintenance of peace to a larger group of peers. In saga reality then, legal action is characterised by its performative aspect, acting out the underlying concept of law through specific, but evolving actions, and all involved have clearly defined roles. From the act of summoning to the concluding verdict, law performs feud, formalising and deferring (though rarely preventing in the long-term) violence through the interposition of another sort of action: public procedure. Dispute-processing through the courts follows a largely set series of phases, the circumstances of which are often laid out in the law with specific details and requirements.15 In brief, we may propose a rough model for the progression of these phases:

14 Byock 2002, p. 8. 15 Laws of Early Iceland, transl. Dennis/Foote/Perkins, pp. 6–9. For examples from the law, see Grágás 1a, pp. 54–55, sec. 31; pp. 68–70, sec. 38; pp. 71–77, secs. 40–42. The intervening sections, omitted here, provide additional detail regarding witnesses and specific pleas or cases.

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[Offence] > Summons > Support-mustering > Arrival at þing > *Further support-mustering16 > Prosecution/Defence > Verdict > Court of confiscation > Vengeance

At each stage, the potential actions of those involved are restricted, and they play the roles assigned to them using very specific language and gestures in formulae laid out either in the law itself or through established social custom.17 One of the most readilyavailable examples of this is the process of support-mustering, which, though largely standardised in its treatment within the sagas, is not a legal requirement per se. Support-mustering is crucial to the dispute resolution system, however: ‘the validity of the case or the underlying circumstances were of secondary importance; what mattered was the kind of support that could be mustered.’18 As such, a more or less uniform treatment of support-mustering is observed across the tradition: the injured party, or a legal representative, first gathered nearby allies at home in preparation for riding to the þing, as did his opponent. If further numbers were needed, they were gathered, often at the þing itself, from more distant allies, or opportunistic enemies of either side, in the days immediately preceding the hearing. The principle that permitted for such ready gathering of initial support, be it from one’s friends, family, chieftain, or followers, was the strong tie of vinátta.19 At its most basic level, the society of the sagas was one ordered around reciprocity and stability in the face of disputes. Householders relied on the goðar, to whom they were bound by formal agreement, for assistance and leadership in both local and national affairs. In return, goðar expected and received the support of their followers in their own power struggles, both in the form of resources and the raw support of having numerous þingmenn present at hearings. At least nominally, this agreement encouraged a goði to act in the best interests of his followers, who had the power to change their allegiances yearly if they felt themselves ill-served.20 More importantly, however, it invested the goðar in the legal process, as an outcome that benefitted his followers also benefitted the chieftain: raising his prestige, and lowering the prestige of a rival. The underlying logic of this hyperlegal, heavily-controlled framework is, therefore, within the sagas a logic of social ordering. As has been widely commented on, the Icelandic Commonwealth had no formal apparatus for the maintenance of peace or the enforcement of the law, in spite of the attention to the (at times) minute details that it demanded. Responsibility fell to the community to execute the law and/or press for its enforcement by the successful party. Thus, the legal plot requires 16 Though not always required, the gatherings at the local/national þing meeting provided ample opportunity to recruit other leaders or more distant relations who stood to benefit from the defeat of an old enemy. 17 e.g. Grágás 1a, pp. 80–82, sec. 47; pp. 153–154, sec. 87; p. 156, sec. 88. 18 Jón Viðar Sigurðsson 1999, p. 161. 19 Jón Viðar Sigurðsson 2014, p. 125. 20 Grágás 1a, pp. 136–142, secs. 81, 83; 2, pp. 272–277, secs. 242–243.

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displays of force, from which is derives its authority. The prosecution performs the role of summoner, and the witnesses are members of both parties. Both sides are typically armed, the significance of which is multi-layered: from the most basic level (concern for extralegal action/violence) to the personal honour level (the willingness of the individual plaintiff/defendant to assert their right to vengeance/self-defence), to the most symbolic (an outward representation of the ordering authority of law itself and its underlying power). Thus, the individual’s perceived honour- and security-needs are subordinated by the law, which utilises these displays to assert itself.

‘Good’ Law vs. ‘Right’ Law: Individuals and Honour However, this dual function of individual protection and communal authority is not without its weaknesses, resulting from the tension that arises when conflicts are reduced to questions of honour and reputation. The martial character of the legal performance highlights the inherent difficulty in balancing, on the one hand, the desire for stability and peace, and on the other, the ‘heroic morality of honour, personal integrity, and vengeance.’21 While references are made to prohibitions on weapons at the þing meetings, no such restrictions apply to a summoning or a court of confiscation, where the law’s power depends on the will and ability of those carrying it out to do so. The sagas record several instances of plaintiffs and defendants acknowledging their willingness to break this supposedly sacrosanct rule if they deem it in their best interest, as for example in Þorgils saga ok Hafliða. That the friends Bǫðvarr and Þorgils are at the Alþing does not stop the pair pondering killing their enemy Hafliði, nor does the fact that they are at Mass on St. Peter’s Day. Having failed to achieve a peaceful settlement, Þorgils makes public his desire for vengeance, and Bǫðvarr restrains him by appealing, equally publicly, to the sanctity of the day and the sanctity of the principle of grið ok friðr in force at the Alþing . . . Until, that is, the brothers are safely back in their booth where, following Þorgils praising Bǫðvarr as a man of faith and good will, the reader hears: Böðvarr mælti: ʻÞat er ok satt, er þú segir, ok ekki gékk mér trúa [. . .] sá ek, at flokkarnir stóðu á tvær hendr okkr, en vær vórum í kvínni [...]. En því sagða ek þér þat eigi til, at ek kunna skap þítt at því, at þú myndir öngan gaum at gefa, ef ek fynda þat til. En ef eigi væri þat, þá hirta ek aldregi þótt þú dræpir hann í kirkju-friði eðr þinghelginni.ʼ22 Bǫðvarr said, ‘What you say is true, but it was not faith that moved me [. . .]. I saw that their forces had us surrounded; we were penned in [...]. But I didn’t tell you that, because I understand your temperament well enough to know that you would have paid no attention if I raised

21 Vilhjálmur Árnarson 1991, p. 174. 22 Þorgils saga ok Hafliða, p. 24. This translation, and all following Old Norse translations, are mine.

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those reasons against it. However, if it weren’t for that, I couldn’t have cared less whether you killed him either in violation of the peace of the Church or the peace of the þing.’

While the sagas rarely pass explicit judgement on such statements of intent, their focus on them, and on the martial character of the legal ritual, highlights an emphasis on controlling violence through the imposition of communal and legal approval. It also, however, allows the saga authors to explore the weaknesses of their system, and the moments of stress it potentially engenders. At any stage in the adjudicationperformance, one or both parties may elect to forgo further procedural steps and return to direct violence. We see in the sagas that even the act of summoning, the first step following an offence, is a potentially violent moment as a result of its performative emphasis on authority. In Víga-Glúms saga, for example, the opportunistic Bárðr, noting the apparent difference between the party brought to support his summons, and the party of the prospective defendant, chooses a decidedly more abbreviated approach to law: ‘Bárðr tekr málit ok ferr í stefnufǫr. Ok er hann finnr Hallvarð, hefir hann skjót málalok, høggr af honum hǫfuð [. . .]’23 Likewise, the same qualities that make for a successful and praiseworthy lawyer – a good memory, a quick wit, and an in-depth knowledge of the law – also highlight potential weaknesses in the law itself. When, for example, the lawspeaker Skapti Þóroddsson is called upon to perform the duties of his office in Njála, his response openly praises the lawyer Þórhallr Ásgrímsson, but also subtly exposes to the reader a law that is imperfectly known and flawed in its ability to be enforced: Fleiri eru nú allmiklir lǫgmenn en ek ætlaða [. . .] En þó ætlaða ek, at ek einn munda nú kunna þessa lagarétting, nú er Njáll er dauðr, því at hann einn vissa ek kunna.24 There are now more great lawyers than I had thought [. . .] And yet I thought, that I alone would have now known this law, now that Njáll is dead, because he was the only one I knew to know it.

As a primarily oral and performative system, the Icelandic law of the saga-world is a vulnerable one. While there are checks on outright manipulation through fraudulent practice (the lawspeaker, as seen here, defends the lǫg and ensures that cited law is réttr), Skapti’s offhand remark suggests that law is often practised unevenly. It may be tempting to read this as a flaw with individual lawyers, rather than the system itself, and this has some credibility: then, as now, victory at law depends upon the skill of the lawyer as much as the justice of the cause. However, a law that depends on memory and performance to the extent that the Icelandic lǫg did constantly risks alienation from the community it is intended to represent and derive its force from.

23 Víga-Glúms saga, p. 61. ‘Bárðr took up the case [against Hallvarðr] and set out to summon him. And when he met Hallvarðr, he reached a quick conclusion to the case by cutting off his head.’ 24 Brennu-Njáls saga, pp. 389f.

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When jealously-guarded legal knowledge and displays of force are performed for purely personal reasons, the emphasis of the performance shifts from one asserting justice and stability to one maximising the potential increase in shame or honour, often with disastrous effects. Flosi’s repeated question during the prosecution of the Burners – ‘þetta lǫg/rétt vera’ – coupled with Skapti’s continued assurances that these are examples of vísu lǫg and ‘svá rétt í alla staði, at hér má ekki í móti mæla,’25 are subtle and deeply ironic when considered as enmeshed within the performative framework of this prosecution-episode. They are réttr – legal or right – in the strictly literal and legal sense, insofar as they are valid. Whether they are ‘good’ or ‘just’ law, however, is beyond Skapti’s ability to say. Certainly, no good comes of them: the entire prosecution in this segment is characterised by a sort of barely-controlled chaos, with disqualifications and legal sparring that ultimately achieve nothing as far as legal resolution is concerned, and worse than nothing as far as the overall resolution of the feud is concerned. This vísu lǫg that Skapti cannot find fault with in fact serves only to accelerate the turn to violence we know to be coming, as both sides turn increasingly to arcane and at times dubious legal means to maximise the potential humiliation of the other party. This, coupled with the law’s singular punishment of outlawry, raises the stakes impossibly high – the only recourse is the battle that both sides clearly seem to want. This episode from Njála is, admittedly, an extreme example, but the sagas are not shy about portraying misuse of law or the chaotic violence that legal procedure at times engenders. However, at no point should we read these weaknesses as a suggestion that the law of the sagas is essentially ineffective. Rather, it suggests that the law is only truly effective when the community itself is fully involved, and when the verdict satisfies a wider need for communal stability through compromise, rather than merely a unilateral enforcement. Regardless of whether a case is settled through blood vengeance, adjudication, or arbitration, the community typically takes up the function of a Greek chorus, providing a final comment on the feud and its effects. Arbitration, however, takes this a step further, giving the wider community the appearance of being directly consulted, through the appointment of arbitrators and/or offers of assistance from outside the feud. All of this is done in an attempt to forestall further feud through the complication of existing social bonds, binding individuals back to the lǫg. Arbitration is itself a performance then, built on law. It is a more socially-complex form of dispute-processing but one that is, within the sagas at least, apparently accepted as lawful in spite of its uncertain legal standing, and so we must give it its due consideration alongside the adjudication process.

25 Brennu-Njáls saga, p. 389. ‘So correct in all respects, that not a single point can be made against them here.’

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Arbitration: Performing Law while Balancing Honour Further evidence for a performative nature of law may be observed in the sagas’ portrayal of the system of arbitration, denoted in the sagas by the word gerð.26 In arbitration, one or more ostensibly neutral parties – góðgjarnir menn, or ‘men of good will’ – are brought into a dispute to render judgement outside the restrictive framework of the legal code. In distinguishing arbitrators as a specific class of actor from the more common mediators, I choose to borrow the definitions advanced by Jón Viðar Sigurðsson in his study of chieftains and conflict resolution. Namely, I suggest it is more useful for the evaluation of our performance framework to consider mediators as those people not involved directly in a case, but who pass information, offer opinions, and attempt to create a short-term peace until the case can be dealt with formally.27 In contrast, the function of an arbitrator is more formal, centred around the creation of gerð (an arbitrated verdict) or sátt (a reconciliation).28 Further, identity is of increased importance for an arbitrator, as opposed to a mediator. Where mediators were drawn broadly, arbitrators were individuals with enough power to force disputants to accept the terms they laid down.29 This power could be hard, exercised through leveraging financial inducements or the suggestion of physical force, or it could be soft: persuasion, often linked to underlying cultural values regarding honour and morality.30 Regardless of its form, we shall see that it was this power that further gave the eventual settlement a sense of legitimacy, along with an enforcement mechanism. If we return to Heusler’s 520 cases, we observe that 104 cases are resolved through arbitration first. Further, of the 119 cases that are prosecuted, we find that slightly more than half (60) devolve to arbitration rather than ending in a sentence or in violence. Just under a third of all of the cases in Heusler’s study are resolved by this method of arbitration. In Jón Viðar Sigurðsson’s study, 90% of the examined cases that were solved extralegally, of which 70% were settled through arbitration, meaning that 63% of his 102 overall cases were arbitrated. This difference in

26 Notably, both arbitration and self-judgement make use of the phrase gera gerð. For more detailed analysis of gerð as a specific term, denoting an arbitrated verdict, see Vilhjálmur Finsen’s ‘Ordregister’ in Grágás 3, p. 617. For discussion of the construct gera gerð, and its relation to sjálfdœmi, see also Jón Viðar Sigurðsson 1999, p. 165. 27 Jón Viðar Sigurðsson 1999, p. 161 28 Grágás 3, pp. 665–666; Jón Viðar Sigurðsson 2014, p. 127. 29 Miller 1984, pp. 103f.; Jón Viðar Sigurðsson 1999, p. 164. 30 I use these terms, coined by Joseph Nye in reference to modern global politics, loosely here, as clearly Commonwealth-era Iceland had nothing like a central state or international diplomatic apparatus. While the sagas and their chieftains are working on a much smaller, more intimate scale, it is nevertheless useful to consider the distinction in how goðar induced others to act: e.g. promises of friendship or reprisal, compared to persuasive appeals to the greater good or to honour. For a brief introduction to soft and hard power, see Nye 2009, pp. 5–10.

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number arises largely from differing definitions of what qualifies as a single unit of conflict. Where Heusler considered each act of revenge and its subsequent legal or extralegal response as a distinct dispute, Jón Viðar Sigurðsson persuasively argues that it is better to define a conflict as: a dispute about rights and interests between individuals and groups [. . .] The dispute may develop in many ways and the end is marked by a lasting settlement [. . .] The term ‘settlement’ is used in the sense of a permanent resolution of a conflict.31

A conflict is only considered ‘finished,’ then, once a permanent resolution has been achieved, and order restored. However, as we shall see below, even when a successful settlement is not achieved, the temporary peace bought by an attempted arbitrated settlement appears to be both more attractive to feuding parties, and with a higher chance of success than attempts at adjudication, single combat, etc. Both Heusler’s number and Jón Viðar Sigurðsson’s suggest a significant amount of extralegal intervention, considering that a) This is a society that prides itself as built on laws and b) The laws themselves say relatively little about arbitration – and when they do, it is to limit its scope. Grágás only permits arbitration with the explicit approval of the Assembly, an extra step that is not recorded in the sagas: ‘Of víg öll þav er nv hefi ec talið oc sva vm en meire sör scolo men eigi sættaz á fyrir alþingis lof.’32 I do not intend to debate here whether, as is sometimes theorised, the sagas reflect reality in how readily their characters turned to arbitration rather than adjudication. While tempting, it is difficult to say with certainty, and at any rate the question is beyond the scope of this paper. Rather, I am more interested in considering the narrative function of arbitration, and the significance of portraying a people more interested in arbitration, and more successful in arbitration than they are at what is ostensibly vísu lǫg. Within the world of the sagas, there is never a suggestion that arbitrated settlements require the approval of the assembly, as they would have under the law. Nor is there a suggestion that these unapproved settlements therefore lack any mechanism of enforcement – instead, the reader is invited to view them as fully legal and enforceable compacts. In those cases where subsequent legal action occurs or is likely to occur, the reader observes that cases previously subject to arbitration are considered as if they had been settled de jure. Further, if the legal ramifications were not pressure enough, it would appear that the threat of being labelled a griðníðingr, or trucebreaker, was often serious enough to force a would-be avenger to reconsider violating an arbitrated settlement. Thus, the difference between an arbitrated settlement and an adjudicated decision is, at least legally, negligible. Arguably, within the

31 Jón Viðar Sigurðsson 1999, pp. 159f. 32 Grágás 1a: 174, sec. 98. ‘For all killings I have now told, and also concerning serious wounds, men shall not settle without the prior permission of the Alþing.’

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context of the sagas arbitration is every bit as ‘legal’ and forceful as a decision handed down by the panel, and is in fact often preferable for its social pressures and constraints on further feuding. If we return to our original assertion that saga law is in fact performative – that is, that it is a form of stylised feud, in which formulae for everything from summoning, pleading, and enacting justice are almost ritual, then we must view arbitration as performative as well. As with adjudication, individuals and parties seem to be performing specific roles and functions, the deeper significance of which is immediately recognisable to others engaging in the ritual, or who will be sought to engage themselves with it. However, where the object of performing law through adjudication is the legitimisation of vengeance, the object of performing law through arbitration is the (attempted) removal of vengeance through substitution, and as such the martial colouring of the performance is altered slightly. It is not uncommon, for example, to see members of the plaintiff or defendant’s parties acting as voices of control or as ‘hotheads,’ depending on the need of the situation.33 Their function in doing so is to provide a contrast to the principals in the feud, who may wish to characterise themselves as men of moderation, or alternatively as eager to take vengeance, regardless of their actual desire for peace or conflict. Indeed, as Miller notes, and as we have mentioned in relation to adjudication, ‘the forms of honour usually demanded shows of firmness and aggression.’34 To be seen as too eager to avoid vengeance-taking is to impugn one’s own ability to do so, and thus one’s social standing. In performing this willingness, regardless of one’s actual feelings on the matter, honour is typically satisfied. The performance then passes to the mediators and eventually to the prospective arbitrators, whose duty it is to bring both sides together. In some cases, neither side will openly advance the cause of settlement, but in attracting intervention, they draw in the wider community which has a vested interest in seeing peace. For the arbitrators, this is a very real concern: a failed arbitration reflects just as poorly on the arbitrators as on the principals, if not moreso. When, for example, the feuding poets of Bjarnar saga Hítdœlakappa ruin an attempt at settlement, their arbitrator laments not so much the failure as what it means for him: ‘en Þorsteinn kvað sik eigi meira metinn í þessu en svá af þeim Þórði, at þeir vildu ekki þá sætt halda, er hann hefir gǫrva [. . .].’35 There appears then to have been an understanding that it was in everyone’s interest peace be maintained, and equal pressure was placed on those who inserted themselves as (or were drawn into the role of) arbitrators to publicly reaffirm the sætt. A broken settlement was, as suggested above, not only an indictment of the transgressor, it was also a public failure for the arbitrators involved, to whom it was 33 Miller 1990, pp. 271f. 34 Miller 1990, p. 266. 35 Bjarnar saga Hítdœlakappa, p. 129. ‘And Þorsteinn said that he was no more respected in this than so: that Þórðr and Bjǫrn would not hold to that reconciliation that he made [. . .]’

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therefore more important to engineer an agreeable gerð or sætt than to heed the letter of the law.36 A gerð must, therefore, be constructed in such a way as to appeal to both parties, and give confidence ‘that an outcome will be fair and just and thus better than a potential court’s decision dictated by the “blind” law.’37 The offers made, or pressures or inducements exerted, may differ depending on the situation, but their most significant benefit was in the social bonds that could be created, helping to form complex and at times conflicting networks of loyalty through offers of marriage or friendship, through arbitrators assisting in the payment of a settlement, or simply through the threat of more direct action or the dissolution of existing ties should violence continue. The Icelandic community is interested primarily in the maintenance of peace: arbitration of specific cases is viewed in light of the larger feud, where the threat to the community lies. Regardless of how one-sided a judgement might actually be among the goðar, the effect of a communal decision not only provides legitimacy, it also allows for at least an attempt at saving face and a return to the status quo. It is seen to be ‘agreed upon’ by all parties, whether or not this is actually so, and all sides can hopefully win some degree of honour from being seen to end a feud (even if, as is common, the feud only become dormant). By consciously offsetting offences or providing for mitigating circumstances, communal arbitration seeks to apportion responsibility to both sides where possible, precluding one party from bearing too much culpability and suffering a greater loss of honour as a result. In a society in which every interaction between two or more Icelanders of equal or roughly equal standing contains the potential for misunderstanding over honour-relationships and status, a gerð must be constructed with exceeding care.38 The final verdict or reconciliation is a public statement in and of itself, a compromise in which, ideally, both parties may claim some small measure of relief or means of saving face. Bodies may be set off against bodies, and in some cases, poems against poems, to lower costs or ‘even’ the score, in a process so formulaic that it became commonly referred to as mannjafnaðr.39 If we return to our earlier example from Víga-Glúms saga, for example, we observe that Bárðr’s hasty handling of the law has come back to haunt him: one chapter later, he is dead, and now the community must decide how to deal with his killers, two Norwegians, and the man who was responsible for them: Vigfúss. Reconciliation the reader is told, seems impossible. Yet, even here, some measure of compromise is able to be found (even though it will, inevitably, be flaunted):

36 Jón Viðar Sigurðsson 1999, pp. 169–170. 37 Koszowski 2014, pp. 343f. 38 Miller 1986, p. 50. 39 Notably, Bjarnar saga Hítdœlakappa, p. 189. For mannjafnaðr, as distinct from the poetic competition, see Miller 2014, pp. 74–75

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Fóru mál til þings, ok var leitat um sættir. En þar var svá þungt fyrir, at engi váru vǫl á því, því at í móti váru lǫgvitrir menn ok hugdjarfir, Mǫðrvellingar ok Esphœlingar. Lauk þessu máli svá, at austmenn urðu sekir, ok var gefit fé til farningar Vigfúsi, ok skyldi þrjú sumur leita við útanfǫr ok hafa þrjú heimili á hverjum missarum, ok var hann þá fjǫrbaugsmaðr. En hann mátti eigi heima vera fyrir helgi staðarins [. . .].40 The case went to the þing, and a reconciliation was sought. But it was such a heavy matter, that there was no chance of that, because there were men wise at law and full of pride against it, both from the Mǫðrvellingar and Esphœlingar. The suit closed in this way: that the Norwegians were declared guilty, but money was given for the departure of Vigfúss – and he should have three summers to seek passage out, and have three places of refuge in each year, and he was then a lesser outlaw. But he may not be at home, on account of the sacredness of the place [. . .].

In order to solidify a gerð, everything was conducted in a quasi-official and roughly standard practice, mapping onto the established legal ritual. Earlier, we noted that the legal ritual proceeds through several ordered steps, either to a final verdict or branching into renewed violence. Arbitration, though having its own procedures and formulae, maps its origins onto this process, becoming an extension of the standard performance rather than a distinct, fully independent performance. As with attempts at mediation, at any stage following the commission of the offence, and preceding the final verdict, disputants may offer and accept arbitration. Further, there is no limit to the number of times arbitration may be offered; disputants may outright refuse, only to accept later, or they may debate the specific scope of the arbitration, i.e. the identity of the arbitrators, the possibility of sjálfdœmi, etc. Generally speaking, the odds of success increase the more the feud and its actors move into the public sphere, and for this reason it is not uncommon for one or both disputant to seek intervention at the Alþing, where the entirety of the lǫg – and its pressures – may be brought to bear. Indeed, in at least one case, the sagas show a prospective arbitrator accepting the role on the condition that atonement be delayed until the next Alþing meeting. After discovering and foiling the Þríhyrningar plot against Gunnarr, Njáll is asked to mediate between the attackers and his friend. Although this was clearly part of his plan, he initially declines: ‘Njáll kvazk eigi gera mundu nema á þingi, ok væri við inir beztu menn.’41 It is not long before the wisdom of this move is revealed: at the Alþing, Njáll takes pains to craft a performance that neatly mirrors a legal judgement and brings the public into this private feud: ‘Njáll kvaddi sér hljóðs, spurði alla ina beztu menn, er þar váru komnir, hvert mál þeim þœtti Gunnarr eiga [. . .]’42 By calling

40 Víga-Glúms saga, pp. 65–66. 41 Brennu-Njáls saga, p. 172. ‘Njáll said he would make no settlement except at the þing, and alongside the best men.’ 42 Brennu-Njáls saga, p. 172. ‘Njáll called for silence, and asked all of the best men, who had come there, what claim it seemed to them that Gunnarr had [. . .]’

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the attention of the public, explicitly asking the most socially pre-eminent men for their counsel, and naming a panel of twelve independent judges to decide the scope of the settlement, Njáll gave the polity no choice but to invest itself in the peacemaking process. The hope in doing so seemed to be less on the fee (although this is included, as required, and as a physical representation of the sætt), and more on this investment: there were now twelve formerly unaffiliated representatives interested in maintaining order. Unfortunately, in this instance (like so many others across the sagas) the desire for feud eventually overwhelmed the desire for peace, but the performance appears to have been effective at least temporarily, and bought the district a peace it doubtless needed.

What is ‘Good’ Law? While further violence was still possible, arbitrated settlements offered, if not always a permanent end to hostilities, at least a much-needed opportunity for individuals and their communities to recover from the strain of feud. This concern would appear to be paramount to saga authors: the lǫg must endure, and does endure, even the most destructive feuds, even if individual (and often sympathetic) characters do not. To this end, although it was ‘the nature of arbitration to try and obtain peace rather than to secure justice,’ arbitrated settlements still formed an essential part of the lǫg.43 ‘Good’ law is law that vindicates the community – that is, decisions that involve the wider polity, relate feudants back to that polity, and as a result, gain the approval of that polity. That these decisions may be nominally extralegal at times, the result of arbitration, does not affect their status as ‘good law,’ as evidenced by the penalties for violating a sætt, and the frequency with which such violations are cited in later legal performances. Far from being a source of further chaos, the legal performance may be identified as a stabilising force, binding together families and power structures across district boundaries. Byock, speaking of advocacy/arbitration specifically, sees the system as having ‘brought the entire island together into a cohesive political body,’ but we may apply this more generally to the entirety of the communal legal performance.44 Complex and shifting networks of loyalty, coupled with an understanding of communal responsibility for peace where possible, and the removal of chaotic elements when peacemaking failed, had the goal of preventing any one individual from becoming too powerful to be resisted. As a literary device, the legal performance is a singularly effective representation of the Icelandic identity, acting as a sort of vox populi or narrative voice representing the community’s hopes, fears, and

43 Gunnar Karlsson 2000, p. 24. 44 Byock 1982, p. 92.

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desires for stability. The conflicts of the sagas, and the ways in which they were navigated, connected audiences back to an ancestry that, though it struggled with the balance of power, endured even the most destructive of feuds for nearly three centuries.

Bibliography Primary Sources Bjarnar saga Hítdoelakappa. In: Borgfirðinga so̜gur, ed. by Sigurður Nordal/Guðni Jonsson (1938): Íslenzk fornrit, 3. Reykjavík, pp. 109–211. Brennu-Njáls saga, ed. by Einar Ól. Sveinsson (1954): Íslenzk fornrit, 14. Reykjavík. Grágás 1a–b: Grágás: Islændernes Lovbog i Fristatens Tid, udgivet efter det kongelige Bibliotheks Haandskrift, ed. by Vilhjálmur Finsen (1852). København. Grágás 2: Grágás efter det Arnamnæanske Haandskrift Nr. 334 fol., Staðarhólsbók, ed. by Vilhjálmur Finsen (1879). København. Grágás 3: Grágás. Stykker, som findes i det Arnamagnæanske haandskrift, nr. 351 fol. Skálholtsbók og en række andre haandskrifter, ed. by Vilhjálmur Finsen (1883). København. Laws of Early Iceland: Grágás 1, transl. by Andrew Dennis/Peter Foote/Richard Perkins (1980): University of Manitoba Icelandic studies, 3. Winnipeg. Víga-Glúms saga. In: Eyfirðinga so̜gur, ed. by Jónas Kristjánsson (1956): Íslenzk fornrit, 9. Reykjavík, pp. 1–98. Þorgils saga ok Hafliða. In: Sturlunga Saga: Including the Íslendinga Saga of Lawman Sturla Thordsson and Other Works 1, ed. by Guðbrandur Vigfússon (1878). Oxford, pp. 7–39.

Secondary Sources Boulhosa, Patricia Pires (2005): Icelanders and the Kings of Norway. Leiden. Byock, Jesse (1982): Feud in the Icelandic Saga. Berkeley. Byock, Jesse (1984): Dispute Resolution in the Sagas. In: Gripla, 6, pp. 86–100. Byock, Jesse (2002): The Icelandic Althing: The Dawn of Parliamentary Democracy. In: Fladmark, J.M. (ed.): Heritage and Identity: Shaping the Nations of the North. Shaftesbury, pp. 1–18. Genette, Gérard (1980): Narrative Discourse: An Essay in Method. Transl. Jane E. Lewin. Ithaca. Gunnar Karlsson (2000): The History of Iceland. Minneapolis. Heusler, Andreas (1911): Das Strafrecht der Isländersagas. Leipzig. Heusler, Andreas (1912): Zum isländischen Fehdewesen in der Sturlungenzeit. Berlin. Jón Viðar Sigurðsson (1999): Chieftains and Power in the Icelandic Commonwealth. Odense. Jón Viðar Sigurðsson (2014): The Role of Arbitration in the Settlement of Disputes in Iceland c. 1000–1300. In: Andersen, Per et al. (eds.): Law and Disputing in the Middle Ages: Proceedings of the Ninth Carlsberg Academy Conference on Medieval Law, 2012. København. Koszowski, Maciej (2014): Medieval Iceland: The Influence of Culture and Tradition on Law. In: Scandinavian Studies 86, pp. 333–351. Miller, William Ian (1986): Gift, Sale, Payment, Raid: Case Studies in the Negotiation and Classification of Exchange in Medieval Iceland. In: Speculum, 61, pp. 18–50.

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Miller, William Ian (1990): Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland. Chicago. Miller, William Ian (2014): Why is Your Axe Bloody? A Reading of Njáls Saga. Chicago. Nye, Joseph (2009): Soft Power: The Means to Success in World Politics. New York. Vilhjálmur Árnason (1991): Morality and Social Structure in the Icelandic Sagas. In: The Journal of English and Germanic Philology, 90, pp. 157–174.

Roland Scheel

Revenge or Settlement? Law and Feud in Early Sagas of Icelanders The question whether forceful vengeance was viewed as an appropriate reaction to perceived wrongs in medieval Iceland has been addressed by generations of scholars, and it is also a matter of debate in this volume.1 The same applies to the question whether ‘feuds’ between alliance systems formed an integral and functional part of stateless, acephalic societies like in Iceland. From today’s perspective, the question might appear to be rhetorical one, but historically, the answers have been very different: classical approaches first and foremost relied upon legal prescriptions as the basis of their representation of the ‘constitution’ or ‘form of government’2 and consequently viewed escalating violent disputes so frequently described in sagas about Icelandic matters as a disturbing factor in society. After all, political thought in the 13th century, when the sagas were written, was dominated by the Augustinian demand for peace and justice guaranteed by the ruler through the enforcement of just laws, an idea mirrored by the development of the laws in continental Scandinavia.3 Suppressing and ultimately eradicating violent feuding practices is thus a well-known key element of the classical narration of state formation in medieval Europe, and Icelandic history seems to fit into this pattern: after a period of increasingly violent conflicts among the most influential magnates, the Icelanders accepted the Norwegian king as their overlord in the years 1262 and 1264 respectively, followed by the introduction of a new law code in 1271.4 Thereby, a state which Cardinal William of Sabina had called ‘unnatural’ when he attended the coronation of King Hákon IV of Norway in 12475 had come to an end. In the new law book from 1271 issued by the king, taking revenge was forbidden just as it was in Hákon’s revision of the Norwegian provincial laws – even though the effect on social practice was not so great as to justify speaking of a new epoch in Icelandic history.6

1 2 3 4 5 6

Cf. Jón Viðar Sigurðsson’s, Hughesʼ and Riisøy’s contributions. Cf. von Maurer 1909, esp. pp. 451–462; Jón Jóhannesson 1974, pp. 35–93; Strauch 2011, pp. 215–46. Cf. Hybel 2018, pp. 33–69; Charpentier Ljungqvist 2014; Bagge 2012. For an overview, see Gunnar Karlsson 2000, pp. 83–95. Hákonar saga Hákonarsonar, p. 136. Járnsíða, p. 77. Cf. Helgi Þorláksson 1997; Orning 2013.

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Law, Literature, Rituals and Patterned Behaviour: A Question of Premises Despite the laws forbidding forceful revenge, legal historians since the early 19th century have suggested that ‘blood revenge’ – a term never used in medieval sources – between kinship groups had formed the ultimate basis of the feuding practices described in narrative and administrative texts throughout high-medieval Europe. Such feuds prove to be rule-bound and rather controlled,7 but scholars like Otto Brunner held that this was the effect of royal and ecclesiastical initiative, while originally conflicts between ‘Germanic’ kin groups had aimed at annihilating the opponent. This idea of a linear civilising process has been disproved,8 but it had severe consequences for so-called ‘Germanic legal history’, as saga texts with their numerous descriptions of bloody disputes and vengeance seemed to offer impressions of a society still practicing the concept of ‘blood feud’ in a rather pure form. Vengeance by killing uninvolved relatives of an opponent received considerable attention, although the terminus technicus (ættvíg) only appears five times in the whole corpus of Old Norse literature and only once in the sagas of Icelanders (Íslendingasögur), when a character prohibits it.9 To Andreas Heusler, especially the Íslendingasögur, written during the 13th and 14th centuries, but telling stories about the 10th and early 11th centuries, represented a genuine impression of ancient ‘Germanic’ mentalities and legal thought largely undisturbed by Christian ethics. His work continues to exert great influence on legal anthropology. Among many scholars influenced by völkisch ideas, particularly in the field of legal history, Icelandic society as described in the sagas came to be a sort of living Germanic fossil in the North Atlantic which helps to understand, for instance, the Leges Barbarorum from continental Europe.10 There is no longer any need to explain why such a view is not viable. The notion of a cultural continuum which was specifically ‘Germanic’ and largely stable over centuries in different regions is a modern, partly racist fiction, and today, sagas are treated as witnesses of Icelandic culture. For totally different reasons hinted at in the introduction, however, Íslendingasögur and to a lesser degree Samtíðarsögur (contemporary sagas) are currently dominating research in Icelandic legal history. Legal anthropologists have demonstrated that taking revenge after a perceived wrong, or at least threatening to do so – including a potential for retaliation and escalation of a dispute and thus a ‘feud’ – 7 Miller 1990, pp. 179–89; Büchert Netterstrøm 2007, esp. pp. 16–19, 49–67; Helgi Þorláksson 2007. 8 Beck/Böttcher 1978; Halsall 1998. 9 Laxdœla saga, p. 177; cf. the introduction to this volume, p. 17. Beyond the term, of course, the concept is supposed in the prohibition of revenge (note 5) and in some other sagas like Hrafnkels saga Freysgoða provides a key to the plot. 10 The entanglement ultimately goes back to Grimm 1828; for criticism of later germanomanic views, see von See 1964, pp. 249–55; von See 1972.

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formed an integral part of establishing social balance and ultimately aimed at peace based on equity between the involved parties.11 Legal anthropology defines law by what happens in the course of conflicts and what is reproduced in ritualised or habitually repeated actions during disputes.12 With this focus on patterned action, though not confined to rituals in the narrower sense, the anthropological approach to law shares decisive epistemological features with research on rituals, especially in its dependence on narrative texts and the resulting uncertainty in the status of these texts:13 narrations in a referential discourse mirror by necessity attitudes of story tellers, authors and recipients and are thus viable sources of mentalities, of what was thinkable and appeared plausible.14 This view, however, creates a risk of reifying narrative patterns at the expense of the textuality of the sources. This chapter focuses therefore on the significance of this textuality and its potential for detecting attitudes to social order. As a consequence of the shift of the scholarly focus to (saga) narrations, the Grágás with its rigid restrictions on revenge so frequently ignored by saga characters has been more or less replaced by disputing strategies mirrored in the sagas and the reconstruction of their inherent logics, turning the law into one tool among many others. Despite their literary character, sagas are ultimately treated as providers of raw data.15 Partly as a result of the sagasʼ focus on action, that is, of the genre rules in question, the impression arises that ‘the bloodfeud informs every aspect of Icelandic political and legal life.’16 What was embraced by Andreas Heusler with great enthusiasm and dismissed by W. H. Auden as ‘a rotten society [. . .] with only the gangster virtues’17 is represented by legal anthropologists like William Ian Miller as the result of thorough analysis without any ethical verdict. Consequently, classical saga genres have attracted much anthropological interest, turning Iceland before 1262/64 into an archetype of a ‘feuding society’,18 which then again appears rather remote and isolated from the rest of Europe and synchronous transcultural discourse.

11 The definition of ‘feud’ is derived from Hyams 2003, pp. 8f.; cf. however the line drawn between far more frequent ‘customary violence’ and ‘feud’ by Halsall 1998, p. 28. ‘Peace’ is conceptualised as a positive agreement rather than the mere absence of violence (Lambert 2009, pp. 5–8). 12 Dilcher 2002, pp. 128–53. Cf. Brown/Górecki 2003, pp. 1f., 6–26. 13 Cf. Koziol 1992, pp. 292–294; Buc 2001, pp. 253–260. 14 Cf. Esmark/Orning 2013, pp. 12–14; Vésteinn Ólason 1998, pp. 178f. 15 Esmark/Orning 2013, p. 13. For a critical view of functionalism, cf. Buc (note 13). The tendency to exclude legal texts from the equation in a form of over-compensation of former positivism is addressed by Hudson 2013. 16 Miller 1990, p. 179. 17 Auden 1937, p. 119. 18 Cf. Byock 1982; Miller 1990. This is also accepted by legal historians: Halsall 1998, p. 26; Oestmann 2006.

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The main problem with this approach, then, is the question how much and in which way this picture is blurred by literaricity. It is no wonder that especially philologists stressed that phenomena like ættvíg flourished much better in narrations than in every-day life and that historicising self-images of elites do not necessarily coincide with social reality.19 It has also been demonstrated through quantitative analysis of text corpora – problematic as it may be given the character of the sources – that the relative number of homicides in medieval Iceland was quite comparable to rural regions for instance in England at the same time and much lower than in medieval cities,20 underlining the impression that the focus on bloodshed is first and foremost a literary effect. Furthermore, it seems problematic that disputes in sagas do not necessarily coincide with standard definitions of a ‘feud’ as a protracted exchange of hostilities between two (kin) groups including repeated vengeance killings.21 Indeed, the word did not exist in Old Icelandic. Narrative texts do not distinguish on a semantic level between a law suit and violent self-help as reactions to the transgression of norms,22 alliances are formed ad hoc and through friendships rather than along the lines of a clear-cut kinship system, which is bilateral and open to negotiation.23 The lex talionis and the alleged aim to achieve a balance in material and social resources, first and foremost honour, form the inherent logic of seeking revenge and partaking in a dispute identified by anthropologists. Yet closer examination reveals that many saga characters prefer to risk shedding blood when they see a chance to crush their opponents rather than simply to get even or to force a negotiation, even if the literary figures themselves argue along the lines of getting even.24 In other words: saga protagonists may frequently act against the model or deform implicit social norms to their own ends, often due to their individual character. The main point is that the picture of the ‘saga world’ necessarily is more multi-faceted than functionalistic models of a feuding society can mirror. This is by no means to be understood as a rejection of anthropological models. They provide an indispensable frame of reference. There are, however, some dead corners especially with regard to potential diachronic developments within the text corpus itself and the way disputes are represented. The saga world may appear more static than comparisons between single texts reveal.25 Equally, the question how individual texts relate to written and oral discourse tends to be overlooked. It is quite clear that not every single action by every single character, although comprehensible within a continuum of options, was viewed as equally morally or legally acceptable

19 Sawyer 1987, p. 36; Meulengracht Sørensen 1993, pp. 322–27. Cf. Clover 1985, pp. 253–80. 20 Firth 2012, esp. pp. 147–158, 171–175. 21 Cf. Hyams/Halsall (note 11); Helgi Þorláksson 2007, pp. 96–100. 22 Von See 1964, pp. 236–48. 23 Jón Viðar Sigurðsson 2013a; Vogt 2005, pp. 148–195, 307–314; Hermanson 2004. 24 Firth 2012, pp. 167f. 25 Esmark/Orning 2013, pp. 14–17, 20–23.

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or promising in terms of the intended result. Even though the saga narrator virtually always refrains from commenting, there are references to public opinion,26 and the plots of some Íslendingasögur like Bandamanna saga or Hœnsa-Þóris saga are based on ironic or even carnivalesque inversions of the roles played by the elite.27 Consequently, the strategies applied by some of their characters are decidedly absurd. This absurdity implies that the saga authors took a critical approach to the implicit model of social order represented in older saga texts, further suggesting a political and moral discourse hidden beyond the text surface. Thus, there may well be common ideas informing both Latin treatises and saga literature, rendering the latter less ‘genuine’ and exotic. In the end, it is always – at least partly – a question of choice a priori on part of the scholar when it comes to dealing with the alterity of medieval societies and their texts:28 Is the Other best understood by an exoticising and alienating approach, as it helps avoid unconscious anachronisms and the potentially inappropriate transfer of context knowledge? Or should affinities between the saga world and ideas from Latin Europe be stressed and differences rather be explained as the variation of patterns also found elsewhere in order to avoid the emergence of clichés? Should one stress the from a modern view seemingly counter-intuitive patterns connecting the different texts or rather variation within the genre? After all, the wise Njáll Þorgeirsson is a very different character from the chieftain Hrafnkell in Hrafnkels saga Freysgoða, and they are both very different from the proto-martyr Áskell in Reykdœla saga ok Víga-Skútu. The latter is virtually unknown, in contrast to the other two, and he is so for a reason, as will be demonstrated later on. If the characters, their integration into and influence on the plot are so different, how much weight does the structural connection between the texts bear? Should exegesis of the patterns – the concept of ‘feud’ as an overarching system – prevail or rather the explanation of the way the idea is applied and manipulated in single texts?29 The disputing strategies hinted at above doubtlessly are different from conflicts in communities living under a central authority organised through institutions. Nevertheless, as soon as we leave the framework of collectives which have internalised the idea of the modern state and the rule of one body of laws to a degree that it is unquestioned, we encounter a choice of disputing strategies like the phenomenon of ‘forum shopping’ for one’s own advantage. This strategy is not so dissimilar from those in place in feuding societies30 – in medieval kingdoms, in today’s international

26 Vésteinn Ólason 1998, pp. 101–119. 27 Cf. Durrenberger/Wilcox 1992; Würth 1999. 28 Jauß 1977. 29 The former is a risk both inherent to legal anthropology and to ritual studies: Koziol 1992, pp. 292–294. 30 Cf. Humfress 2013, pp. 225–250; for the allegedly very centralised 14th century Norway Berge 2007. See in our case the choice of the most convenient þing for a prosecution in Víga-Glúms saga, p. 82.

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law, in societies with legal pluralism, or in subcultures beyond the control of the state.31 The ensuing question is whether friendships, kin systems and disputes in Saga Iceland – wherever it may be located between text and physical action – really were fundamentally different from those in continental Europe in the Middle Ages or whether one should rather speak of quantitative rather than qualitative differences. The result will always be predetermined by the answers to these questions, and they are a priori in so far as they determine the way one reads the texts. As any referential narration is based upon a thin selection from a continuum of information, the researcher stands before the same decisions as the medieval authors, with regard to both the choice of information from the source as well as the selection of the sources themselves from the corpus.

Polyphony Instead of Monologicality Thus, behind any research narration, there are always at least two layers of partly implicit and partly explicit theory.32 Existing discourses provide further stimuli: the modern myth of the ‘Viking’ and its long heritage33 correspond to a predilection for the heroic, mirroring the taste of some saga authors. The death of the protagonist in Gísla saga Súrssonar, who had been outlawed before as the consequence of a revenge killing, during a skirmish fits perfectly into modern perceptions of bravery and defiance of death: Nú sœkja þeir Eyjólfr at fast ok frændr hans; þeir sá, at þar lá við sœmð þeira ok virðing. Leggja þeir þá til hans með spjótum, svá at út falla iðrin, en hann sveipar at sér iðrunum ok skyrtunni ok bindr at fyrir neðan með reipinu. Þá mælti Gísli, at þeir skyldi bíða lítt þat – ‘munu þér nú hafa þau málalok, sem þér vilduð.’ Now Eyjólfr and his kinsmen press on hard, for they felt that their fame and honour lay on it. Then they thrust at him with spears, so that his entrails fall out; but he swept up the entrails with his shirt and bound the rope round the wound. Then Gísli asked them to wait for a moment: ‘Now you shall have the ending of the case you wanted to achieve.’34

Subsequently, the outlawed Gísli speaks a Skaldic stanza about his wife and his father and dies as a hero, slaying one more of his enemies. The inferior hero displays a certain attitude which he himself connects to honour in his stanza; the other party is also driven by honour (sœmð) and reputation (virðing). Gísli himself calls

31 Seinecke 2015, pp. 346–74. For subcultures and their disputing strategies and resources, cf. Anderson 1999, pp. 66–106; Firth 2012, pp. 154–56. 32 Cf. Fried 1994. 33 Cf. Lind 2012; Scheel 2014. 34 Gísla saga, p. 114; all translations from Old Norse by R.S.

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the fight – actually the climax of the saga – the ending of a legal dispute (málalok). The end of the powerful chieftain Áskell in Reykdœla saga mentioned above is very different. Having repeatedly acted as arbitrator and peacemaker, he becomes the witness of a skirmish between his nephew and his nephew’s opponents from earlier disputes. In the aftermath of this encounter, in which many of the enemies fall, the old magnate follows his relatives in a sleigh, and as he is the last one, he is attacked from the back by a survivor of the enemy party and mortally wounded. His death scene is described as follows: Nú sagði hann þeim, at hann hafði sár fengit, hversu þat hafði at borizk, ok kvezk fyrir því eigi fyrr hafa til sagt, at hann vissi kapp frænda sinna um þat, at þeir myndi eigi hafa skilit við svá búit, ef þeir vissi þá þegar. En hann kvazk gjarna vilja, at engir menn hlyti illt af vígi hans, ok bað þá vera sáttgjarna, frændr sína, ok kvað þá þat bezt af at gera, at stǫðva óhǫppin sem mátti, [. . .]. Now he told them that he received a wound and how that had come about. He explained that he did not tell them before because he knew the temper of his relatives and that they would not have left the scene in such a situation, had he told them at once. But he stated that it was his wish that no men should suffer any harm because he was killed and asked his relatives to be willing to make a settlement, and he maintained that the best they could do was to put an end to the calamities as best they could, [. . .].35

Áskell is later buried without grave goods, although we are still in a period before the arrival of Christianity. There are obvious traits of hagiographical discourse,36 and Áskel’s last wish not to be avenged is actually fulfilled by everyone present. The two passages, of which the one from Reykdœla saga is the earlier one, should serve to illustrate that we should be extremely aware of the narrative strategies employed by the anonymous authors of our sources. It does not even matter whether or not one reckons with authors in the classical sense or writers more or less dependent on oral tradition; in either case, the form is the product of collective memory and making sense of events through narrative.37 From this point of view, also law books come into play as addition to a manyvoiced concert, opening an interdiscourse: if we for the present purpose view literary and legal texts as two different ways of fictionalising norms, we are presented with even more alternative views on disputes. The Grágás laws in their description of highly standardised ways of gaining compensation stress the controlling authority of the þing and of social structures. Apart from extremely precise procedural law and the mentioned restrictions on lawful revenge, settlements in disputes which

35 Reykdœla saga ok Víga-Skútu, p. 201. 36 Cf. for a definition van Uytfanghe 1988. 37 Cf. Assmann 2005, pp. 66–103; White 1973, pp. 133–264, 426–434.

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involved bloodshed are only allowed in front of the Alþingi, the central assembly, and are otherwise invalid and even punishable.38 A full outlaw should be killed by anyone who encounters him or brought to the person who got him condemned, who is required to slay him or suffer full outlawry if he fails to do so.39 The killers are entitled to a bounty paid through taxes.40 Most of these prescriptions are either absent or ignored in the sagas, and especially late Íslendingasögur like Njáls saga or Bandamanna saga ironise or problematise legal pettifogging by experts in the complicated procedural law.41 Nevertheless, if read as a fiction of legal order, the oldest complete manuscript of the Icelandic Laws (Codex regius, Gks 1157 fol.), written around 1250–1260 at the end of the Commonwealth Period, contains a very clear message in the time of massive expansion of royal control in Norway as well as in the rest of Europe: as executive tasks of maintaining social order usually fulfilled by royal officials and thus by the crown are assigned to free Icelanders through financial incentives borne by the collective and the threat of outlawry, the kingless society appears to be as capable of acting and maintaining order as any kingdom, rendering William of Sabina’s alleged argument about the ‘unnatural’ state of Icelandic society pointless.42 The Samtíðarsögur inform us that socio-political reality was different, but the laws which viewed Iceland in accord with current legal thought were written and received by the same group of people as the sagas. Contradictory as they are, they represent two sides of the same coin. The argument is therefore that for the present purpose it might be useful to view the world(s) of the Íslendingasögur and Samtíðarsögur not as one continuum, as ‘monologic’ in the sense of Mikhail Bakhtin,43 but as a sphere of discourse where very different attitudes towards law and feud, towards patterned action in disputes could be uttered beneath very similar text surfaces. This is not meant to be an approach by a philologist who tries to claim the high ground of interpretation. Rather, a closer look at less well-known voices in the concert, in this case at early Íslendingasögur from the North East of Iceland, and at their narrative structure may prove useful also for historians trying to assess the anthropological source value of texts they are primarily interested in for reasons other than their respective intrinsic logics.

38 Grágás 1, p. 174; on the procedural law, see Strauch 2011, pp. 241f. 39 Grágás 1, p. 185f. There is a lacuna in the older ms. in this passage, which is therefore taken from Staðarhólsbók (c. 1280), but the principle of the condemner’s obligation is corroborated by ibid., pp. 187–90. 40 Ibid., pp. 189f. 41 Andersson 2006a, pp. 169–75; Burrows 2009, pp. 37–43. 42 This contradicts Koszowski 2014, p. 346f., who attests pre-royal Iceland a ‘lack of goal-oriented legislation’ on the grounds of procedure at the Alþingi. 43 Cf. Bachtin 1979, pp. 192–219, 309–337; Martínez 1999, pp. 430–438.

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The ritöld as a Time of Rapid Change and Literary Production The corpus of the Íslendingasögur consists of approximately 36 texts written between c. 1220 and 1350. All deal with violent disputes among the Icelandic upper class in the söguöld, the ‘Saga Age’ (c. 930–1050), while the ritöld, the age of the writing of the sagas, is a time of rapid social and political change. Iceland was ruled by originally or ideally 39 goðar, chieftains who organised the local þings and together with the free farmers met every year at the Alþingi, in order to preside over the courts, to appoint judges, to prosecute their claims and those of their clients (þingmenn), to settle conflicts and to amend the laws.44 By the 13th century, when the sagas were written, the distribution of resources among this elite had changed. A shrinking number of magnates gathered land and chieftaincies and started to erect territorial dominions, so-called ríki, the most prominent family being the Sturlungar. Conflicts among ever-fewer powerful men in this Sturlung Age grew out of hand; they could not be permanently resolved at the Alþingi.45 The magnates on the other hand had very close ties to the Norwegian court, which led to the involvement of the Norwegian king into these disputes and eventually to the subordination under the rule of the king from 1262/1264 on. In modern national Icelandic history, this date marked the end of independence and the beginning of a dark age, although the breakdown of inherent balancing mechanisms had already happened decades ago.46 The time when the sagas were written is therefore a time of rapid social change. We are informed about this by the already mentioned Samtíðarsögur, the contemporary sagas. They were written between c. 1212 and the end of the 13th century and are transmitted in the collection Sturlunga saga from around 1300, providing a more or less continuous narration of the disputes among the magnates between 1148 and 1262.47 Therefore, they are virtually identical with the Íslendingasögur when it comes to narrative form,48 although differences in the described actions of the characters suggest that the Saga Age depicted by the latter is a sort of distant mirror to the world the writers and the audience lived in.49 In both cases, however, the narrator is very controlled and externally focalised; his voice is often not marked at all, he never utters an opinion about the recorded events, and he does not reveal what the characters feel or think if they do not verbalise it themselves. The only opinions we find are 44 Cf. Jón Jóhannesson 1974, pp. 35–93; Jón Viðar Sigurðsson 1999, pp. 17–62; cf. also his contribution to this volume. 45 Cf. Jón Viðar Sigurðsson 1999, pp. 62–83, 205–220; Gunnar Karlsson 2000, pp. 72–82. 46 Orri Vésteinsson 2000, pp. 8f.; Nordal 1998, p. 221. 47 Úlfar Bragason 1986, pp. 11–36. 48 Ibid., pp. 37–123. 49 Jón Viðar Sigurðsson 1999, pp. 17–38; Nordal 1998, pp. 147–219; Heusler 1912, esp. pp. 29–58.

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the ones expressed by characters or ‘the people’, as stated above. The impression is therefore that we are reading the objective report of a very reliable anonymous eyewitness, who did not take part in the described actions, in other words: it is tempting to view saga authors as ‘the best anthropologists of their own culture’.50 Apart from the precarious relationship between social surroundings, memory and narration discussed above, however, a look at synchronous neighbouring genres produced by the same group of literates, especially Old Norse translations of Latin texts, prologues in kings’ sagas and bishops’ sagas and first and foremost adaptations of courtly literature reveal a very keen consciousness of genre and literary conventions.51 They underline the importance of taking their textuality into account.

In Search of Law: Statistics and Structures As overviews and theorising approaches cannot consider every single text, Andreas Heusler resorted to a statistical analysis of the numerous disputes when he tried to reconstruct the ‘penal law’ of the Íslendingasögur. He counted 521 disputes in the corpus, and he found the ratio between attempted resolution through legal judgement, settlement and acts of vengeance to be roughly 1: 3: 5.52 We encounter five acts of vengeance for one lawsuit leading to a judgement, and settlements are three times as frequent as judgements. The ratio is about the same for both sagas of Icelanders and contemporary sagas, and for Heusler, this ratio was a proof that the obligation towards one’s kin and the protection of one’s honour and reputation were more important than respect for written law.53 This view, problematic as it is with regard to Heusler’s ideas of ethics in the sagas, rests upon a quantitative answer to the question posed in the title of this contribution, which is still accepted today.54 The impression that bloody revenge formed an integral part of the saga world was also underlined by structuralist approaches. The classical model of a saga plot suggests six stages: 1. the introduction of the main figures and their genealogies, 2. the emergence of a conflict, 3. the first eruption of violence, 4. vengeance as a reaction to the first violent act, 5. a settlement between the parties, 6. a short aftermath with some comments on the following generations.55 There are two climaxes, and this double climactic structure may also be repeated within one text. The resemblance to classical definitions of a ‘feud’ is striking. The problem is just that it is not

50 Turner 1971, p. 358. 51 Sverrir Tómasson 1988, pp. 323–29; Barnes 2000, pp. 270–73; Hermann 2004. 52 The precise numbers are 60: 164: 297 (Heusler 1912, p. 20; Heusler 1911, pp. 38–41). 53 Heusler 1912, pp. 19–25. Cf. note 8. 54 Cf. Miller 1990, pp. 236, 262; Firth 2012, pp. 165f. 55 Andersson 1967, pp. 3–30.

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applicable, or more precisely that it only works convincingly for the few very wellknown sagas like Laxdœla saga and Njáls saga which are essentially kept together by one or a few large feuds between two parties, and which rather unsurprisingly do not represent the oldest layer of texts. One reaction to this problem was to cut the model down to the level of single episodes. Since these do not always provide the structure mentioned above, Jesse Byock analysed the sagas as collections of feud modules or feudemes such as conflict, advocacy and resolution.56 These are the narrative units; as a consequence, the writers need not have consciously composed the text as a whole, but the whole is to be addressed as a feudeme formation, again mirroring feuding practices and thereby patterns of legal action.57 This approach is capable of integrating the vast choice of disputing strategies by saga figures, which nevertheless comes at a price. The resulting feuds are viewed as equally consistent and logical,58 again presupposing the idea that both authors and recipients viewed the multiple strategies found in snippets of saga narrations as equally functional and plausible. In addition, there is still no counterbalance to the dominant canonical saga texts and their overarching narrative structures, and consequently, the macrostructures of saga narrative and their relation to the social background are often demonstrated using Njáls saga or Laxdœla saga,59 thus reproducing the classical model of beginnings, florescence and decline with regard to the genre as a whole.60 Many early sagas still seem to have no coherent composition of their own and are usually explained away as mere forerunners, as ‘quasi-folkloristic gathering of tradition’,61 as clumsy first steps on a way towards world literature. This is not satisfying if we presume that any sort of communicative intention comparable to the kings’ sagas, for instance, lay behind the emergence of this branch of literature. Our early texts were certainly not originally conceived as first steps towards the classical monument, but we have to suppose that the author had a message when he reconstructed conflicts from the past, which makes them especially interesting.

Early Íslendingasögur from Munkaþverá First of all, the layer of the earliest sagas is hard to define. Due to their characteristics, Íslendingasögur are notoriously hard to date, and there is always the risk of

56 Lönnroth 1976, pp. 68–82; Byock 1982, pp. 49–54. 57 Ibid., p. 59. 58 Ibid., pp. 59–62. 59 Cf. for instance ibid., pp. 161–90; Miller 1990, pp. 179–89, Meulengracht Sørensen 1993, 250–65; Vésteinn Ólason 1998, pp. 166–79; Callow 2006; Helgi Þorláksson 2007, pp. 76f.; Miller 2014. 60 Cf. Nordal 1953, pp. 230–69. 61 Andersson 2006a, p. 2; Nordal 1953, pp. 244–54.

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circular argument. Typical indicators used in research are style and composition,62 and if one searches for characteristic features of early texts, the model hinted at above will just reproduce itself. There are, however, some external references: certain texts mention figures who died in the early 13th century as if they were alive, and there are intertextual relations which help indicate which text was there in the first place. Sigurður Nordal reckoned with a model which saw the Íslendingasögur spread from Western Iceland to the North and the East, but Theodore M. Andersson has made it plausible that the Benedictine monastery at Munkaþverá in the Eyjafjörður in North Eastern Iceland also was a centre of early literary production. Morkinskinna, the earliest compendium of the Norwegian Kingsʼ Sagas and a forerunner of Snorri Sturluson’s Heimskringla, was finished there around 1217–1222.63 Among the earliest sagas of Icelanders written between c. 1220 and 1240,64 three texts from the Eyjafjörður region are especially interesting, as they represent the rather coherent biography of a skald (Víga-Glúms saga), a regional chronicle (Reykdœla saga ok Víga-Skútu) and the story of a larger dispute between two parties (Ljósvetninga saga) and thereby mirror nearly the whole scope of the genre. Apart from Víga-Glúms saga, they share a seemingly loose, episodic construction marked by a ‘clumsy’ sequence of smaller stories.

Chronicling Robust Order: Reykdœla Saga ok Víga-Skútu Especially Reykdœla saga ok Víga-Skútu has been viewed as an ‘ugly’ early text, a heap of information about events in the Reykjadalur east of the Eyjafjörður without a real backbone, which makes it the ideal object of investigation with regard to its view of disputing strategies.65 If one subsumes all the actions between a committed wrong and a settlement or legal judgement under one dispute, we are confronted with a series of 22 such conflicts. The plot falls into two parts, the first describing the actions of the chieftain (goði) Áskell Eyvindarson. As mentioned above, he is killed as the result of a clash between two parties. The second part deals with the region after the return of Áskelʼs son Víga-Skúta (‘Manslayer-Skúta’). Here, the revenge actions taken by Skúta for his father’s death, his enmity with all the other

62 See the overviews by Glauser 2013; Mundal 2013; cf. Nordal (above); Einar Ólafur Sveinsson 1958. 63 Andersson 1994; Andersson 2006b, pp. 35–38. 64 According to Andersson 2006a, pp. 86f., 119f. and the literature in note 63, this would be VígaGlúms saga, Reykdœla saga ok Víga-Skútu, Ljósvetninga saga, Heiðarvíga saga, Egils saga SkallaGrímssonar, Bjarnar saga hítdœlakappa, Kormáks saga. Other texts might be counted among this earliest group, but in their cases, the dating is disputed (for instance Fóstbrœðra saga). 65 Cf. Andersson 2006a, p. 131; Jónas Kristjánsson 1988, pp. 243f.

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magnates in the region and his inevitable death at first glance provide a stronger coherence. In any case, father and son display extremely different character traits. The series of disputes in the first part starts with two conflicts in which a powerful, but greedy and intemperate, farmer called Eysteinn twice tries to deprive members of the Reykdœlir family of their property. Áskell can avert this seizure through a selfjudgement (sjálfdœmi) granted to him by the opponent in the first case. In the second dispute, Eysteinn is outlawed because of his false accusation (illmæli).66 The next disputes are more challenging, as they involve Vémundr Þórisson, a nephew of Áskell, who like Eysteinn is called an ójafnaðarmaðr (‘man of inequity’/‘intemperate man’).67 As he is also greedy, he attracts the company of a thief called Hánefr, with whom he bands together. In the ensuing dispute about theft, which also leads to the outlawry of the thief, the latter is killed on his way to a ship. This killing involves a skirmish between Vémundr, his men and his adversaries, in which other people fall. It is ended by Áskell and another farmer, and Áskell brings about a settlement in which the dead are counted up, compensations are paid and in which he both satisfies Vémund’s opponents and protects his relative from a legal process.68 Hereby, the constellation for the following five disputes is found: Time and again, Vémundr tries to harm Steingrímr Ǫrnólfsson, who is described as a ‘good farmer’ (góðr bóndi)69 and had taken action against the thief Hánefr; time and again, Áskell manages to bring about settlements. One could speak of a ‘feud’ in this context, but it is clear that any feud exists only in the head of the ójafnaðarmaðr Vémundr, who is repeatedly called imprudent and a disturber of the peace.70 Áskell states that Vémundr lacks a sense of reality and is specifically unable to see the reaction he provokes in his counterpart.71 The paradoxical result is that the narrative of the saga, that is, the scheme of action, is fuelled by a character explicitly unable to comprehend the functional implications of revenge and of ‘feuding’ as described by modern anthropologists, and who most likely would not survive if he was not protected by his uncle’s settlements. Robbery (in two cases), an attack by a paid agent at the occasion of a horse fight, the

66 Reykdœla saga ok Víga-Skútu, pp. 152–59. 67 Ibid., p. 160. 68 Ibid., pp. 160–69. It is not fully clear whether the outlawed thief Hánefr was recognised as a full outlaw (skógarmaðr). As his death is measured against the death of a slave on the other side in the skirmish, one could infer that he was recognised as a skógarmaðr who had obtained farning (passage out of the country, Grágás 1, p. 95 and Grágás 2, pp. 162f., for the consequences of theft). 69 Reykdœla saga ok Víga-Skútu, p. 162. 70 Ibid. Always in Áskel’s words, Vésteinn is said to cause óspekð (‘disturbance of the peace’, ibid., pp. 178, 194) and to be eigi meðalóspekðarmaðr (p. 181). The words derive from the adjective spakr (‘considerate’/‘intelligent’). 71 Ibid., p. 178.

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starting of trouble in disguise and even the abduction of a bride of the opponent party with the help of magic are his chosen means.72 The opponent Steingrímr never acts, but only reacts and sticks to the settlements brought about by the wise Áskell and his friend Eyjólfr Einarsson. In the context of all five disputes, people are killed. One victim after the attack at the horse fight is Vémund’s own brother Herjólfr, as Steingrímr is forced by his men to avenge his honour and they cannot get hold of Vémundr himself at the occasion.73 Áskell repeatedly and successfully tries to bring about settlements with the help of his friend Eyjólfr through his sense of equity and proportion, his even-handedness, his reputation and his social network.74 Only in the seventh conflict, later leading to the killing of Vémund’s brother, is Áskell not able to settle the dispute at once. It is the third time that Vémundr deliberately breaks a settlement, and Steingrímr expresses his scepticism that Vémundr will stick to it. He even refuses to accept three extremely worthy gifts offered by Áskell. Nevertheless, Áskel’s reaction is far-sighted, as he does not take offence but gives these valuables to Eyjólfr, his partner in bringing about the settlements.75 Only here, after Steingrímr rejects a settlement, do we see an escalation with the killing of Vémund’s brother Herjólfr and the subsequent killing of one and the mutilation of two other participants. After this rather short escalation, Áskell as always manages to apply the laws on compensation in such a way that peace returns, supported by Eyjólfr, whose friendship he had secured through the gifts. That Áskell and his friend are able to maintain or re-establish the peace throughout a series of nine disputes started by characters with a highly defective common sense borders on a miracle. While later sagas like Hrafnkels saga Freysgoða or Eyrbyggja saga with the Janus-faced and sly arbitrator Snorri goði stress the ambiguities in their figures’ characters,76 the constellation in Reykdœla saga is black and white. Áskell and his partner Eyjólfr work against extreme ill will and display real longanimity. Occasionally, even the saga narrator gives up his neutrality when he states that ‘Áskell always proved that he surpassed other men in his justice (réttdœmi), when he arbitrated between men, and in his noble disposition against everyone’.77 These character traits of the arbitrator are actually very similar to the ones ascribed to the bishops in Hungrvaka, a chronicle of the bishops of Skálholt written around 1200 and clearly influenced by Latin bishops’ vitae.78 This picture is rounded

72 Ibid., pp. 172–81 (robbery), pp. 181–184 (attack at horsefight), pp. 194–196 (in disguise), pp. 191–193 (abduction). 73 Ibid., pp. 185f. 74 Ibid., pp. 169, 174f., 180f., 187, 190. 75 Ibid., pp. 182–84. 76 Cf. Andersson 2006a, pp. 152–154, 175–182. 77 ‘Ok jafnan sýndi Áskell þat, at hann var fám mǫnnum líkr sakar réttdœmis, er hann hafði manna í millum, ok drengskapar við hvern mann.’ (Reykdœla saga ok Víga-Skútu, pp. 162, 171). 78 Cf. Wellendorf 2011; Scheel 2012, pp. 176–81.

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out by the anecdote of a famine in a hard winter, where a heathen priest suggests the killing of children and old people, while Áskell speaks against this and suggests honouring the Maker (skapari) by supporting the elderly financially and raising the children.79 This proto-Christian attitude, in this case a current motif also found for instance in Saxo Grammaticus’s Gesta Danorum in the story of the emigration of the Langobards,80 is found again in Áskel’s provisions for his burial without grave goods. The fact that he prevents his relatives from taking revenge after his death, as quoted above, at least hints at a saint’s forgiveness for his killer, especially if one keeps in mind texts like Orkneyinga saga with the death of St Magnús Erlendsson.81 It is quite clear that Áskel’s conduct seems to contradict the ideal of manliness which is at work in other sagas. If there are figures who tend to let a matter rest, there is usually an inciter who reminds him that he has to take revenge if he does not want to lose his manly reputation. In ‘classical’ sagas, this hvǫt is usually a female task.82 In Reykdœla saga, we also find this principle at work when Steingrím’s male companions talk him into killing Herjólfr, Vémund’s innocent brother, although he wants to return home when he sees that he cannot lay hands on the latter.83 It is quite obvious that Áskell is the protagonist of this first part of the saga and that the reader is manoeuvred into taking sides with him. His wisdom seems unbroken, as his death, resulting from an incidental meeting between his group and Steingrímr on a journey, is not viewed as inevitable. This stands in contrast to Njáls saga or other sagas where one-sided ‘white’ characters are too ‘good’ to survive.84 In fact, Áskel’s power continues after his death, as not only his son Þorsteinn, but also Vémundr respect his wish not to be avenged. Crucially, Áskel’s bereaved accept that Áskell and Steingrímr, who also fell in the skirmish, are counted as equals and therefore abstain from trying to bring their feelings of harm (harmr) about Áskel’s death into the equation.85 Stable settlements require the control of feelings, a lesson obviously also learned by Vémundr. In the end, we recognise a feuding scheme, but it is dominated and manipulated by the characters. Vémundr explicitly misuses the idea of getting even, feuding appears absurd apart from direct reactions to a killing, a view which is in accord with the Grágás laws,86 and there is no room for ‘felt’ justice in settlements beyond compensations ultimately to be found in the law and to be applied and modified by arbitrators.

79 Reykdœla saga ok Víga-Skútu, p. 170. 80 Saxo Grammaticus. Gesta Danorum, 8.13.1. 81 Orkneyinga saga, pp. 105–11. Cf. Cormack 1985. 82 Jochens 1996, pp. 17–25. 83 Reykdœla saga ok Víga-Skútu, pp. 185f. 84 An example would be Egil’s brother Þórólfr in Egils saga Skalla-Grímssonar: Andersson 2006a, pp. 103–7; cf. Schmidt 2016, pp. 286–293, 309–312. 85 Reykdœla saga ok Víga-Skútu, p. 203. 86 Grágás 1, pp. 147f.

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The ethical implications have led to considerable irritation among scholars. From an implicitly Social Darwinist view, the author failed to apprehend Vémund’s determination and energy and therefore could not do him justice.87 Whether or not one takes delight in representations of antisocial behaviour, however, Reykdœla saga views violence in pursuit of one’s ‘honour’ as dysfunctional. This has serious methodological implications: one should not forget that this text represents the oldest layer of Íslendingasögur and thereby also the oldest layer of a very recognisable ethical discourse within the genre. Instead of criticising or explaining away this text for its critical apprehension of the ‘feud’, one should rather ask how other texts connect to its view and how differences within the genre can be explained. These differences seem to be expressed within Reykdœla saga itself, as the second part about Víga-Skúta treats a full-fledged escalation of violence and a breakdown of legal order: Áskel’s second son Skúta returns from abroad after his father’s death, is therefore not bound by oath to the settlement and starts to take revenge, slaying three men from Steingrím’s party who had been present in the final skirmish, among them his father’s killer.88 This part of the text, which met with Walter Heinrich Vogt’s approval in his 1921 German translation, seems to follow the lex talionis, resulting in an escalation of violence, and inevitably ends with Skúta’s isolation and (heroic?) death as the victim of an assassination. Being mortally wounded, he takes one of the assassins with him, not unlike Gísli’s death scene quoted above. One could ask whether this second part undermines the interpretation developed above or, as Vogt suggests, they represent two fundamentally different narrations only thinly connected.89 A careful look at Skúta’s actions, however, reveals that these sections mirror each other, especially with regard to the concept of disputes. First of all, there is a structural similarity in so far as the narration does not concentrate exclusively on the feud started by Skúta about Áskel’s death. These actions are interspersed with other disputes in which Skúta is involved either as a party or through his men. The structure is sequential as in the first part, although there is one recurrent, unresolved feud in the background. All these sequences create a picture of Skúta’s character which both allows for a comparison with his father and explains the breakdown of social order. He fails to make friends with other big men and he fails to bring about settlements for his men who were harmed, leading to revenge acts in the form of self-help.90 He is ungrateful for the help offered by his father-in-law Glúmr Eyjólfsson, the protagonist of Víga-Glúms saga, and even

87 88 89 90

Ranisch/Vogt (eds.) 1921, pp. 23f.; cf. Gehl 1937, pp. 30–44; Grønbech 1909, pp. 116–125. Reykdœla saga ok Víga-Skútu, pp. 204–43, the killings on pp. 214–216. Ranisch/Vogt (eds.) 1921, p. 25. Reykdœla saga ok Víga-Skútu, pp. 221–27.

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starts a conflict with him which he cannot win.91 Glúmr, as we shall see in his saga, is viewed as the counter-example of an equally violent, but wiser man. Furthermore, and most importantly, Skúta crosses a red line when he slays Þórir Ketilsson, his father’s killer, at the leið, the þing in the autumn, when he is sitting between two local chieftains who want to end his outlawry in the district, one of them being Áskel’s friend Eyjólfr. While Þórir technically still is an outlaw of unclear status, Skúta broke the þinghelgi by killing him at this occasion, mocking the very symbol of legal order and negotiations and its representatives. It is obvious that the chieftains cannot accept this.92 From this moment on, the conflict between Skúta and the other magnates in the district unfolds without rules, in total ignorance of legal boundaries and without any settlements between Skúta and the chieftains. As he is a very skilled and intelligent fighter, his opponents resort to dirty means, mainly assassination attempts, which ultimately lead to success. The comparatively simple settlement about Skúta’s death ends the story. He is described as intelligent and second to none in courage, but as an ójafnaðarmaðr just like Vémundr. It is revealing that the narrator states: ‘Many men thought that it happened no earlier than it was likely that he was snuffed out.’93 The choice of words – at hann væri af ráðinn instead of for instance drepinn – implies that he was perceived as an obstacle to social order, which is also mirrored in the comparatively mild conditions of the ensuing settlement.94 In the end, Skúta, explicitly driven by the intention to pay back his harm (harma at gjalda),95 manages to slay his father’s killer, a rather powerless person, who nevertheless is integrated into the social network, at the price of his own death. In other cases, he causes trouble, but is not able to do permanent damage, which is also due to the considerateness of people like Glúmr, whom Skúta tried to kill. Viewed from this angle, the first and second parts of Reykdœla saga ok Víga-Skútu meaningfully examine the interdependency of character, conduct, and social order. Áskell and Skúta represent two fundamentally different characters, who are carefully evaluated through a series of 22 disputes. The text is extremely tightly packed with information and actually resembles Samtíðarsögur rather than other Íslendingasögur in this respect, which is also mirrored in the very low portion of direct speech.96 All this represents a conscious choice on the part of the author, who used and even copied

91 Ibid., pp. 222–36. 92 Concerning killings at the þing, see also Grágás 1, p. 101. 93 ‘Þótti mǫrgum mǫnnum þat eigi fyrr hafa at hendi borit en líkligt var um málit Skútu, at hann væri af ráðinn.’ (Reykdœla saga ok Víga-Skútu, p. 243). 94 Cf. Ljósvetninga saga, p. 130, where the same formula (af ráðnir at lǫgum: ‘snuffed out in accordance with the laws’) clearly expresses contempt. 95 Reykdœla saga ok Víga-Skútu, p. 215. 96 Andersson 2006b, pp. 6f. Cf. Hallberg 1968, pp. 214–16.

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parts of Víga-Glúms saga,97 which is thus older, but contains far more scenes with direct speech. The result is a narrative with many repetitive sequences containing a large variation of disputes, applied strategies, a large number of settlements and different outcomes. This sequenced structure has the effect that the focus is not so much on tragedy and the hero’s exposure to fate like in outlaw sagas, but rather on functional aspects of holding feud in check and demonstrating the pointlessness of uncontrolled acts of vengeance and intransigence with regard to one’s own honour. The many sequences in which Áskell succeeds in suffocating feuds before they escalate and Skúta manages to isolate himself are obviously the saga author’s means to demonstrate social order and arbitrators at work. Repetitive sequences allow him to give the arbitrator a stage. This is not possible otherwise, given the saga’s dependence on action, as is demonstrated by very short kings’ sagas on good and peaceful rulers like Óláfr kyrri.98 That implies, however, that the wise Áskell needs a troublesome counterpart like Vémundr, who provides fuel for the narrative, while Skúta perfectly manages to create chaos on his own. That his actions are not to be understood as constructive, normal behaviour but viewed as a dysfunctional exploitation of disputing strategies is not only demonstrated through the comparison with his father, but also through his obituary and through the meagre results. While both Áskel’s and Skúta’s deeds allow for the extraction of parallel patterns of action, their explanation grounded in the narration is different. The repeated evaluation of wrongdoings, reactions and settlements in this allegedly ‘ugly’ text is therefore highly functional. It coincides with a clear attitude towards the question posed in this study, and while it is clearly in favour of just settlements, the law as applied by figures like Áskell is always in the background and in this way dominates the narrative. As a result of this focus on solutions rather than ‘feuds’ themselves, Icelandic society actually appears robust, even in the face of notorious ójafnaðarmenn. Figures like Áskell, always in defence of peace and equity, and Skúta, viewed through his archetype, carry a paraenetic message, not dissimilar to and in accord with certain passages in Morkinskinna and current thought on law, justice and equity for instance in John of Salisbury’s Policraticus.99 The verdict that Reykdœla saga fails to develop a ‘classical’ structure and to catch Icelandic mentality (at least in the first part) could be inverted: many ‘classical’ sagas fail to appreciate the systemic implications of the characters and disputes they focus on as well as their paraenetic implications.

97 Berger/Drout 2015; Andersson 2006b. 98 As is the case in Morkinskinna, cf. Ármann Jakobsson 2014, pp. 243–74. 99 Policraticus IV.2, p. 234. Cf. Þinga saga and the Íslendingaþættir in Morkinskinna (Ármann Jakobsson 2014, pp. 251–92).

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Lawful Revenge: Víga-Glúms Saga This role of law and equity appears also in Víga-Glúms saga, which represents a different type of narration, and which tells the biography of a ‘manslayer.’ Glúmr is the grandson of a famous settler in the Eyjafjörður and of a Norwegian magnate. After his father’s early death, he and his mother Ástríðr inherit half of the estate, the wife of his late brother Vigfúss and her father Þorkell inn hávi the other half.100 The problem is that Þorkell and his son try to deprive the widow and Glúmr of their share of the property, and in order to achieve that, they abuse the law: They make a false claim against Ástríð’s thralls for theft, and since she cannot afford to lose them, she transfers land – in particular a very good field which had so far been farmed in turn by both parties – as a compensation. They also repeatedly move the fences between the properties.101 Þorkell and his son Sigmundr feel safe, as Glúmr appears to be a lazy weakling, and they take action while he is abroad in Norway in order to visit his grandfather. In Norway, however, he suddenly develops the valour which was so characteristic of his father and both his grandfathers. He slays a berserk with his bare hands, and he also inherits his grandfather’s cloak, spear and sword, the insignia of his hamingja, his good fate.102 On his return to Iceland, he is not taken seriously, and although the illmæli, the defamation of Ástríð’s slaves, was proved, they refuse to return the field they appropriated illegally. They even mock Glúmr. In the same year, he kills Sigmundr while he is making hay on the field he and his father had appropriated through abuse of the law.103 This killing of a robber in action – the hay Sigmundr was making was actually Glúm’s and his mother’s – was fully legal, as the reader is subsequently informed. After long discussions, Sigmund’s father convinces the brother of his daughter-in-law, Þórarinn of Espihóll, to support him in his prosecution. All this, however, comes to nothing, as Glúmr is able to make the case that Sigmundr was óhelgi fallinn, meaning that he had forfeited his mannhelgi, his right to be unharmed. All the terms, alleged þjófnaðr (theft) by the thralls, illmæli (defamation), and the right to avert injustice by force, that is revenge, under certain circumstances, resulting in someone declared as óhelgi fallinn by the jury at the assembly, are legal terms.104 One can read and understand the whole part of the narration with the Grágás as a parallel text. 100 Víga-Glúms saga, pp. 13–16. The distribution of the estate does not conform to the Grágás laws, cf. Berger 1980. His late dating of the saga on these grounds, however, is questionable, as it presumes that the Grágás was followed meticulously in every single case. The ‘unlawful’ distribution might as well point to a compromise demonstrating round-handedness on the part of Ástríðr and the greediness of Þorkell on the other. 101 Víga-Glúms saga, pp. 20–23. 102 Ibid., pp. 16–19. 103 Ibid., pp. 23–29. 104 Ibid., pp. 29–34. A provision explicitly allowing to kill a thief or a robber is only found in the Staðarhólsbók version of Grágás (c. 1280), which is more detailed than the Codex regius: Grágás.

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Here, the söguöld, in this case the 10th century, adheres to exactly the same material and procedural law which was valid when the text was written some 150 years later. That applies to the following story too: Glúmr is a tough and violent man, but he displays a sense of proportion and equity, especially when he refuses to let the conflict with Víga-Skúta escalate further, and he is also capable of correcting his mistakes.105 Although there is a biographical focus, Víga-Glúms saga displays a sequential structure similar to Reykdœla saga. Glúmr is involved in a series of eight conflicts altogether. The opponents are ultimately always the same – Glúmr against the family of the Esphœlingar – but it is made very clear that this is the result of coincidence or ill will on the part of others.106 In the later part of the saga, however, Glúmr starts to ignore the law when he hides his outlawed son Vigfúss in his home,107 and finally, he makes an essential mistake. A skirmish occurrs when Þórarinn of Espihóll comes to Glúm’s home in order to declare a client of Glúm’s óhelgi fallinn, who actually was killed unjustly out of jealousy by a client of Þórarinn. In the fight started by Glúmr, he slays Þórarin’s brother, but puts the blame on a rather insignificant man in his household, whom he subsequently sends abroad.108 This trick, which was meant to facilitate a settlement, ultimately results in a perjury, an abuse of the law, and subsequently in Glúm’s downfall. In a final settlement, he must sell the land he so justly appropriated in the beginning and move to another district, although he remains a goði and performs his legal duties even under unfavourable circumstances.109 Although the text deals with a violent man, we are confronted with the picture of a society ultimately structured and dominated by law. Violence within its borders may be a solution, but justice cannot be escaped. As a result of the repetitive structure, the focus is once more and even more prominently than in Reykdœla

Staðarhólsbók, pp. 384f. As, however, theft and robbery are punishable by full outlawry (Grágás 2, p. 162f.), the idea of a robber or thief losing his mannhelgi seems to stand behind the older manuscript too. For the definition of óhelgi fallinn, see ibid., pp. 181–183, for illmæli and þjófnaðr ibid. 105 Víga-Glúms saga, pp. 50–56 (Glúmr and Skúta). In another dispute (ibid., pp. 56–61), Glúmr first helps his son Vigfúss to suppress a legal process against his friend, who is a thief, through abuse of his position as a goði. When the wronged party slays the thief, Glúmr obtains a selfjudgement, but judges mildly and at the same time pays compensation for the original theft. His son, however, later causes his opponent’s death, leading to lesser outlawry and to Glúmr hiding him against the law (ibid., pp. 61–66). 106 Vigfúss Glúmsson plays a role similar to Vémundr in Reykdœla saga (cf. the note above). The decisive clash is provoked by an ill willed male inciter (ibid., pp. 73f.), who appears like a deus ex machina, as he has no connection to the story or the other figures. He appears again when he undermines the following settlement (ibid., pp. 81f.). On the characters involved here cf. Ebel 1995, pp. 99–110. 107 See note 105. 108 Víga-Glúms saga, pp. 75–81. 109 Ibid., pp. 81–91. Cf. Glúm’s loose stanza (lausavísa) 8 (ibid., pp. 89f.) in which he admits his own responsibility for the loss of his property. The performance of his duties as a goði is stressed in ch. 27, pp. 93f. Cf. McKinnell 1993, pp. 125f.

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saga on legal dealings and legal detail rather than on one feud. At the same time, the saga makes quite much of pagan folklore. There are sacrifices made to Freyr by Sigmund’s father, who asks him to deprive Glúmr of his land one day.110 Glúmr is visited by the hamingja, the ‘good fate’ of his Norwegian grandfather, in his dream.111 He is lucky as long he possesses his cloak, spear and sword, and as soon as he gives those to other people, his downfall begins. After his perjury, he dreams of Freyr’s wrath.112 Therefore, Víga-Glúms saga has been viewed as a witness of old pagan beliefs, and it is undeniable that the saga displays a great deal of historical depth with regard to the representation of religion.113 If one takes a closer look, however, it becomes more than clear that this ‘othering’ of the past and the allusions to a belief in fate are red herrings which ultimately serves to stress the significance of the law and the principle of free will: Glúmr decides to slay a berserk, and as a result, he receives the alleged insignia of his good fate. Glúmr decides to kill Sigmundr, and as result of him putting an end to injustice, he dreams of his hamingja. He decides to lie about his role in the skirmish, and the wiser of his two sons states that thereby, he has knocked his own land out of his own hands.114 Nevertheless, Glúmr sticks to his lie. He decides to give the insignia of his luck to the oath helpers in his perjury, then swears the perjury, and subsequently dreams of Freyr’s wrath. Although there are omens predicting violent clashes,115 ‘fate’ in this context is absolutely predictable, as it always follows actions which result from decisions. Glúm’s downfall is marked by a fatal mistake, and what a mistake is, is defined by law. Thus, also a pagan past may serve as a paraenetic exemplum, especially as the law presupposed in the background is exactly that of the 13th-century audience. Although Víga-Glúms saga as a biography shows a different focus than Reykdœla saga, the sequenced structure and the functional aspect are identical. The difference is that Glúmr unites the properties of a far-sighted arbitrator, a tough defender of his own rights and an ójafnaðarmaðr in his personality. His story may therefore be viewed as an evaluation of the boundaries of useful violent self-help and of the liberties one may take in bringing about settlements. The result is a historical confirmation of the disputing rules set in the Grágás. As long as Glúmr adheres to them, he succeeds, which qualifies him as the ‘best manslayer’ in Icelandic history.116 As soon

110 Ibid., p. 34. 111 Ibid., pp. 30f. 112 Ibid., pp. 87f. 113 Meulengracht Sørensen 1992; Jón Hnefill Aðalsteinsson 1998, pp. 107–16. 114 Víga-Glúms saga, p. 79. 115 A fortune teller predicts the killing which leads to the decisive clash (ibid., p. 41), and Glúmr has bad dreams before it (ibid., pp. 69–72). 116 Ibid., p. 98.

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as he bends and then breaks them, his downfall begins. Again, social order as imagined in the laws is viewed as robust.

Ójafnaðarmenn Kept in Check: Ljósvetninga Saga A look at the composition of Ljósvetninga saga, our final example from the North East, reveals a text which again consists of a series of eight conflicts between two family collectives, the Ljósvetningar and the Mǫðruvellingar, which do not form a feud chain, either. Consequently, the ‘weak’ coherence of the episodes has also been stressed here, although the structure as well as the ‘legal density’ hardly come as a surprise against the background of the other two sagas from the region. 117 The beginning explains how two friends, the goði Þorgeirr from Ljósavatn and Guðmundr inn ríki (the Powerful) from Mǫðruvellir, turn into enemies. Guðmundr is bribed by Jarl Hákon of Norway to support an outlaw called Sǫlmundr, who had been banned from Iceland, in returning home before the end of his period of banishment. Guðmundr convinces Þorgeirr to support him, although he himself had brought the original settlement about which led to Sǫlmundr being outlawed. This is an insult to his own clients, as Þorgeirr withdraws his support, and they kill Sǫlmundr, but their leader is also killed in the following skirmish. As a consequence, two conflict parties are formed with Þorgeir’s own sons on the side of their father’s original clients. At this point, Þorgeirr stops the violence and has to settle to his own disadvantage in order to avoid bloodshed in the family and the loss of his chieftaincy.118 Guðmundr, the protagonist of the saga and the archetype of an ójafnaðarmaðr, shows no comprehension for this. The next chapters are þættir, short digressions which focus on Þorgeir’s friend Guðmundr of Mǫðruvellir who has the marked character weakness that he cares only about his own honour and nothing else.119 He is shown in different situations: he sternly refuses to marry his daughter to a good man because he lacks family background, until a wise counsellor persuades him otherwise. He is susceptible to manipulation. In the next þáttr, Guðmundr sternly refuses to stop his ruinous visits to his clients with his enormous entourage, until the effect of this is demonstrated to him by a wise arbitrator. This demonstration does some damage to his costly honour. Next time, Guðmundr sternly refuses to settle in a rather undramatic conflict between 117 Cf. Andersson 2006a, pp. 119–21. Of the two preserved redactions (A and C, cf. note 119), only C contains three þættir (short narrations) on the protagonist without a close connection to the following story. They were traditionally viewed as later interpolations but fit perfectly into the narrative structure analysed above and also to Morkinskinna with its many þættir; they are therefore viewed as part of the original here. 118 Ljósvetninga saga, pp. 3–15. 119 Ibid., pp. 109–39. Cf. Andersson (note 117); Borggreve 1970.

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one of his clients and the client of another, less powerful chieftain, until his plan to destroy his opponents is crossed by wise counsellors, one of them being his own brother, who force him to compromise. Their honour grows while Guðmund’s is damaged. The next, most dangerous and central dispute is about slander (fjándmæli). Guðmund’s wife hears that her husband’s masculinity is questioned. He has to react to this, but instead of addressing the problem, Guðmundr tries to damage the other party by abusing the law; he makes false accusations of theft, aiming at full outlawry for one of the men who insulted him. Only through the tricky intervention of his own brother Einarr, the true reason for Guðmund’s aggression comes to the fore. Einarr manages to bring about a settlement which sufficiently compensates Guðmundr for the insult but does not destroy his adversary, who has to leave Iceland for three years, but lives happily ever after.120 This cannot be said of Guðmundr. His honour grew according to the narrator, but he is convinced that someone who uttered the insult has to die. Therefore, he kills another man, Þorkell hákr, the son of the late Þorgeirr at Ljósavatn. That leads to a revenge killing, for which in turn Guðmundr wants to burn the farm of his adversaries with all the people inside, even though they are the relatives of his wife. He does not even shrink away from this when he finds out that his wife is in there, but only when he realises that his son Halldórr is inside too, and that he will not come out if his father will not stop. Guðmundr is prevented from this hideous crime, but he spends the rest of his life fearing revenge, also for his sons.121 The last part of the saga treats a similar conflict between Guðmund’s son Eyjólfr, who like his father is unable to moderate his obsession with his honour, and the next generation of the Ljósvetningar. Eyjólfr makes the same mistakes as his father, but many of his potentially cataclysmic schemes are stopped by wise arbitrators.122 The similarities with the two other sagas are obvious already from this short overview. The saga criticises the one-sided obsession especially of Guðmundr with his honour, which leads to inequity and a readiness to abuse or ignore the law. Guðmund’s irrationality is underlined by the fact that his personal prowess is not beyond doubt; his sneaky ways and mediocre fighting abilities lend some substance to the insults he is so anxious to avenge.123 In the end, his own brother Einarr and his son Halldórr keep him in check. His son Eyjólfr, who frequently breaks settlements, is finally forced to pay compensations for his wrongs through the threat of a hólmgangr, a fight to death at the Alþingi which he like his father cannot risk.124 The different episodes are

120 Ljósvetninga saga, pp. 16–43. 121 Ibid., pp. 43–60. 122 Ibid., pp. 61–106, esp. pp. 88–92, 100–102. 123 That is very explicit in the fight in which Þorkell hákr is killed (ibid., p. 52). 124 Ibid., p. 102.

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very clearly kept together by the actions of two problematic characters, Guðmundr and his son, allowing their own relatives and the wise Ljósvetningar to demonstrate their potential in containing them. Indeed, the constellation of characters recalls the opposition between the Kings Haraldr inn harðráði and Magnús inn góði in Morkinskinna.125 It mirrors exactly the same paraenetic and functional view on society as Reykdœla saga and Víga-Glúms saga, with the difference that instead of two different generations or a tumbling protagonist, one kin group provides the problematic main characters, who against the material odds are controlled by noble opponents with fewer resources. Also Ljósvetninga saga conforms to the political and legal concept found in the other early sagas from the North East. This is partly mirrored statistically: in VígaGlúms saga, there are four attempted dispute resolutions through legal judgement, seven settlements and five acts of vengeance. The ratio (roughly 1: 2: 1) does not correspond to the marked overweight of acts of vengeance and the quantitative insignificance of legal processes Heusler found for the whole corpus of Íslendingasögur (1: 3: 5). The same applies to Ljósvetninga saga, where the ratio is 2: 8: 6, while Reykdœla saga ok Víga-Skútu shows a ratio of roughly 2: 8: 9 (4: 15: 18).126 In our early sagas, the interest is focused on settlements rather than on acts of revenge. Nevertheless, the decisive insight is that statistics do not mirror the attitude towards feud and law, but rather the constellation of characters: in Reykdœla saga, the first part shows an equal amount of revenge actions and settlements, while the second part is dominated by an escalation of mutual revenge actions between Skúta and his opponents.127 Also differences in the number of judgements are explained through the status of the opponents. The material power of the Mǫðruvellingar in Ljósvetninga saga and Guðmund’s aggressiveness force their opponents to seek settlements. The statistical argument and therefore the preference for certain types of patterned action in disputes cannot stand alone.

Conclusion A closer look at the structure of three early Íslendingasögur reveals three very different constellations of figures, which mirror the scope of narrative options already at the beginning of the genre. Nevertheless, they are united by a similar overall 125 Cf. Andersson 2006a, pp. 130f. 126 Attempted solution through a hólmgangr (lawful duel) is counted among legal judgements, as it happened in the context of the þing and is viewed as a part of a legal process in the Saga Age. Acts of revenge are defined by intention, thus excluding spontaneous escalations, and are not counted by the number of persons, but by narrative units. 127 There are eight acts of revenge and eight settlements in the first part, ten acts of revenge and seven settlements in the second.

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structure, which presents different disputes in sequences. This uniting feature of texts most likely written in the monastery of Munkaþverá at the Eyjafjörður shows that the saga authors fictionalised ‘fact’, that is, oral tradition, in a certain way. The resulting structure is coherent despite or rather by virtue of its repetitive, episodic nature, and it carries a political message: the division of the narration into series of disputes instead of one larger feud stretching over years like in Laxdœla saga or in Skald Sagas allows the authors to focus not on the logic of revenge and escalation, but to centre on the mechanisms of peacemaking through the application of law and on the wise arbitrators who settle the disputes. Successful revenge usually happens within the frame permitted by written law in these early texts, and the free will of the characters and the necessity of moderation are stressed through the constellations of characters and their fate. On the other hand, typical motifs from the canonical sagas such as the female inciter, emotions as stimuli to act or fate as a dimension without the control of the figures are unimportant. All that may contribute to a less pleasant reading experience for the modern reader, but the rather dry, detailed and episodic evaluation of the disputes underlines the political message. Seen from this point of view, the early sagas demonstrate under which circumstances the Icelandic form of government without a central authority could work, by sticking to the law and applying it in the sense of equity in settlements. This by no means indicates that the concept of feuding or even an implicit idea of ‘blood revenge’ was foreign to the authors and their contemporaries, quite the opposite. The patterns of action after a violation of norms, which constitute ‘law’ in an anthropological sense, are stable. Then again, the concept is manipulated through narrative re-enactment in a way that revenge beyond the legally permitted, direct reaction is viewed as dysfunctional,128 just as is the obsession with one’s own honour. The answer to the introductory question is quite obvious in the case of these early texts, which have been decidedly underrepresented in research. Furthermore, it is in perfect accord with the normative thought expressed for instance in the Icelandic Homily Book. In the famous Kirkjudagsmál, the so-called ‘Stave Church Homily’ which allegorises the parts of the church building, the interties which keep the walls together and bear the forces of the roof are equated with ‘those people in Christendom who settle (sætta) the worldly chieftains through their decisions’.129

128 For a similar view, see Jón Viðar Sigurðsson 2013b; cf. also McKinnell 1993, who distinguishes between early Íslendingasögur which show law and justice in function and later texts like Njáls saga and Hrafnkels saga with a more cynical view. For a critical view on paraenetic interpretations, cf. Vésteinn Ólason 1998, pp. 143f. 129 ‘Þvertre es scorþa staflægior. oc upp hallda þeim treóm es ása stýþia. merkia þa menn í cristnenne es sétta [i.e. sætta] veralldar haofþingia í raoþom sínom.’ Messuskýringar, p. 95, according to the oldest manuscript fragment AM 237a fol. from c. 1150.

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This paraenetic impetus of our examples has two implications for legal anthropology. First, the representation of disputing mechanisms is already in the earliest texts informed by narrative intention and ethical evaluation. This implies that Guðmundr inn ríki or Víga-Skúta are no representative examples of viable behaviour, in line with many figures in medieval historiography. Second, as the personal freedom of choice of disputing strategies is stressed, the implicit concept of a ‘feud’ is not to be addressed primarily as a subconscious cultural heritage, but is first ascribed its contours as a concept through contemporary legal thought.130 The ‘feud’ as one way of trying to get even is not the background of the sagas, but rather created through the literary reception of collective memory by people accustomed to categorical medieval legal thought. And it was very often combined with criticism: the use of violent self-help is far from always aimed at social balance, but frequently at the destruction of the enemy, and the characters’ social status is an effective protection against the logics of the feud especially in other sagas.131 This view on reception is validated by the representation of ‘feuds’ in Nordic mythology, which essentially lack the functional aspect and end in inevitable destruction.132 The mythological concept would find its way into saga literature in the course of the 13th century, most prominently in Laxdœla saga around 1250. By adopting heroic epic, however, the Íslendingasögur move away from social and legal reality, and it is a tempting thought that the emancipation from the functional aspects made possible the development of the sagas’ literary qualities. This leaves us with the question why all this is the case. It can certainly not be answered in a single article, but at least, two aspects should be pointed out here. The Samtíðarsögur inform us that struggles among the magnates from 1236 onwards obtained another character. In this year, Sturla Sighvatsson decided that he would try to crush all the other magnates in Iceland and to establish single rule over the island in the name of King Hákon Hákonarson. From now on, justice and equity are no longer of any interest at least among the big men in Sturlunga saga.133 Although it is risky to infer a change in political culture from a change in the narrative mode of a chronicle written in the 1280s, although at least by an eyewitness, it is quite probable that after c. 1240, the functional evaluation of the past, which is so prominent in the examples above, lost interest among the audience, opening the scene for literary play. Furthermore, the regional aspect may prove decisive. It has been

130 For the idea that legal ‘customs’ recorded in writing are not mirroring folklore, but are fundamentally informed by and constructed with the help of educated legal thought, cf. Teuscher 2007, pp. 305–17. 131 Firth 2012, pp. 159–62. 132 McKinnell 2009. 133 Sturlunga saga 1, pp. 363–364, 402ff.; Hákonar saga Hákonarsonar pp. 24f.

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stressed that the Íslendingasögur also served in the formation of local identities and traditions in the ríki, the new dominions the magnates had formed around 1200, as the new lords were descendants of the main figures.134 In the Eyjafjörður region, however, the socio-political challenge was different. Sighvatr Sturluson, the brother of the famous Snorri, had accumulated the chieftaincies and bought land there in 1215, but he and his sons were disliked by the many powerful local landowners (stórbœndr), and the monastery of Munkaþverá was still under control of the local families.135 If the dating holds, the question of the Sturlungar’s status in the region was still open when our early sagas were written, and it is reasonable to view these early texts form the North East with their sequenced narrative and their resulting paraenetic message as a reaction to this situation. In the end, their constellation of figures is not dissimilar to passages of Morkinskinna, the oldest collection of Kingsʼ Sagas most probably written at Munkaþverá before 1222, and to Orkneyinga saga from around 1200, which shares some marked features with Morkinskinna and is likely to originate from the same monastery.136 All these texts, however, contain the vernacularised and localised versions of a common European discourse on government and its roots in law and equity. It might be an interesting thought that the sagas of Icelanders and their attitudes towards law and patterns of dispute emerged as a reaction to this pan-European discourse, even if they evolved into something which is rightfully viewed as typically and exclusively Icelandic.

Bibliography Primary Sources Gísla saga Súrssonar. In: Vestfirðinga sǫgur. Gísla saga Súrssonar, Fóstbrœðra saga, Þáttr Þormóðar, Hávarðar saga Ísfirðings, Auðunar þáttr vestfirzka, Þorvarðar þáttr krákunefs, ed. by Björn K. Þórólfsson/Guðni Jónsson (1943): Íslenzk fornrit, 6. Reykjavík, pp. 1–118. Grágás: Islændernes Lovbog i Fristatens Tid. Förste Del. Text 1, ed. by Vilhjálmur Finsen (1852). København. Grágás: Islændernes Lovbog i Fristatens Tid. Anden Del. Text 2, ed. by Vilhjálmur Finsen (1852). København. Grágás efter det Arnamagnæanske Haandskrift Nr. 334 fol., Staðarhólsbók (1879). København.

134 Axel Kristinsson 2003. 135 Sturlunga saga 1, pp. 243, 260. As a ríki depended not only on the chieftaincies, but first and foremost on the support the magnates could muster (Jón Viðar Sigurðsson 1999, pp. 210–14), one may speak of a ríki in the making until the 1230s (cf. Axel Kristinsson 2003, pp. 12f.), although the passages from Íslendinga saga above do not name any other magnates in possession of chieftaincies after 1211 (Jón Viðar Sigurðsson 1999, pp. 66f.). 136 For politics and ethics in Orkneyinga saga, cf. Foote 1988. For the connection between the Eyjafjörður and Orkneyinga saga, Orkneyinga saga, pp. XC–CVIII; Scheel 2015, pp. 662–72.

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Hákonar saga Hákonarsonar. In: Hákonar saga Hákonarsonar II: Magnúss saga lagabœtis, ed. by Þorleifur Hauksson/Sverrir Jakobsson/Tor Ulset (2013): Íslenzk fornrit, 32. Reykjavík, pp. 1–267. Járnsíða og Kristinréttur Árna Þorlákssonar, ed. by Haraldur Bernharðsson/Magnús Lyngdahl Magnússon/Már Jónsson (2005). Reykjavík. Laxdœla saga. In: Laxdœla saga: Halldórs þættir Snorrasonar. Stúfs þáttr, ed. by Einar Ólafur Sveinsson (1934): Íslenzk fornrit, 5. Reykjavík, pp. 1–248. Ljósvetninga saga. In: Ljósvetninga saga með þáttum. Reykdœla saga ok Víga-Skútu. Hreiðars þáttr, ed. by Björn Sigfússon (1940): Íslenzk fornrit, 10. Reykjavík, pp. 1–106. Messuskýringar: Liturgisk symbolik frå den norsk-islandske kyrkja i millomalderen. Fyrste heftet, ed. by Oluf Kolsrud (1952). Oslo. Orkneyinga saga. In: Orkneyinga saga: Legenda de Sancto Magno. Magnúss saga skemmri. Magnúss saga lengri. Helga þáttr ok Úlfs, ed. by Finnbogi Guðmundsson (1965): Íslenzk fornrit, 34. Reykjavík, pp. 1–300. Policraticus: Ioannis Saresberiensis Policraticus I-IV, ed. by K. S. B. Keats-Rohan (1993): Corpus Christianorum. Continuatio Mediaeualis, 118. Turnhout. Reykdœla saga ok Víga-Skútu. In: Ljósvetninga saga með þáttum. Reykdœla saga ok Víga-Skútu. Hreiðars þáttr, ed. by Björn Sigfússon (1940): Íslenzk fornrit, 10. Reykjavík, pp. 149–243. Saxo Grammaticus: Gesta Danorum: Danmarkshistorien., ed. by Karsten Friis-Jensen/Peter Zeeberg. 2 vols (2005). København. Sturlunga saga, ed. by Jón Jóhannesson/Magnús Finnbogason/Kristján Eldjárn. 2 vols (1946). Reykjavík. Víga-Glúms saga. In: Eyfirðinga sǫgur. Víga-Glúms saga. Ögmundar þáttr dytts. Þorvalds þáttr tasalda. Svarfdœla saga. Þorleifs þáttr jarlsskálds. Valla-Ljóts saga. Sneglu-Halla þáttr. Þorgríms þáttr Hallasonar, ed. by Jónas Kristjánsson (1956): Íslenzk fornrit, 9. Reykjavík, pp. 1–98.

Secondary Sources Anderson, Elijah (1999): Code of the Street: Decency, Violence, and the Moral Life of the Inner City. New York/London. Andersson, Theodore M. (1967): The Icelandic Family Saga: An Analytical Reading (Harvard Studies in Comparative Literature 28). Cambridge (Mass.). Andersson, Theodore M. (1970): The Displacement of the Heroic Ideal in the Family Sagas. In: Speculum, 45, pp. 575–593. Andersson, Theodore M. (1994): The Literary Prehistory of Eyjafjörður. In: Samtíðarsögur. The Contemporary Sagas. The Ninth International Saga Conference, Akureyri 31.7. – 6.8.1994. Preprints. Reykjavík, pp. 16–30. Andersson, Theodore M. (2006a): The Growth of the Medieval Icelandic Sagas (1180–1280). Ithaca (N.Y.)/London. Andersson, Theodore M. (2006b): Víga-Glúms saga and the Birth of Saga Writing. In: Scripta Islandica, 57, pp. 5–39. Ármann Jakobsson (2014). A Sense of Belonging: Morkinskinna and Icelandic Identity, c. 1220 (The Viking Collection 22). [Odense]. Assmann, Jan (2005). Das kulturelle Gedächtnis: Schrift, Erinnerung und politische Identität in frühen Hochkulturen. 5th edition. München. Auden, Wystan H. (1937): Letters from Iceland. New York. Axel Kristinsson (2003): Lords and Literature: The Icelandic Sagas as Political and Social Instruments. In: Scandinavian Journal of History, 28, pp. 1–17.

Revenge or Settlement? Law and Feud in Early Sagas of Icelanders

163

Bachtin, Michail M. (1979): Die Ästhetik des Wortes, ed./transl. by Rainer Grübel. Frankfurt am Main. Bagge, Sverre (2012): Skandinavisk statsdannelse. In: Bagge, Sverre et al. (eds.): Statsutvikling i Skandinavia i middelalderen. Oslo, pp. 9–38. Barnes, Geraldine (2000): Romance in Iceland. In: Clunies Ross, Margaret (ed.): Old Icelandic Literature and Society (Cambridge Studies in Medieval Literature 42). Cambridge, pp. 266–286. Beck, Heinrich/Böttcher, Hartmut (1978): Blutrache. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexikon der Germanischen Altertumskunde 3. Berlin/New York, pp. 81–101. Berge, Anders (2007): Local Disputes and the Role of the Royal Judiciary in Early 14th-Century Norway. In: Pan-Montojo, Juan/Pedersen, Frederik G. (eds.): Communities in European History: Representations, Jurisdictions, Conflicts (States, Legislation, Institutions 2). Pisa, pp. 191–201. Berger, Alan J. (1980): Did Haukr Erlendsson Write Víga-Glúms saga? In: Arkiv för nordisk filologi, 95, pp. 113–115. Berger, Rosetta M./Drout, Michael D. C. (2015): The Relationship between Víga-Glúms saga and Reykdoela saga: Evidence from New Lexomic Methods. In: Viking and Medieval Scandinavia, 11, pp. 1–32. Borggreve, Cecilia (1970): Der Handlungsaufbau in den zwei Versionen der Ljósvetninga saga. In: Arkiv för nordisk filologi, 85, pp. 238–246. Brown, Warren C./Górecki, Piotr (2003): What Conflict Means: The Making of Medieval Conflict Studies in the United States, 1970–2000. In: Brown, Warren C./Górecki, Piotr (eds.): Conflict in Medieval Europe: Changing Perspectives on Society and Culture. Aldershot/Burlington (VT), pp. 1–35. Buc, Philippe (2001): The Dangers of Ritual: Between Early Medieval Texts and Social Scientific Theory. Princeton/Oxford. Büchert Netterstrøm, Jeppe (2007): The Study of Feud in Medieval and Early Modern History. In: Büchert Netterstrøm, Jeppe/Poulsen, Bjørn (eds.): Feud in Medieval and Early Modern Europe. Aarhus, pp. 9–67. Burrows, Hannah (2009): Cold Cases: Law and Legal Detail in the Íslendingasögur. In: Parergon, 26, pp. 35–55. Byock, Jesse L. (1982): Feud in the Icelandic Saga. Berkeley/London. Callow, Chris (2006): Reconstructing the Past in Medieval Iceland. In: Early Medieval Europe, 14, pp. 304–324. Charpentier Ljungqvist, Fredrik (2014): Kungamakten och lagen: En jämförelse mellan Danmark, Norge och Sverige under högmedeltiden. Stockholm. Clover, Carol (1985): Icelandic Family Sagas (Íslendingasögur). In: Clover, Carol/Lindow, John (eds.): Old Norse-Icelandic Literature: A Critical Guide. Ithaca (N.Y.), pp. 239–315. Cormack, Margaret (1985): Saints and Sinners: Death Scenes in konunga and samtíðar sögur. In: Louis-Jensen, Jonna/Sanders, Christopher/Springborg, Peter (eds.): The Sixth International Saga Conference 28/7–2/8 1985: Workshop Papers. 2 vols. København, vol. 1, pp. 221–234. Dilcher, Gerhard (2002): Die Zwangsgewalt und der Rechtsbegriff vorstaatlicher Ordnungen im Mittelalter. In: Cordes, Albrecht (ed.): Rechtsbegriffe im Mittelalter (Rechtshistorische Reihe 262). Frankfurt am Main et al., pp. 111–153. Durrenberger, Edward P./Wilcox, Jonathan (1992): Humor as a Guide to Social Change: Bandamanna saga and Heroic Values. In: Gísli Pálsson (ed.): From Sagas to Society: Comparative Approaches to Early Iceland. Enfield Lock, pp. 111–123. Ebel, Uwe (1995): Integrität oder Integralismus. Die Unterwerfung des Individuums zum Asozialen als Seinsgrund sagaspezifischer Heroik (Wissenschaftliche Reihe 6). Metelen/Steinfurt. Einar Ólafur Sveinsson (1958): Dating the Icelandic Sagas (Viking Society for Northern Research. Text Series 3). London.

164

Roland Scheel

Esmark, Kim/Orning, Hans J. (2013): General Introduction. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/Boston, pp. 1–28. Firth, Hugh (2012): Coercion, Vengeance, Feud and Accommodation: Homicide in Medieval Iceland. In: Early Medieval Europe, 20, pp. 139–175. Foote, Peter (1988): Observations on Orkneyinga saga. In: Crawford, Barbara E. (ed.): St Magnus Cathedral and Orkney’s Twelfth-Century Renaissance. Aberdeen, pp. 192–208. Fried, Johannes (1994): Gens und regnum: Wahrnehmungs- und Deutungskategorien politischen Wandels im früheren Mittelalter. Bemerkungen zur doppelten Theoriebildung des Historikers. In: Miethke, Jürgen/Schreiner, Klaus (eds.): Sozialer Wandel im Mittelalter. Wahrnehmungsformen, Erklärungsmuster, Regelungsmechanismen. Sigmaringen, pp. 73–104. Gehl, Walther (1937): Ruhm und Ehre bei den Nordgermanen. Studien zum Lebensgefühl der isländischen Saga (Neue Deutsche Forschungen. Abteilung deutsche Philologie 3). Berlin. Glauser, Jürg (2013): What is Dated, and Why? Saga Dating in the Histories of Old-Norse Icelandic Literature. In: Mundal, Else (ed.): Dating the Sagas: Reviews and Revisions. København, pp. 9–30. Grimm, Jacob (1928): Deutsche Rechts-Alterthümer. Göttingen. Grønbech, Vilhelm (1909): Vor Folkeæt i Oldtiden 1. Lykkemand og Niding. København. Gunnar Karlsson (2000): Icelandʼs 1100 Years: The History of a Marginal Society. London. Hallberg, Peter (1968): Stilsignalement och författarskap i norrön sagalitteratur: Synspunkter och exempel (Nordistica Gothoburgensia 3). Stockholm. Halsall, Guy (1998): Violence and Society in the Early Medieval West: An Introductory Survery. In: Idem. Violence and Society in the Medieval West. Woodbridge, pp. 1–45. Helgi Þorláksson (1997): Konungsvald og hefnd. In: Sagas and the Norwegian Experience. Preprints: 10th International Saga Conference, Trondheim, 3rd-9th August 1997. Trondheim, pp. 249–261. Helgi Þorláksson (2007): Feud and Feuding in the Early and High Middle Ages: Working Descriptions and Continuity. In: Büchert Netterstrøm, Jeppe/Poulsen, Bjørn (eds.): Feud in Medieval and Early Modern Europe. Aarhus, pp. 69–94. Hermann, Pernille (2004): Hungrvaka og islændingesagaer: Traditionalitet og konventionalitet. In: Maal og Minne, pp. 21–40. Hermanson, Lars (2004): Makten, individen och kollektivet: Ett alternativt syn på det danska 1100talets politiska historia. In: Carelli, Peter/Hermanson, Lars /Sanders, Hanne (eds.): Ett annat 1100-tal: Individ, kollektiv och kulturella mönster i medeltidens Danmark (Centrum för Danmarksstudier 3). Göteborg/Stockholm, pp. 61–99. Heusler, Andreas (1911): Das Strafrecht der Isländersagas. Leipzig. Heusler, Andreas (1912): Zum isländischen Fehdewesen in der Sturlungenzeit (Abhandlungen der Königlich Preußischen Akademie der Wissenschaften, Philosophisch-Historische Classe 1912,4). Berlin. Heusler, Andreas (1934): Die Herrenethik in der isländischen Saga. In: Idem. Germanentum: Vom Lebens- und Formgefühl der alten Germanen (Kultur und Sprache 8), pp. 63–76. Heidelberg. Hudson, John (2013). Legal History and the History of Disputes. In: Esmark, Kim et al. (eds.): Disputing Strategies in Medieval Scandinavia (Medieval Law and Its Practice 16). Leiden/ Boston, pp. 333–341. Humfress, Caroline (2013): Thinking Through Legal Pluralism: ‘Forum Shopping’ in the Later Roman Empire. In: Duindam, Jeroen et al. (eds.): Law and Empire: Ideas, Practices, Authors. Leiden/ Boston, pp. 225–250. Hyams, Paul (2003). Rancor and Reconciliation in Medieval England. Ithaca (N.Y.). Hybel, Nils (2018): The Nature of Kingship c. 800–1300. The Danish Incident (The Northern World 83). Leiden.

Revenge or Settlement? Law and Feud in Early Sagas of Icelanders

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Jauß, Hans-Robert (1977): Einleitung: Alterität und Modernität der mittelalterlichen Literatur. In: Idem. Alterität und Modernität der mittelalterlichen Literatur: Gesammelte Aufsätze 1956–1976. München, pp. 9–47. Jochens, Jenny (1996). Old Norse Images of Women. Philadelphia. Jóhanna Katrín Friðriksdóttir (2013). Women in Old Norse Literature: Bodies, Words, and Power. New York. Jón Hnefill Aðalsteinsson (1998): Myth and Ritual in Glúma and Hrafnkatla. In: Idem. A Piece of Horse Liver: Myth, Ritual and Folklore in Old Icelandic Sources. Reykjavík, pp. 107–128. Jón Jóhannesson (1974): A History of the Old Icelandic Commonwealth (University of Manitoba Icelandic Studies 2). [Winnipeg]. Jón Viðar Sigurðsson (1999): Chieftains and Power in the Icelandic Commonwealth. Odense. Jón Viðar Sigurðsson (2013a): The Changing Role of Friendship in Iceland, c. 900–1300. In: Jón Viðar Sigurðsson/Småberg, Thomas (eds.): Friendship and Social Networks in Scandinavia c. 1000–1800 (Early European Research 5). Turnhout, pp. 43–64. Jón Viðar Sigurðsson (2013b): The Role of Arbitration in the Settlement of Disputes in Iceland c. 1000–1300. In: Andersen, Per (eds.): Law and Disputing in the Middle Ages: Proceedings of the 9th Carlsberg Academy Conference on Medieval Legal History. København, pp. 123–135. Jónas Kristjánsson (1988): Eddas and Sagas: Iceland’s Medieval Literature. Reykjavík. Koszowski, Maciej (2014): Medieval Iceland: The Influence of Culture and Tradition on Law. In: Scandinavian Studies, 86, pp. 333–351. Koziol, Geoffrey (1992): Begging Pardon and Favour. Ritual and Political Order in Early Medieval France. Ithaca (N.Y.)/London. Lambert, T.B. (2009): Introduction. Some Approaches to Peace and Protection in the Middle Ages. In: Lambert, T. B./Rollason, D. W. (eds.): Peace and Protection in the Middle Ages (Durham Medieval and Renaissance Monographs and Essays 1). Durham/Toronto, pp. 1–16. Lind, John H. (2012): ‘Vikinger’, vikingetid og vikingeromantik. In: KUML, pp. 151–170. Lönnroth, Lars (1976): Njáls saga: A Critical Introduction. Berkeley/Los Angeles/London. Martínez, Matías (1999): Dialogizität, Intertextualität, Gedächtnis. In: Arnold, Heinz L./Detering, Heinrich (eds.): Grundzüge der Literaturwissenschaft. 3rd edition. München, pp. 430–445. Maurer, Konrad von (1909): Das Staatsrecht des isländischen Freistaates (Vorlesungen über altnordische Rechtsgeschichte 4). Leipzig. McKinnell, John (1993): Manʼs Law and Godʼs Justice in Icelandic Literature, ca. 1130-ca. 1300. In: Buschinger, Danielle (ed.): Le droit et sa perception dans la littérature et les mentalités médiévales (Göppinger Arbeiten zur Germanistik 551). Göppingen, pp. 117–132. McKinnell, John (2009): The Ideology of Vengeance in Old Norse Mythology. In: Lambert, T. B./ Rollason, D. W. (eds.): Peace and Protection in the Middle Ages (Durham Medieval and Renaissance Monographs and Essays 1). Durham/Toronto, pp. 181–194. Meulengracht Sørensen, Preben (1992): Freyr in den Isländersagas. In: Beck, Heinrich (ed.): Germanische Religionsgeschichte: Quellen und Quellenprobleme (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 5). Berlin/New York, pp. 720–735. Meulengracht Sørensen, Preben (1993): Fortælling og ære: Studier i islændingesagaerne. Aarhus. Miller, William I. (1990): Bloodtaking and Peacemaking: Feud, Law and Society in Saga Iceland. Chicago. Miller, William I. (2014): ‘Why is your axe bloody?’ A Reading of Njáls Saga. Oxford. Mundal, Else (2013): The Dating of the Oldest Sagas About Early Icelanders. In: Mundal, Else (ed.): Dating the Sagas: Reviews and Revisions. København, pp. 331–354. Nordal, Guðrún (1998): Ethics and Action in Thirteenth-Century Iceland (The Viking Collection 11). Odense.

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Nordal, Sigurður (1953): Sagalitteraturen. In: Idem (ed.): Nordisk Kultur VIII: B: Litteraturhistorie. Norge og Island. Stockholm et al., pp. 180–273. Oestmann, Peter (2006): Blutrache und Fehde in isländischen Quellen. In: Dilcher, Gerhard/Distler, Eva-Marie (eds.): Leges – Gentes – Regna: Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schriftkultur bei der Ausbildung der frühmittelalterlichen Rechtskultur. Berlin, pp. 391–413. Orning, Hans J. (2013): Feuds in Fact and Fiction in Late Medieval Iceland. In: Imsen, Steinar (ed.): Legislation and State Formation: Norway and Its Neighbours in the Middle Ages (‘Norgesveldet’. Occasional Papers 4). Oslo/Trondheim, pp. 229–262. Orri Vésteinsson (2000): The Christianization of Iceland: Priests, Power, and Social Change 1000–1300. Oxford. Ranisch, Wilhelm/Vogt, Walter H. (eds.) (1921): Fünf Geschichten aus dem östlichen Nordland (Thule. Altnordische Dichtung und Prosa 11). Jena. Sawyer, Peter (1987): The Bloodfeud in Fact and Fiction. In: Hastrup, Kirsten/Meulengracht Sørensen, Preben (eds.): Tradition og historieskrivning: Kilderne til Nordens ældste historie (Acta Jutlandica. Humanistisk serie 61). Århus, pp. 27–38. Scheel, Roland (2012): Lateineuropa und der Norden: Die Geschichtsschreibung des 12. Jahrhunderts in Dänemark, Island und Norwegen (Frankfurter Kulturwissenschaftliche Beiträge 6). Berlin. Scheel, Roland (2014): ‘Wikinger’ und ‘Wikingerzeit’ – der vormittelalterliche Norden als Gegenstand europäischer Erinnerung? In: Feindt, Gregor et al. (eds.): Europäische Erinnerung als verflochtene Erinnerung: Vielstimmige und vielschichtige Vergangenheitsdeutungen jenseits der Nation (Formen der Erinnerung 55). Göttingen, pp. 65–92. Scheel, Roland (2015): Skandinavien und Byzanz: Bedingungen und Konsequenzen mittelalterlicher Kulturbeziehungen (Historische Semantik 23). 2 vols. Göttingen. Schmidt, Andreas (2016): ‘hinn versti maðr á ǫllum norðrlǫndum’, or House of Cards in the Faroe Islands: Conceptualising the ‘Bad Guys’ in Færeyinga saga. In: Hahn, Daniela/Schmidt, Andreas (eds.): Bad Boys and Wicked Women: Antagonists and Troublemakers in Old Norse Literature (Münchner Nordistische Studien 27). München, pp. 273–316. Seinecke, Ralf (2015). Das Recht des Rechtspluralismus (Grundlagen der Rechtswissenschaft 29). Tübingen. Strauch, Dieter (2011). Mittelalterliches nordisches Recht bis 1500: Eine Quellenkunde (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 73). Berlin/New York. Sverrir Tómasson (1988): Formálar íslenskra sagnaritara á miðöldum (Stofnun Árna Magnússonar á Íslandi. Rit 33). Reykjavík. Teuscher, Simon (2007): Erzähltes Recht: Lokale Herrschaft, Verschriftlichung und Traditionsbildung im Spätmittelalter. Frankfurt am Main/New York. Turner, Victor W. (1971): An Anthropological Approach to the Icelandic Sagas. In: Beidelman, T. O. (ed.): The Translation of Culture: Essays to E. E. Evans-Pritchard. London, pp. 349–374. Úlfar Bragason (1986): On the Poetics of Sturlunga. Ann Arbor (MI), 1986. Van Uytfanghe, Marc (1988): Heiligenverehrung II (Hagiographie). In: Dassmann, Ernst et al. (eds.): Reallexikon für Antike und Christentum 14. Stuttgart, pp. 150–184. Vésteinn Ólason (1998): Dialogues with the Viking Age: Narration and Representation in the Sagas of Icelanders. Reykjavík. Vogt, Helle (2005): Slægtens funktion i nordisk højmiddelalderret: Kanonisk retsideologi og fredsskabende lovgivning. København. Von See, Klaus (1964): Altnordische Rechtswörter: Philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen (Hermaea. Germanistische Forschungen N.F. 16). Tübingen.

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Von See, Klaus (1972): Kontinuitätstheorie und Sakraltheorie in der Germanenforschung: Antwort an Otto Höfler. Frankfurt am Main. Wellendorf, Jonas (2011): Whetting the Appetite for a Vernacular Literature: The Icelandic Hungrvaka. In Garipzanov, Ildar H. (ed.): Historical Narratives and Christian Identity on a European Periphery: Early History Writing in Northern, East-Central and Eastern Europe (c. 1070–1200) (Medieval Texts and Cultures of Northern Europe 26). Turnhout, pp. 123–142. White, Hayden (1973). Metahistory: The Historical Imagination in Nineteenth-century Europe. Baltimore/London. Würth, Stefanie (1999). Parodistische Transgression in der Hœnsa-Þóris saga. In: Toftgaard Andersen, Stig (ed.): Die Aktualität der Saga: Festschrift für Hans Schottmann (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 21). Berlin/New York, pp. 235–262.

Keith Ruiter

Berserks Behaving Badly: Manipulating Normative Expectations in Eyrbyggja saga Introduction A common thread running through the present volume is the consistent highlighting of the flexibility, negotiation, and pragmatism that is so apparent in narrated descriptions of law, legal norms, and legal practice in the medieval Scandinavian milieu. However, developments in the social sciences provide inspiration for scholars of medieval Scandinavia to go further still and undertake a more holistic examination of medieval Scandinavian normativity.1 After all, it has long been remarked by scholars such as Preben Meulengracht Sørensen and Theodore Andersson that particularly the Íslendingasögur often fixate on situations where competing values – law and honour, for example – collide to manifold literary effects.2 Studies such as these pick up on an under-researched tension evident in the sagas between competing normative expectations and, in light of the progress made in the social sciences, medieval Scandinavian concepts of normativity should be explored more holistically. In this vein, the following paper makes a close reading of a short vignette in Eyrbyggja saga – the attempted forced marriage between the Swedish berserk Halli and Víga-Styrr’s daughter Ásdís – exploring the ways that various norms and normative expectations are deliberately manipulated by the characters in question to further their own social goals in the narrative.

1 Norms, normativity, and deviance have all long been areas of special interest in sociology, legal scholarship, criminology, and anthropology. A detailed account of the development of this subject area is contained in Downes/Rock (eds.) 2003. Though its focus is expressly criminological, it provides an extensive theoretical basis for the study of norms and normativity as well as for understanding social deviance and its value as a ‘resource for the understanding of social order and social change’ (Downes/Rock 2003, p. 369). For an especially useful recent volume on the topic that juxtaposes legal and social norms to enlightening effect, see Baier (ed.) 2013; and especially Banakar 2013, pp. 15–38. 2 Further discussion of these competing social interests and pressures, as well as analysis of their role in the narratives of the sagas can be found in Meulengracht Sørensen 1988, pp. 247–266; for an excellent refutation of the Íslendingasögur as myopically concerned with issues of personal honour, see Andersson 1970, pp. 575–593. For a more recent treatment of these intersecting social values in the Íslendingasögur, see Vilhjálmur Árnason 2009, especially pp. 218–230). https://doi.org/10.1515/9783110661811-008

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A Spectrum Approach to Normativity As many previous studies have opted to interrogate social values or ethics,3 rather than norms as such, an effort must first be made to set definitions and parameters for the present study. Reza Banakar helpfully teases out the distinction between norms and normativity from the perspective of legal sociology, namely: ‘norms provide standards of conduct which guide expectations and coordinate action and interactions, thus engendering normativity, behavioural regularities and social order’.4 To provide a simple working definition, normativity can be understood as the degree to which behaviour aligns with a particular norm or norm-set. Banakar takes this definition further arguing that normativity broadly, and legal normativity in particular, ‘is not necessarily reducible to the effects or functions of individual norms’.5 That is to say that, while sometimes adherence to specific norms can be a conscious decision of an individual, there are systemic or macro-level social imperatives that motivate actions.6 Thus, to return to our simple working definition, groups of norms or normsets, as standards of behaviour, generate systemic social pressures for expected behaviour and, thus, externally encourage social order. Banakar’s distinction that normativity can be both externally motivated, by way of these social pressures, or internally generated, which he sees as the root of moral obligations, is important. In his discussion he uses this dichotomy to narrow the focus of his investigation to legal norms and normativity.7 However, for the task at hand, this broader definition of normativity is essential as it highlights the occurrence of many mutually independent scales of normativity to be considered in any given society at any given time. As highlighted above, medieval Scandinavian sources routinely demonstrate that law was far from the only norm-set that had a bearing on the literary imagination and, by extension, the wider society. Therefore, before exploring the case study below in detail, an effort should first be made to tease out normative metrics that clearly operate in the sources in question. Though interested in feud mechanics rather than normative forces, William Ian Miller highlights two normative pressures that demonstrably function in the world of the sagas: one governed by legal norms,8 and a second governed by norms relating to honourable conduct.9 Miller also briefly acknowledges a moral component to the social economics of feud, but largely leaves this avenue unexplored in his

3 4 5 6 7 8 9

As is the case with both Andersson 1970 and Meulengracht Sørensen 1988. Banakar 2013, p. 16. Banakar 2013, p. 16. Banakar 2013, p. 20. Banakar 2013, p. 18. Miller 1990, pp. 116f. Miller 1990, pp. 26–41.

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study.10 In light of more recent attempts to grapple with medieval Scandinavian moral attitudes,11 the scale of normativity governed by morality is a third normative metric that should be considered here. That being said, it is important to note that, due to the nature of the surviving sources, specifically here the Íslendingasögur, the morality that can be considered in a close reading is not actually the same as that described by Banakar.12 While the morality discussed by Banakar is internally generated, the Íslendingasögur, famous for their apparent detachment and perceived objective narrative tone,13 do not convey internal justifications for actions; rather, they demonstrate a morally-grounded systemic social pressure or societal expectation to behave in certain ways that conform to contemporaneous moral concepts. Thus, the moral normativity that can be examined in the Íslendingasögur is, like law and honour, a normativity that is encouraged by external social pressure. However, this is a boon to the present investigation rather than a methodological challenge. Readers are confronted with three observable, distinct – though interrelated – scales of normativity, each arising from an external rather than internal locus, which can be used to interrogate social action in the sagas. These scales can be helpfully conceptualised as three spectrums of normativity with abstract concepts like lawfulness, honourableness, and moral-rightness on the positive extremes and lawlessness, dishonourableness, and moral-wrongness on the negative extremes. The Old Norse lexicon is remarkably rich in words that describe especially these negative normative extremes with words like lagalauss,14 ójafn,15 and illr16 being just three examples of vernacular adjectives that help flesh out the contemporary conceptual associations behind normative transgressions on these spectrums. Structuralists in particular have had a strong interest in early Scandinavian social structures and concepts, favouring the use of ‘related oppositions’ or binary pairs of concepts to define a certain ‘Old Norse worldview’.17 One such oppositional

10 Miller 1990, pp. 98, 108. 11 For example, see Bagge 2008; Guðrún Nordal 1998. 12 It should also be noted at this point that for this type of enquiry, sagas need not be seen as conveyors of even semi-historical events and personages; rather, they convey conceivable interactions governed by social forces that are inherently conservative and resistant to change. For a further discussion of the viability of especially the Íslendingasögur see Miller 1990, pp. 43–51, and, for a full treatment, see Meulengracht Sørensen 1993. 13 Discussed and problematised by, for example, Andersson 1970, p. 577. 14 ‘Lawless’. 15 ‘Uneven’, for a fuller discussion of the legal and honour repercussions of jafn and ójafn conduct, see Miller 1990. 16 ‘Evil’, for a fuller discussion of the semantic field, see An Icelandic-English Dictionary, p. 318. 17 See especially Hastrup 1990, pp. 25–43. Further discussion can be found in Gurevich 1969, pp. 42–53; and Meletinskij 1973, 1, pp. 43–57, and 2, pp. 57–78.

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pair that Kirsten Hastrup discusses is ‘us’ and ‘the others’18 and, at first glance, this could easily be mistaken for a normative population and the non-normative individuals perceived to be on its fringes; however, the picture is much more complex. From a social perspective, every action or reaction is rooted in complex normative understandings that are constantly being negotiated by the actor and the society they are acting in. Therefore, in the face of the three observable scales of normativity identified above, scholars would do well to remember that norms do not have a clear hierarchy amongst themselves and normative pressures can often compete, stressing the importance of articulating that these are interrelated, rather than independent, scales.19 Thus a given action can be considered normative on one scale, but non-normative, even deviant, on any number of others under certain conditions. Furthermore, while normativity and deviance might form something of an oppositional pair conceptually, sociologists are very careful to distinguish that binary thinking here is dangerously reductive when considering social action due to the inherent ambiguity and many shades of grey that separate the two.20 In this way, the following study will examine the actions of the characters involved and consider them against each of these normative spectrums, comparing and contrasting the perceived normativity and the social reception of those actions.

Berserks Behaving Badly? Setting the Stage The vignette in question is neatly contained in chapter twenty-eight of Eyrbyggja saga, but the important contextualising information comes somewhat earlier. The events of the case study revolve around Arngrímr Þorgrímsson, introduced in chapter twelve as the overbearing and unjust second son of Þorgrímr Kjallaksson.21 In fact, we are told that Arngrím’s behaviour was so difficult to accommodate that he was renamed ‘Styrr’, the word for a disturbance or brawl.22 Despite this characterisation, we learn that Styrr is intelligent and hardened, two qualities that seem to have drawn

18 Hastrup 1990, pp. 25–43. 19 For further discussion on the sociological and criminological approach to studying the pluralism and diversity of non-normative and deviant behaviours and the competing normative pressures in society, see Downes/Rock 2003, pp. 2–23. 20 Downes/Rock 2003, pp. 4–6. 21 Eyrbyggja saga, p. 21. By way of introduction, the saga says of Arngrímr that ‘hann var ofstopamaðr mikill ok fullr ójafnaðar’ (‘he was a very arrogant man and unjust’, Eyrbyggja saga, transl. Hermann Pálsson/Edwards, p. 40) For a fuller discussion of the social problem of the ójafnaðarmaðr see Miller 1990; and for a full treatment of the narrative uses of ójafnaðarmenn in the saga corpus see Shortt Butler, unpublished doctoral thesis 2016. 22 Eyrbyggja saga, p. 21.

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many men to his service.23 Styrr’s disposition is interesting in and of itself from the perspective of normativity. His intelligence and station as a member of the Kjallekling kin-group set him up well to be a powerful householder, or bóndi, but his ruthlessness has apparently led to several fatal disputes with his neighbours, and his ójafn tendencies have resulted in these killings going uncompensated.24 Despite this anti-social behaviour, he has managed to accumulate quite the following of fighting men, whose force he uses to bully his neighbours, and even other members of his kin-group, in order to accomplish his goals.25 It is this combination of factors that appears to have allowed Styrr to carve out a substantial power-base for himself in the district. Styrr’s estranged brother, Vermundr, put out by Styrr’s bullying tendencies, asks Earl Hákon Sigurðarson of Norway to allow him to bring Halli and Leiknir, two brothers from Sweden known to be powerful berserks, into his service before he returns to Iceland.26 This exchange is structured as a gift intended to increase Vermundr’s prestige and augment both Vermundr and Hákon’s honour.27 The saga relays that these berserks make good allies, but the earl warns that their tempers need to be kept in check.28 However, upon returning to Iceland with Halli and Leiknir in tow, Vermundr begins to realise that, despite the desirability of their fellowship in combat and other disputes, the berserks are more than a match for him. In fact, the value of their companionship seems to be entirely utilitarian as, when Halli asks Vermundr to help him find a wife, the saga relays that Vermundr ‘knew of no respectable woman who wanted to be landed with a berserk for the rest of her life’.29 This exclusion from even the basest unit of domestic life, marriage, marks these two out as a special type of social outlier and it becomes a bone of contention between the berserks and Vermundr. Relations between the two become increasingly strained until it is suggested that Vermundr give the ójafn berserks to his ójafn brother Styrr and, after some discussion between the parties, it is agreed that Styrr will take the berserks as a gift to return Vermundr and himself to friendly terms.30 However, not long after the brothers come into Styrr’s service, Halli attempts to change his social status in a dramatic way. He takes to talking with Styrr’s daughter Ásdís, whom Styrr was especially protective of, and when Styrr attempts to intercede,

23 Eyrbyggja saga, p. 33. In the words of the saga author, ‘hann var vitr maðr ok harðfengr’ (‘[he was] and intelligent and ruthless man’, Eyrbyggja saga, transl. Hermann Pálsson/Edwards, p. 49. 24 Eyrbyggja saga, p. 33. 25 Eyrbyggja saga, pp. 61f. 26 Eyrbyggja saga, pp. 60f. 27 Eyrbyggja saga, pp. 60–63. 28 Eyrbyggja saga, p. 61. 29 Eyrbyggja saga, transl. Hermann Pálsson/Edwards, p. 70. The translation above retains much of the character of the original Old Norse, ‘eigi vita ván þeirar konu af góðum ættum, er sik myndi binda við berserk, né sín forlög’, Eyrbyggja saga, p. 63. 30 Eyrbyggja saga, pp. 63f.

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Halli declares his love for her and issues a proposal of sorts.31 In stereotypical berserk fashion, Halli claims that the physical support of him and his brother makes him a better match for Ásdís than the wealth or power of any bóndi in the district; furthermore, not only will they cease to be friendly if Styrr denies his request, he threatens ‘then each of us will just have to take what’s coming to him. In any case there’s not much you can do to stop me talking with Asdis’.32 Though his efforts are far from elegant, Styrr agrees to consider the issue and takes three days to think and discuss the issue with his neighbour Snorri goði, the local chieftain who, despite being young, is known for his cunning in difficult social situations.33 Having saught Snorri’s council, Styrr returns to the brothers and Halli manages to negotiate an agreement with Styrr that he and his brother will undertake three especially difficult tasks so that he might demonstrate his worthiness to marry Ásdís.34

Berserks Behaving Badly? The Plot Thickens There are several interesting factors at play here which deserve momentary exposition before moving on. First, Halli and Leiknir, though certainly somewhat difficult to get along with at times, are noted on multiple occasions to be loyal and powerful allies. Despite this, they seemingly carry a heavy social stigma. This stigma they bear does not seem to be rooted in their identity as Swedes, a common trope in the sagas,35 nor does it appear to arise from any supernatural or monstrous associations, traits which are often ascribed to berserks when they appear as antagonists,36 but which the brothers never actually demonstrate in the saga. This is an important point. It should be noted that at no point in their time in Iceland do Halli and Leiknir ever appear to enter a clear state of berserksgangr, nor do they exhibit any

31 Eyrbyggja saga, pp. 70f. 32 Eyrbyggja saga, transl. Hermann Pálsson/Edwards, p. 76. The original Old Norse is, ‘munu þá ok hvárir verða at fara með sínu máli sem líkar; mun þá ok raunlítit tjóa at vanda um tal okkart Ásdísar’, Einar Ól. Sveinsson/Matthías Þórðarson (eds.) 1935, p. 71. 33 Eyrbyggja saga, pp. 73f. 34 The brothers are instructed to clear a path from Hraun to Bjarnarhafnar over the lava field, to set up a boundary marker between the two farms, and to build a sheepshed on Styrr’s side of the boundary, Eyrbyggja saga, pp. 70–72. 35 Foote 1993, pp. 9–42; Dale 2014. 36 These traits, ranging from a perceived invulnerability to howling and from a sword-blunting gaze to foaming at the mouth, are helpfully collated, nuanced, and discussed by Dale 2014, pp. 139–62. For a full discussion of the roles of various berserkir in Old Norse literature, see Dale 2014, pp. 162–182.

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of the de-civilizing or dehumanising traits associated with such a state.37 The brothers present an intriguing case of berserkir acting much more like would-be lowstatus Icelandic settlers than berserkir.38 From this perspective, the stigma, which purportedly keeps them from establishing themselves as members of the elite populations with which they rub shoulders, seems to be the result of two distinct factors. The first of these is that they are destitute, félitill,39 while the second is their – for lack of a better term – berserk-ish way of doing things. These two factors should be explored in turn. As William Ian Miller demonstrates, the poor did have a place in the normative society of medieval Iceland, though they were unable to achieve the status of householder, bóndi, until they had livestock or land of their own.40 Grágás stipulates that if a man had neither land nor livestock he had to place himself in the legal care of the householder on whose land he lived.41 While this social structure certainly limits an individual’s agency, it in no way inherently excluded them from a normative existence in their respective social

37 It should be noted that the brothers are presented by the saga as demonstrating a substantial degree of tiredness which purportedly follows berserksgangr, though they are not overtly described as entering the state itself while in Iceland. In their introduction and description of their past, it is stated of the brothers that ‘þeir gengu berserksgang’ (Eyrbyggja saga, p. 61) – ‘they used to go berserk’ (Eyrbyggja saga, transl. Hermann Pálsson/Edwards, p. 68) – but no such state is directly presented by the narrator of the saga in the brothers’ time in Iceland. Based on the comment ‘Berserkirnir gengu heim um kveldit ok váru móðir mjǫk, sem háttr er þeira manna, sem eigi eru einhama, at þeir verða máttlausir mjǫk, er af þeim gengr berserksgangrinn’ (Eyrbyggja saga, p. 74) – ‘the berserks went home in the evening and were greatly exhausted, which is the way of those people who are shape-changers; they become very weakened when the berserksgangr goes from them’ (translation by author) – it could be suggested that the brothers may use such a state to accomplish Styrr’s tasks. Indeed, it does appear to be this tiredness that allows them to be killed in the end. However, it remains noteworthy that not only are the brothers not described as using berserksgangr to any violent ends in Iceland, but instead, if they use it at all, they turn it to, quite literally, constructive ends. Furthermore, the description of their completion of the tasks laid out for them is not at all consistent with the saga narrator’s first comment, ‘ok váru þá eigi í mannligu eðil, er þeir váru reiðir, ok fóru galnir sem hundar’ (Eyrbyggja saga, p. 61) – ‘and once they had worked themselves up into a frenzy, they were wholly unlike human beings, storming about like mad dogs’ (Eyrbyggja saga, transl. Hermann Pálsson/Edwards, pp. 68–69). Instead, when the brothers see Ásdís passing by while nearing the end of their work, they attempt to speak to her, and when they are ignored, they each compose a verse (Eyrbyggja saga, pp. 73–74), hardly the expected behaviour of two men caught up in the throes of berserksgangr as described by the saga. 38 The low-status aspect of the brothers here has been explored and put into a wider context by Dale 2014, pp. 167–68. In this context, he sees the case of Halli and Leiknir as being somewhat detached from other semi-historical sources, further highlighting the importance of exploring the episode from a variety of angles here. 39 Eyrbyggja saga, p. 72. 40 Miller 1990, pp. 116f. 41 Grágás 1, pp. 136f.; Grágás 1, transl. Dennis/Foote/Perkins, p. 132.

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station. In fact, from a purely structural understanding of legal normativity, this model suggests that Halli and Leiknir are to be understood as servants in Styr’s household. This position in the social hierarchy, paired with the threatening language of Halli’s marriage proposition, is most likely the reason for Styrr’s aversion to the proposal. That is to say that the proposition that Halli, a servant under common contemporary socio-legal understandings, should marry Ásdís, the daughter of an important bóndi, would have been seen as a social transaction entirely in Halli’s favour and greatly impinging on Styrr’s honour, the honour of his household, and that of his kin group and wider social network.42 Therefore, this is not something Styrr could sit idly by and let happen. The second aspect of the stigma that the brothers carry relates not to their identity as berserks, but their specific way of acting. Possessed of great strength and an inhuman fearlessness in the face of battle, berserks appear throughout the sagas in various literary settings, though they most commonly appear as stock characters who typically antagonise saga protagonists.43 That being said, there are important understandings to be gleaned from these vignettes, especially when viewed through the lens of Miller’s model of the social economics of law and honour in the saga world. One of the various social transactions highlighted by Miller is rán or ‘robbery’.44 This is the social transaction that best characterises Halli and Leiknir’s interactions with those around them. Their threatening, anti-social dispositions go beyond the usual in the sagas and, while they are loyal enforcers to those feeding and housing them, their loyalty comes with none of the courtesy that typifies the householder-servant relationship. The ójafn approach of the berserks to their relationships is even overtly stated as the reason that Vermundr seeks to give them to Styrr in the first place: their threatening, anti-social, and bullying dispositions line up very well with Styrr’s own character and approach to social transactions in the district.45 Their social interactions, especially Halli’s marriage proposition, demonstrate a profound interest in forcibly seizing honour and social standing with no regard to payment or mutual gain. Indeed, the deal struck between Halli and Styrr certainly seems to have the ring of coercion rather than mutual agreement. Therefore, it is entirely predictable that, once the berserks complete the tasks they have been given, Styrr invites them

42 See Miller 1990, p. 82, for more on social economics in the saga world. See also Jón Viðar Sigurðsson 2017 for a discussion of the wider networks of friend relationships that could equally be impacted by such honour slights. Speculation could be raised here about Ásdís’s feelings in these matters, but the saga author quite literally gives her no voice in these matters. 43 For example, consider the berserks that oppose Grettir in chapter 19 of Grettis saga, pp. 61–71. Though, see Dale 2014 for wider consideration of the various roles of berserkir in the sagas. 44 Miller 1990, pp. 77–84. 45 Eyrbyggja saga, pp. 61–64.

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to have a bath in his new bathhouse where he traps them, burns them with scalding water, and, when they subsequently break out of the structure, kills them.46 This plan, hatched with the help of Snorri goði’s advice,47 culminates with Snorri marrying Ásdís, rather than Halli. When analysed through Miller’s model of social economics, Styrr’s killing of the brothers can be understood as a rectification of the social balance after the attempted rán of his daughter and his honour.

Spectrums of Normativity as Interpretive Frameworks Utilising models of social economics thus aids in understanding the actions of Halli and Leiknir, as well as Styrr’s subsequent reaction. This analysis of social economics is also helpful for pinpointing some of the more normative behaviours exhibited on both sides, such as Halli’s wish to conform to Icelandic structures of domesticity and Styrr’s seeking of Snorri’s help despite being notoriously ójafn. However, we can use the spectrums of normativity, discussed above, to further reflect on the deeper implications of these exchanges. For example, Styrr, as a powerful bóndi, uses his wealth and position to facilitate a policy of utilising legally non-normative and morally ambiguous actions, such as uncompensated killings, to force, coerce, and bully his neighbours and rivals into bending to his wishes. Despite being intensely anti-social, the successes Styrr enjoys under this policy yield a dramatic increase in his honour and power in the district, despite both the saga narrator and other characters in the saga commenting on the problematic nature of these actions. By intentionally disregarding moral and legal normative pressures, except where absolutely necessary, Styrr is able to maximise his focus on the contemporary honour economy. The power and honour that he accrues through this aggressive behaviour allows him to cement his station, while his kinship ties, his wealth, and the large following he has gathered to him gives Styrr the social freedom to disregard legal and moral normativity to accrue honour in ways that other characters in the saga cannot.48 Halli and Leiknir lack Styrr’s power, influence, and social safety, but use the same sorts of behaviour and martial prowess to rise in power

46 Eyrbyggja saga, pp. 74f. 47 Eyrbyggja saga, pp. 73f. 48 Consider the freedman Úlfar as a counter example who is constantly undermined by his neighbours despite his strict adherence to contemporary normative pressures and repeated attempts by Arnkell goði to intercede on his behalf, Eyrbyggja saga, pp. 81–89.

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and honour, eventually coming to rub shoulders with kings and chieftains. Yet the stigmas they carry exclude them from a truly normative existence, and, when they push too hard, too fast, in an attempt to change that, there are lethal consequences due to their more precarious social state. However, the true normative genius of Snorri’s counsel to Styrr takes some unpacking. First, despite the fact that Styrr’s killing of the brothers could conceivably be understood as legally non-normative, in reality there can be no case made against him. No one will seek to prosecute the case, as the berserks’ only kin in Iceland was each other, and for someone else to attempt to take on the case would be a serious swipe at Styrr, a now even more powerful force in the district. Furthermore, as the servants of Styrr, the only person who could even conceivably prosecute their wrongful deaths is Styrr himself.49 Styrr thus maintains, and arguably improves, his legal normativity, given the complex legal manoeuvrings of the case, increases his honour normativity in getting the best of the social transaction, and even boosts his moral normativity in ridding the district of two troublesome and anti-social individuals and, if the narrator can be trusted in such things, saving his daughter from an illfated marriage. While Styrr certainly comes out on top in this exchange, the big winner is undeniably Snorri. These outcomes are utterly eclipsed by the normative manipulations that he deftly employs. Of course, the saga relays that the plan is hatched with Snorri’s council, but Styrr’s victories are made all the better by Snorri’s betrothal to Ásdís, as he and Styrr are mutually bettered in honour by the joining of their kingroups. In fact, using Miller’s models of social economics once more, in hindsight, the exchange of Snorri’s counsel for betrothal to Ásdís can be understood as an important and valuable exchange of gifts between two leading men from respected kin-groups, further solidifying their statuses in the spectrums of contemporary normativity.50 Even beyond this, Snorri’s plan has also put to rest a multi-generational dispute that festered between their families and, by bringing Styrr back into the normative fold of the district, has tempered his bullying and ‘fullr ójafnaðar’51 attitude for the foreseeable future now that their kin groups are linked – or at the very least ensured that Styrr is obligated not to turn his ójafn sights on Snorri and his machinations. Snorri’s ability to accomplish all of this without having to undertake aggressive action himself demonstrates a nuanced understanding of normative expectations and a tactful knack for manipulating them which tilts the social scales in his favour.

49 Grágás 1, pp. 136–137; Grágás 1, transl. Dennis/Foote/Perkins, p. 132. 50 For further discussion, see Jón Viðar Sigurðsson 2017, especially pp. 11–47 – though it is worth noting that the exchange is very much in Snorri’s favour given how protective Styrr is of Ásdís. 51 Eyrbyggja saga, p. 21

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Manipulating Normative Expectations in Eyrbyggja Saga This incredibly intricate and elegant navigation of social exchanges and normative expectations tells us a great deal about the mechanics of normativity as represented in Eyrbyggja saga, but it is far from an isolated case. The tension between competing normative expectations which so permeates above case is actually a recurring theme of the saga. Consider for example the case of mannjafnaðar, or ‘man-measuring’, which compares Snorri goði, Arnkell goði, and, to a lesser extent, Styrr that drives much of the action in the first half of the saga.52 Using this device, the saga author naturally invites a closer examination of the three leading men and their approaches to their political manoeuvrings in the various events that pit them against each other. The full complexity of these interactions cannot be explored in the limited space of this article, but a brief comparative example demonstrates that there is something of a conscious effort to explore normative tensions, particularly around ójafn actions, throughout the saga. Þórólfr bægifótr for example, described by the saga as ‘illr ok æfr við ellina ok mjǫk ójafnaðarfullr’,53 stands as another high-status ójafnaðarmaðr who, using his position and connections, can manipulate normative expectations in ways which Halli and Leiknir are simply unable to. His hyper-aggressive bullying approach to his dealings instigates a slew of troubles in the district when he orders his slaves to gather his hay and that of his neighbour, the freedman Úlfar, from the meadow the two had joint ownership of. Naturally incensed at this ‘rán’,54 as it is described by the saga, after having been so forthcoming in his exchanges with Þórólfr, Úlfar, fearing an outbreak of violence, enlists the help of Þórólf‘s own son, Arnkell goði. Þórólfr has no need for Úlfar’s hay, nor does he have any justification to cross Úlfar in the way he does. Úlfar, though of somewhat lower social status than his neighbours, can be seen to be utilising his social capital in perfectly normative ways in an attempt to navigate life in the district. Þórólfr, by comparison displays the typical avariciousness and immoderation of ójafn conduct. Þórólfr is thus living up to the saga narrator’s description of his character: his actions are simultaneously non-normative on the scales of honour, morality, and law given his actual, not just social, rán. In curious opposition to the case of Halli and Leiknir, Úlfar’s lower-status manoeuvring is entirely consistent with normative expectations and does allow him a

52 The actual mannjafnaðar is overtly described in chapter thirty-seven of the saga (Eyrbyggja saga, p. 98), though comparisons between the three leading men in the district are made throughout. 53 Eyrbyggja saga, p. 81: ‘wicked and prone to violence and very much full of inequity’ (author’s translation). 54 Eyrbyggja saga, p. 82.

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degree of social mobility, eventually forming a productive formal partnership with Arnkell goði.55 However, just like in the case of Halli and Leiknir, this social mobility is hampered by the actions of an ójafnaðarmaðr and, ultimately, proves fatal.56 The fact that Þórólfr eventually achieves the killing of Úlfar by way of bribing his ‘mjǫk féþurfi’57 friend Spá-Gils to commit the act, suggests a conscious attempt by the saga-author to present various interactions between ójafnaðarmenn and others to manifold effects.58 This can be carried somewhat further. From the subtle and complex normative manipulations that play out as Snorri and Arnkell jockey for position in the district, to the deeply transgressive disregard for normative expectations demonstrated by Þórólfr, the characters of Eyrbyggja saga are not the only ones who exhibit an interest in normative manipulations. The saga-author too demonstrates a clear interest in exploring transgression and normativity from a variety of perspectives. In doing so, they comment on the multiplicity of normative expectations for behaviour and the effect that social connections and wealth have on the leeway transgressors are granted. Older models for interpretations that stress binary dichotomies miss this inherent complexity, making the present multi-spectrum approach an important interpretive tool for exploring normativity and transgression in these narrative studies.

Future Directions and Conclusions It should be stated that Eyrbyggja saga is by no means an eccentric outlier in this regard. Normativity, transgression, and the tension arising from competing normsets all appear to have been productive themes for Íslendingasögur authors to explore. Morality, honour, and law form a complex web of normative expectations adding to the intrigue of Víga-Glúms saga and especially the actions of the titular character. Grettis saga Ásmundarsonar provides something of a character study of a man who disregards social expectations of moral and legal normativity for a myopic focus on personal honour. In fact, it is this very trifecta of moral, legal, and honour concerns that are discussed as the driving factors surrounding Sám’s seeking support from the Þjóstarsynir in Hrafnkels saga Freysgoða. In this way, the above analysis presents a small first step toward integrating a more holistic approach to normativity and transgression into considerations of social interactions in the Íslendingasögur.

55 56 57 58

Eyrbyggja saga, pp. 83f. Eyrbyggja saga, pp. 88f. ‘Destitute’ (translation by author). Eyrbyggja saga, p. 88

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Beyond this preliminary analytical contribution, the above study shows that normativity and the alignment of particular actions and reactions in relation to norms had very real, sometimes serious repercussions in the social systems of medieval Iceland. Second, the ways in which those actions lined up with contemporary normative pressures could, under the right circumstances, dramatically change the ways the individual was perceived, for better or worse. Third, an intimate working knowledge of how to manipulate social interactions in relation to contemporary understandings of normativity, like that masterfully demonstrated by Snorri goði, was vital to successfully navigating the intrigue of saga-age Iceland. Perhaps most importantly, this is a preliminary step toward showing just how vital holistic considerations of normativity are in the complex social world of medieval Iceland, and how they can be used to better understand the lives of those who inhabited it. However, to return to the common thread running through this volume, one thing that is especially clear is that to only pay attention to law and its place in these narratives is to only see part of the larger tapestry of the social complexity of the medieval Scandinavian world.

Bibliography Primary Sources Hrafnkels saga Freysgoða. In: Austfirðinga so̜gur. [. . .], ed. by Jón Jóhannesson (1950): Íslenzk fornrit, 11. Reykjavík, pp. 95–133. Eyrbyggja saga. In: Eyrbyggja saga. Brands þáttr ǫrva. Eiríks saga rauða. Grœnlendinga saga. Grœnlendiga þáttr, ed. by Einar Ól. Sveinsson/Matthías Þórðarson (1935): Íslenzk fornrit, 4. Reykjavík, pp. 1–184. Eyrbyggja saga, transl. by Hermann Pálsson/Paul Edwards (1989). London. Víga-Glúms saga. In: Eyfirðinga sǫgur. Víga-Glúms saga. Ǫgmundar þáttr dytts. Þorvalds þáttr tasalda. Svarfdœla saga. Þorleifs þáttr jarlsskálds. Valla-Ljóts saga. Sneglu-Halla þáttr. Þorgríms þáttr Hallasonar, ed. by Jónas Kristjánsson (1956): Íslenzk Fornrit, 9. Reykjavík, pp. 1–98. Grágás: Islændernes lovbog i fristatens tid, udgivet efter det kongelige Bibliotheks Haandskrift: Text I, ed. by Vilhjálmur Finsen (1852). Copenhagen. Grettis saga Ásmundarsonar, ed. by Guðni Jónsson (1936): Íslenzk fornrit, 7. Reykjavík. Laws of Early Iceland: Grágás 1, transl. by Andrew Dennis/Peter Foote/Richard Perkins (1980): University of Manitoba Icelandic studies, 3). Winnipeg.

Secondary Sources Andersson, Theodore M. (1970): The Displacement of the Heroic Ideal in the Family Sagas. In: Speculum, 45, pp. 575–593. Bagge, Sverre (2008): Order, Disorder and Disordered Order: Interpretations of the World and Society From the Pagan to the Christian Period in Scandinavia. Cambridge. Baier, Matthias (ed.) (2013): Social and Legal Norms: Towards a Socio-legal Understanding of Normativity. Surrey.

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Banakar, Reza (2013): Can Legal Sociology Account for the Normativity of Law? In: Baier, Matthias (ed.): Social and Legal Norms: Towards a Socio-legal Understanding of Normativity. Surrey, pp. 15–38. Cleasby, Richard/Gudbrand Vigfusson (eds.) (1874): An Icelandic-English Dictionary. Oxford. Dale, Roderick (2014): Berserkir: A Re-Examination of the Phenomenon in Literature and Life. Unpublished doctoral thesis. Nottingham. Downes, David/Rock, Paul (2003): Understanding Deviance. Oxford. Foote, Peter (1993): Icelandic historians and the Swedish image: Comments on Snorri and his precursors. In: Dahlbäck, Göran (ed.): Snorre Sturlasson och de isländska källorna till Sveriges historia: fyra föreläsningar från ett symposium i Stockholm hösten 1988. Stockholm, pp. 9–42. Gurevich, Aron Ya. (1969): Space and Time in the Weltmodell of the Old Scandinavian Peoples. In: Medieval Scandinavia, 2, pp. 42–53. Guðrún Nordal (1998): Ethics and Action in Thirteenth-century Iceland. Odense. Hall, Steve (2012): Theorizing Crime & Deviance: A New Perspective. London. Hastrup, Kirsten (1990): Island of Anthropology. Odense. Jón Viðar Sigurðsson (2017): Viking Friendship. Ithaca. Meletinskij, Eleazar (1973): Scandinavian Mythology as a System. In: Journal of Symbolic Anthropology 1, pp. 43–57, and 2, pp. 57–78. Miller, William Ian (1990): Bloodtaking and Peacemaking: Feud Law, and Society in Saga Iceland. Chicago. Meulengracht Sørensen, Preben (1983): The Unmanly Man, transl. by Joan Turville-Petre. Odense. Meulengracht Sørensen, Preben (1988): The Individual and Social Values in ‘Gunnlaugs saga Ormstungu’. In: Scandinavian Studies, 60, pp. 247–266. Meulengracht Sørensen, Preben (1993): Fortælling og Ære: Studier i Islaendingesagaerne Aarhus. Shortt Butler, Joanne (2016): Narrative Structure and the Individual in the Íslendingasögur: Motivation, Provocation and Characterisation. Unpublished doctoral thesis. Cambridge. Ström, Folke (1974): Nið, ergi and Old Norse Moral Attitudes. London. Vilhjálmur Árnason (2009): An Ethos in Transformation: Conflicting Values in the Sagas. In: Gripla, 20, pp. 217–240.

Daniela Hahn

Social and Diegetic Hierarchies in Cases of Thievery. A Study of Mǫðruvallabók Introduction The crimes of theft and robbery are naturally connected to social and economic differences: someone desires something that belongs to another individual and decides to eliminate this discrepancy by appropriating the possessions of the other. Thus, such crimes relate to the hierarchy between victims and perpetrators and have a lasting effect on the relation between both parties.1 The parties involved usually do not only differ in their role in the crime itself, but also according to their social standing. The Sagas of Icelanders, largely composed during the 13th and 14th century, depict events that took place in the so-called Saga Age, spanning from the settlement of Iceland (c. 870) to the mid-11th century. They illustrate a relatively homogenous medieval society of immigrated farmers and their offspring. They all decided to leave other parts of Northern Europe to start anew in a society without a king or aristocracy.2 Under closer scrutiny, however, the saga society is not as homogenous as one might believe; the social classes range from mighty landlords to homeless vagrants and wealth is just one of many differentiating factors along with gender, age, religion, ancestry and so forth. In addition, the narrative’s characters are not only part of a social hierarchy. Protagonists and minor characters, heroes and villains are by no means equal. Instead, there is a diegetic hierarchy within the tales, which does not necessarily correspond with the social status of the characters. The course of a conflict is not to be understood solely by the position of the characters within the saga society; it also obeys narrative logics, which will be considered in the following. Against this background, the sagas of a 14th century manuscript, the Mǫðruvallabók, are used to investigate the effects of the social and diegetic position of persons involved in theft or robbery. By what means do socially or narratively deprived persons prevent an attack as opposed to those figures with a more elevated position?

1 Cf. Gehrlach 2016, p. 384. 2 For more general information on the Sagas of Icelanders, cf. Schier 1970, Vésteinn Ólason 2011, Vésteinn Ólason 2005 and Böldl 2011. https://doi.org/10.1515/9783110661811-009

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Theft and Robbery in Old Norse Legal Systems Theoretically, there is a clear-cut distinction between theft and robbery in Old Norse legal systems, as found for example in a 13th century collection of laws, the Grágás.3 Within paragraph 227 on house searches, there is a short section on seizure in general with a particular focus on theft.4 It is stated that 1) If someone takes something worth a penny or more, he shall be summoned for appropriation and condemned to double indemnity and a three-marks fine.5 2) If a man takes property from someone else worth half an ounce-unit or more and a. the man who has taken it does not conceal it, then the penalty for that is full outlawry, and he is to summon him with the charge that he took the property to profit from it but not with a charge of theft. b. conceals it like a thief (leynir þiof lavnom),6 then it is possible to pursue it as theft and summon him and claim that, if a panel finds him guilty of the charge, he is under penalty as a full outlaw, and in such a case a panel of twelve is to be called for.7 The crucial difference between seizure and theft is the level of secrecy. Theft and robbery are thereby divided according to the same rules as manslaughter and murder. As both crimes – open robbery and secret theft – are punished with full outlawry, there must be some other reason for this distinction. The following paragraph explains the difference: if the plaintiff is not successful, he is liable for slander unless he can assure that he really believed the other party to be guilty and did not want to libel the accused. The charge of slander (vm illmælit) can lead to a penalty of lesser outlawry. This possibility to submit countercharge against the plaintiff shows that to be summoned for theft is a severe insult and attacks the honour of the accused sensitively.8 The cases of theft found in the Sagas of Icelanders are of course more complex, and it is sometimes hard to decide if something was taken secretly or not. But all in all, the difficulties arise between the theoretical law code and the individual case and only in rare circumstances between the ideas of the Grágás and a differing

3 The name ‘Grágás’ refers to two manuscripts, the Konungsbók (GKS 1157 fol.) and the Staðarhólsbók (AM 334 fol.). Probably, both manuscripts go back to the same original. They shouldn’t be understood as law books in a modern sense, but as private legal collections that may contain contradictory provisions. Cf. Naumann 1998, p. 569 and Strauch 2011, pp. 235–236. The Konungsbók is generally referred to as the older one of the two collections, cf. Laws of Early Iceland, p. 13. 4 Cf. Grágás § 227, pp. 162–163. 5 Shortened translation according to Laws of Early Iceland, p. 177. 6 Grágás § 227, pp. 162–163. 7 Laws of Early Iceland, p. 177. 8 Grágás § 227, pp. 162–163. Cf. Andersson 1984, pp. 496–497; Miller 1990, p. 250.

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‘saga law’.9 Concerning these two crimes, the crucial question is not if there are differences in detail between the Grágás and the Sagas of Icelanders – but whether the law is applied at all or if the disputes are solved differently by the protagonists.

Criminal Law in the Sagas of Icelanders In the Sagas of Icelanders, legal action is taken in relatively few cases of theft or robbery. Property crimes are portrayed as offences against which the upper class of saga society defends itself without judicial help.10 This is particularly interesting in view of the differences between the legal text of the Grágas and its representation in the sagas. This raises the question of the general attitude of the characters to negotiations at the thing. Within the greater branch of criminal law, one could ask whether there is anything unique about these crimes. Do saga characters react differently if their property is affected or do they act according to the same strategies that solve conflicts after someone was killed? The standard work concerning the criminal law of the Sagas of Icelanders is still Andreas Heusler’s 1911 monograph Strafrecht der Isländersagas, which offers the best available basis for comparisons. Heusler summarises 401 criminal offenses in his study and focusses on the disputing strategies presented in the narratives. He concludes that only a small amount of crimes is brought before court, while a large quantity is solved privately: 297 cases are solved by violent forms of revenge and in 104 cases, the parties reach a private settlement. 119 litigation proceedings remain, of which 9 are resolved illegally and 60 conclude with a private settlement. Thus, in Heusler’s corpus, there are only 50 trials carried out lawfully. The difficulty in making comparisons to Heusler’s figures is that his calculations are not fully comprehensible. He does not provide a list of the offenses, nor does he list the individual crimes. The majority of cases are homicides, the percentage of other offenses such as theft remains unclear. In addition, the 40 Sagas of Icelanders chosen by Heusler could (as every corpus selection) be disputed. Therefore, a smaller, but clearly defined corpus shall be considered here: The sagas of Mǫðruvallabók. This 14th century manuscript is the only medieval collection that contains exclusively Sagas of Icelanders, as well as the largest medieval assortment of the genre.11 Thus, Mǫðruvallabók hints to an already existing feeling of close relation and genre 9 On the concept of ‘saga law’ see Burrows 2009, esp. p. 36. 10 Miller 1984 discusses the various ways to settle a conflict, referring to Heusler 1911. 11 The manuscript Mǫðruvallabók (AM 465 fol.) contains the following sagas: Brennu-Njáls saga, Egils saga Skalla-Grímssonar, Finnboga saga, Bandamanna saga, Kormáks saga, Víga-Glúms saga, Droplaugarsona saga, Ǫlkofra saga, Hallfreðar saga vandræðaskálds, Laxdœla saga (including Bolla þáttr) and the beginning of Fóstbrœðra saga. Today, there are 200 vellum pages preserved, 189 of them stem from the 14th century. A transcribed edition by Andrea van Arkel-de Leeuw van Weenen

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classification.12 Its sagas form the centre of most corpora of Sagas of Icelanders and are fundamental for our perception of the genre’s characteristics.13 Therefore, its sagas represent the most obvious intersection between other choices and Heusler’s own saga selection.14 Within Mǫðruvallabók, there is a group of 15 theft cases, only one of which is located outside of Iceland. The 14 crimes committed in Iceland are solved by five acts of revenge, two direct settlements and seven potential court proceedings. Of these, two are abandoned, and five result in a settlement, usually realised as a selfjudgement. The first remarkable fact to point out is that in Mǫðruvallabók – which contains sagas such as Laxdœla saga, Egils saga and even the ‘courtroom saga’ of Burned Njáll – not a single person is judicially condemned of thievery. A tentative comparison shall illustrate the differences in Heusler’s data of criminal law in general (mostly homicides) and the property delicts of Mǫðruvallabók. Despite the limited comparability due to the different corpora, one can say that in cases of theft, a trial is sought disproportionately often. Only 50% of the offenses are solved by acts of violent vengeance or direct private settlement, while in Heusler’s investigation, 77% of the offenses are prosecuted this way. The great importance of arbitration in the medieval Icelandic disputing process, which has been stressed by more recent scholars,15 can especially be noted for acts of seizure. Yet, there is something peculiar to note: the parties rarely come to a conclusion without starting a formal complaint, 11% (settlements after a complaint) in Heusler’s data stand opposed to 36% for acts of seizure in Mǫðruvallabók. One should also add the 14% of abandoned lawsuits: which are most often ‘abandoned’ because one of the adversaries is killed by the other before the trial starts. What reasons could be the cause of these deviations? Is it the ‘nature’ of the crime that demands a certain reaction? Or is it a result of the opponents and their relation to one another? Heusler roughly distinguishes between revenge, private

and an online facsimile (https://handrit.is/is/manuscript/view/is/AM02-0132) help accessing this medieval treasure. See Müller 2001 on Mǫðruvallabók and its sagas. 12 The intentions of the original compiler are nevertheless unclear, certain features of the manuscript could point to a differing order or even an original plan to form two or more codices, cf. Lethbridge 2014 and Chesnutt 2010. 13 Cf. Stefán Karlsson 1967. 14 Heusler 1911 discusses the following sagas and þættir: Bandamanna saga, Bjarnar saga Hítdœlakappa, Bolla þáttr, Brennu-Njáls saga, Droplaugarsona saga, Egils saga Skalla-Grímssonar, Eiríks saga rauða, Eyrbyggja saga, Finnboga saga ramma, Flóamanna saga, Fóstbrœðra saga, Gísla saga Súrssonar, Grettis saga Ásmundarsonar, Grœnlendinga þáttr, Gull-Þóris saga, Gunnars þáttr Þiðrandabana, Gunnlaugs saga ormstungu, Hallfreðar saga vandræðaskálds, Harðar saga (Hólmverja saga), Hávarðar saga Ísfirðings, Heiðarvíga saga, Hœnsa-Þóris saga, Hrafnkels saga Freysgoða, Hrafns þáttr Guðrúnarsonar, Hrómundar þáttr halta, Kormáks saga Ǫgmundarsonar, Laxdœla saga, Ljósvetninga saga, Ǫgmundar þáttr dytts, Ǫlkofra þáttr, Reykdœla saga, Svarfdœla saga, Valla-Ljóts saga, Vápnfirðinga saga, Vatnsdœla saga, Víga-Glúms saga, Þórðar saga hreðu, Þorsteins saga hvíta, Þorsteins þáttr Síðu-Hallssonar, Þorsteins þáttr stangarhǫggs. 15 Cf. Jón Viðar Sigurðsson 2014 and Orning 2013.

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Property crimes (Mǫðruvallabók)

Criminal offences (Heusler 1911)

0%

10% 11%

36%

2%

36%

57% 20% 14%

Vengeance Settlement

Abandoned lawsuits Settlement after complaint

14%

Court decision

Fig. 1: The Statistical Distribution of Criminal Offences in the Íslendingasögur and of Property Crimes in Mǫðruvallabók (Daniela Hahn).

settlement and court proceedings as means of reacting to a crime. He does not see a direct connection between the nature of the offense and its way of prosecution. Instead, social power and personal reasons are the crucial factors in his opinion: Vielmehr gilt für Altisland der Satz: ein und dieselbe Missetat kann Rache hervorrufen oder Vergleich oder gerichtliche Verfolgung. Dies hängt ab von der Macht der beiden Parteien, von dem Willen des Verletzten, den Ansprüchen, die er an die Vergeltung stellt; [. . .]. Rather, for Old Iceland, the rule applies: One and the same wrongdoing can provoke revenge, or settlement, or judicial persecution. It depends on the power of the two parties, on the wishes of the injured person, on the claims which he places on retaliation; [. . .]16

This statement should be modified: it is of course true that every crime can provoke every type of reaction. However, there are crimes that are more likely to be brought to court than others. Rán, (open robbery) for example, is most often counteracted with acts of violent vengeance, while þjófnaðr (secret theft) most often leads to a lawsuit. This is connected to the nature of both crimes: a robber must have the power to confront his opponent openly. Negotiating social dominance can even be seen as one of the key features of the crime rán in general.17

16 Heusler 1911, p. 42 (my translation). 17 Cf. Miller 1990, p. 83 and Miller 1986b, p. 24. He understands rán as a mode of transfer of goods that defines social power relations and demands a response. Miller goes so far as to even compare the social reciprocity of rán with that of gifts.

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In the sagas, characters guilty of rán are most often of the same high social status as their victims and are either successful or punished straightaway. Here, rán is presented as a crime against which the upper class of saga society defends itself without judicial assistance. In contrast, a thief comes in secret, most often because he fears the reaction of his victim: Ein Dieb ist also immer schwächer als ein Räuber, und er ist auch schwächer als der Bestohlene. Das ist insofern von Bedeutung, als der Dieb nicht nur während der Tat, sondern auch danach unbemerkt und unerkannt bleiben muss, weil er sonst mit empfindlicher Strafe zu rechnen hat. A thief is thus always weaker than a robber, and he is also weaker than the robbed. This is important since the thief must remain unobserved and unrecognised, not only during the act but also afterwards, because otherwise he will have to reckon with a severe punishment.18

Social standing is not only important when discussing the offender but also the victim. It is quite easy for a powerful chieftain to react if a slave stole one of his sheep. But what happens if it is the other way round? How can a socially disadvantaged person resist an attack or claim an appropriate compensation? And how does the social logic of the conflict relate to the logic of mimesis in the narrative?

Property Delicts in Mǫðruvallabók In Mǫðruvallabók, seven out of 14 property delicts are solved by acts of vengeance or private settlements. 1. Laxdœla saga, ch. 19: After an inheritance fight, Hrútr robs 15 cattle from his half-brother Hǫskuldr. They reconcile and Hrútr acquires Hǫskuldr’s respect due to the robbery. The whole action is solved privately.19 2. Laxdœla saga, ch. 35: Hrútr catches the socially lower standing Eldgrímr in the act of cattle theft and kills him in combat.20 3. Laxdœla saga, ch. 30: Þuríðr, high-standing sister of the protagonist Kjartan, steals the sword Fótbítr from her Norwegian husband Geirmundr. The sword is cursed and will become the weapon that slays Kjartan. Judicially, there is no punishment or accusation.21

18 Gehrlach 2016, p. 20 (my translation). 19 Laxdœla saga, pp. 44–49. 20 Laxdœla saga, pp. 95–100. 21 Laxdœla saga, pp. 80–83.

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4. Laxdœla saga, ch. 46: Guðrún, another woman of high status, arranges the theft of Kjartan’s sword and his wife’s headdress. Again, there is no formal charge but personal suffering.22 5. Egils saga, ch. 77: Escaped slaves plunder a storehouse, and are detected and tracked. The slaves flee and leave their prey behind.23 6. Bandamanna saga, ch. 4: After the theft of a sheep, Oddr goði wants to reach a private settlement with his former worker Óspákr. When this does not come about, the agent is killed. A lawsuit for manslaughter follows and the theft is not pursued.24 7. Fóstbrœðra saga, ch. 20: The craftsman Véglágr is caught in several cases of heavy theft. The reputable men of Reykjahólar discuss possible penalties. Finally, Véglágr must leave the country. He commits theft again in Scotland and is hanged there.25 In the first three cases of Laxdœla saga, all parties belong to the highest stratum of saga society and are even relatives. The conflicts are managed ‘between themselves’ without calling a third party as a conciliator or judge. The thieves in cases 4, 5, 6 and 7 are caught in the act and are significantly below the social strata of those whom they have robbed, although Óspákr as an independent farmer is of a significantly better social standing than the slaves of Egils saga. In all four cases, the robbed individuals have the power to proceed as they please. The other half leads to lawsuits: 8. Laxdœla saga, ch. 35: Although no theft has probably been committed, Kotkell and Gríma are summoned um þjófnað ok fjǫlkynngi. However, there is never a trial, as Kotkell and his family use sorcery to bring down the ship on which all the witnesses were aboard, so that all passengers drown. After they have killed a child by magic, Kotkell and Gríma are slain with stones, their son Hallbjǫrn is drowned and their escaped son Stígandi is also stoned shortly thereafter.26 9. Droplaugarsona saga, ch. 5: Þorgeirr charges Þórðr for sheep theft. Both parties look for powerful supporters and a private settlement is reached. The injured Þorgeirr seeks help from Helgi Droplaugarson, who accepts the complaint and charges the thief Þórðr at the next Althing, which results in a self-judgment.27 10. Víga-Glúms saga, ch. 7: While Glúmr’s mother Ástríðr is alone in Iceland, her servants are accused of cattle theft and a private settlement is reached: the self-

22 Laxdœla saga, pp. 139–144. These female thieves in the Sagas of Icelanders are discussed by Hahn 2016. 23 Egils saga, pp. 240–242. 24 Bandamanna saga, pp. 305–315. 25 Fóstbrœðra saga, pp. 220–224. 26 Laxdœla saga, pp. 95–100. 27 Droplaugarsona saga, pp. 149–151.

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judgment lies with the injured party and they set a fine. The accusation turns out to be untrue, Glúmr returns, kills one of the two plaintiffs, and charges the other for libelling the servants and for theft. Again, a private settlement can be reached: Glúmr regains the land and the second plaintiff is outlawed.28 Víga-Glúms saga, ch. 17: A complaint for sheep theft can be averted before the trial. Glúmr reluctantly intervenes for the thief and the avoidance of the lawsuit brings him shame. Later, a controversial settlement is concluded.29 Bolla þáttr: Bolli takes hay with a farmer and is therefore sued for outlawry. It comes to an unlawful conclusion when Bolli kills the plaintiff before a judgment can be made.30 Brennu-Njáls saga, ch. 47–51: After Hallgerðr’s theft of food, she and her husband Gunnarr are sued. A private settlement grants Gunnar self-judgement. Before the lawsuit, he offered three options for compensation.31 Egils saga, ch. 80–82: Due to a dispute over grazing the land, it comes to a charge of theft. The fathers of the two parties take up the problem as they are old friends. A private settlement is reached, in which Egill is granted selfjudgment. He decides on district outlawry and boasts of his social power.32

Among these disputes leading to a formal complaint, Chapter 35 of Laxdœla saga is a special case, since no theft takes place and the complaint serves only to reinforce a charge of sorcery. In Droplaugarsona saga and in Víga-Glúms saga, the lawsuit is won by the party who manages to attain support from the mightier men. While the disputes start between men of the same social group, the conflict is later handed over to more powerful men. When Helgi Droplaugarson intervenes, Þórðr has no chance to attain a fair settlement. In Víga-Glúms saga, Ástríðr and her servants lose first, as they stand alone against the most respected family of the district. However, as her son Glúmr returns, the situation changes completely. As a determined character of noble descent, Glúmr knows how to reach a better settlement. The second theft of the saga occurs a few chapters later and shows that Glúmr is now so powerful as to have a lawsuit dismissed, even if he and everyone else knows that he is in the wrong. This, of course, inflicts on his honour, but does not affect his power in the district – he can successfully protect the thief.33 Like within a feud, the little 28 Víga-Glúms saga, pp. 20–26. 29 Víga-Glúms saga, pp. 56–59. 30 Bolla þáttr, pp. 239–248. 31 Brennu-Njáls saga, pp. 120–133. 32 Egils saga, pp. 277–288. 33 Glúmr is well aware of the situation and reluctant to risk his honourful reputation (‘virðing mína’, Víga-Glúms saga, p. 60) for the thief. He finally gives in to the pressure of his son Vigfúss, who wants to protect the thief since he was his foster-father. When another sheep disappears, the injured party does not hesitate and kills the thief without trial. As his son left Iceland before, Glúmr can accept a very low compensation sum and in return pay for the stolen sheep.

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man’s chance in the process lies in winning powerful supporters. This is particularly the case if the supporters want to harm the defendant for other personal reasons and therefore take the action as an occasion to start a dispute. Examples 12 to 14 vividly illustrate how much it irritates the powerful to be summoned to court by a socially subordinate man. For case 14, Heusler also discusses this point: Für den stolzen wohlgeborenen Mann kann es etwas Beleidigendes haben, sich vor das Gericht zerren zu lassen [. . .]. Ein Mann wie Gunnar will nicht, daß man den Staat mit seinen Angelegenheiten bemenge [. . .]. Diese Denkweise hängt doch wohl damit zusammen, daß die Gerichtsbank mit kleinen Leuten besetzt war; Bauern, die man schon mit ein paar Unzen glücklich machen und zur Umstoßung ihres ersten Urteils verführen konnte, [. . .]. Einer von denen sollte das Urteil finden über einen Gunnar von Hlidharendi! In solchen Leuten konnte ein Mann von Standesgefühl und mit den Gewohnheiten eines kleinen Selbstherrschers keine Pairs erblicken. For the proud, well-born man it may be insulting to be dragged before court [. . .]. A man like Gunnar does not want the state to be burdened with his affairs [. . .]. This way of thinking is probably connected to the fact that the court was beset with small people; peasants who could be made happy with a few ounces and could be convinced to reject their first verdict [. . .]. One of them should reach a verdict above a Gunnar of Hlidharendi! A man with a sense of standing and with the habits of a small autocrat could not see his peers in such people.34

Referring to the same saga, Klaus von See discusses a similar issue: is there any ‘equality before the law’ in medieval Iceland? In his opinion, this key feature found in modern societies seems to be missing – ‘wohl nicht prinzipiell, aber doch in der landläufigen Auffassung und in der Praxis’.35 The general notion von See talks about can also be detected in the sagas and corresponds to their logic of mimesis, as there is no ‘equality before the narrative’ either. Colourful protagonists deal with stereotyped minor characters, and the standing of the thief before the law and in the narrative depends on his affiliation to either the first or the second group. This shall be discussed with reference to the three disputes in Mǫðruvallabók in which a socially disadvantaged character feels robbed by one of the protagonists.

Bolla þáttr The Bolla þáttr is only preserved in manuscripts of Laxdœla saga; therefore, its dramatis personae is loosely connected to the saga and grouped around the grown-up

34 Heusler 1911, p. 100 (my translation). 35 von See 1964, p. 67; ‘probably not in principle, but in common view and legal practice’ (my translation).

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Bolli Bollason. The text is not originally part of Laxdœla saga but emerged as a kind of a sequel towards the end of the 13th century.36 The narrative deals with two legal disputes in which Bolli is involved. After a case of manslaughter in the first episode, the second dispute deals with a case of thievery. Bolli and his men are travelling in the north of Iceland and arrive at a farmstead. It is said about the local farmer, Helgi, that ‘[h]e was ill-tempered and not of good family’,37 but has a wise wife. Bolli’s men find a larger quantity of hay at the farm with which they feed their horses. When Helgi learns about this, his wife warns him not to struggle with such men, but he is already furious. The farmer goes outside where Bolli is leaning on his spear Konungsnautr. Helgi walks up to him and asks: ‘Who are these thieves that harass me so, stealing what is mine and tearing apart my haystack [. . .]?’38 Bolli responds calmly and promises that he and his men will compensate the farmer properly. Helgi remains unforgiving: ‘I declare that what you have taken has been stolen from me and you have committed an offence liable to outlawry.’39 Once again, Bolli tries to compensate and offers Helgi that he determines a reasonable reimbursement. The farmer, however, wants nothing else but the spear Konungsnautr, which Bolli will not give up under any circumstances. Thus, Helgi charges Bolli for theft and wants him punished with outlawry. Bolli in turn now charges Helgi with slander (um illmæli),40 although his men advise him to simply kill the peasant. When Helgi returns to his wife, he is already aware that he will not find any supporters against Bolli and that he has put himself in a hopeless situation. Helgi’s wife tries to help her husband by asking Bolli’s current host Þorsteinn to help her and tells him about her husband’s foolish behaviour. Þorsteinn does everything in his power, but Bolli is irreconcilable. The men separate in anger. Finally, there is a fight between the groups around Bolli and Helgi. When Bolli hears Helgi’s voice, he throws the spear Konungsnautr at him. The spear pierces the farmer in such a way that his corpse dangles in the water. It is only through the intervention of a certain Ljótr that the battle concludes while Bolli and Þorsteinn are still alive, so that the case can be negotiated at a thing. The verdict is that Helgi had been killed because of slander, therefore, no fine must be paid. The þáttr ends with the statement that Bolli had acquired great fame in the north and even provided for Helga’s wife, for whom he found an appropriate marriage. From a legal point of view, the theft episode of the Bolla þáttr can almost be read as a case study to illustrate § 227 of Grágás. The special interest in lawsuits

36 Cf. Einar Ól. Sveinsson (ed.) 1934, pp. lxxii–lxxvi. 37 Bolli Bollason’s Tale, p. 184; ‘hann var ættsmár ok illa í skapi’ (Bolla þáttr, p. 239). 38 Bolli Bollason’s Tale, p. 185; ‘Hverir eru þessir þjófarnir, er mér bjóða ofríki ok stela mik eign minni [. . .]?’ (Bolla þáttr, p. 239). 39 Bolli Bollason’s Tale, p. 185; ‘Ek kalla yðr hafa stolit mik þessu, sem þér hafið haft, ok gǫrt á hendr yðr skóggangssǫk.’ (Bolla þáttr, pp. 239–240). 40 Bolla þáttr, p. 240.

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and legal terms of the þáttr differs remarkably from Laxdœla saga, where such references are seemingly avoided consciously.41 Bolli and his men take the hay to feed their horses openly, and do not try to hide their deed. Helgi’s question for þessir þjófarnir (‘these thieves’) is therefore too harsh from the very beginning. Thus, it is remarkable that Bolli does not deal with the provocation of the farmer at first and even offers him a high sum of compensation.42 If Helgi interprets the crime as þjófnaðr, the question of the value of the stolen property arises. Since the farmer seeks to have him outlawed, the hay would have had a value of half an ounce-unit or more after the division of the Grágás, which cannot be ascertained, since there is neither a reference to the price of the hay nor the quantity. Overall, the farmer’s demand is presented as one of exaggeration and impulsiveness; the narrative guides the reader to assume that it cannot have been an asset of high value. As no agreement can be reached and the complaints are pronounced, the episode corresponds exactly to the requirements of the Grágás by Helgi striving for a skóggangssǫk (‘charge leading to outlawry’) and Bolli in turn reacting with a charge um illmæli (‘for slander’). The farmer is now aware that he will not find any supporters against a respected man like Bolli. His only chance to escape disaster is his wife, who has the necessary social standing to strive for reconciliation. Although Bolli was still willing to compensate generously at the moment of the accusation, the charge of theft obviously represents such a strong offense that even Þorsteinn, with whom Bolli is on friendly terms, cannot appease him. Bolli’s countercharge with slander (um illmæli) recounts the Grágás text verbatim, suggesting a well-established legal concept. After some men lost their lives because of the incident, Ljótr’s arbitration takes place: a person whom both parties trust reaches a decision, which is noticeably close to the Grágás provisions, so that Helgi is declared to have died without any rights of compensation because of the slander. In the narrative, the episode clearly serves the praise of Bolli, who is portrayed in this situation as a particularly self-controlled and wise man. As already mentioned, the allegation of theft represents a serious provocation, which incites extreme reactions. There is subtle irony in the way Helgi dies: he is impaled by the spear Konungsnautr. In a way, he receives exactly the compensation from Bolli that he had previously demanded.43 Bolli represents a character from the highest social circles; his counterpart Helgi is of a much lower status. The subject of social status focusses here on the role of the plaintiff who, through his lack of understanding of legal and social conventions, makes an accusation that ultimately costs his life. His lack of social

41 Cf. Burrows 2009, p. 47. 42 Cf. Andersson 1984, p. 500. 43 Cf. Andersson 1984, p. 501.

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standing and insignificant ancestry is dealt with from the very beginning and constantly evoked by referring to the superior standing of his wife. Despite the unknown monetary value of the hay, Helgi’s course of action is consistent from a legal point of view. However, within the narrative’s logic, Helgi’s case is hopeless from the very beginning, as everyone tells him, which he finally realises himself. The very idea that it is heimskr to accuse and summon a man such as Bolli is of course revealing of the underlying social norms in medieval Iceland.

Brennu-Njáls saga The most famous theft of the Icelandic sagas is initiated by Hallgerðr Hǫskuldsdóttir in Njáls saga. Already in chapter one, Hallgerðr is introduced through a conversation between her father and uncle in which her uncle wonders, ‘how the eyes of a thief have come into our family’.44 From this moment on, the audience is waiting for her theft, which finally occurs during her marriage to Gunnarr of Hlíðarendi. Gunnarr tried to buy food at Otkell’s farmstead unsuccessfully. After Otkell’s refusal, Þráinn Sigfússon suggests that Gunnarr should simply take the food he needs, but Gunnarr answers: ‘‘I will not do any robbing.’’45 Instead, he is sold the slave Melkólfr and returns to his homestead. Hallgerðr, deeply displeased after Otkell’s refusal, sends Melkólfr to steal butter and cheese from his former homestead. Initially, the slave is unwilling to fulfil the order but eventually sneaks to the farmstead, steals the food, and sets fire to the pantry. Melkólfr turns out to be an awkward and unwilling thief and loses his belt and a knife on the way back – two gifts from his former master. When Otkell’s friend Skammkell finds the two objects, he recognises them and shows them around. Advice is then sought from Gunnarr’s cunning enemy Mǫrðr. The men are already aware that it will be difficult to summon Gunnarr: ‘“It’s hard for us to deal with this,” said Skammkel, “when such mighty men are involved.”’46 Mǫrðr is paid for his advice and forges the following plan: they should let women go around with all sorts of small items, so that they pay attention to what the housewives offer them as payment ‘because people tend to get rid of stolen property first, if they have any.’47 The plan works, with Hallgerðr offering the stolen cheese as payment.

44 Njal’s saga, p. 4; ‘hvaðan þjófsaugu eru komin í ættir várar’ (Brennu-Njáls saga, p. 7). 45 Njal’s saga, p. 80; ‘Með engi rán vil ek fara.’ (Brennu-Njáls saga, pp. 121–122). 46 Njal’s saga, p. 82; ‛“Vant þykkir oss með slíku at fara,” segir Skammkell, “er við slíka ofreflismenn er um at eiga.”’ (Brennu-Njáls saga, p. 125). 47 Njal’s saga, p. 83; ‛því at allir hafa þat skap at gefa þat upp fyrst, er stolit er, ef þat hafa at varðveita, [. . .].’ (Brennu-Njáls saga, p. 125).

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A comparison with Otkell’s cheese-form distinguishes her as the thief, whereupon Mǫrðr withdraws from the affair. Gunnarr learns of the crime while dining one evening and loses his temper: he slaps Hallgerðr, which will turn out to be fatal for him. His verbal reaction focusses on his reputation instead of her crime: ‘It’s a bad thing if I’m partner to a thief.’48 – he became the companion of a thief (þjófsnautr), a legal term also described in the Grágás. Thereby, he is now involved in a crime that is even more serious than the rán suggested by Þráinn Sigfússon previously. Hallgerðr taxed Gunnarr’s patience multiple times before, but it is the theft that leads to the escalation of their quarrels as it now affects Gunnarr’s personal honour. Soon people begin to gossip about the theft.49 Gunnarr is informed about the rumours by his brother: ‘I have bad news: everybody is saying that Hallgerd stole the cheese and caused the great damage at Kirkjubaer.’50 He advises Gunnarr to visit Otkell and to make a generous offer. At his arrival, Gunnarr confesses to his wife’s crime and makes three offers: 1. The well-respected men of the district shall arbitrate the dispute and set the fine, 2. A self-judgement should be made by Gunnarr, 3. A self-judgement should be made by Otkell. Influenced by Skammkell’s ill counsel, Otkell refuses every offer and wants to transfer the matter to the judgement of Gizur the White and Geirr goði. Both men concede Gunnarr to be very generous. Due to an ellipsis in the narrative, it remains uncertain what exactly the two recommend. Skammkell continues his evil scheming and tells Otkell that he had been advised to sue Hallgerðr for theft and Gunnarr for receiving stolen goods. As they arrive at Hlíðarendi and make their summons for the Althing, Gunnarr becomes impetuous. Gunnarr, who is a powerful farmer himself, seeks help from his friend and advisor Njáll. As they ride to the Althing, they are accompanied by the whole Sigfusson kin-group and Njáll’s sons ‘and people were saying that no other group there was as vigorous as theirs.’51 Gunnarr seeks additional help from Hallgerðr’s family. Now, Hrútr and Hǫskuldr enter the dispute, too. Hrútr advises Gunnarr to challenge Gizur the White to a duel if he is not willing to grant him self-judgement and heads towards a violent solution of the conflict: ‘Men will be found to attack Otkell and

48 Njal’s saga, p. 82; ‘Illa er þá, ef ek em þjófsnautr’ (Brennu-Njáls saga, p. 124). 49 On the function of gossip in legal matters see Miller 1986a, p. 110. 50 Njal’s saga, p. 83; ‛Illt er at segja: alrœmt er, at Hallgerðr muni stolit hafa ok valdit þeim inum mikla skaða, er varð í Kirkjubœ.’ (Brennu-Njáls saga, p. 126). 51 Njal’s saga, p. 87; ‘ok var þat mælt, at engi flokkr myndi jafn-harðsnúinn þeim’ (Brennu-Njáls saga, p. 130).

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his gang, and we already have a band of men so large that you’ll be able to do as you wish’.52 As Gizur and Geirr realise what had happened after their original advice, they know that there is only one way to calm Gunnarr down: by offering him full self-judgement. Gunnarr judges that he shall pay for the food and the pantry. However, he finds that he has been summoned for slander and awards himself the exact same value for the crimes in return. He warns Otkell never to provoke him again and the episode concludes with a statement by the narrator that Gunnarr had earned great honour from the case. The whole legal dispute is framed by questions about Gunnarr’s personal honour, which is deeply affected by Hallgerðr’s theft and the summoning by Otkell, but it is restored after his self-judgement. This episode is also used in Heusler’s study on criminal law as an example of the negative attitude to court proceedings in general: [B]ei einem Falle von Diebstahl nimmt die Staatsgewalt in der Anschauung der Isländer die Stellung ein, daß eine Anrufung dieser Gewalt, eine Ladung vor Gericht, als Schimpf empfunden wird, ebenso hoher Strafe würdig wie der Diebstahl selbst; und dies unter Billigung der wackersten Männer. In a case of theft, the state authority, in the opinion of the Icelanders, takes the position that an invocation of this power, a charge in court, is perceived as an insult, as worthy of a high degree of punishment as the theft itself; and this with the approval of the bravest men.53

Socially, Otkell is not necessarily considered to be in a position of lower-standing than to that of Gunnarr – neither of them is a goði, both are independent farmers and related to mighty men and goðar like Gizur und Geirr on Otkell’s side and Hrútr and Hǫskuldr on Gunnarr’s side. However, within the diegesis of Njáls saga, Gunnarr is the hero, whereas Otkell is a clumsy and weak minor character, who cannot resist Skammkell’s evil scheming. Hrútr’s statement that they have as many men as to achieve whatever they wish underlines the fact that this dispute is not about legal justice at all and that Otkell has lost his case for the same reason as Helgi in Bolla þáttr – by turning down the generous offer of the protagonist.

Egils saga The final dispute in the conflict-ridden life of the great hero Egill Skalla-Grímsson revolves around a property issue. His son Þorsteinn gets in trouble with a certain Steinarr, the son of Egill’s wealthy neighbour Ǫnundr. They are arguing about a

52 Njal’s saga, p. 88; ‛[E]n fásk munu menn til at ganga at þeim Otkatli, ok hǫfu vér nú lið svá mikit allir saman, at þú mátt fram koma slíku sem þú vill.’ (Brennu-Njáls saga, p. 131). 53 Heusler 1911, p. 100 (my translation).

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meadow that belongs to Egill’s, where Steinarr’s cattle grazed in the spring. Þorsteinn asks Steinarr to leave the meadow to him as it has been an old custom, but Steinarr replies that the cattle can graze wherever they want. Steinarr asks his workers to oversee the cattle; Þorsteinn kills three of Steinarr’s workers and declares that he will kill as many of them as necessary to defend his property. Steinarr now gathers support against Þorsteinn and summons him at the Thing for the killings. Here their fathers, Egill and Ǫnundr, take over and want to solve their sons’ disputes as they are old friends. Ǫnundr trusts Egill as much as to grant him selfjudgement. Egill’s self-judgement starts with a reminder that it was his father Grímr who settled at Mýrar and gave land to Ǫnundr’s ancestors. But Egill judges the incident as a rán and proceeds differently from what Ǫnundr might have expected: Nú var eigi þat, Steinarr, at þú gerðir þér óvitandi at beita land Þorsteins ok lagðir undir þik eign hans ok ætlaðir, at hann myndi vera svá mikill ættleri, at hann myndi vera vilja ræningi þinn, [. . .] en Þorsteinn drap fyrir þér þræla tvá. Nú er þat ǫllum mǫnnum auðsýnt, at þeir hafa fallit á verkum sínum, ok eru þeir óbótamenn [. . .]. En fyrir þat, Steinarr, er þú hugðisk ræna mundu Þorstein, son minn, landeign sinni, þeiri er hann tók með mínu ráði ok ek tók í arf eptir fǫður minn, þar fyrir skaltu láta laust þitt land at Ánabrekku [. . .]. ‘It was not by accident that you grazed your cattle on Thorstein’s land, Steinar, and seized his property, expecting him to be such a disgrace to his family that he would let you get away with robbing him. When Thorstein killed two of your slaves, it is obvious to everyone that they fell by their own doing and do not qualify for compensation, [. . .]. Yet since you, Steinar, planned to rob my son Thorstein of his land, which he took over with my approval and I had inherited from my father, you will forfeit Anabrekka [. . .].’54

After Ǫnundr tells him that this was a very crooked decision which will lead to more violence, Egill simply replies: ‘I would have thought you realized, Onund, that I have always held my own against people like you and your son.’55 This last example shows that, as in Njáls saga, not only social standing matters, but rather one’s relation in standing to their enemy. Steinarr is a wealthy farmer from a powerful family and by no means a ‘little man’ of saga society. He is in an inferior position nevertheless, as Þorsteinn is a grandson of landnámsmaðr SkallaGrímr Kveld-Úlfsson, which is stressed by his father Egill throughout the judgement. It is their noble lineage that sets them apart. As Egill’s father gave the land to Ǫnundr, he is convinced that he has the right to take it back in the case of a conflict. While Þorsteinn is summoned for threefold manslaughter committed against Steinarr’s workers, Egill considers the previous rán to be more important and his son’s reaction as coherently consistent with the preceding actions. Within the logic of Egils saga’s narrative, it is even more indispensable to solve the dispute in this

54 Egils saga, p. 287; translation: Egil’s saga, pp. 195–196. 55 Egil’s saga, p. 196; ‘[H]ugða ek, Ǫnundr, at þú myndir þat vita, at ek hefi haldit hlut mínum fyrir þvílíkum svá mǫnnum, sem þit eruð feðgar.’ (Egils saga, p. 288).

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way. Egill’s family fought multiple times for their inheritance and estates and proved that they would not yield, not against kings – and certainly not against þvílíkum svá mǫnnum.

Conclusion The property disputes in the Sagas of Icelanders are always connected to power and honour. A character’s reaction to a seizure depends on his status in the narrated society. In Mǫðruvallabók, all of the examples relating to solutions of private dispute are carried out by mighty protagonists with the power to punish a thief without making a formal complaint. Laws corresponding to the provisions of Grágás are applied in seven disputes. Two of them are brought forward by major characters, whereas two more are initially brought to court by minor characters before the protagonists (Glúmr and Helgi Droplaugarson) intervene. While the protagonists can choose from the whole range of strategies, minor characters such as small farmers have little choice but to take action at court and to gain powerful supporters. On the one hand, the law appears to be conducive for ‘the little man’. On the other hand, legal provisions such as the possibility to summon someone for slander, reflect a broad desire on the part of the wealthier class to protect intangible assets such as personal reputation. The most significant difference between the representation of criminal law in Grágás and the Sagas of Icelanders can be found in the relation between plaintiff and culprit: while the legal text seems to assume that both parties are equal before the law, the narratives portray a hierarchical society. They are interested in powerful characters and the ‘saga-worthy’ disputes of a high social class. They do not recount disputes among normal farmers or ‘little men’, unless an influential character takes over and changes the balance of power dramatically. Addressing the consequences for source value with respect to social practice, this should always be kept in mind: supposedly, the untold tales of property delicts among a lower social class would produce completely different figures. Moreover, the actual social standing of a saga character is outweighed by their position within the logic of the narrative. The ‘point’ of Bolla þáttr is not whether Helgi is legally entitled to summon Bolli for thievery – but rather the brazenness of a little and foolish man against the reputation of the protagonist. Njáls saga’s Otkell is not socially inferior to Gunnarr but is indeed with respect to the narrative. He must lose his case as not even high standing men like Geirr or Gizur want to get in trouble with Gunnarr, who should technically be inferior to them. The highest standing man of all the examples discussed here is surely Egill, and he articulates the hierarchical order of saga society directly – a man from a family like Egill’s will always know how to win against svá mǫnnum. In cases of thievery, there is neither

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equality before the law nor before the narrative in the sagas of Mǫðruvallabók, and there is no effort given to pretend otherwise.

Bibliography Primary Literature Bandamanna saga. In: Grettis saga Ásmundarsonar. Bandamanna saga. Odds þáttr Ófeigssonar, ed. by Guðni Jónsson (1936): Íslenzk fornrit, 7. Reykjavík, pp. 291–363. Bolla þáttr. In: Laxdœla saga. Halldórs þættir Snorrasonar. Stúfs þáttr, ed. by Einar Ól. Sveinsson (1934): Íslenzk fornrit, 5. Reykjavík, pp. 230–248. Bolli Bollason’s Tale. In: The Saga of the People of Laxardal and Bolli Bollason’s Tale, transl. by Keneva Kunz (2008). London, pp. 177–192. Brennu-Njáls saga, ed. by Einar Ól. Sveinsson (1954): Íslenzk fornrit, 12. Reykjavík. Droplaugarsona saga. In: Austfirðinga sǫgur, ed. by Jón Jóhannesson (1950): Íslenzk fornrit, 11. Reykjavík, pp. 135–180 Egil’s saga, transl. by Bernard Scudder (2004). London. Egils saga Skalla-Grímssonar, ed. by Sigurður Nordal (1933): Íslenzk fornrit, 2. Reykjavík. Fóstbrœðra saga. In: Vestfirðinga sǫgur. Gísla saga Súrssonar, Fóstbrœðra saga, Þáttr Þormóðar, Hávarðr saga Ísfirðings, Auðunar þáttr vestfirzka, Þorvarðar þattr Krákunefs, ed. by Björn K. Þórólfsson/Guðni Jónsson (1943): Íslenzk fornrit, 6. Reykjavík, pp. 119–276. Grágás: Islændernes Lovbog i Fristatens Tid, udgivet efter det Kongelige Bibliotheks Haandskrift 1, ed. by Vilhjálmur Finsen (1852). København. Laws of Early Iceland: The Codex Regius of Grágás with material from other manuscripts 1, transl. by Andrew Dennis/Peter Foote/Richard Perkins (1980): University of Manitoba Icelandic studies, 3. Winnipeg. Laxdœla saga. In: Laxdœla saga. Halldórs þættir Snorrasonar. Stúfs þáttr, ed. by Einar Ól. Sveinsson (1934): Íslenzk fornrit, 5. Reykjavík, pp. 1–229. Möðruvallabók. AM 132 Fol. 1–2, ed. by Andrea van Arkel-de Leeuw van Weenen (1987). Leiden. Njal’s saga, transl. by Robert Cook (2001). London. Víga-Glúms saga. In: Eyfirðinga sǫgur, ed. by Jónas Kristjánsson (1956): Íslenzk fornrit, 9. Reykjavík, pp. 1–98.

Secondary Literature Andersson, Theodore M. (1984): The Thief in Beowulf. In: Speculum, 59, pp. 493–508. Böldl, Klaus (2011): Fiktion, Geschichte, Wirklichkeit. Isländersagas als literarische Gattung. In: Böldl, Klaus/Vollmer, Andreas/Zernack, Julia (eds.): Isländersagas. Texte und Kontexte. Frankfurt a.M., pp. 195–211. Burrows, Hannah (2009): Cold Cases: Law and Legal Detail in the Íslendingasögur. In: Parergon, 26, pp. 35–56. Chesnutt, Michael (2010): On the Structure, Format, and Preservation of Möðruvallabók. In: Gripla, 21, pp. 147–167. Gehrlach, Andreas (2016): Diebe. Die heimliche Aneignung als Ursprungserzählung in Literatur, Philosophie und Mythos. Paderborn.

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Hahn, Daniela (2016): Expanding the Repertoire. Theft as a Means of Whetting in the Sagas of Icelanders. In: Hahn, Daniela/Schmidt, Andreas (eds.): Bad Boys and Wicked Women. Antagonists and Troublemakers in Old Norse Literature (Münchener Nordistische Studien 27). München, pp. 144–171. Heusler, Andreas (1911): Das Strafrecht der Isländersagas. Leipzig. Jón Viðar Sigurðsson (2014): The Role of Arbitration in the Settlement of Disputes in Iceland c. 1000–1300. In: Andersen, Per/Sigh, Helle M./Vogt, Helle (eds.): Law and Disputing in the Middle Ages: Proceedings of the Ninth Carlsberg Academy Conference on Medieval Legal History 2012. København, pp. 123–135. Lethbridge, Emily (2014): ‘Hvorki glansar gull á mér / né glæstir stafir í línum’: A Survey of Medieval Icelandic Íslendingasögur Manuscripts and the Case of Njáls saga. In: Arkiv för nordisk filologi, 129, pp. 53–89. Miller, William Ian (1984): Avoiding legal judgement: the submission of disputes to arbitration in medieval Iceland. In: The American Journal of Legal History, 28, pp. 95–134. Miller, William Ian (1986a): Dreams, Prophecy and Sorcery: Blaming the Secret Offender in Medieval Iceland. In: Scandinavian Studies, 58, pp. 101–123. Miller, William Ian (1986b): Gift, Sale, Payment, Raid: Case Studies in the Negotiation and Classification of Exchange in Medieval Iceland. In: Speculum, 61, pp. 18–50. Miller, William Ian (1990): Bloodtaking and Peacemaking. Feud, Law and Society in Saga Iceland. Chicago/London. Müller, Claudia (2001): Erzähltes Wissen. Die Isländersagas in der Möðruvallabók (Texte und Untersuchungen zur Germanistik und Skandinavistik 47). Frankfurt a.M. Naumann, Hans Peter (1998): Grágás. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexikon der Germanischen Altertumskunde 12. Berlin/New York, pp. 569–573. Orning, Hans Jacob (2013): Feuds and conflict resolution in fact and fiction in late medieval Iceland. In: Imsen, Steinar (ed.): Legislation and State Formation: Norway and its Neighbours in the Middle Ages. Trondheim, pp. 229–262. Schier, Kurt (1970): Sagaliteratur (Sammlung Metzler 78). Stuttgart. See, Klaus von (1964): Altnordische Rechtswörter. Philologische Studien zur Rechtsauffassung und Rechtsgesinnung der Germanen (Hermaea. Germanistische Forschungen, N. F., 16). Tübingen. Stefán Karlsson (1967): Möðruvallabók. In: Kulturhistorisk leksikon for nordisk middelalder 12. København, cols. 185–186. Strauch, Dieter (2011): Mittelalterliches nordisches Recht bis 1500. Eine Quellenkunde (Ergänzungsbände zum RGA 73). Berlin/New York. Vésteinn Ólason (2005): Family Sagas. In: McTurk, Rory (ed.): A Companion to Old Norse-Icelandic Literature. Oxford, pp. 101–118. Vésteinn Ólason (2011): Die Isländersagas. Im Dialog mit der Wikingerzeit. Kiel.

Heike Sahm

Feudal Law and Archaic Order: The Discussion of Different Social Systems in the Queens’ Dispute in the Nibelungenlied The Queens’ Dispute in the Nibelungenlied: Prünhilt’s Provocation? The theme of the queens’ dispute is one of the older motifs found in the European Nibelungen tradition.1 It is distinctively accentuated in the Middle High German Nibelungenlied by being presented in relation to contemporary questions of feudal law.2 Alarmed by the lack, since Isenstein, of evidence to support Sîvrit’s supposed position of inferiority as Gunther’s vassal, Prünhilt seeks to confirm her status by bringing about a visit from Sîvrit and Kriemhilt, in the course of which she hopes to find confirmation of the legal situation that she has been given to believe exists. When Kriemhilt’s comments in praise of her husband suggest an inversion of this hierarchy, Prünhilt is provoked. She argues, in accordance with the bonds of feudalism, that she is entitled to the customary privileges granted to those of a higher social standing than a subordinate, which she assumes is the case with her position relative to that of Kriemhilt and Sîvrit. She does this, of course, with an intensity that is deeply humiliating for Kriemhilt.3 The idea of settling the dispute over status on the basis of who has the right to enter the cathedral first may seem confusing, but it is clearly grounded in the assumption that the individual in a legally higher position has the ceremonial privilege of going first – and that this system of order will be enforced in and by the public sphere.4 The resulting altercation, however, does not end with Prünhilt entering the cathedral in triumph, but rather in her public humiliation at the hands of Kriemhilt, who presents Prünhilt with the stolen objects taken from her by Sîvrit, her ring and belt. In doing so, Kriemhilt is able to

1 Schulze 1997a, pp. 205f.; Brüggen/Holznagel 2011, pp. 82f.; on the queens’ dispute, see Göhler 2001, pp. 83–85. – The deliberations here are an English rendition of ‘Gold und Gebärde’ (Sahm 2019), which develops findings and observations in ‘Gold im Nibelungenlied’ (Sahm 2012). Translations in the article are by the author unless otherwise indicated. 2 See Miedema 2011, pp. 78–87; Müller 2002, pp. 78f.; Müller 1998, pp. 276f.; Schulze 1997a, pp. 203–214. 3 Peters 2016, pp. 311–317. 4 Göhler 2001, pp. 83f.; Ohlenroth 2007, p. 74, describes the decision to combine the question of hierarchical status with a demonstration in the public sphere as ‘unmotiviert’; see also Wachinger 1967, pp. 111f. https://doi.org/10.1515/9783110661811-010

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claim precedence.5 After this defeat, Prünhilt retires from the public sphere. Her courtiers are downcast, and those closest to her concoct a murder plot. It is only after the assassination of Sîvrit that Prünhilt resumes her place in public with übermüete (1100, 1) again. As a figure whose aspirations and position are congruent once more, Prünhilt subsequently recedes from the first part of the Nibelungenlied.6 In research on these events, most scholars have identified Prünhilt as the cause of both the emergence of the conflict and its escalation.7 The argument is as follows: by insisting on the supremacy of Gunther’s position as it had been previously presented to her in Isenstein in verbal assertions and when Sîvrit, as a subordinate, helped Gunther to mount his horse (386, 397f., 420), she seeks to enforce, at the expense of others, a legally founded hierarchy between the two kingdoms of Worms and Xanten. Kriemhilt, however, is believed not to be interested in such questions of relative status. Instead, this interpretation explains Kriemhilt’s politically unwise praise of her husband (815), which starts the dispute, as a result of impetuous love for Sîvrit, and puts the subsequent course of the dispute in front of the cathedral down to the dynamics of a conflict that even she can no longer control. Thus, Kriemhilt’s role in initiating the queens’ dispute is treated as one that is largely passive. This assessment of the dispute will be interrogated in the following pages. Kriemhilt’s statements about Sîvrit and her impressive appearance in front of the cathedral can, that is to say, be understood as elements of a strategy for asserting rulership in the epic. This strategy in turn presupposes the validity of implicit rules according to which Burgundian society is structured,8 and these will be brought to light in what follows. Ursula Peters and Jan-Dirk Müller have shown that the Middle High German literature of the twelfth and even the thirteenth century contributed surprisingly little to the imagination of the feudal system that was in the process of establishing itself.9 This also applies to the Nibelungenlied. Even if the text, by naming the roles of 5 On the stolen objects, see Sahm 2012; Schopphoff 2009, pp. 198–200; Wenzel 1992 and 2001; Witthöft 2005; Gephart 2005, p. 75. 6 Quotations follow the edition by Bartsch (manuscript B). On dating and genre, see Curschmann 1987, cols. 946–950; see also Curschmann 1979 and 1992. 7 See Bischoff 1970; Haustein 1993; Schulze 1997a, pp. 203–214; Müller 1998, pp. 276f.; Göhler 2001; Ehrismann 2002, pp. 136–149; Müller 2002, p. 78; Millet 2008, p. 209; Ohlenroth 2010; Sieber 2010. 8 The following discussion, along with the notion of implicit rules, follows the attempts, developed within the framework of historical anthropology, to identify specific, but not necessarily explicitly formulated, rules of conduct in terms of which to understand events in the epic: Müller 1998, pp. 39–51; Althoff 1997 and 2003. This approach is criticized by Dinkelacker 2006. 9 Peters 2016, p. 284: ‘Zwar werden in den Erzähltexten des 12. und 13. Jh.s immer wieder Lehnsherren mit ihren Vasallen erwähnt und es finden sich auch literarische Szenen der Ausgabe von Lehen im Rahmen entsprechender Kommendations- und Investiturformalien, aber die Ausbeute ist doch wesentlich geringer, als man angesichts der vermuteten Bedeutung des Lehnswesens im 12./13. Jh. erwarten sollte.’ Müller 2010, p. 141: ‘Die vorgestellten Beispiele vermeiden durchweg eine Konkretisierung der Herrschafts- und Rechtsbeziehungen. Beliebt sind unscharfe Bezeichnungen, die

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court officials or describing Sîvrit as the landes herre (territorial sovereign), shows tendencies to update the material for a contemporary socio-historical context,10 and even if feudal terms such as eigen and adelvrî are used in the special case of the queens’ dispute, the relationship between herre and man usually remains unclear: [D]er Herrenstatus und die daraus ableitbare Herrschaft [wird] bei niemandem im Nibelungenlied bezweifelt. Offenbar verfügen alle über eine eigene Mannschaft. Die Helden leben alle am Hofe in der unmittelbaren Umgebung der Könige. Von einem Lehnsverhältnis ist keine Rede. Ihre Bindung an die Könige wird nie zum Problem; nie gibt es den Versuch, sie aufzulösen.11 Nobody’s status as a lord and the authority inferred from this are ever doubted in the Nibelungenlied. All clearly have their own forces at their disposal. All the heroes live at the court in close proximity to the kings. No mention is made of a feudal relationship. Their connection to the kings never constitutes a problem; there is never an attempt to dissolve it.

The Burgundian social order is therefore not consistently based on a feudally structured system. The holders of court offices and vassals (9–11)12 reside at the royal court in Worms. There is also a group of privileged warriors belonging to the ingesinde about whose legal and social status the text does not supply any precise information. There is clearly a warrior elite – what we can call a retinue – tied relatively closely to the court. Around this inner court (engerer Hof) with its members who are always present, we find an outer court (weiter Hof).13 It is evident that those belonging to this latter group are not always present and – as will be shown below – are bound to the court and its ruler(s) above all by gifts. This social practice is, of course, not reflected with terminological precision in the text: man can be understood in any given case as referring to a vassal, a retainer, or a warrior engaged once or repeatedly with the help of gifts.14 In order to trace these hitherto largely ignored relationships of gift-giving between the ruler and the outer court, the social structure of the epic will be described

auch für andere – zum Beispiel verwandtschaftliche – Verhältnisse gelten können. Im Ganzen ist der Ertrag, was das Lehnswesen als besondere Rechtsfigur betrifft, negativ.’ 10 Müller 2010, p. 134. 11 Müller 2010, p. 133. 12 Müller 2002, pp. 90–96; Schulze 1997a, pp. 144f. 13 For the distinction between inner and outer court, see Selzer/Ewert 1997, p. 9: ‘Ein Hof differenziert sich beispielsweise in einen fürstlichen Haushalt (engerer Hof) und eine Gruppe von nur temporär anwesenden Personen (weiter Hof), weil er damit annahmegemäß ihm von der Forschung zugedachte Funktionen wie “Organisation des täglichen Lebens”, “Organisation des Zugangs zum Herrscher”, “Repräsentation”, “Integration gesellschaftlicher Eliten” und “Regierung und Verwaltung” [. . .] erfüllen kann.’ See also Johanek 1997, pp. 54f. 14 For a definition of retinues, see Timpe 1998, p. 537: ‘Gefolgschaft [. . .] bezeichnet ein zweiseitiges Verhältnis zwischen einem sozial und wirtschaftlich überlegenen, militärisch führenden und politisch bestimmenden Gefolgsherrn und seinen, von ihm abhängigen, aber auch von ihm profitierenden Gefolgsleuten.’

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here with the help of Andrew Cowell’s The Medieval Warrior Aristocracy. Cowell places the focus of his investigation on the consequences of a gift economy for the identity of the warrior in the epic, the construction of which must be clearly distinguished from the construction of that of the knightly individual. In contrast to the knight and his path or journey plot structure (Wegstruktur), the identity of the warrior in the epic is determined by his involvement in a complex culture of reciprocity: [. . .] ambitious medieval warrior aristocrats constructed a social identity through acts of giving, with the identity being the general sum of such acts. Each individual’s identity was unique, and was established in relation to the various other individuals with whom he exchanged or refused to exchange.15

While Cowell’s interest lies in the components that constitute the reputation of the individual,16 I will be dealing with the following question: what effect does the gift economy have on the constitution of the court in the Nibelungenlied? The courtly order is regulated in the Nibelungenlied partly by contracts, traditions, or spaces that are binding and permanent,17 but it is also negotiated partly through the gift-giving power of the ruling couples and thus imagined as something unstable that needs to be constantly redefined. In recent years, Marcel Mauss’s work on gift theory has contributed greatly to the interpretation of the Nibelungenlied,18 but the consequences of this for the conception of Burgundian society have not yet been outlined.

Inner or Outer Court: Office or Gift Those who reside at the court consist of members of the ruling family such as the queen mother Ute, vassals like Hagen, and holders of court offices such as Rumolt and Dancwart (10–12). We also find various groups of women – Kriemhilt, for instance, 15 Cowell 2007, p. 23; for the differentiation of gifts and commodities in epic or romance, see also Kay 1995. 16 On honor, see Cowell 2007, p. 23: ‘For the average person, multiple exchanges with multiple people, some involving relations of superiority and others involving relationships of inferiority, would lead to a plural set of identities. [. . .] But although every individual act of exchange and every individual identity might be unique, these acts and identities could still be judged relative to each other, as having more or less value, since members of the society shared a general set of criteria for an idealized individual and idealized actions. In this framework, honor was the abstract measure of the value of an action, and more generally, of the value of one’s identity.’ Cowell 2007, p. 36: ‘The drive for integrity can thus be understood as a continual series of investments which serve to maintain over a long period of time otherwise fragile and unstable unitary identities – a potentially endless series of inputs necessary to prevent the decay of identity in an inherently entropic world.’ 17 On the political order of the Nibelungenlied, see Müller 2002, pp. 90–109. 18 Schausten 2016.

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takes not only five hundred man but also thirty-two meide to Xanten (700) – as well as nameless warriors like Sîvrit’s swertgenôzen (39, 3), who clearly have no specific office but are nevertheless constantly present at the court and sometimes the recipients of gifts.19 Those belonging to the outer court consist of individuals in possession of fiefdoms (39, 2) as well as a large number of nameless warrior bands that are bound to the court by gifts alone; their attachment to the court is clearly of a temporary nature. This can be seen, for example, during the course of the Saxon war. The war against the Saxons not only involves those fighters who belong to Gunther’s ingesinde or are bound to serve him by their fiefdoms; his army also receives additional help from warriors hitherto unknown in Worms, who apparently join the campaign as it is underway. This too has to be adequately rewarded,20 because, in a reciprocal society, voluntary commitment obligates the beneficiary to perform a subsequent act of recompense.21 As a result, Gunther offers gifts to all of his guests (255, 4) and discusses with his brothers wie er lônte sînen man (256, 4 ‘how to reward his men’). Even if the vocabulary is not used in the manner of a precise terminology, there seems to be a basic rule according to which the gift is offered up-front but the ‘reward’ is given retrospectively. If the ruler is generous in his reward, this can in turn serve in part as a further gift and thus as an attempt to secure continued service in future. Accumulating man, that is to say, is not a process that can be brought to an end; instead, it must be pursued continuously. This is exactly what Liudegast and Liudeger do. They assemble for their military campaign, probably with expenditure to match, vil manegen hêrlîchen gast (140, 4 ‘so many magnificent guests’) – people not associated with the court on a regular basis. Their messengers threaten Gunther accordingly: in hilfet vil der degene, daz wizzet ûf die triuwe mîn (144, 4 ‘they have the support of many warriors, I can very well assure you’). Gunther, the messengers suggest provocatively, should now seek to confirm whether he can count on the aid of guoter friwende (145, 2 ‘good friends’). But Sîvrit steps in with his offer of help first. The messengers return to Denmark, declaring that the Burgundians can muster vil manegen küenen man (168, 1

19 In the text, the individual functions are not clearly demarcated: Sindolt and Hunolt occupy court offices (11, 3f.) and belong to Gunther’s close retinue of outstanding warriors (10, 2) who take part in the war against the Saxons. However, they carry out these services not merely because of the positions they hold or in return for gifts previously received, but also in the latent expectation of being rewarded with gold (173, 1f.): ‘Dâ mite reit ouch Sindolt unde Hûnolt, / die wol gedienen kunden daz Guntheres golt.’ ‘Sindolt rode with his friends, and Hunolt, both of them bold, more than ready to win rewards of Gunter’s gold.’ (transl. Raffel 2010). 20 245, 1–4: ‘Do enpfie er wol die sîne, die vremden tet er sam, / wan dem rîchen künege anders niht gezam, / wan danken güetlîche den, die im wâren komen, / daz si den sic nâch êren in sturme hêten genomen.’ ‘No matter where they were from, he welcomed them the same. How could the mighty king have chosen a different course, giving his gracious thanks to the gallant men on horses who’d come to his country’s aid and splendidly fought in honor’s name?’ (transl. Raffel 2010). 21 On reciprocity, see Mauss 1996; Adloff/Mau 2005; Algazi 2003; Benkmann/Goetz 1998; Grimm 1991; Elwert 1991; Hannig 1986 and 1988; Olberg 1986.

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‘so many brave men’) to meet them, including Sîvrit, a helt ûz Niderlant (168, 2 ‘hero from Niderlant’). Following this announcement, the challengers become more cautious about their prospects of success, and they endeavor to expand their warrior contingent through the enlistment of further ‘friends’: dô îlten si der friwende deste mêr bejagen (169, 2 ‘they hurried to gather still more friends’). The vriunt are a group that is essentially defined at its core by triuwe or kinship, but whose size can always be influenced by the gifts distributed by the ruling couple.22 Festivals are one such opportunity to reaffirm old vriunt as well as winning new ones. Generally, more people than expected take part. In the Nibelungenlied, this is expressed through the fixed formula of vremden unde kunden (27, 4; 37, 4 ‘strangers and well-known people’), which cannot just be dismissed as one of the superlatives typical of the genre. After the Saxon war, all of Burgundy is full of vremden and kunden (254, 2), and everyone, the geste and the kunden, have new clothes to put on (264; 267, 2).23 By accepting gifts, ‘new’ members allow themselves to be won and added to the court. Gifts do, it is true, also conclude festivals in courtly romance, but they are given there to confirm and consolidate existing, often contractually or family-constituted bonds;24 in the Nibelungenlied, the kunden are bound to the court afresh by gifts, the geste for the first time. This has direct consequences for the reputation of the court, which is presented as a dynamic structure with an exemplary foundation in practices of gift-giving. The outer court of the ruling couple is fluid: fünf tûsent oder mêre (‘five thousand or even more’) come to Worms after Gunther’s feast following the Saxon war (271, 3). Prünhilt’s invitation to Isenstein is met with the arrival of more warriors by the day (477, 1f.). The importance of a court is thus determined not only by the small number of vassals or visiting princes who are constantly present (266, 3) but also by the number of men and women who can be persuaded to attend a courtly festival and won with gifts. In the logic described here, the identity of the ruling couple depends above all on their ability and willingness to distribute large amounts of gold. After all, one of the reasons a festival is held is so that the ruling couple can assess the current state of affairs. If more people (men and perhaps also women) accept the invitation to the festival than expected, the ruling couple are in good standing. The reputation of the ruling couple is thus not an objective quantity guaranteed solely by descent, tradition, or law: it is measured on the basis of the gifts distributed during the festival and the men and women who are thereby obligated to serve the court in return. This social identity of the ruling couple is not guaranteed once and for all but has to be redetermined from festival to festival and, if possible, further

22 On the meaning of vriunt, see Miedema 2015, here p. 227; Müller 2002, pp. 92–94. 23 In his commentary, de Boor gives a different meaning for the formula (27,4), suggesting ‘Auswärtige und Einheimische’; in his translation, Raffel 2010 focuses on strangers only: 254,2 ‘His land was full of strangers from everywhere on earth.’ 24 See Bumke 1999, p. 314; see also Hirschbiegel, p. 45 footnote 1 and p. 48.

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increased and ritually secured in view of the public eye by the promise of extraordinary expenditure.25 There are – in contrast to fiefdoms – no duties that can be demanded as a given and no clear time frames, no ‘fixed prices’: herre and man always have to re-evaluate whether or not something has already been rewarded or is yet to be earned. The scope and subject matter of obligations are not explicitly discussed, as is typical of reciprocal obligations: the consequences of a bond established through the acceptance of gifts are rarely explicitly set out for the recipient.26 The gifts usually consist not of money but of gold-decorated objects, be it clothes or armor: Sîvrit’s warriors who accompany him to Worms have gold-adorned garments (66–75), and Prünhilt’s reception in Worms is characterized by golden splendor (569–578). This is not, however, simply a matter of displaying the splendor that befits a certain status. On the one hand, dependencies are indicated by the fact that the recipients wear these gifts when the ruling couple make their ceremonial appearance: those whose attire exhibits a particular amount of gold are indicating their considerable debt to the court and contributing to the overall impression it makes. And the question of status is negotiated discursively with reference to the opulence displayed by a group of rulers: characters and the public sphere within the text discuss who can claim the highest prestige with reference to the opulence and size of the ruling bodies that present themselves.27 The repeatedly emphasized visuality of power and splendor in the heroic epic not only has an esthetic or, with regard to courtly

25 The instability of social bonds created with gifts is emphasized by Cowell 2007, p. 36: ‘The drive for integrity can thus be understood as a continual series of investments which serve to maintain over a long period of time otherwise fragile and unstable unitary identities – a potentially endless series of inputs necessary to prevent the decay of identity in an inherently entropic world.’ See also Starkey, p. 340: ‘Macht bzw. Herrschaft war etwas Unbeständiges, und als Herr stand man immer kurz vor dem Verlust dieser Macht. Literarhistoriker dagegen gehen meist davon aus, dass die Beziehung zwischen König und Vasall stabil ist.’ 26 Mauss 1996, p. 18; see also Schausten 2016, p. 85. 27 592f.: Dô speheten mit den ougen, die ê hôrten jehen, / daz si alsô schœnes heten niht gesehen / sô die vrouwen beide: des jach man âne lüge. / ouch kôs man an ir lîbe dâ deheiner slahte trüge. / Die vrouwen spehen kunden unt minneclîchen lîp, / die lobten durch ir schœne daz Guntheres wîp. / dô sprâchen dâ die wîsen, die hetenz baz gesehen, / man möhte Kriemhilden wol vor Prünhilden jehen. ‘Measuring all the beautiful girls with their eyes, they stared and murmured that never in their lives had anyone seen a pair of prettier girls, lovely and without deception. Their words declared truths they now could see but before had only heard of. Those who admired many women took much pride in favoring Brunhild’s beauty, struck by Gunter’s bride. But those who looked more closely, and saw with more than eyes, said Krimhild, not fair Brunhild, should be the choice of the truly wise.’ (transl. Raffel 2010). Cf. also 787: Mit wie getânen vreuden man die geste enpfie! / si dûhte, daz vrou Kriemhilt vroun Prünhilde nie / sô rehte wol enpfienge in Burgonden lant. / die si ê nie gesâhen, den wart vil hôher muot erkant. ‘How happy Burgundy’s people were, in welcoming them! They felt, in looking back, that Krimhild’s greeting to Brunhild, when the woman now queen first came, paled in comparison. Those who’d never seen proud Brunhild before were virtually stunned.’ (transl. Raffel 2010).

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society, primarily affirmative function;28 this making apparent to the eye has, when considered in the context of the gift economy, at the same time the function of supporting a social, competitive evaluation.29 Status relative to other rulers is constantly and comparatively assessed by the protagonists, nameless warriors, and the public sphere within the text with reference to the glitter of the golden gifts worn and displayed by the court.

Events Leading Up to the Queens’ Dispute In addition to ‘modern’ elements that are connected to the world outside the text through the naming of court offices and whose presence can be explained by the influence of courtly poetry, both courts, from the beginning, follow the rules of heroic epic, according to which the court is formed through the gift-giving activities that take place at it and the performance of those activities. These elements become crucially important for the background to and the progression of the queens’ dispute. Even though the kings are no longer interested in questions of relative status once the wedding in Worms takes place, these questions nonetheless preoccupy not only Prünhilt but also the narrator and, equally, the public within the text. Signals of equal status alternate with those of asymmetry. With the distribution of gifts by both kings after the wedding, a provisional equilibrium is established (686–689), which is then disrupted again after the return of Sîvrit to Xanten. In public perception, Sîvrit’s coronation is felt to be more resplendent than the celebration in Worms: Swie grôz ir hôhzît bî Rîne was bekant, noch gap man hie den helden vil bezzer gewant, danne si ie getrüegen noch bî allen ir tagen. man möhte michel wunder von ir rîcheite sagen (711). Despite the fame of the feast they’d seen, at Worms on the Rhine, no one had ever given guests clothes so fine, better than anything these knights had worn in their lives. You could not help amazement, hearing what riches they received (transl. Raffel 2010).

Although the high level of the Worms festival is generally recognized, the wealth on display at the Xanten festival was, we hear, nothing short of amazing. This signal of competition is followed by a reference to the equal standing of the two courts

28 On visuality as part of the courtly epics, see Wandhoff 1996, p. 227: ‘Im Zentrum steht auch hier [in König Rother, H. S.] das höfische Fest, das zur zyklischen Inszenierung von sozialer face-to-faceInteraktion und mithin zur optischen Inszenierung der sozialen Gemeinschaft erzeugt wird.’ See also Klein 2014, p. 269; Peters 2006 criticizes the understanding of visuality as a means of selffashioning (see Brüggen/Holznagel 2011, p. 79). 29 The court in the epic is therefore not only a ‘point of contact’ (on which see Johanek 1997, p. 50).

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when, after the birth of the two heirs to the throne, the narrator compares the two dynasties: Mære z’allen zîten der wart vil geseit, wie rehte lobelîchen die recken vil gemeit lebten z’allen stunden in Sigemundes lant. alsam tet ouch Gunther mit sînen mâgen ûz erkant (720). News arrived all the time, telling how well life went in Sigemund’s land, what noble successes warriors knew, day after day, year after year. Gunter too sent word across the Rhine that he and his family were happy men (transl. Raffel 2010).

The relatively harmonious situation indicated here – both courts enjoy considerable prestige in public perception – remains, however, a momentary impression that is set aside in the final three strophes of the eleventh Aventiure that follow. First, the narrator emphasizes that no one in Sîvrit’s family has ever been more powerful than he is (721, 2 rîcher sîner mâge wart noch deheiner nie). Aspects relating to the expansion of his power, hinted at in the second Aventiure, are now summarized again: with his coronation, Sîvrit takes control of the lands of his father, as well as ruling over the lant zen Nibelungen (721, 1) and Schilbunges recken together with the corresponding property (721, 3 ir bêder guot). On this basis, Sîvrit can be considered more powerful than his predecessors and competitors (721, 4 des truoc der vil küene deste hœheren muot ‘He relished his kingly state, the pleasures power could bring.’ transl. Raffel 2010). He has also increased his prestige and the potency of Xanten rule by conquering the greatest treasure den ie helt gewan (722, 1 ‘that ever a hero could gain’). This leaves nothing more to be desired for his great reputation (723, 1 Er het den wunsch der êren ‘No man could want more honor.’ transl. Raffel 2010). And even without the treasure, his greatness would have to be recognized (723, 3f. daz er wære ein der beste, der ie ûf ors gesaz. / man vorhte sîne sterke unt tet vil billîche daz ‘that of all the world’s great heroes he was one of the best who ever rode a horse. His strength was widely feared, and very rightly so.’ transl. Raffel 2010). Kriemhilt expressly contributes to this status, for Sîvrit’s rule is getiuwert (704, 3 ‘given a higher value’) through her. Furthermore, Kriemhilt also expands her own position of power with the death of Siglint.30 Sîvrit’s prediction about

30 717: In den selben zîten starp vrou Sigelint. / dô het den gewalt mit alle der edeln Uoten kint, / der sô rîchen vrouwen ob landen wol gezam. / daz klagten dô genuoge, dô si der tôt von in genam ‘And exactly at this same time Lady Sigelind died. All the old queen’s power now rested in Ute’s child – well deserved for a woman so wealthy, with so much land. Sigelind’s people sadly mourned her, when death swept her aside.’

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Kriemhilt’s reign when he denied her her inheritance in Worms seems to have come to fruition: she is the most powerful queen.31 Such signals, which agonally define the relationship between the two courts, shape the further course of the action. Prünhilt’s unease following the lie about Sîvrit’s social standing sets the ultimately fatal resolution in motion. However, the narrator does not let it be forgotten that not just Sîvrit’s subordination to Gunther is to be understood as a fiction, but also Gunther’s claim that they have more or less equal status.32 The ruling couple in Worms continue to be outdone, first of all when it comes to the invitation they send. Prünhilt equips the thirty messengers dispatched to Xanten to deliver the invitation well (733, 4 ze liebe gap in Prünhilt vil harte hêrlîch gewant ‘And Brunhild presented them with noble clothes, which pleased them all immensely.’ transl. Raffel 2010). However, Sîvrit and Kriemhilt give them more, and this unsurpassable generosity is a part of the narrative about which ‘we’ too hear: Sîvrit unt Kriemhilt, alsô wir hœren sagen, / sô vil den boten gâben, daz iz niht mohten tragen / ir mœre heim ze lande; er was ein rîcher man (764, 1–3 ‘Sifried and Krimhild (says the story, as we’ve been told it) gave Gera and his men so many costly gifts, the load was too much to carry. This was a wealthy man, they said.’ transl. Raffel 2010).33 Upon their arrival in Worms, the messengers display these gifts of gold and clothing to the kings’ warriors (773, 2f. golt und ouch diu kleit / daz brâhte man ze sehene der drîer künige man ‘Gold and clothing were brought and displayed for all the men serving Burgundy’s rulers.’ transl. Raffel 2010). While the extraordinary generosity of Sîvrit is generally recognized (773, 4), Hagen fails to be impressed by it: giving such extravagant gifts is of no consequence to someone who has so much gold that he cannot spend it in his own lifetime, he suggests. With this remark, Hagen aims to neutralize the equivalence of generosity and prestige where Sîvrit is concerned.34

31 695, 2f.: dâ si sol tragen krône, unt sol ich daz geleben, / si muoz werden rîcher, danne iemen lebender sî. ‘There where she’ll wear a crown (provided I still live), she cannot help but become mistress of very great wealth’ (transl. Raffel 2010). 32 Gunther responds to Prünhilt’s concern about the marriage of Kriemhilt to an eigenholden: 623 Dô sprach der künic edele: ‘ich tuon iz iu wol bekant, / er hât als wol bürge als ich unt wîtiu lant: / daz wizzet sicherlîche. er ist ein künic rîch. / darumb gan ich im ze minnen die schœnen maget lobelîch. ‘Noble Gunter answered: “I’ll tell you everything. In fact, he rules lands and castles exactly like mine. Rest assured, this Sifried is truly a mighty king. That’s why he’s a perfect match for her, equally rich and fine”’ (transl. Raffel 2010). 33 See Curschmann 1992. 34 774: ‘Er mac,’ sprach dô Hagene, ‘von im sampfte geben. / er’n kundez niht verswenden, unt solt er immer leben. / hort der Nibelunge beslozzen hât sîn hant./ hey sold er komen immer in der Burgonden lant!’ ‘Hagen said, “He can easily hand out gifts. Because he could never distribute everything, even if he lived forever. The Nibelungenhort is in his possession. Oh, if it ever came to Burgundy!”’ In C, the gift-giving power associated with the treasure is made clearer when Hagen’s speech closes: hey, solden wir den teilen noch in Buregonden lant! ‘Oh, if we could distribute it one day in Burgundy!’ (C 780). On gold and treasure as a foundation of rulership in the Age of Migrations, see Hardt 2004.

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If Sîvrit’s position of power, which is based upon the treasure and essentially unsurpassable, is here conceded by the opposing side, Gunther again aspires to asserting equal status in the manner in which the guests are welcomed. He wants Kriemhilt to be received by Prünhilt as Prünhilt was received on her arrival in Worms by Kriemhilt (783), and therefore he rides towards the guests as a sign of his appreciation.35 Prünhilt evidently does not share Gunther’s wishes. At any rate, she has the best clothing that a hostess can present to her young ladies-in-waiting (mägede) brought forth (785, 1–3), and she herself rides in splendid clothes (786, 3 vil hêrlîche) towards the guests. It therefore makes sense that Prünhilt is able to steer public opinion towards a favorable comparison with the guests from Xanten when they are received: in the opinion of the eyewitnesses (787, 2 si dûhte ‘they felt’), the splendor on display surpasses that when Prünhilt arrived in Worms (787, 2f.) – and Gunther is rîche (801, 4), after all. But Prünhilt, who is looking for reliable evidence with which to work out legally what the hierarchy is, is still alarmed, despite all the effort to which she has gone. This is no coincidence, for the trip has been prepared carefully in Xanten. In accepting the invitation to Worms, Sîvrit follows his people’s advice and takes 1,000 warriors to support his own reputation. Sigmunt increases this number by 100 warriors (761). Before leaving, the best clothes in the land are purchased (765), and never before were so many clothes and chests carried on a journey (778, 4). All of the knights and ladies who join the expedition are liberally supplied so that the visitors can appear in front of their hosts with many hêrlîch people: Die sätele zuo den schilden bereiten man began. rittern unt vrouwen, die mit in solden dan, den gap man, swaz si wolden, daz in niht gebrast. dô brâht’ er sînen vriunden vil manigen hêrlîchen gast (766). All the warriors readied their saddles and also their shields. Knights who were making the journey were given whatever they needed, as were the ladies riding along. Thus nothing was missing. Many noble guests would visit his Rhineland friends with Sifried (transl. Raffel 2010).

The connection between gifts and their intended spectacle effect is clearly brought out here: anyone who appears with a multitude of magnificently dressed people also participates in visual communication through these physical symbols. Prünhilt cannot ignore the powerful performance of the Xanten ruling couple that results from their preparations. She watches Kriemhilt closely and notices that she is gleaming beautifully with her gold jewelry (799, 4 ir varwe gegen dem golde den glanz vil hêrlîchen truoc). Then Sîvrit sits down to eat surrounded by his 1,200 magnificent warriors. Even assuming that his father’s warriors are included in this

35 On the gesture of meeting on horseback as an indication of equal status, see Heinzle 2015 in his commentary on the Nibelungenlied, p. 1214 on strophe 784.

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figure, he has expanded his retinue since the departure from Xanten.36 Prünhilt concludes from his company that no vassal – she refers specifically to an eigenholde – could ever be more powerful than this: daz eigenholde niht rîcher kunde wesen (803, 3).37 Prünhilt therefore understands the social code according to which the glitter of gold serves as a measurement for evaluating power. Even though the rîche (‘rich’) Gunther (801, 4; cf. also 802, 804) wins prestige as a generous host (805, 4–806, 1) and Prünhilt’s perception is at first characterized by benevolence (803, 4 si was im noch sô wæge ‘She liked him well enough, as yet.’ transl. Raffel 2010), the alleged hierarchy, in which Gunther and Sîvrit are both kings but Sîvrit is a man of Gunther, is already challenged by the unfolding visual impression of exorbitant splendor, before the escalation in the queens’ dispute has even begun.38

The Conflict Unfolds It is thus all the more important for Prünhilt that there is an objective basis for the social order that can be legally verified. And, though the guests and hosts initially pass several days with one another and are seen together wearing crowns (812), Kriemhilt subsequently witnesses Sîvrit in the knights’ contest and arrives at the same conclusion that Prünhilt has already reached regarding his precedence: ich hân einen man, / daz elliu disiu rîche ze sînen handen solden stân (815, 3f. ‘I have such a man that all these kingdoms should be under his rule’). After Prünhilt refutes this provocation by referring to Gunther’s power,39 Kriemhilt explicitly binds her assessment of Sîvrit to his appearance, thereby appealing to Prünhilt’s own perception: Dô sprach aber Kriemhilt: ‘nu sihestu, wie er stât, wie rehte hêrlîche er vor den recken gât, alsam der liehte mâne vor den sternen tuot? des muoz ich von schulden tragen vrœlîchen muot.’ (817) Krimhild quickly replied: ‘Just look at him standing there! Who else deserves to lead the heroes assembled here, shining as bright as the moon against the flickering stars? I ought to be happy, and I can say I am, without any fear’ (transl. Raffel 2010).

36 This assumes that the numbers are reliable. – On paradigmatic narration, see Schulze 1997a, pp. 132–136. The mismatch is not present in C. Sîvrit is recommended to take 1,000 warriors (C 767), Sigmunt offers 100 people (C 768), and Prünhilt sees Sîvrit in the midst of his 1,100 warriors (C 810). 37 See also Peters 2016, pp. 311–317. 38 See also Müller 1998, p. 277: ‘Sîvrits vor allen gesprochene Rede steht gegen seine von allen anschaubare Erscheinung.’ 39 On the speech acts, see Neuendorff/Raitaniemi 2011.

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Kriemhilt derives Sîvrit’s pre-eminence from his victorious appearance in the contest. This leaves the symbolic order of games in order to generalize and verbalize the validity of a claim that had previously been staked by the visitors from Xanten with the size and splendor of their retinue, but not claimed expressis verbis. Prünhilt rejects this by citing the primacy of Gunther. Kriemhilt replies that her praise of Sîvrit is supported by the esteem in which he is generally held (819, 1–3) and offers as a compromise the proposition that both kings are equal in status. Prünhilt does not engage further with this peace offer. She reacts with the ‘[. . .] provocative rhetorical equation of vassal status with serfdom’40 in order to humiliate her rival as much as possible.41 Kriemhilt in turn responds that she has the more esteemed husband because of the power he wields: er ist tiwerr danne sî / Gunther mîn bruoder (824, 2f. ‘[he] is worth a good deal more than my brother the king.’ transl. Raffel 2010). Prünhilt wants to put things to the test by seeing how the relevant source of authority, the court public, views the question of status: nu wil ich sehen gerne, ob man den dînen lîp / habe ze solhen êren, sô man den mînen tuot (826, 2f. ‘I hope you’d notice if anyone here showed you the respect and homage they all show me.’ transl. Raffel 2010). Kriemhilt now insists on a difference in status. After the verbal exchange has failed to arrive at a conclusion, the queens seek a resolution based upon a ritualized act: who enters church ahead of the other.42 The followers of the two kings (827, 3 der beider künige man), Kriemhilt says, should decide who goes first, and Prünhilt will see for herself (828, 1 schouwen) that Sîvrit commands a higher degree of respect (828, 2 tiwerr) and that Kriemhilt is more esteemed than any queen before her (829, 2f. ich wil selbe wesen tiwerr, danne iemen habe bekant / deheine küneginne, diu krône ie her getruoc ‘And no one will doubt that I myself enjoy honors higher than any queen crowned among living men.’ transl. Raffel 2010). We do not hear how Prünhilt prepares for the public decision. The continuation of the dialogue in front of the entrance to the cathedral, however, reveals her calculation (838, 4) that, by going ahead of Kriemhilt, she will be able to demonstrate in public the legal entitlement that she thinks she has. Kriemhilt, however, wants to settle the dispute according to the regulations of a society governed by the gift economy: the person who can mobilize the larger retinue with more splendor is the person who will be tiurer, more highly regarded.43 Accordingly, she calls on her ladies-in-waiting, Ir sult wol lâzen schouwen, und habt ir rîche wât (831, 3 ‘I want you all to look your best, I want you to shine.’ transl. Raffel

40 Peters 2016, p. 316f.: ‘[. . .] provokationsrhetorische[n] Gleichsetzung von Vasallität und Leibeigenschaft’. 41 Prünhilt’s answer is also discussed by Störmer-Caysa 2011, p. 169. 42 The typology of such conflicts is described by Becher 2011. 43 Other aspects are emphasized by Schulze 1997a, p. 209, who reads the splendor put on show as a visual sign of power with which Kriemhilt wants to hurt Prünhilt.

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2010). She and her forty-three ladies in waiting seek out rîchiu kleit (832, 1) and are wol gezieret (832, 2), that is, preciously dressed and adorned. On the way to the cathedral, the women are accompanied by Sîvrit’s men (833, 4). The narrator leaves no doubt that Kriemhilt succeeds in demonstrating greater wealth: dô kom diu vrouwe Kriemhilt mit maniger hêrlîchen schar. Swaz kleider ie getruogen edeler ritter kint, wider ir gesinde daz was gar ein wint. si was sô rîch des guotes, daz drîzec künige wîp ez möhten niht erziugen, daz tete Kriemhilde lîp (835, 4–836, 4). Then Lady Krimhild appeared, with a noble host around and beside her. However honored knights had ever been dressed, before, now made as little difference as a puff of wandering air. Krimhild owned such enormous treasure that thirty or more king’s wives could not have displayed the elegant wealth she showed them there (transl. Raffel 2010).

Prünhilt, however, contests the validity of the unsurpassable splendor in which the retinue are significantly clad as a means of measuring rulers’ status. By abandoning this norm that is, as the text has previously indicated (cf. 799, 803), indeed known to her, she initiates the subsequent escalation in which Kriemhilt is able, with the stolen ring and belt, to put very specific gold objects on show. The public that had been brought into play to decide which of the two queens has precedence now become witnesses of the insults that are traded. This further sequence of events will not be considered in detail here.44 Prünhilt had not forgotten the discrepancy between Sîvrit and Kriemhilt’s explicitly stated, legally inferior position and the social status that they had acquired. The couple made the problem of status flare up by repeatedly provoking the rulers of Worms with their performance.45 From their wedding onwards, tension gradually built up regarding how the conflict over the hierarchy between Worms and Xanten – which was played out through visual signs and public discussion, and at first purposefully papered over, above all by Gunther – would be resolved.46 According to the

44 See Peters 2016, pp. 311–317. 45 Similarly Müller 1998, p. 277: ‘Wenn Kriemhilt und Sîvrit nach Worms kommen, ist der Vergleich nicht mehr harmlos. Der Glanz der beiden Höfe spiegelt sich nicht mehr in interesseloser Anerkennung durch den wechselseitigen Blick [. . .]. Der Blick [Prünhilt’s, H. S.] sondiert Herrschaftskonkurrenz.’ Although Haustein 1993, p. 382, explains guilt on Sîvrit’s part differently, his argument does coincide with that stated above in that ‘[. . .] er hat ihn [his death, H. S.] ursächlich verschuldet, indem er eine Wirklichkeit schafft, an die er sich nicht halten wird’. For a different position, see Schulze 2005, p. 97: ‘Bis zum elften Tag gibt es keinen Mißklang; dann bricht der Streit der Frauen um den Rang ihrer Männer und damit um ihre eigene Position aus.’ 46 See also Müller 1998, p. 276: ‘Der Rangkonflikt ist latent von Anfang an da, doch vorerst in jener friedlich-agonalen Form, die die Hofgesellschaft allgemein kennzeichnet und die die Person, die verliert, nicht diskreditiert.’

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motivational structure set out here, Xanten’s ruling couple do not stumble unexpectedly, let alone innocently, into a power struggle forced on them from outside.47 Their appearances are, in their splendor, calculated to impress public opinion to their advantage. Whether this is done from the outset as a strategy or as a habitus that goes naturally hand-in-hand with their status, is not clear. The Xanten party’s selfpresentation only becomes a problem at the moment in which Kriemhilt reads, as is characteristic of the heroic genre, her husband’s appearance as a communicative message and expects Prünhilt to understand it.48

Conclusion: Updating and Archaizing The escalation of the dispute between Prünhilt and Kriemhilt is not due to a linguistic misunderstanding. The narrative representation of the queens’ dispute in the Nibelungenlied is brought to a head by the narrator in such a way that Kriemhilt and Prünhilt make recourse to the authority claimed by two different social orders, both of which are set out in the Nibelungenlied.49 Prünhilt insists on the validity of legally stable regulations. She is unsettled by the fact that the evidence to support them no longer pertains after the scene at Isenstein in which Sîvrit helps Gunther to mount his horse – yet they are, according to her knowledge and understanding, what should be the binding foundation for the hierarchy of status recognized at court and confirmed in the act of entering church. Kriemhilt’s intention is not to claim de facto sovereignty over Burgundy for Sîvrit.50 However, she takes the

47 Millet 2008, p. 209, points out the suddenness with which old conflicts rear their heads again; see also Sieber 2010, p. 174; Göhler 2001, p. 81. 48 Schulze 1997a, pp. 207f., sees no claims to power (‘keine “Machtansprüche”’) implied in Kriemhilt’s praise of Sîvrit; Haustein 1993, p. 378, also assumes that Kriemhilt has no interest in any conflict: ‘Daß Kriemhilt dies [the conflict, H. S.] an dieser Stelle will, ist ganz unwahrscheinlich und durch nichts zu belegen.’ It is Prünhilt, he argues, who takes the ‘minnesangtypische[n] Superlativ [. . .] eben nicht literarisch-unernst-unverbindlich’ but seriously. On the supposed connection with the Minnesang, see Hoffmann 2002. Millet 2008, p. 208, too, sees Kriemhilt as a victim of Prünhilt’s preoccupation with status: ‘Nach einigem Hin und Her, in dem die burgundische Königin die Debatte zu einem Rangvergleich hinführt (was Kriemhilt allerdings nicht zu bemerken scheint), gibt sie der Schwägerin zu bedenken, die Männer könnten nicht miteinander verglichen werden [. . .].’ 49 The queens’ dispute is not the only example in which the legitimacy of rulership in the Nibelungenlied is negotiated adversarially. On his arrival in Worms, Sîvrit calls for a duel on the grounds that the stronger should rule, while Gunther relies on his descent. 50 Ehrismann 2002, p. 94, discusses three different interpretations of Kriemhilt’s initial statement: claiming power over Burgundy for her husband, unconsidered infatuation with him, and a vague claim about his exceptionality. The reading proposed here supports the latter suggestion, admittedly in the form of a contest over status and recognition in the public sphere.

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Xanten party’s visually communicated statement of its own high status and intensifies it verbally following the tournament to assert its validity on a higher level. The hierarchy, at least that between the kingdoms, is not an objectifiable quantity;51 instead, it is determined by the public sphere within the text with reference to visible gold. With her initial remark about Sîvrit and with her own bearing, Kriemhilt therefore makes recourse to unwritten norms concerning who must be granted more êre (honor) on the basis of the amounts of gold they can wheel out in a society structured by a gift economy. Kriemhilt thereby presupposes implicit rules that underpin the conception of the outer court of Worms or Xanten. The women do not speak a ‘different language’ (as Jan-Dirk Müller puts it)52; instead, the epicist brings the queens’ dispute into profile by playing the two structures of social order that are juxtaposed in the Nibelungenlied off against each other and having the validity of each disputed by one of the queens. The position represented by Prünhilt brings the material up to date in socio-historical terms and highlights ‘only the negative aspects’ (‘ausschließlich die “negative” Seite’)53 of obligations under feudal law – hardly surprising, given the reticence observed by Peters towards the literary depiction of unfavorable implications of vassalage.54 This position is confronted with the archaic concept of order presupposed in Kriemhilt’s argumentation. The queens’ dispute, just like the treasure, belongs to the ancient repertoire of Nibelungen material, so a conflict played out agonally in terms of gift-giving ability may already have been envisaged by the tradition. The epicist, however, expanded such a substrate – most likely drawing on the fascination with gifting that again becomes apparent in the eleventh and twelfth centuries – into a crucial factor in determining the esteem in which rulers are held in his model of society.55 Since the argumentation in the queens’ dispute follows both contemporary and archaizing lines (feudal law and the gift economy respectively), the conflict can be regarded as a contribution to the discourses on identity in the High Middle Ages,56 though this does not, of course, mean treating gifts in the manner of social Romanticism. The conflict, that is to say, is ultimately what leads – because the validity claimed for one code or the other is disputed in each case – to an aporia that triggers the fateful exposure of the deception because that is the only way left to reach an answer. 51 See also Kropik 2005, p. 152: ‘Es geht also von vornherein nicht etwa um die Richtigstellung von Fakten, sondern um die öffentliche Demonstration von Ansprüchen; nicht um Wahrheit, sondern um das, was man dafür halten soll.’ 52 Müller 2002, p. 78; see also Haustein 1993, p. 383. 53 Schulze 1997a, p. 87, characterizes the motif of social hierarchy as modern and rational and understands, p. 98, the introduction of the theme of vassalage into the Nibelungenlied as an ‘Authentisierungsstrategie’. 54 Peters 2016, p. 317. 55 Kamp 2001; see also Schausten 2016. 56 On conceptions of heroic ages in medieval Scandinavia, see Scheel 2017.

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Bibliography Primary Sources Das Nibelungenlied. Nach der Ausgabe von Karl Bartsch. Revidierte und von Roswitha Wisniewski ergänzte Auflage, ed. by Helmut de Boor (1979). Wiesbaden. Das Nibelungenlied nach der Handschrift C der Badischen Landesbibliothek Karlsruhe. Mittelhochdeutsch und neuhochdeutsch, ed./transl. by Ursula Schulze (2005). Darmstadt. Das Nibelungenlied. In: Heinzle, Joachim (ed./transl.) (2015): Das Nibelungenlied und die Klage. Nach der Handschrift 857 der Stiftsbibliothek St. Gallen. Mittelhochdeutscher Text, Übersetzung und Kommentar, ed. by Joachim Heinzle: Deutscher Klassiker-Verlag im Taschenbuch, 51. Frankfurt am Main. Das Nibelungenlied. Song of the Nibelungs. Translated from the Middle High German by Burton Raffel, foreword by Michael Dirda, introduction by Edward R. Haymes (2010). New Haven.

Secondary Sources Adloff, Franz/Mau, Stefan (2005): Zur Theorie der Gabe und Reziprozität. In: Adloff, Franz/Mau, Stefan (eds.): Vom Geben und Nehmen. Zur Soziologie der Reziprozität (Theorie und Gesellschaft. 55). Frankfurt/Main et al., pp. 9–57. Algazi, Gadi/Groebner, Valtin/Jussen, Bernhard (eds.) (2003): Negotiating the Gift. Negocier le don. Göttingen. Althoff, Gerd (1997): Demonstration und Inszenierung. Spielregeln der Kommunikation in Althoff, Gerd (1997): Demonstration und Inszenierung. Spielregeln der Kommunikation in mittelalterlicher Öffentlichkeit. In: Idem: Spielregeln der Politik im Mittelalter. Kommunikation in Frieden und Fehde. Darmstadt, pp. 229–257. Althoff, Gerd (2003): Das Nibelungenlied und die Spielregeln der Gesellschaft im 12. Jahrhundert. In: Der Mord und die Klage. Das Nibelungenlied und die Kulturen der Gewalt. Worms, pp. 83–121. Becher, Matthias (2011): Gedanken zur Einführung. In: Becher, Matthias/Plassmann, Alheydis (eds.): Streit am Hof im frühen Mittelalter. Bonn, pp. 9–15. Benkmann, Sebastian/Goetz, Hans-Werner (1998): ‚Schenken‘ im Mittelalter. In: Ethik und Sozialwissenschaften, 9, pp. 384–387. Bischoff, Karl (1970): Die 14. Aventiure des Nibelungenliedes. Zur Frage des Dichters und der dichterischen Gestaltung (Akademie der Wissenschaften und der Literatur. Abh. der geistesund sozialwissenschaftl. Kl. 1970/8). Mainz. Brüggen, Elke/Holznagel, Franz (2011): ‘Sehen’ und ‘Sichtbarkeit’ im Nibelungenlied. Zur Genese einer mediävistischen Fragestellung. In: Bauschke, Ricarda/Coxon, Sebastian/Jones, Martin H. (eds.) (2011): Sehen und Sichtbarkeit in der Literatur des deutschen Mittelalters. XXI. AngloGerman Colloquium, London 2009. Berlin, pp. 78–99. Bumke, Joachim (1999): Höfische Kultur. Literatur und Gesellschaft im hohen Mittelalter. 9th edition. München. Cowell, Andrew (2007): The Medieval Warrior Aristocracy. Gifts, Violence, Performance and the Sacred (Gallica 6). Cambridge. Curschmann, Michael (1979): Nibelungenlied und Nibelungenklage. Über Mündlichkeit und Schriftlichkeit im Prozeß der Episierung. In: Cormeau, Christoph (ed.): Deutsche Literatur im Mittelalter. Kontakte und Perspektiven. Hugo Kuhn zum Gedenken. Stuttgart, pp. 85–119. Curschmann, Michael (1987): Nibelungenlied und Klage. In: Ruh, Kurt et al. (eds.): Die deutsche Literatur des Mittelalters: Verfasserlexikon 6. Berlin/New York, cols. 926–969.

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Curschmann, Michael (1992): Dichter alter maere. Zur Prologstrophe des Nibelungenliedes im Spannungsfeld von mündlicher Erzähltradition und laikaler Schriftkultur. In: Hahn, Gerhard/ Ragotzky, Hedda (eds.): Grundlagen des Verstehens mittelalterlicher Literatur. Literarische Texte und ihr historischer Erkenntniswert. Stuttgart, pp. 55–71. Dinkelacker, Wolfgang (2006): Spielregeln, Gattungsregeln. Zur literarischen Gestaltung des Nibelungenstoffes. In: Ebenabuer, Alfred/Keller, Johannes (eds.): 8. Pöchlarner Heldenliedgespräch: Das Nibelungenlied und die Europäische Heldendichtung (Philologica Germanica 26). Wien, pp. 51–71. Elwert, Georg (1991): Reziprozität und Warentausch. Überlegungen zu einigen Ausdrücken und Begriffen. In: Berg, Eberhard et al. (eds.): Ethnologie im Widerstreit. Kontroversen über Macht, Geschäft, Geschlecht in fremden Kulturen. München, pp. 159–177. Ehrismann, Otfrid (2002): Nibelungenlied. Epoche – Werk – Wirkung. 2nd edition. München. Gephart, Irmgard (2005): Der Zorn der Nibelungen. Rivalität und Rache im Nibelungenlied. Köln. Göhler, Peter (2001): Von zweier vrouwen bagen wart vil manic helt verlorn. Der Streit der Königinnen im Nibelungenlied. In: Zatloukal, Klaus (ed.): 800 Jahre Nibelungenlied. Rückblick – Einblick – Ausblick (Philologica Germanica 6). Wien, pp. 75–96. Grimm, Jacob (1991): Über schenken und geben. In: Schmitt, Ludwig Erich (ed.): Grimm, Jacob und Wilhelm: Werke, Forschungsausgabe, Abt. I. Bd. 2, Kleine Schriften II: Abhandlungen zur Mythologie und Sittenkunde. Hildesheim et al., pp. 173–210. Hannig, Jürgen (1986): Ars donandi. Zur Ökonomie des Schenkens im früheren Mittelalter. In: Geschichte in Wissenschaft und Unterricht, 37, pp. 149–162. Hannig, Jürgen (1988): Ars donandi. Zur Ökonomie des Schenkens im frühen Mittelalter. In: Dülmen, Richard von (ed.): Armut, Liebe, Ehre. Studien zur historischen Kulturforschung. Frankfurt am Main, pp. 11–37. Hardt, Matthias (2004): Gold und Herrschaft. Die Schätze europäischer Könige und Fürsten im ersten Jahrtausend (Europa im Mittelalter 6). Berlin. Haustein, Jens (1993): Siegfrieds Schuld. In: Zeitschrift für deutsches Altertum, 122, pp. 373–387. Hirschbiegel, Jan (1997): Gabentausch als soziales System? – Einige theoretische Überlegungen. In: Ewert, Ulf Christian/Selzer, Stephan (eds.): Ordnungsformen des Hofes (Mitteilungen der Residenzen-Kommission der Akademie der Wissenschaften zu Göttingen. Sonderheft 2). Kiel, pp. 44–55. Hoffmann, Werner (2002): Sie gleicht dem Mond, und er tut es auch. Überlegungen zu den Strophen 218, 283 und 817 des Nibelungenliedes. In: Gottzmann, Carola L./Wisniewski, Roswitha (eds.): Ars et scientia. Studien zur Literatur des Mittelalters und der Neuzeit. Festschrift für Hans Szklenar zum 70. Geburtstag. Berlin, pp. 105–120. Johanek, Peter (1997): Höfe und Residenzen, Herrschaft und Repräsentation. In: Lutz, Eckhart Conrad (eds.): Mittelalterliche Literatur im Lebenszusammenhang. Ergebnisse des Troisième Cycle Romand 1994 (Scrinium Friburgense 8). Freiburg in der Schweiz, pp. 45–78. Kamp, Hermann (2001): Geld, Politik und Moral im hohen Mittelalter. In: Frühmittelalterliche Studien, 35, pp. 329–347. Kay, Sarah (1995): The Chansons de geste in the Age of Romance. Political Fictions. Oxford. Klein, Mareike (2014): Die Farben der Herrschaft. Imagination, Semantik und Poetologie in heldenepischen Texten des deutschen Mittelalters (Literatur – Theorie – Geschichte 5). Berlin. Kropik, Cordula (2005): Inszenierte Sage. In: Fasbender, Christoph (ed.): Nibelungenlied und Klage. Neue Wege der Forschung. Darmstadt, pp. 142–158. Mauss, Marcel (1996): Die Gabe. Form und Funktion des Austauschs in archaischen Gesellschaften. Mit einem Vorwort von E.E. Evans-Pritchard, transl. by Eva Moldenhauer. 3rd edition. Frankfurt am Main. Miedema, Nine R. (2011): Einführung in das Nibelungenlied. Darmstadt.

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Miedema, Nine R. (2015): vriunt als Anrede in mittelhochdeutschen Erzähltexten. In: Münkler, Marina et al. (eds.): Freundschaftszeichen. Gesten, Gaben und Symbole von Freundschaft im Mittelalter (Beihefte zum Euphorion 86). Heidelberg, pp. 209–228. Millet, Victor (2008): Germanische Heldendichtung im Mittelalter. Eine Einführung. Berlin/New York. Müller, Jan-Dirk (1998): Spielregeln für den Untergang. Die Welt des Nibelungenliedes um 1200. Tübingen. Müller, Jan-Dirk (2002): Das Nibelungenlied (Klassiker-Lektüren 5). Berlin. Müller, Jan-Dirk (2010): Die Ordnung des rîche in epischer deutscher Literatur des 12. und 13. Jahrhunderts. In: Dendorfer, Jürgen/Deutinger, Roman (eds.): Das Lehnswesen im Hochmittelalter. Forschungskonstrukte – Quellenbefunde – Deutungsrelevanz. (MittelalterForschungen 34). Ostfildern, pp. 125–141. Neuendorff, Dagmar/Raitaniemi, Mia (2011): Über die Schwierigkeiten, sich zu streiten. Dialoganalyse einer Streitszene aus dem Nibelungenlied und dem Kalevala. In: Unzeitig, Monika et al. (eds.): Redeszenen in der mittelalterlichen Großepik. Komparatistische Perspektiven (Historische Dialogforschung. 1). Wiesbaden, pp. 35–57. Ohlenroth, Derk (2007): Zum Streit der Königinnen (Nibelungenlied 14. Aventiure). Die Strophenfolge von 824–831. In: Vollmann-Profe, Gisela et al. (eds.): Impulse und Resonanzen. Tübinger mediävistische Beiträge zum 80. Geburtstag von Walter Haug. Tübingen, pp. 71–87. Peters, Ursula (2006): From Social History to the Poetics of the Visual. Philology of the Middle Ages as Cultural History. In: Journal of English and German Philology, 105, pp. 185–206. Peters, Ursula (2016): Zwischen serviler Unterwerfung und ehrenvollem Dienst. Zur Ambivalenz der literarischen Vasallitätsthematik im 12. und 13. Jahrhundert. In: Zeitschrift für deutsches Altertum, 145, pp. 281–318. Sahm, Heike (2012): Gold im Nibelungenlied. In: Schausten, Monika (ed.): Die Farben imaginierter Welten. Zur Kulturgeschichte ihrer Codierung in Literatur und Kunst vom Mittelalter bis zur Gegenwart (Literatur – Theorie – Geschichte 1). Berlin, pp. 125–145. Sahm, Heike (2014): Gabe und Gegengabe, Raub und Vergeltung. Reziprozität in der mittelhochdeutschen Epik. In: Zeitschrift für Deutsche Philologie, 133, pp. 419–438. Sahm, Heike (2019): Gold und Gebärde. Zur Funktion herrschaftlicher Prachtentfaltung in heldenepischen Texten. In: Sahm, Heike/Heizmann, Wilhelm/Millet, Victor (eds.): Gold in der europäischen Heldensage (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 109). Berlin/Boston, pp. 188–232. Schausten, Monika (2016): Agonales Schenken. Rüdigers Gaben im Nibelungenlied. In: Mühlherr, Anna et al. (eds.): Dingkulturen. Objekte in Literatur, Kunst und Gesellschaft der Vormoderne (Literatur – Theorie – Geschichte 9). Berlin/Boston, pp. 83–109. Scheel, Roland (2017): Anfänge ohne Archäologie: Zu den Narrativierungsstrategien von Anfängen und Übergängen im hochmittelalterlichen Norden. In: Zeitschrift für Literaturwissenschaft und Linguistik, 47, pp. 181–216. Scheller, Benjamin (1997): Rituelles Schenken an Höfen der Ottonenzeit zwischen Ein- und Mehrdeutigkeit. Formen und Funktionen des Austausches im früheren Mittelalter. In: Ewert, Ulf Christian/Selzer, Stephan (eds.): Ordnungsformen des Hofes (Mitteilungen der Residenzen-Kommission der Akademie der Wissenschaften zu Göttingen. Sonderheft 2). Kiel, pp. 56–66. Schopphoff, Claudia (2009): Der Gürtel. Funktion und Symbolik eines Kleidungsstücks in Antike und Mittelalter (Pictura et Poesis 27). Köln et al. Schulze, Ursula (1997a): Das Nibelungenlied (RUB 17064). Stuttgart. Schulze, Ursula (1997b): Gunther sî mîn herre, und ich sî sîn man. Bedeutung und Deutung der Standeslüge und die Interpretierbarkeit des Nibelungenliedes. In: Zeitschrift für deutsches Altertum, 126, pp. 32–52.

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Selzer, Stephan/Ewert, Ulf Christian (1997): Ordnungsformen des Hofes. Einleitung. In: Ewert, Ulf Christian/Selzer, Stephan (eds.): Ordnungsformen des Hofes (Mitteilungen der ResidenzenKommission der Akademie der Wissenschaften zu Göttingen. Sonderheft 2). Kiel, pp. 7–18. Sieber, Andrea (2010): Latenz und weibliche Gewalt im Nibelungenlied. In: Keller, Johannes/Kragl, Florian (eds.): Heldinnen. 10. Pöchlarner Heldenliedgespräch (Philologica Germanica 31). Wien, pp. 165–184. Störmer–Caysa, Uta (2011): Indirekte in direkter Rede im Nibelungenlied. Über narrative Techniken und szenische Gestaltung. In: Abdullayev, Kamal M. et al. (eds.): Das Nibelungenlied und Das Buch des Dede Korkut. Sprachwissenschaftliche Beiträge zum ersten interkulturellen Symposium in Baku, Aserbeidschan 2009 (Imagnies medii aevi 28). Wiesbaden, pp. 159–171. Timpe, Dieter (1998): Gefolgschaft § 2. In: Beck, Heinrich/Steuer, Heiko/Timpe, Dieter (eds.): Reallexikon der Germanischen Altertumskunde 10. Berlin/New York, pp. 537–546. Von Olberg, Gabriele (1986): ‘gebe’, ‘gift’, ‘gabe’, Überlegungen zum Bezeichnungs- und Bedeutungswandel mittelalterlicher Rechtswörter im Sinnbereich des ‘Gebens, Schenkens, Tauschens etc.’. In: Hauck, Karl (ed.): Sprache und Recht. Beiträge zur Kulturgeschichte des Mittelalters. Festschrift für Ruth Schmidt-Wiegand zum 60. Geburtstag. 2 vols. Berlin/ New York, vol. 1, pp. 625–645. Wachinger, Burghart (1960): Studien zum Nibelungenlied. Vorausdeutung, Aufbau, Motivierung. München. Wandhoff, Haiko (1996): Der epische Blick. Eine mediengeschichtliche Studie zur höfischen Literatur (Philologische Studien und Quellen 141). Berlin. Wenzel, Horst (1992): Szene und Gebärde. Zur visuellen Imagination im Nibelungenlied. In: Zeitschrift für deutsche Philologie 111, pp. 321–343. Wenzel, Horst (2001): Augenzeugenschaft und episches Erzählen. Visualisierungsstrategien im Nibelungenlied. In: Zatloukal, Klaus (ed.): 800 Jahre Nibelungenlied. Rückblick – Einblick – Ausblick. 6. Pöchlarner Heldengespräch. Wien, pp. 216–234. Witthöft, Christiane (2005): Selbstloses Vertrauen? Probleme der Stellvertretung im Engelhard Konrads von Würzburg und im Nibelungenlied. In: Frühmittelalterliche Studien, 39, pp. 387–409.

Jiří Starý

History or Idea? The Legendary Laws of Old Norsemen The laws are only the servants of culture. (Friedrich Schiller: Die Gesetzgebung des Lykurgos und Solon, p. 831)

Introduction In a highly inspiring article published in 2012, Mia Münster-Swendsen tries to show that Lex castrensis, the Law of the Retainers of the Danish, Norwegian and English king Cnut the Great, preserved in an Old Danish version and Sven Aggesen’s and Saxo Grammaticus’ Latin paraphrases, should not be viewed as a law that has ever possessed any legal validity. She compares it (following a similar attempt by Eric Christiansen) to some continental texts, especially those having to do with court ideology, by using the uncovered similarities as evidence for the thesis that the text has very little to do with either historical laws or Danish legal tradition. According to her, we should therefore perceive the text rather as a late literary construction influenced by the 12th century continental court ideology. It would definitely be meaningful to discuss the interesting conclusions of the article. In the following, however, I would like to confine myself to a much humbler task: to view Mia Münster-Swendsen’s conclusions in a broader and deeper context. What does that mean? First, we can observe that the problematic position of Lex castrensis is definitely not a unique case in Old Norse literature. In fact, it is shared by reports in many narrative sources that inform us of the lawgiving of famous historical and unhistorical persons and/or about the content of their laws and codes. Thus, the question of historicity and fictionality of Lex castrensis points actually to a question of historicity and fictionality of the whole group of laws. However, we can go even further, since legendary lawgiving (for the sake of brevity I am going to use the term for similar cases) is neither just Old Norse nor even only a European phenomenon. The list of legendary lawgivers in different cultures would be too long to quote here, thus I am going to mention just a few of the most famous ones. We can start with the wedlock of European culture – ancient Greece, which delivers a plethora of legendary lawgivers, the most famous being Lycurgus, a lawgiver of military Sparta (admittedly 900–800 B.C.), Charondas of Catane (7th-6th c. B.C.) and Zaleucus of Locris (7th c. B.C.).1 The Romans, a nation

1 See Arist, Pol II.ix.5–9, pp. 166–171. It is an irony, that from all the Greek lawgivers, lawyers and theoreticians of law just legendary Lycurgus was chosen for the gallery of ‘Twenty three great https://doi.org/10.1515/9783110661811-011

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whose influence can be felt until today in European laws, were admittedly given their law by the king Numa Pompilius, who is supposed to have received it from the divine ‘nymph’ Egeria in her mysterious temple-cave outside the Roman walls. Jumping from West to East, we should not forget Indian Manu, according to Hindu mythology the first man, progenitor of humanity and at the same time creator of Manusmṛti (or Mānava-dharmaśāstra or Manu-saṃhitā), the first Indian book of civil law. Going further east and diving deeper into the past we can mention the Korean Gija, a member of the Chinese dynasty Shang and (under name Jizi) great cultivator of Korean civilization. The approximate date of his death is 1122 B.C.; a far enough past but still greatly surpassed by the first Chinese lawgiver Huangdi, the legendary ‘Yellow Emperor’, who is thought to have ruled – acording to the The Book of Lord Shang – in approximately 3000 B.C. I can finish this impressive (and far from complete) list by presenting a much humbler case from my own country, Bohemia, that was supposedly given its first law by Přemysl the Ploughman, who should have ruled the Czech lands in eighth century, and was the legendary founder of the dynasty of Přemyslids, ruling the Czech lands up to the year 1306. According to the first Czech chronicler Cosmas (ca 1045–1125), Přemysl was credited with restraining ‘the savage people with laws” as well as decreeing ‘all the laws which this land possesses and by which it is ruled’.2 The legend lived through the Middle Ages up to the works of late chroniclers Václav Hájek of Libočany (†1553), Martin Kuthen of Šprinsberk (1510–1564) and Daniel Adam of Veleslavín (1546–1599). It is reported even in the books of respected lawexperts such as Ondřej of Dubá, the highest judge of the Bohemian kingdom (1320–1412/1413) who dryly remarks: ‘The laws of Czech lands were found long ago, already in heathen times and mostly from Přemysl the Ploughman.’3 The stories about the first lawgiving all over the world show some interesting similarities, probably the most striking being the divine inspiration of the legendary lawgiver. I have already mentioned the case of the Roman Numa Pompilius and his nymph, but we can add many others, for example the Indian Manu, whose code is stylized as sayings of the god Brahma,4 the Greek Lycurgus, who was supposed to have received his code from the god Apollo through the Delphic oracle, the Cretan Minos,

lawgivers’ in the chamber of the U.S. House of Representatives. However, it shows that the study of legendary lawgiving is far from being dead academic stuff. 2 ‘Hanc efferam gentem [= Czechs] legibus frenavit [. . .] atque omnia jura, quibus haec terra utitur et regitur [. . .] dictavit’ (Cosmas, Chron i.8, p. 18). See Mašek 2010, pp. 59, 122, 134. 3 ‘Právo zemské české jest dávno nalezené ještě od pohanstvie a najviece od Přěmysla [sic!] oráče’ (Ondřej, Výklad x, p. 123). If not stated otherwise, the translations are my own. If necessary, I occasionally changed the quoted translations. 4 Strnad 2010, p. 119.

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who received it directly from Zeus and Zaleucus from Athena in a prophetic dream.5 Solon was allegedly helped by the seer Epimenides working on his laws and Přemysl, according to the remark of the chronicler Cosmas, decreed his laws and rules after discussing them in an intimate dialogue with his wife Libuše, who was a seeress.6 The Old Testament describes the activities of Ezdra, the maker of the famous ten laws in following terms: ‘This Ezra went up from Babylonia. He was a scribe skilled in the Law of Moses that the Lord, the God of Israel, had given, and the king granted him all that he asked, for the hand of the Lord his God was on him’ (Ezra 7:6). The Chinese Yellow Lord says himself: I received a command from Heaven [. . .] I am the partner of Heaven, Thus I establish my kingship and the three high officials; I establish my State and place the feudal princes And the three counsellors.7

Some of these similarities can be explained in terms of migration of motifs (for example those between Greece and Rome) but some of them definitely cannot. Thus, the first question we are faced with is, to what way does the Old Norse legendary lawgiving resemble the lawgiving legends of other European cultures and to what extent it borrowed from them? The second question, seemingly more difficult to answer, is the question of the very nature of the legendary laws and codes. Different answers to the question were pronounced: that the legendary laws represent older and partly forgotten strata of ancient legal systems, or that they correspond to the customary law or unwritten norms of the society and last but not least: they are pure literary fictions serving nonlegal purposes. What was the meaning and function of legendary laws in Old Norse society and legal culture?

Historical and Legendary Lawgiving Many different ways have been used by the scholarship for delimitation of legendary lawgiving. Instead of complicated attempts to define it according to its content, let us start for the case of the present study with a rather formal but much clearer and easier definition. Therefore, I am going to call legendary laws the laws that are

5 For this and other Greek examples, see Hölkeskamp 1999, p. 48, Fitzpatrick-McKinley 2003, p. 24, and Adcock 1927, p. 97. 6 Hölkeskamp 1999, p. 45; Cosmas, Chron i.8, p. 18; i.4, p. 11: ‘[. . .] solus cum sola Lubussa [. . .] femina [. . .] fuit phitonissa’. Cf. ibid. i.4, p. 12–13: ‘ipsa enim Lubossa fuit [. . .] phitonissa’. 7 Quoted after Ryden 1997, pp. 166f.

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shown in narrative sources and I will use the term historical lawgiving for the laws that are extant in normative sources (codes, lawbooks, edicts etc.). What are the typical features of these two kinds of laws in the existing writings? Let us start by comparing two examples, one of them taken from the Norwegian Gulaþingslǫg, the code of the assembly at Guli, which is presumed to have been written down around 1100, thereby making one of the oldest (if not the oldest) written down code of Scandinavia: Nu hafum vér landvorn vara a skra setta, oc vitum eigi hvárt þat er rett æða ragnt [sic!]. En þo at ragnt se, þa scolom vér þat logmal hava um utgerðir várar er fyrr hever verit, oc Atle talde firi monnum i Gula, nema konongr várr vili oss ǫðrom iatta. Oc verðim vér a þat satter aller saman. We have now written down the laws governing the coast defense but we do not know whether the statement is right or wrong (rétt æða ragnt). But even though it be wrong (þo at ragnt sé), we shall keep the legal arrangements as to the levy that we had of old and which Atli recited (taldi fyrir) before the men at Guli, unless the king wishes us to accept (játa) other ones. And all of us agree on it.8

The other example is taken from a narrative source, Gesta Danorum, ‘The Deeds of Danes’ by Saxo Grammaticus, written at the beginning of the 13th century. In the following quotation, the role of lawgiver is played by Skjǫldr, the founder and heros eponymos of the oldest known Danish royal dynasty, the Skjǫldungs: Hic non armis modo, verum etiam patriae caritate conspicuus exstitit: siquidem impias leges abrogavit, salutares tulit, et quicquid ad emendandum patriae statum attinuit, summa diligentia praestitit [. . .] Primus rescindendarum manumissionum legem edidit, servi, quem forte libertate donaverat, clandestinis insidiis petitus. Not only was [Skjǫldr] notable for feats of arms but also in affection for his fatherland; he annulled (abrogavit) unjust laws and introduced (tulit) beneficial ones, earnestly performing anything which could ameliorate his country's condition [. . .] He was first to publish (edidit) a statute abolishing manumission, after a slave to whom he had happened to grant freedom plotted a secret attempt on his life.9

Let us summarise shortly the main differences, which can be separated into two categories, between these two cases of historical and legendary lawgiving. First, we see an important difference concerning the person of the lawgiver. In legendary laws it is always stated, who was the originator of the law – usually a god, a hero or a highly important historical personality. The information – we can follow – must have been vital and obviously increased the law’s bounding power. For the

8 Gul ch. 314, p. 104, transl. Larson, p. 200. 9 Saxo 1.3.2, p. 11, transl. Fisher, p. 15.

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same sake, the excellent mental qualities and patriotic and philanthropic motivation of the lawgiver are mentioned. In the historical laws the person who formulated them is usually neither mentioned by name nor does it speak of his qualities or to the motivation of his lawgiving act. In rare cases, when the name of the lawgiver is given, it is usually a quite unimportant historical person, who we do not know anything about from other sources aside from the codes themselves. The motivation of the law is often unclear, sometimes even its exact meaning and benefits are questioned,10 while in the legends the justice, beneficial motivation and consequences of the law are often commented on.11 Second, we notice another important set of differences in the description of the issue of the law. Even in the case when the originator of the historical law is named, he usually plays the role of the propounder of the law or the first lawspeaker that recited it in front of the legal assembly that accepted it (játa). In case of the legendary laws, we hear nothing of the kind. Here the authority embodied by god, hero, legendary king or famous ruler of the past simply decrees his statue. Thus, the legendary laws are not issued at the assembly with approval of the gathered population (which was a necessary condition for any law) but rather ordained by their creator – a person with superhuman legislative power. Being far from persuaded that these differences are universally valid, I hold them as a kind of preliminary delimitation. Looking at Old Norse sources from this point of view, we can divide Old Norse legal material into two corresponding groups of laws and codes (the list is, again, not being exhaustive). The epigraphically transmitted fragments of the sacred laws (e.g. the runic ring from Forsa, Hälsinge or a bedrock inscription from Oklunda, Östergötland) are coupled by legendary divine laws (e.g. Óðinn’s Swedish law). The provincial and national codes have a counterpart in laws and codes of the legendary kings (Skjǫldr, Ragnarr loðbrók), reaching its peak in the three codes given by the famous peacemaker and lawgiver Frið-Fróði to the Danes, Norwegians, and Russian Swedes. The historical hermannalǫg, laws of Viking military units are opposed by the laws of the armies of the legendary heroes (Ǫrvar-Oddr, Hálfr Hjǫrleifsson, Sǫrli),12 while the historical garðsréttir, laws of royal and aristocratic retinues (such as the Norwegian Hirðskrá) are counterbalanced by the laws of the retinues of the famous Scandinavian kings of the past (such as Cnut’s Lex castrensis).13 10 For the unclear content of the law see the interesting attempt to explain the phrase ‘fyrir ina þriðju sól’, ‘before the third sun[rise]’, in Grágás 1a §86, p. 150 ending in a self-limiting remark ‘sem at kveðr í uppsǫgu, ef þat er rétt skilit, er þar kveðr at’, ‘so it is stated in the recitation of the law, if we understand correctly, what it says’. We definitely find no similar remarks in cases of legendary laws that usually clearly say what was the purpose and the justification of the law. For similar cases in ancient Greek lawgiving see Adcock 1927, pp. 99f. 11 See especially Saxo 5.8.1–3 and 9.4.13, p. 133 and 254–5, transl. Fisher, pp. 148 and 283. 12 For the opposition between the older hermannalǫg and the younger chivalric víkingalǫg see Larrington 2008, pp. 270–282. 13 For the opposition between garðsréttr and Lex Castrensis see Christansen 1992, pp. 13f.

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Probably the only Old Norse legal texts having no counterparts on the legendary level are municipal laws and – for obvious reasons – church laws. Of course, the borderline between legendary and historical is far from being easy in the field of law as it is in the field of historiography. There is a group of codes and singular laws that – according to their fashion and scholarly opinions – stand somewhere in the middle. Thus, on the one hand, some of the Viking laws (for example the code of Jómsvíkings) or aforementioned Danish Lex Castrensis are considered by some to contain at least a core of historical laws in spite of their transmission in the narrative and not normative sources. On the other hand, the historical value of the Swedish ‘Heathen law’ (Hednalagen) or the Norwegian Hirðskrá were questioned by some historians in spite of their presence in the normative sources. Nevertheless, the existence of border cases does not discredit the division itself.14 In spite of the existence of laws and lawgivers standing somewhere between the legendary and historical, it makes sense to separate the two groups of laws. The question rather is, what do we actually say, when we label a law or a lawgiver as legendary.

The Legends – Greek Parallels Actually, it seems that at least in Europe, the doubts about the historicity of legends connected to early lawgivers are not much more recent than the legends themselves. Thus, already Aristotle pointed to the ‘heedless chronology’ of the legends concerning Charondas of Catane and the Greek historian Timaeus openly questioned even the very existence of the lawgiver Zaleucus of Locris. Furthermore, even Plutarch, the most thorough biographer of the Spartan lawgiver Lycurgus, comments that ‘concerning Lycurgus the lawgiver, in general, nothing can be said which is not disputed, since indeed there are different accounts of his birth, his travels, his death, and above all, his work as lawmaker and statesman.’15 Probably none of the ancient historians went so far as to proclaim these ancient lawgivers for anthropomorphic hypostases of the

14 Their spectrum is quite colourful; we know legendary laws attributed to historical personalities, for instance Ragnarr loðbrók or saint Óláfr of Norway (see Busygin 2003) as well as historical laws attributed to persons of clearly legendary character (see below on the laws of Frið-Fróði). But this is again not a uniquely Scandinavian trait. I can just point to the problems connected to the lawgiving of Greek Solon, which was for a long time taken as ‘factual’ in the history of the city of Athens. Today, some scholars, fully accepting the historical existence of Solon and to some extent even the authenticity of his poetry, point to the fact that the view of Solon as a creator of the Athenian constitution probably arose no earlier than in the middle of the 4th century B.C., i.e. more than 300 years after his death (see Hölkeskamp 1999, pp. 55f.). 15 Arist, Pol II.ix.5, pp. 168f.; Cicero, Leg II.vi.15, pp. 386–9; Plut, Lyc i.1, p. 205.

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sun-, earth- or snake-deities (as some modern researchers did),16 but some doubts about the legends of ancient lawgiving must have existed from these earlier periods in history. How did the soberer modern historians of law approach the problem? In the following, I will focus on Greek parallels since they are the richest, best documented and thanks to the work of Frank Ezra Adcock, Andrew Szegedy-Maszak, and Karl-Joachim Hölkeskamp, the most thoroughly examined. As in Old Norse, the legendary laws are transmitted in narrative literature, usually in late compilations that give few references to their sources.17 But the decisive reason why the modern historians hesitate to accept them as historical fact is the content of the laws and the stories about their issuing themselves. When reading the sampled narratives about legendary lawgiving the uniformity on the level of motifs is surprising. A striking amount of so-called ‘floating-legends’, i.e. identical motifs attached to different lawgivers is evident.18 A typical example is the story of the ‘lawgiver breaking his own law’. Thus, we are told that Zaleucus stated that anyone proven guilty of adultery is to be blinded. But the first person that should be punished according to the law was his own son. Similarly, it is reported that the Athenian orator Lycurgus (not identical with the Spartan lawgiver) was the author of several rather strange laws of which the fifth should be: [. . .] that no woman should go [in great annual procession to Eleusis in the celebration of Demeter and Persephone] in a coach, lest the poor should appear more despicable than the rich, and so be dejected and cast down; and that whoever should ride in a coach contrary to this law should be fined six thousand drachms. And when his own wife was taken in the violation of it, he paid to the discoverers of it a whole talent; for which being afterwards called in question by the people: See therefore, said he, I am called to answer for giving, and not for receiving money.19

The above mentioned Charondas allegedly declared it a capital offence to enter the assembly with a weapon. Of course, the first person who broke the new law was Charondas himself, admittedly because he forgot that he had armed himself with a dagger before entering the meeting of the citizens of Catane. ‘Thus he provided certain of his enemies with an occasion to bring an accusation against him. But when one of them said, ‘You have annulled your own law,” he replied, ‘Not so, by Zeus, I will uphold it,” and drawing the dagger he slew himself.’ Diodorus of Sicily, who reports the legend, remarks that the very same story was told about the lawgiver Diocleus of Syracusae.20

16 See f. ex. Beloch 1913, 1.2, pp. 253–256 (Lycurgos) and 1.2, pp. 256–262 (Zaleukos, Charondas, Drakon) or Delatte 1922, p. 177. 17 Szegedy-Maszak 1978, p. 201. 18 Hölkeskamp 1999, p. 52. 19 Plut, Vit. Dec. Or. 7, p. 401. 20 Diod. Sic. xii.19.1–3, pp. 412–415.

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Another feature pointing to the unhistoricity of the stories of legendary lawgiving is – according to scholars – the uniformity not only of singular motifs but also of the general structure of the lawgiving narratives. They usually have three stages. A typical Greek legendary lawgiver appears in the moment of ‘legal crisis’ (ἀvoμία/anomia) that usually has the form of στάσις (stasis), a kind of deadlock in legal conflict that cannot be solved according to existing system of law. Thus, Sparta was tormented by the conflict between rich and poor in the time of Lycurgus and Athens was stricken in the conflict of debtors and creditors in the time of Solon. The lawgiver himself is extremely virtuous and wise, either because of his study under another lawgiver or philosopher, or because he was widely travelled and had studied the laws and habits of foreign countries. Thus, we are told that Lycurgus, before issuing his Spartan law travelled to Crete, Egypt, Asia Minor and India (sic!). Moreover, he was well read in the laws of the Athenians.21 The new law, created by the lawgiver is usually not accepted unequivocally by the population but in the end, it stands. The legal crisis (ἀvoμία) gives way to the ‘good legality’ (εὐvoμία/eunomia) and the lawgiver disappears, often under strange circumstances (e.g. voluntary exiles himself from the home city or commits suicide). Thus, it is reported about Lycurgus that he forces the Spartans to swear a solemn oath that they never change the given code in his absence and kills himself by starvation afterwards.22 Next to the travelling motifs and uniformity of the lawgiving narrative, we can mention another two often repeated objections against the historical validity of the Greek legendary laws. First, if we look closer at the content of the legendary laws, we soon see that they are mostly quite unusual and their diction is far from the laws transmitted in extant codes. They use highly moral language and profusely attest to their own beneficial. However, if we look on what they prescribe, we see immediately that they often transgress any rational credibility. Thus, Solon is reported to prescribe punishments for men who do not have sexual intercourse with their wives at least thrice a month and who seed their field in lesser distance from that of their neighbour’s field than prescribed by law.23 The aforementioned Lycurgus is told to solve the conflict between the rich and poor in Sparta in a simple and elegant way: by decreeing a law

21 Hölkeskamp 1999, pp. 45f, Szegedy-Maszak 1978, p. 204. 22 Plut, Lyc. xxix.2–6, pp. 292–297. The legend expressing the quest for a stability of a legal system has some counterparts in China: Chinese legalist Shen Buhai (writing between 351–337 BC) says about the Yellow Emperor: ‘The Yellow Emperor’s ruling under Heaven was to place the law and not to alter, so the people were peaceful and happy with his law’ (quoted after Ryden 1997, p. 249). 23 Plut, Sol. xx.3 (pp. 458f.) and xxiii.6 (pp. 468–471).

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prohibiting the use of money. This is of particular note because money did not exist in Lycurgus’ time.24 The enumerated arguments led Franz Ezra Adcock to separate two different strata in Greek reports about ancient laws: the so-called ‘primary tradition’, i.e. the reports about ‘historical’ laws showing consistency with the social and economic characteristics of the respective Greek cities and resembling existing decrees in the written codes. Under the title ‘secondary tradition’ he counted legendary laws manifesting themselves in a moralizing style (absent in rather pragmatic genuine codes), nonsense and conspicuous content, importance of divine inspiration and stressing the importance of the personal effort of the author of the law.25

Similarities and Differences in Northern Tradition After a brief overview of the Greek evidence, let us come back to our proper subject: the Norse tradition. It is not necessary to say that we find many similarities to the quoted Greek legends. We have already had the possibility to observe the moralizing style of Old Norse legal legends,26 their stressing of the beneficial motives and consequences of the legendary laws and the improbability of their issuing as well, but we can swiftly add further parallel phenomena in Old Norse legal material. First, we find some direct counterparts to the migratory motifs attached to the persons of Greek lawgivers, the most prominent being the story about a lawgiver breaking his own law that forms the core of Cnut the Great’s issue of the Law of the retainers as reported by Saxo Grammaticus and Sven Aggesen: Nam legis conditor, rex uidelicet Kanutus, dum adhuc in Anglia pacis tranquillitate potiretur, iracundie accensus furore quendam militem suum exempto mucrone interemptum iugulauit. Unde phalanx uniuersa nimio furore consternata, confluentibus passim legionibus, ad arma concurrere non detrectabat. Verum cum regis manus hanc cedem commisisse innotuit, collecto cetu, quidnam facto opus esset, sollicita indagatione perscrutabantur. For while he was still in England, enjoying peace and tranquillity, the maker of the law, king Knut himself, fell into a passion and drew his sword and killed one of his own warriors. At

24 Already the sources comment on the strange content of Solon’s laws. Plutarch, probably the most detailed informant, calls them ‘very peculiar and very surprizing’ (‘μάλιστα και παράδοξος’) or ‘very absurd’ (‘ἀτοπίος’) (Plut, Sol. xx.1, pp. 456f. and xxiii.1, pp. 466f. 25 Adcock 1927, pp. 95–109. I intentionally leave out the first of Adcock’s conditions for the primary tradition: the credible chronology since it has no counterpart in Old Norse reports of legendary lawgiving that are usually undated. 26 Cf. Christiansen’s comment on Sven Aggesen’s Lex Castrensis: ‘The emphasis is on the methods of trial and punishment and on ethics of the system: not on the regulations themselves.’ (Christiansen 1992, p. 13).

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this, the whole phalanx was convulsed with rage; the legions came pouring in on all sides and ran to arms without delay. But when they discovered that the hand of the king had committed this killing, they gathered into a body and made careful inquiry into what they were to do.27

Another shared feature of Old Norse and Greek legends is the motif of wise and/or travelling lawgiver. As Greek legendary lawgivers, some prominent individuals of Old Norse lawgiving stories behave more akin to sages rather than as lawgivers and prior to their lawgiving act, observe the existing laws and wisely borrow the beneficial decrees in their new code. Thus, the creation of the Swedish Västgötalag is described as follows: Hann spurðþi innurllikæ, ok letæðþi all Lums lagh ok annarær at nytræ hefð lanzsins for ælðri. siðþæn han fan lanzsins lagh, þa huxæðþi han þem mæð myklli snilli, ok syalfsins forfeo. Han var maeghæ wæl ffallin till þæs valz. [Eskil Magnusson] examined and meditated thoroughfully all Lumber's laws and further decrees that for ages had contributed to prosperity for the province. And whenever he had found some, he thought (hugsaði) about them with cleverness and brightness that was typical for him. He was broadly skilled in these matters.28

Eskil’s activity focuses on domestic laws, but we find the idea of the lawgiver travelling abroad to observe and borrow the laws of foreign legal communities as well. The most famous case being Úlfljótr, the first Icelandic lawgiver and creator of the Úlfljótslǫg, the first Icelandic code of law: En þá es Ísland vas víþa bygt orþit, þá hafþi maþr austrœnn fyrst lǫg út hingat ýr Norvegi, sá es Úlfliótr hét [. . .] oc vôro þá Úlfliótzlǫg kǫlloð [. . .] en þau vǫˊro flest sett at þuí, sem þá vǫˊro Golaþings lǫg, eða rǫˊð Þorleifs ens spaca, Hǫrðacára sonar, vǫ́ro til, huar viþ scylldi auca eþa af nema eþa annan veg setia. Úlfliótr vas austr í Lóni, en suá er sagt, at Grím geitscǫr væri fostbróþer hans, sá es kannaþi Íslands alt at ráþi hans, áþr alþingi væri átt, en hônum fecc huerr maþr penning til á landi hér en hann gaf fé þat síþan til hofa. Alþingi vas sett at ráþi Úlfliótz ok allra lanzmanna, þar es nú es. And when Iceland had been settled widely, an Easterner called Úlfljótr first brought laws out here from Norway [. . .] and they were subsequently called Úlfljótr’s laws [. . .] They were for the most part modelled on how the laws of Gulaþing were at the time, or how the advice of Þorleifr the Wise, son of Hǫrða-Kári, indicated where things should be added, or removed, or set up differently. Úlfljótr lived in the east in Lón. And it is said that his foster-brother was Grímr geitskǫr, who explored the whole of Iceland on Úlfljótr’s recommendation before the Althing was held. And everyone in this country gave him a penny for that, and he later gave the money to the temples.

27 Sven, LC, ch. 11, pp. 80f., transl. Christiansen, p. 38. 28 VgL iv.14, p. 297. Dieter Strauch remarks that the mentioned thinking (hugsa) does not point to simple ‘antiquarian interests’ but rather to rethinking and improving of the laws (Strauch 2006, p. 16).

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The Althing was established where it now is by the decision of Úlfljótr and everyone in the country.29

The same seems to be the case for the pattern of legal crisis that plays an important role in some Old Norse lawgiving stories and can be considered as the fourth common trait between Old Norse and Greek legal legends. It shows that their similarity is not restricted to singular motifs but can comprise whole narrative structures. This is true for example in the previously mentioned story of Cnut the Great’s issue the Lex Castrensis, which not only contains the motif of the punished lawgiver but also follows the complete structure ‘legal crisis – the appearance of the lawgiver – good legal state’. The beginning of the Old Norse version’s prologue states: [. . .] Knut war kunung i Danmark ok Ængland ok Norghæ ok Samland ok hafthæ hirdh myklæ sankat af land thær han war kunung ywer ok gat han them eig hawat saman sata ok i frith, num rætin ware stark hinum ther misgiorthe with annen, ok giorthe han fore thy a Ænglande [. . .] witherloghen stark ok stin. [. . .] Knut was king in Denmark and England and Norway and Samland and had a large hird [= retinue] gathered from the lands he was king over, and he was unable to keep them united and at peace unless there was strict [law of retainers] for those who offended others.30

A fifth element that brings the Old Norse legendary laws close to that of the Greek ones is the occasional incredibility of the decrees. Thus, we read about the following decree of Ragnarr loðbrók, who exists in the tradition not only as a legendary Viking leader but also as a lawgiver: Praeterea, ut omnis controversiarum lis, semotis actionum instrumentis, nec accusantis impetitione nec rei defensione admissa, duodecim patrum approbatorum iudicio mandaretur, instituit. Cuius legis beneficio, temeraria litium contractione submota, improborum calumniae sufficienter obviatum existimans [. . .]. [Ragnarr] ordained that all legal disputes should be settled by the judgement of twelve approved elders [instead of courts, panels and juries], the usual provisions for settling cases

29 Íslb, ch. II-III, p. 5, transl. Grønlie, pp. 4f. 30 WR, prol., p. 2, transl. Christiansen, p. 44. Cf. Sven, LC, ch. 3, pp. 69–71, transl. Christiansen, p. 33: ‘Now he had brought together men of such divergent national customs into the one household, his task was this: how, within the army of so great a king, gathered, as it were, from various peoples (that is, from all the kingdoms which had been subjected to his authority) and with a variety of usages that jarred against each other, the warriors were to put their quarrels and differences to rest, forbear mutual wrangling, and serve together with equal devotion, as befits honest messmates with the same lord.’ ‘Cum itaque Kanutus rex tam dissonos gentium ritus uni coadunasset familie, opus erat, ut tanti regis exercitus, utpote ex uariis collectus nationibus, uniuersis uidelicet regnis ditioni sue subiugatis, cuius tamen mores immensa uarietate discrepabant, ad uniformem castrensis discipline tenorem seruandum adigeretur. Nihil etenim honestos commilitones magis decet, quam ut, omni controuersia sopita, uni domino [. . .].’

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should be abandoned and neither prosecutor nor defendant allowed to plead. [. . .] He reckoned that this law had helped him put an adequate stop to the malicious charges of evildoers and men no longer entered into ill-considered lawsuits.31

As in the above-mentioned case of Lycurgus, who stopped the conflicts between the rich and poor through the prohibition of money, Ragnarr loðbrók stops the misuse of trials by cancelling them and rectifies the issue of excessive charges through prohibition of pleading – an even simpler and more elegant solution, but unfortunately it does not garner any more credibility as with the case pertaining to Lycurgus. The reason for this is self-evident since the Old Norse trials of the earlier times consisted primarily of actions between the prosecutor and the defendant: Ragnarr loðbrók’s cancelling of the pleading would thus effectively rule out the possibility of any implementation of law at all.32 To sum up: we observe many similarities and common features of Greek and Old Norse traditions about legendary lawgiving. In addition, at least for some historians of literature, such a situation allows for an interpretation of them as migratory legends of classical origin and to disdain any idea of their autochthon Old Norse origin, as well as, of course, any of their historical validity. However, in my opinion, the situation is far from being so straightforward. First, we observe some similarities between the Greek and the Old Norse traditions, but we observe some profound differences as well. Let us consider the motif of the voluntary death of the lawgiver, as an important part for the Greek tradition as it is. The motif is missing completely in the Norse one. Another interesting case is the motif of the education of the young lawgiver-to-be by a philosopher, a poet, a sage or another outstanding personality of more-thanhuman greatness. Thus we are told that Zaleukos and Charondas were pupils of Pythagoras and Lycurgus was a personal friend of Homer – sheer nonsense from a chronological point of view.33 In Old Norse tradition, we hear of no such relationships. Here, the wisdom necessary for the issuing of the just law is not obtained by the teaching or cultivation of an educated friend but rather through different means – a personal experience. We have heard about the murderous attack of the manumitted slave on Skjǫldr which led to Skjǫldr’s law against manumission. A similar example is the well-known story of the so-called kvenna réttr, ‘women’s right’ allegedly issued by Harald Fairhair, a famous uniter of Norway. According to Fagrskinna and other sources, Harald was inspired to create the new law after meeting the clever and self-conscious Norwegian girl Ragna

31 Saxo 9.4.14, transl. Fisher, pp. 283f. 32 As far as I know, only Müller and Velschow tried to defend the historicity of this law by claiming the juridical authority of the elders as a ‘specifically Danish tradition’. (Müller/Velschow 1839–58, 1, p. 447). 33 Hölkeskamp 1999, p. 45

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(or Gyða) who at the moment aroused his passion. However, Ragna declined the king’s wooing and amorous efforts, which put him in rage immediately: ‘[. . .] þu seð sva leidd til minnar sengar sem ein fatœk frilla.’ Ðat mælti Raghna við konongen: [. . .] ‘þat vil ec oc segia yðr ef ec ræð mer seolf, þa verð ec hvatke yður frilla ne enskis manz annars, oc annat hvart skal ec hava þann at eighnum manne. er alla Noreghs menn gerir ser at þeghnum eða scal ec engan hava. Ða er Haralldr konungr heyrði þessi orð. þa strengði hann þegar heit. oc svor við hovuð sitt. at hann skyldi enga eighna kono eigha i Noreghi nema Roghnu oc þo með þeim hætti. at hann gerþi alla menn at þeghnum ser i Noreghi [. . .] Ða gerði oc Haraldr ny logh um quenna rett at sa maðr er tekr cono nauðgha [. . .]. [Harald said:] ‘You should be led to my bed as a poor concubine.’ But Ragna answered to the king: ‘[. . .] I want to tell you this, if I have my own way, I will become neither your concubine, nor that of any other man. I shall have for my own man that one who will make all Norway’s men his subjects or I shall have no one.’ When king Harald heard these words, he straightaway swore an oath, swearing on his head, that he would have no wife in Norway, save Ragna, and with this measure as well – that he would make all men in Norway his subjects [. . .] Then Harald made a new law concerning the rights of women: If a man takes a woman by force [. . .].34

It is important that in spite of the prominence of the motif of personal experience in Old Norse tradition, it seems to be missing from the Greek one, which to my knowledge fails to exhibit any such counterpart. Even in cases where we do find some examples that exhibit similar motifs, they are nevertheless far from equal in their division. For example, the motif of the lawgiver breaking his own law, as seen quite often in the Greek tradition, seems to be represented – as far as I know – by a single case (the one of Cnut the Great) in the Norse one. Of course, we might search for derivations of Old Norse legal legends from neighbouring or distant traditions and speculate to the degree of influence by which they belong to the migratory motifs and how much was of domestic origin. Without going into further investigation into the question, however, I would like to express my scepticism to such an undertaking. In the field of legendary lawgiving, the similarity of the laws and of the stories concerning their issuing seems to be rather more the rule than that of an exception.35 Typical motifs (for example the one of lawgiver breaking his

34 Fagr, Tillæg iii.15–17, p. 385, transl. in Lincoln 2014, pp. 134f. and 217. 35 Compare the informed comment of Leib Moscovitz on Roman and Rabbinic use of the same legal means (standing not so far from legal legends): legal fiction. ‘It should be stressed that in attributing the common use of legal fiction to a similar, though admittedly nonidentical, cultural and intellectual climate – a phenomenon likely to leave its mark, as scholars have already noted, in the adoption of common modes of legal thought and expression – we are not alleging (direct) Roman influence on rabbinic law or vice-versa. Various scholars have noted that such an influence is very difficult to establish at best and extremely unlikely at worst’ (Moscovitz 2003, p. 132). How should one view, on this background, the attempts to establish a literary connection between for example Sven Aggesen’s Lex Castrensis, Rahewin’s Gesta Frederici and Hincmar af Reims’ De ordine palatii or between Knútr Valdemarson’s decree about manslaughter and the

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own law) are omnipresent throughout the world36 and can hardly serve as evidence for theories about the (oral as well as literary) migration of motifs. Theodore Ziolkowski’s comment on similarities between legal motifs in Aischylos’ Oresteia and Njáls saga seems to offer a better degree of substantiation: ‘[The] similarities [. . .] can be attributed in no small measure to the relative simultaneity of the societies being portrayed as well as the societies from whose perspectives the writers view their material.’37 Influences obviously might have occurred in singular cases. but if we would like to prove them further evidence were necessary. Lastly: even in cases where an act of borrowing can be proven with some probability, we must not forget that there had to have been a reason for it. Of course, the motif of the law’s application upon the person who brought it into being, is an interesting narrative device, but it attains its full effect based upon the background of the speculation pertaining to its complicated relationship between the authority and justice, who must have pre-existed before the motif was borrowed.

The Legendary Character of Laws 1: The Legendary Motifs We have listed some traits that the Old Norse legendary lawgiving shares with the legal legends of other cultures, especially to that of the Greek tradition. We have mentioned that some of the motifs connected to the legendary lawgiving of Old Norsemen may very well have even been appropriated from other European cultures. Such motifs are usually evaluated as the markers of the ‘legendary character’ of the laws by students of history. And the legendary character of a law usually means – at least in their eyes – its unhistoricity. However, is it really that simple? Might the presented set of motifs be viewed as a criterion delimiting the valid laws from the laws existing ‘only in literature’? Although the motifs being taken as a sign of the legendary character of the laws and codes in Greek studies do really appear in Norse tradition – they nevertheless, are too often connected to laws whose invalidity is far from being proven. Let us start with the motif of a lawgiver visiting foreign lands and collecting codes in order to create the best possible code for his country. As we have seen, the motif in Old Norse tradition is connected to among other Eskil Magnusson, definitely not a person of legendary character, but the lawspeaker of the Swedish Västergötland in the years 1215–1227, in fully historical terms. And the description of his codification of the

work of Hugo of St Victor based on rather superfluous similarities (Münster-Swendsen 2012, passim, esp. pp. 97, 102f., 111)? 36 ‘The question ‘Quis custodiet ipsos custodes?” [. . .] surfaces so insistently in early legislation’ (Humphreys 1988, p. 472). 37 Ziolkowski 1997, p. 61.

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Västgötalagen, in spite of showing similarities to the ‘legal legends’ hardly proves anything about the character of the created code. As far as I am aware, no one has ever claimed Västgötalagen’s unhistoricity.38 Furthermore, a similar case is found connecting of the motif of the ‘travelling lawgiver’ with the Icelandic lawgiver Úlfljótr. The motif is obviously present in the story regarding the creation of the Úlfljótslǫg, but does this really mean that the code itself was unhistorical? In fact, some scholars have questioned the validity of the singular extant fragments of the Úlfljótslǫg or have remarked about Úlfljótr’s ‘mythical” role, but the only scholar I know, who has questioned the very existence of Úlfljótslǫg as such and therefore, proclaimed it openly ‘myth’ is Hermann Pálsson.39 However, his evidence does not seem very persuasive. Not least, because even the historiographical sources attest to the contact between Scandinavian laws and lawgivers in Old Norse time. Snorri Sturluson’s Heimskringla describes the journey of Emundr af Skǫrum, the Swedish lawspeaker of the tenth century Västergötland to Uppland with the attempt ‘[. . .] to find a solution for the problems that are caused by the differences in our code of law and the code of Uppland’.40 There exists some evidence that the knowledge of laws from the neighbouring countries was not uncommon in Scandinavia.41 In such a situation, the use of foreign laws as models for domestic ones is not improbable in

38 VgL iv.14, p. 297. Note the similarity of his and Greek legendary lawgivers’ activities, for example Diodorus of Sicily’s description of the activity of Charondas: ‘They also chose for their lawgiver the best man among such of their citizens as were admired for their learning, this being Charondas. He, after examining the legislations of all peoples, singled out the best principles and incorporated them in his laws; and he also worked out many principles which were his own discovery.’ (Diod. Sic. xii.11.3–4, p. 397). 39 Hermann Pálsson 1977, pp. 349f. There were attempts to see Úlfljótr’s legal activities in light of biblical Moses (see Grønlie 2006, p. xxi), but they were based on rather superfluous similarities again. In fact, the biblical parallels show much less similarity to Old Norse ones than the abovementioned Greek ones. 40 ‘[. . .] at leita órlausnar um vandmæli þau, er lǫg vár greinir ok Upsala-lǫg’ (ÓH, ch. XCIV, p. 260). 41 The Icelandic Eyrbyggja saga describing a legal case in Norway quotes corresponding law exactly in the wording of the Norwegian Gulaþingslǫg, Frostuþinglǫg and Landslǫg Magnúss Hákonarsonar (Eb, ch. LVIII, p. 211 and Gul, ch. 254, p. 83; Frost ix, ch. 30, p. 216; Landsl ix, ch. 4, p. 170, cf. Gering 1897, pp. xviif.). The Icelandic code Grágás quotes precisely Norwegian legal formulae when describing the legal situation in Norway (compare Grágás 2, §383, p. 404 and Landsl I, ch. 5, p. 16; Landsl ix, ch. 1, p. 169; Gul, ch. 178, p. 346; BorgKr, ch. 11, p. 346; BorgKr ii, ch. 11, pp. 356f.). When describing foreign laws, the codes and narrative sources often use the original and not the domestic terminology. Thus, when the Icelander Snorri Sturluson describes the Norwegian wergild-list he calls it saktal, in spite of the fact that such list was called baugatal in Iceland (Snorri, HSv, ch. VII, 40). On the above-mentioned place of Grágás (Grágás 2, §383, p. 404) describing the Norwegian legal situation, the term útlegð is used for outlawry, in spite of the fact that in Iceland it was usually used for the fine of three marks. Njáls saga uses for lesser outlawry in the Norwegian context the Norwegian terms útlagi, útlagr and útlegð, while in Icelandic sources the terms sekr, sekt and sekð are dominant in this meaning (Gottzmann 1982, pp. 113–128).

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and of itself, and the motif of collection as well as the use of foreign legal decrees is an insufficient argument for the questioning of the validity of the law to whose existence it contributed. Íslendingabók and Landnámabók, sources describing Úlfljótr’s journey and his compilation of the Icelandic law in Norway, belong to the most trustworthy sources on the history of Iceland that we have. Neither the occurrence of the motif of the travelling lawgiver found within these sources42 nor the choice of Gulaþingslǫg as a base for Icelandic code43 is enough to discredit their validity. Therefore, we should try to address this problem in question through a different avenue of approach: Not ‘The source says something improbable for us, therefore it is false” but rather ‘The source says it, therefore it must have been probable for its audience”.

The Legendary Character of Laws 2: The Motifs for Issuing the Laws The same is no less true about the presence of the law in the works of literature. We are told that the presence of a law in the narrative sources proves its legendary nature and discredits the possibility that it has ever had any legal validity. I must say that I am deeply sceptical of this reasoning. We have mentioned the kvenna réttr, ‘the women rights’ of the Norwegian king Haraldr Fairhair that was (according to the narrative sources) issued under deeply legendary circumstances, namely under the impression of the boldness of the farmer’s girl Ragna. The narrative sources describe the content of the law as follows: ‘[. . .] sá maðr er tekr konu nauðga, þá skal honum þat verða at útlegðarsǫk ok skal hann kaupa sik með xl marka [. . .]’. ‘If a man takes a woman by force, a charge of outlawry should be lodged against him and he shall purchase his freedom back with forty marks [. . .].’44 Considering – as we have seen – the highly suspicious manner in which the law is introduced in narrative sources, we might be surprised to find it in the Norwegian Gulaþingslǫg, a normative source written down around 1100: ‘[. . .] brýtr maðr konu til svefnis [. . .] þá verðr hann útlagr um, eller gjalldi xl marka [. . .]’ ‘[. . .]

42 Cf. Ldn, ch. CCCLIII, pp. 139f. Occurrences of Þorleifr inn spaki, Úlfljótr’s uncle, who is in other sources mentioned as a sage, an advisor and a legal expert active at the courts of the Norwegian kings Hálfdan the Black, Harald Fairhair and Hákon the Good (his life thus spanning three generations) bear in fact some legendary traits, but they do not prove the unhistoricity of Úlfljótr’s lawbook itself. See Snorri, HSv, ch. VII, pp. 39f., Hhár, ch. XXV, p. 57, HGóð, ch. XI, p. 76, and Grønlie 2006, p.19. 43 Most colonists of Iceland came from the area of Gulaþing (Grønlie 2006, p.18) and the contacts with Norway remained lively up to the 13th century. For similar Greek cases see Adcock 1927, p. 98. 44 Fagr, Tillæg iii.17, p. 385 (transl. in Lincoln 2014, p. 217); cf. Ebel 2005, pp. 516f.

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if a man violate a woman [. . .] he shall be outlawed, or he shall pay a fine of forty marks [. . .]’.45 The wording is not identical, but there is hardly any sufficient reason for doubting the validity of Harald’s law, even though it is introduced in a legendary way in the narrative sources. Now, it is of course possible that the attribution of the women’s right to Harald Fairhair is nothing more than a projection of the existing law into the monumental past. But that is exactly the point I wish to make: that we must carefully distinguish between the historical validity of the law and the historicity of the report about its issuing. The legendary character of the story of law’s issue does not say anything about its validity and observance. This may look surprising for a philologist, who is trained to distinguish between fact and fiction, but actually it should not surprise us at all. Since each of us surely knows that important laws or codes can be both legendary and historically valid. I can just mention the Indian Law of Manu, which is highly legendary in respect to its style and the circumstances of its constitution, and still, nevertheless, claim its function in the foundation of Indian lawgiving as well as – in the English translation of Sir William Jones – in British colonial Hindu lawgiving. Furthermore, we should not forget perhaps the most famous legendary lawgiver: Moses. Actually, Moses was a legendary lawgiver par excellence, accepting his code on Mount Sinai directly from the hands of the highest religious authority – God. Nevertheless, his code has governed the life of the sons of Israel for more than a thousand years – and in many cases governs even to this day! Nor must the often mentioned ‘stock character’ of the legend connected to its origin in the end need to decide whether the law has been valid or not. We have seen that the usual structure of the narrative progress from ‘legal crisis’ (anomia) to ‘good state of law’ (eunomia) is common to both legendary traditions, Greek and Old Norse. However, does the existence of a ‘legendary narrative structure’ justify one’s disregard for the source of the history of Old Norse lawmaking? Let us observe one interesting example of this structure in Eyrbyggja saga, where the progress from unsatisfactory verdict to that of a new law which should prevent its iteration is clearly visible. The saga describes the legal situation following the killing of Arnkell Þórólfsson, who left only women and young children as possible prosecutors for the act: Eptir víg Arnkels váru konur til erfðar ok aðildar, ok var fyrir því eigi svá mikill reki at gǫrr um vígit, sem ván mundi þykkja um svá gǫfgan mann; en þó var sæz á vígit á þingi, ok urðu þær einar mannsektir, at Þorleifr kimbi skyldi vera útan iii vetr, þvíat honum var kent banasár Arnkels. [. . .] Eptirmálit varð eigi svá sœmiligt, sem líkligt þótti um svá mikinn hǫfðingja, sem Arnkell var.

45 Gul, ch. 199, p. 71, transl. Larson, p. 144.

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Arnkell’s only heirs were women, and because of this the prosecution for his killing was not taken up with as much energy as might have been expected for such a great man. Nevertheless, the case was settled at the assembly, but only one man was outlawed for it. Þorleifr kimbi had to go abroad for three years after being charged with giving Arnkell his death-wound. [. . .] The outcome of this case was not so honourable as was thought fitting for a great chieftain such as Arnkell [was].46

According to the saga, the unsatisfactory solution of the case provoked a quick legal reaction: ‘Þá fœrðu landsstjórnarmenn lǫg a því, at aldri síðan skyldi kona vera vígsakar aðili, né yngri karlmaðr en xvi vetra, ok hefir þat haldiz jafnan síðan.’ ‘The leading men of the land made a law that a woman or a young man under the age of sixteen could never prosecute a manslaughter case (vígsǫk), and this has been the law ever since.’47 Again, in spite of its presence in narrative sources, the corresponding law must have been a vital part of Icelandic legislation since we find it in Grágás as a valid law: ‘Allz hvergi hverfr vígsǫk undir konu.’ ‘In no circumstances does a killing case (vígsǫk) fall to a woman.’48 Again, we can speculate that the connection of the valid Grágás regulation with the admittedly ‘legendary’ plot of Eyrbyggja saga is nothing more than the projection of the existing law into the past. However, I think that in this case there is a much easier explanation. We shall remember that Old Norse law was case-based and inductive law. That means that the singular laws were not deduced from general principles, as is the case of the continental European laws today. In general, our laws of today are deductive and progress from the abstract and general to that of the concrete and singular. They should – at least theoretically – originate with the Charter of human rights and freedoms that define the most abstract principles of rights (freedom, equality, justice), followed by constitutions of the singular state, and deducing from it the basic concepts of lawgiving in each corresponding country. Upon this basis, the singular codes and laws for special human activities and special occasions should be written. Ancient lawgiving (and Old Norse law was no exception in that) usually followed the opposite course. It was inductive, i.e. it usually began with a case, casus, a singular event from which the singular law was induced (as in the abovementioned case of Eyrbyggja saga). Such a law necessarily regulated a relatively small group of cases. Only when more cases that were similar started to appear, the law was generalized and became more abstract and applicable to a broader scope of events. Supposing such an inductive course of lawgiving, we can hardly be surprised by the fact that remarks about lawgiving so often start with legal crises and personal experiences. Actually all, even the most historical laws, must have once

46 Eb, ch. XXXVIII, p. 138, transl. Quinn, p. 179. 47 Cf. Jochens 1993, pp. 46 and 48. 48 Grágás 2, §297, p. 335, transl. Dennis et al.,1, p. 216.

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originated in such ‘legal crises’ and ‘personal experiences’. The only difference is that historical laws – contrary to the legendary ones – usually do not mention them. Now, it is not my intention to prove that the creation of the quoted regulation of Grágás must have run exactly as it is described in the Eyrbyggja saga. Moreover, it is true that the structure of the saga’s account resembles the pattern found in other Old Norse and even foreign legal legends. We can – if we like – call it a ‘stock story’, but this does not prove that the law, whose beginnings it describes, has never been valid, which in fact it was. Nor does it prove that it was ‘legend’ if we understand the word in opposition to history. The stock character of the story does not prove that the event it describes has never taken place. It shows that the event was conventionalized, but this conventionalization might be well in accordance with the usual course of action. We should not forget William Ian Miller’s point that ‘repetition, stylization, and conventionalization of form take place in the world of actions as well as in the worlds of letters.’49

The Legendary Character of Laws 3: The Content of the Laws Thus, we come to the last and seemingly clearest feature of legendary law – its content that should be admittedly so incredible, such nonsense and so far from the existing normative sources that it disqualifies any possibility of the law’s validity. I must admit that I consider this assumption the most questionable of all that I have listed. It is based on the tacit presumption that we are able to fully understand the mentality of ancient cultures and decide what was sensible for them and what was not. And this means – according to me – to overestimate highly the abilities of our rationality. Since we know of quite a lot of laws that were – as we can deduce from their presence in the existing codes of law – no less valid than any other laws, but that are completely absurd to our mind: Nu varþær lekare dræpin: þa botæ arva hans þriggja jamlanga gambla kvighu, ok köpa hanum nyja hanzska ok byja skoa ok smyrja baþe. þa skal taka kvighuna ok leþa up a högh, ok halan i hand arva lekarans sætia. Þa skal bondin til hugga mæþ gisl þry hug far han haldit havi at botum sinum. Slippær hanum kvighan þa slippe hanum aldær faghnaþær. If a leikari is killed: then compensate his inheritor with a three-year-old calf, buy him new gloves, and new shoes, and grease both. The calf shall then be taken and led up onto a mound, and the tail placed in the hands of the leikari's relative. Then the farmer should strike

49 Miller 1990, p. 355.

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[the calf] three times with a stick. If he [= the relative] holds onto it, he has it as his compensation. If he lets go, he lets go of all celebration [= his compensation].50

I definitely do not want to disregard the effort of Erik Anners and Terry Gunnell, whose work helped us to understand the original purpose of the statute (to humiliate the jesters) and disclose the possible pattern of the prescribed ritual (a parody of slap-stick entertainment the jesters themselves used to offer).51 The point I wish to make is different: that decrees being completely absurd to us, could very well have functioned as valid laws in an ancient society. Instead of many other examples, I shall choose just one more from the Icelandic Grágás (Grágás 2, §175, p. 20; transl. Dennis et al., 2, p. 285): ‘Ef maðr bindr tagl í munn hrossi manns eða bindr kept við fót [. . .] ok varðar þat fjǫrbaugsgarð [. . .].’ ‘If someone ties the tail into the mouth of a man’s horse or ties its jaws to its leg [. . .] then the penalty is lesser outlawry.’ The context of the paragraph allows us to guess that the described acts were seen as possibly harmful to the animal and correspondingly punished. However, if there was no context (as is the case of so many legendary laws), would we have the chance to observe the text as being anything else other than sheer nonsense? If the text were extant only in narrative sources, would we not consider it absurd that such a law could have ever been enacted? Carola Gottzmann, observing Old Norse lawgiving, once coined the following thought: Jede Rechtsordnung ist Ausdruck einer bestimmten Kulturhaltung. Rechtsinstitute sind in ihrer Ausprägung abhängig von einer bestimmten Geistesverfassung und von der besonderen kulturellen Situation, in der sich eine Gemeinschaft befindet. Each statute is an expression of a certain cultural attitude. The legal institutions are in their appearance dependent on the specific condition of human mind and on the cultural situation of the corresponding society.52

The idea is definitely sound in and of itself. However, the problem is that we are so far from understanding the ‘condition of human mind’ and the ‘cultural situation’ of Old Norsemen that we are hardly capable of finding either sense or discernment of purpose in many Norse laws. Moreover, to use our incapability as a form of evidence does not seem to be a good strategy. In a fruitful study on the Greek lawgivers in legend and reality, Karl-Joachim Hölkeskamp points to the fact that it is possible to find completely

50 Ögl, Db xviiii, §1, p. 62, transl. in Gunnell 1996, p. 21. 51 See Anners 1957, pp. 8–25 and Gunnell 1996, p. 21. 52 Gottzmann 1982, p. 13; my translation. Compare Spengler, 1963, 2, p. 230: ‘Jedes Recht enthält in abgezogener Form das Weltbild seiner Urheber.’ (transl. Ziolkowski 1997, p. 4: ‘Every legal system contains in concentrated form the worldview of its creators.’).

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historical archaic laws among the laws attributed to legendary lawgivers.53 And there is no reason to disregard Saxo’s comment that some laws attributed to the legendary Danish king Frið-Fróði were still valid in 13th-century Denmark.54

The Function of the Legendary Laws To be understood correctly, without the possibility of misinterpretation, it must be said that I definitely do not claim that all legendary laws were valid and that the legends of their issuing are historical reports. Nor do I want to say that they are not. In addition, I am neither arguing nor do I wish advance the notion that I want to enforce the abandoning of well sounded and phenomenologically easily detected distinction between legendary and historical lawgivers. What I would like to state is the simple fact that the legendary character of the law or code says nothing about its historical relevance. I think that we should separate the classification of Old Norse laws and codes into legendary and historical from the question of their validity. However, if we do this, is there any sense in dividing historical and legendary laws anymore? Was there any difference between them? I am deeply persuaded that we can answer this question with a ‘yes’. In my opinion, the connection of a law or code with a great figure of the past, its linking to important historical events and the stress of its beneficial and just character made a law or code ‘different’ from other laws and codes. The function they fulfilled in Old Norse society (and other ancient societies) must have been different. I believe that legendary law – whether juristically valid or invalid – played, next to their possible legal implications, another important role: the explanatory or the declamatory. They were regarded as highly important expressions of the concepts that were considered to belong to the very nature of law and right. Let me demonstrate it with two examples. The first one is the mentioned story of a lawgiver breaking his own law. It is not necessary to repeat that we can probably find it in all cultures that have ever produced something such as law, from Shang Yang, the king of the ancient Chinese state of Quin, who was forced to handle the situation of the legal offence committed by the crown-prince, his own son,55 to the biblical king David, who was punished according to his own verdict. To demonstrate what I have said, I can quote one of the late occurrences of the motif, being connected to the Prussian king Frederick the Great (1712–1786). On the

53 Hölkeskamp 1999, pp. 135f. 54 [Of Fróði’s laws] quarum praesens quasdam ritus usurpat, quasdam arbitraria iuris novitas abolevit (Saxo 5.5.1, p. 127, transl. Fisher, p. 142). 55 Maršálek 2010, p. 71.

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one hand, Frederick lives in the history of the European law as an originator of the Prussian civil code (Allgemeines Landrecht) that marked great progress of the idea of general legal equality in the modern European state.56 On the other hand, there is the legend of the miller of Sanssouci. It tells that Frederick was so disturbed by the clatter of the miller’s windmill in the neighbourhood of his newly build chateau of Sanssouci that he offered to buy it from the owner, a certain Johann Wilhelm Grävenitz. Grävenitz, who was obviously a very clever but quite difficult person, refused. After some unsuccessful negotiations, the king started to threaten him: ‘Does he not know that I can take the mill simply away from him without paying one penny for it?’ Whereupon the well-informed miller replied: ‘Of course [. . .] if it were not for the Supreme Court in Berlin.’57 What we read is definitely not a historical report but a modern parallel to the story omnipresent from the very beginning of human lawgiving. Consequently, its main concern is not to inform but to express. It expresses in clear words something that is present – even when not formulated so pregnantly – in numerous Old Norse and foreign sources. The idea that law is something transpersonal which even the lawgiver himself is subject to and that he in spite of being king is not in the position of God, who by the simple fact of decreeing the law escapes its application.58 Thus, the legendary law illustrates an extremely important maxim of lawgiving that the rigid and sparse language of law would have difficulties to express, at least in such a way that its provoking form inspired so different modern authors, such as Vincent Lombard de Langres, Peter Hacks and Heiner Müller to publish their own dramatical versions of it. Another case, where the function of a legendary law is easy to detect, is the strange decree connected to Ragnarr loðbrók’s cancelling of the court process and

56 During Frederick’s life only a fragment of Corpus Fredericianum (publ. 1749–1751) was completed. The second stage was represented by the Allgemeines Gesetzbuch (publ. 1784–1788, again 1791). Only the third version of the lawbook (Allgemeines Landrecht für die Preußischen Staaten, publ. 1792) came into effect in 1794. 57 ‘“Sais-tu bien,” continua le Roi, “que je puis le prendre, sans te donner un denier?” “Oui,” répondit le meunier, “n’était la chambre de justice de Berlin.”’ (Vie de Frédéric II, p. 308). It is probably not necessary to mention that the story appears in rather questionable sources: for the first time in an anonymously published French biography Vie de Frédéric II from 1787 ascribed sometimes to Jean Charles Thibault de Lavaux. A shield in the mill of Sanssouci describing the legend for the visitors (obviously a work of an educated historian) says that the legend’s scholarly examination led to the conclusion that it is of Arabian origin and that it was later adapted in Europe. But the above-mentioned parallels going as far as China and the ancient Palestina make this explanation highly improbable. 58 See for example Grettis saga, where the Icelandic lawspeaker Skapti Þóroddsson (1004–30) explains to his relative, the outlaw Grettir Ásmundarson, who asks Skapti for help (Gr, ch. LIV, p. 198): ‘I bear the title of lawspeaker in this land, and so it does not suit to me to help outlaws and thus break the law.’ (‘En með pví, at ek skal heita logmaðr í landinu, þá stendr mér eigi at taka við útlegðarmǫnnum ok brjóta svá login.’).

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prohibition of court pleading in favour of impartial justice. In spite of its incredibility, it expresses a sound idea, no less applicable to today than to the date of its origin: that the people are charging too much and that in these suits the law is misused rather than justly applied. Again, we know that similar opinions must have existed among Old Norsemen and that similar feelings could lead to earnest consequences. Thus, according to Vápnfirðinga saga, the people of Icelandic Sunnudal cancelled their own assembly for good because they were tired of permanent lawsuits incited by Brodd-Helgi Þorgilsson and Geitir Lýtingsson. Um várit tóku bændr af þingit ok vildu eigi hafa ok þótti óvænt í millum at ganga þeira manna, er í slíkum stórmælum áttu hlut. During the spring, the farmers called off the assembly, not wanting to hold it, for it seemed to them that nothing could be expected from intervening between men involved in such haughty affairs.59

Thus, the words about ‘malicious charges of evildoers’ (improborum calumniae) and ‘ill-considered causes of law suits’ (temeraria contractione litium) in the description of Ragnarr’s law might be legendary in respect to the context they are set in – but the feeling they express might be very genuine. It warns against the overuse of the possibilities the law gives to virtually every free man.

Conclusion Is there any conclusion that can be drawn from the collected source material? I am persuaded there is, however, am afraid it could be rather disappointing. Due to the fact that the question, regarding to what degree legendary laws are remnants of ancient lawgiving, it fails to provide a definite answer. In addition, I am afraid that no universal answer to this question can be given. Of course, we can (and we shall) discuss singular cases but there are no general criteria. The reason for this is because no matter how ‘legendary” the circumstances of the issuing of the law or how ‘nonsense” the law itself might seem to us, it says nothing about its validity. Of course, we can invent complicated stories about the rise of legal legends, or we can construct hypothetical influences and speculate about the possibility of a given law to be valid at one or other stage of the Old Norse legal culture. However, is it necessary? Cicero, the great Roman legal expert, when faced by the suspicious cases of lawgiving of old times, comments: ‘Sive fuit sive non fuit, nihil ad rem; loquimur quod traditum est.’ ‘Whether it happened, whether it did not happen, it

59 Vápnf, ch. XIV, p. 53; transl. Tucker, p. 328.

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does not matter here. We just reproduce what the tradition reports.’60 Therefore, the question remains whether we should not become comfortable with his cautious agnosticism as well. Since it is clear that legendary lawgiving belongs primarily to the realm of legends, it resides in the neighbourhood of heroic stories and myths. Theodore Ziolkowski, the author of the highly inspiring book on literary reflections of legal crisis makes an interesting comment on the nature of legendary lawgiving, placing it on the border between myth and history – two expressions of human culture: Looming on the threshold of many civilizations, where myth gives way to history, stand the figures of the great lawgivers [. . .] While legendary lawgivers tower at the misty beginnings of civilization, great legal codes often mark the earliest stages of the history.61

The position of the legendary law on the ‘threshold of myth’ severely limits the possibility of their evaluation on the scale of fact-fiction. In spite of the fact that personalities like Ragnarr loðbrók, Knútr the Mighty or the anonymous landstjórnarmenn of Eyrbyggja saga definitely do not ‘tower at the misty beginnings of civilization’ and belong to the realm of history, the question as to whether their legendary laws are historical ‘facts” or fabulous ‘legends” loses any reasonable meaning. To ask such a question invariably has the same sense as to ask whether myth contains either a historical or fictional nature – a question, which obviously has no chance of being answered. 62

60 Cicero, Leg. II.vi.15, pp. 388f. 61 Ziolkowski 1997, p. 3. Compare what Bruce Lincoln says in his book about the Harald Fairhair’s foundation of a unified Norwegian kingdom. He divides ‘critical’ history and ‘official’ history, consisting of stories ‘told with great confidence [. . .] filled with noble characters, heroic actions, and message of lasting value, all read out – or into – the accounts of “our founding fathers” [. . .] In all these ways, official history tends to devolve toward myth’ (Lincoln 2014, p. 115). Might it be that the legends about the first lawgivers and the founders of the states, closely related as they are, share the localisation in the position between ‘factual’ history and myth? 62 The presented Old Norse evidence as well as comparative observations make rather improbable the idea that Old Norse legendary laws were literary ‘fictions’ in sense of inventions, constructions etc. as Mia Münster-Swendsen seems to push through in the article mentioned above: ‘Alt tilnærmelsesvis brugbart måtte bruges – eller omskrives, så det kunne bruges i den aktuelle sammenhæng. Og med Lex castrensis, i alle dens versioner, står vi netop med et sådan konstrukt.’ Compare what Andrew Szegedy-Maszak says in respect to Adcock’s theory that the Greek legendary laws were ‘learned mytopoiea’ and ‘unscrupulous literary fiction’ (Adcock 1927, p. 102): ‘To begin, one must reject [. . .] notion that the legends sprang from conscious neglect of historical accuracy [. . .]. The process is more subtle and complex, exemplifying what Cornford termed ‘infiguration”: ‘ . . . facts shift into legend, and legend into myth. The facts work loose; they are detached from their roots in time and shaped into story”’ (Szegedy-Maszak 1978, p. 201 with reference to Cornford 1907, p. 131). View as well Hans Hattenhauer’s comment on similar phenomena in the field of the continental Christian legal legend: ‘Das bedeutet allerdings noch nicht, daß [. . .] Legende für den Rechtshistoriker unergiebig ist. Die Legende ist als Geschichtsquelle nicht schon dann entwertet, wenn sich der in ihr mitgeteilte Sachverhalt als historisch nicht wahr erweist. Die Wahrheit der

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On the other hand, their relationship to heroic legend and myth does not diminish the possibility of legendary laws’ interpretation and it obviously highly increases the possibility of asking about their function in the corresponding cultures.63 Therefore, the legendary laws have exactly what the historical laws usually do not have: the description of intention of the lawgivers and intended purpose of their laws.64 The question about the meaning and function of legendary laws seems to be very fruitful, as I have tried to show above. In my opinion, the legendary laws document the effort the ancient cultures put into the organization of the society through the medium of law. They demonstrate the ancient cultures’ lively interest in the more abstract problems involved in the meaning of laws, as well as the relation of law to that of justice and the use and misuse of legal procedures. Thus, legendary laws record for us whole chapters of what can be called by the German term Rechtsdenken, the reasoning of law. Therefore, the question whether they are a part of legal culture and should be studied by the historians of law can be answered relatively simply. They are part of the culture and history of law exactly to the extent of which the reasoning (Denken) is a part of history and culture.65

Bibliography Primary Sources Arist, Pol: Aristotle: Politics, ed. and transl. by Harris Rackham (1967): Loeb Classical Library, 264. London/Cambridge (Mass.).

Legende liegt jenseits des historischen Faktums. Oder vielmehr: die Legende ist nicht Zeugnis über ein historisches Faktum, sie ist das Faktum selbst.’ (Hattenhauer 1969, p. 7). 63 Compare what Humphrey says about using narrative works as sources of Greek law: ‘But although a great mass of everyday legal argument has vanished from the historical records, the use made by historians of drama and philosophical texts in the study of Greek law is not a mere search for substitutes [. . .]. Once we abandon the crude functionalist assumption that lawmakers always succeed in making the law that best suits their interests, we have to start asking how interests are perceived, and this means analysis [. . .] of the culturally shaped presuppositions.’ (Humphreys 1988, p. 482). Cf. Ziolkowski, 1997, p. x: ‘The record of the change [of laws, and systems of law], of the forces that have produced that evolution, can often best be observed not in the law books but in literature.’ 64 Compare what Anne Fitzpatrick-McKinley says about the historical information about early Jewish lawgivers: ‘The primary [i.e. historiographical] tradition [. . .] must have left the later Jewish listener or reader [. . .] with a sense of dissatisfaction.’ (Fitzpatrick-McKinley 2003, p. 44), 65 This study was supported by the Charles University project Progres Q07, Centre for the Study of the Middle Ages. I would like to express my warm thanks to Prof. Dr. Roland Scheel, editor of the volume for his valuable criticism, informed comments, his improvements of my poor English and last but not least for his patience with my permanent delays.

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BorgKr: Den ældre Borgarthings- eller Vikens Christenret [Borgarþingslǫg]. In: Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltr ædelse i 1263, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania, pp. 337–372. Cosmas, Chron: Die Chronik der Böhmen des Cosmas von Prag, ed. by Wilhelm Weinberger/Bertold Bretholz (1923): Monumenta Germaniae Historica. Scriptores rerum Germanicarum. Nova Series, 2. Berlin. Cicero, Leg: Cicero: De legibus. In: Cicero, De re publica. De legibus, ed. and transl. by Clinton Walker Keyes (1977): Loeb Classical Library, 213. London/Cambridge (Mass.), pp. 296–319. Diod Sic: Diodorus of Sicily: The Library of History. Books ix-xii.40, ed. and transl. by Charles Henry Oldfather (1946): Loeb Classical Library, 375. London/Cambridge (Mass.). Eb: Eyrbyggja saga, ed. by Hugo Gering (1897): Altnordische Saga-Bibliothek, 6. Halle an der Saale. Eb: The saga of the people of Eyri, transl. by Judy Quinn. In: The Complete Sagas of Icelanders, ed. by Viðar Hreinsson et al., vol. 5 (1997). Reykjavík, pp. 137–218. Fagr: Fagrskinna. Nóregs konunga tal, ed. by Finnur Jónsson (1902–1903): Samfund til Udgivelse af Gammel Nordisk Litteratur, 30. København. Frost: Den ældre Frostathings-Lov [Frostuþingslǫg]. In: Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltrædelse i 1263, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania, pp. 119–258. Gr: Grettis saga Ásmundarsonar, ed. by Richard Constant Boer (1900): Altnordische Saga-Bibliothek, 8. Halle an der Saale. Grágás 1: Grágás. Islandernes Lovbok i fristatens tid, udgivet efter det kongelige Bibliotheks Haandskrift, ed. by Vilhjálmur Finsen. 2 vols (1852). København. Grágás 1: Laws of Early Iceland: Grágás. The Codex Regius of Grágás with Materials from other Manuscripts, transl. by Andrew Dennis/Peter Foote/Richard Perkins. 2 vols (1980–2000): University of Manitoba Icelandic Studies, 3,5. Winnipeg. Grágás 2: Grágás. Efter det Anamagnæanske Haandskrift Nr. 334fol. (Staðarhólsbók), ed. by Vilhjálmur Finsen (1879). København. Grágás 2: Laws of Early Iceland: Grágás. The Codex Regius of Grágás with Materials from other Manuscripts, transl. by Andrew Dennis/Peter Foote/Richard Perkins. 2 vols (1980–2000): University of Manitoba Icelandic Studies, 3,5. Winnipeg. Gul: Gulathings-Lov [Gulaþingslǫg]. In: Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltrædelse i 1263, ed. by Rudolf Keyser/ Peter Andreas Munch (1846). Christiania, pp. 1–118. Gul: Gulathing Law. In: The Earliest Norwegian Laws, Being the Gulathing Law and the Frostathing Law, transl. by Laurence Marcellus Larson (1935): Records of Civilization, 20. New York, p. 33–210. HGóð: Snorri Sturluson: Hákonar saga góða. In: Snorri Sturluson: Heimskringla. Nóregs konunga sǫgur, ed. by Finnur Jónsson (1966). Oslo/København, pp. 70–92. Hhár: Snorri Sturluson: Magnúss saga góða. In: Snorri Sturluson: Heimskringla. Nóregs konunga sǫgur, ed. by Finnur Jónsson (1966). Oslo/København, pp. 421–446. HSv: Snorri Sturluson: Hálfdanar saga svarta. In: Snorri Sturluson: Heimskringla. Nóregs konunga sǫgur, ed. by Finnur Jónsson (1966). Oslo/København, pp. 36–41. Íslb: Ari Þorgilsson: Íslendingabóc, es Are prestr Þorgilsson gerþe, ed. by Finnur Jónsson (1887). København. Íslb: Íslendingabók. Kristnisaga, transl. by Siân Grønlie (2006). London. Landsl: Den nyere Lands-Lov [Landslǫg Magnúss Hákonarsonar]. In: Norges gamle Love indtil 1387. Andet Bind. Lovgivningen under Kong Magnus Haakonssöns Regjeringstid fra 1263 til 1280, tilligemed et Supplement til förste Bind, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania, pp.1–178. Ldn: Landnámabók Íslands, ed. Finnur Jónsson (1925). København.

History or Idea? The Legendary Laws of Old Norsemen

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ÖgL: Codex Iuris Ostrogotici. Östgöta-Lagen, ed. by D. H. S. Collin/D. C. J. Schlyter (1830): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges Gamla Lagar, 2. Stockholm. ÓH: Snorri Sturluson: Óláfs saga helga. In: Snorri Sturluson: Heimskringla. Nóregs konunga sǫgur, ed. Finnur Jónsson (1966). Oslo/København, pp. 182–420. Ondřej, Výklad: Ondřej z Dubé: Výklad na právo zemské české. In: Nejvyššího sudího království českého Ondřeje z Dubé Práva zemská česká, ed. by František Čáda (1930). Praha. Plut, Lyc: Plutarch, Lycurgus. In: Plutarch’s, Lives 1. Theseus and Romulus, Lycurgus and Numa, Solon and Publicola. ed. and transl. by Bernadotte Perrin (1914): Loeb Classical Library, 46. London/Cambridge (Mass.), pp. 204–303. Plut, Sol: Plutarch, Solon. In: Plutarch’s, Lives 1. Theseus and Romulus, Lycurgus and Numa, Solon and Publicola. ed. and transl. by Bernadotte Perrin (1914): Loeb Classical Library, 46. London/ Cambridge (Mass.), pp. 404–499. Plut, Vit. Dec. Or: Pseudo-Plutarch, Lives of the Ten Orators. In: Plutarch’s Moralia, vol. 10, ed. and transl. by Harold North Fowler (1936): Loeb Classical Library, 321. London/Cambridge (Mass.), pp. 345–457. Saxo: Saxonis Grammatici Gesta Danorum, vol. 1, ed. by Jørgen Olrik/Hans Ræder (1931). København. Saxo: Saxo Grammaticus. The History of the Danes. Books I–IX, transl. by Peter Fisher (2002). Cambridge. LC: Sven Aggesen: Lex Castrensis sive curie. In: Scriptores minores historiæ danicæ medii ævi, vol. 1.1, ed. by Martin Clarentius Gertz (1917–1918). København, pp. 64–93. LC: Sven Aggesen: The Law of the Retainers of the Court. In: The Works of Sven Aggesen, TwelfthCentury Danish Historian, transl. by Eric Christiansen (1992): Viking Society for Northern Research. Text Series, 9. London, pp. 31–43. Vápnf: Vápnfirðinga saga. In: Austfirðinga sǫgur, ed. by Jón Jóhannesson (1950): Íslenzk fornrit, 11. Reykjavík, pp. 21–65. Vápnf: The Saga of the People of Vopnafjord, transl. by John Tucker. In: The Complete Sagas of Icelanders, ed. by Viðar Hreinsson et al., vol. 4 (1997). Reykjavík, pp. 313–334. VgL: Codex Iuris Vestrogotici. Westgöta-Lagen, ed. by D. H. S. Collin/D. C. J. Schlyter (1927): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges Gamla Lagar, 1. Stockholm. WR: Witherlax ræt. In: Den danske rigslovsgivning indtil 1400, ed. by Erik Kroman (1971). København, pp. 1–5 WR: Supplement to Lex Castrensis. The Old Danish Vederlov. In: The Works of Sven Aggesen, Twelfth-Century Danish Historian, transl. by Eric Christiansen (1992): Viking Society for Northern Research. Text Series, 9. London. pp. 44–47.

Secondary Sources Adcock, Frank Ezra (1927): Literary Tradition and the Early Greek Code-Makers. In: Cambridge Historical Journal, 2, pp. 95–109. Anners, Erik (1957): Götalagarnas lekarerätt – en keltisk influens? In: Rättshistoriska Studier, 2, pp. 8–25. Beloch, Julius (1913): Griechische Geschichte. Erster Band. Zweite Abteilung: Die Zeit vor den Perserkriegen. Zweite neugestaltete Auflage. Straßburg. Busygin, Aleksander (2003): The Laws of the Saint King. Aspects of Political and Legal Culture in Norway from the Eleventh Century to the End of Hákon Hákonarson’s Reign, MA Thesis. Oslo. Cornford, Francis Macdonald (1907): Thucydides Mythistoricus. London. Delatte, Armand (1922). Essai sur la politique pythagoricienne. Liege.

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Ebel, Else (2005): Sittlichkeitsdelikte. In: Beck, Heinrich/Geuenich,Dieter/Steuer, Heiko (eds). Reallexikon der germanischen Altertumskunde 28, Berlin/New York, pp. 515–522. Christiansen, Eric (ed.) (1992): The Works of Sven Aggesen, Twelfth-Century Danish Historian. London. Fitzpatrick-McKinley, Anne (2003): Ezra, Nehemiah, and Some Early Greek Lawgivers. In: Hezser, Catherine (ed.): Rabbinic Law in its Roman and Near Eastern Context. Tübingen, pp. 17–48. Gottzmann, Carola L. (1982): Njáls saga. Rechtsproblematik im Dienste sozio-kultureller Deutung (Europäische Hochschulschriften 577). Frankfurt am Main et al. Gunnell, Terry (1996): The Rights of the Player. Evidence of Mimi and Histriones in Early Medieval Scandinavia. In: Comparative Drama, 30, pp. 1–31. Hattenhauer, Hans (1969): Rex et sacerdos. Eine Legendeninterpretation. In: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung, 55, pp. 1–38 Hermann Pálsson (1977): Review of Dag Strömbäck, The Conversion of Iceland. A Survey. In: Scandinavian Studies, 49, s. 349–351. Hölkeskamp, Karl-Joachim (1999): Schiedsrichter, Gesetzgeber und Gesetzgebung im archaischen Griechenland. Stuttgart. Humphreys, Sarah C. Sally (1988): The Discourse of Law in Archaic and Classical Greece. In: Law and History Review, 6, pp. 465–493. Jochens, Jenny (1993): Gender Symmetry in Law? The Case of Medieval Iceland. In: Arkiv för nordisk filologi, 108, pp. 46–67. Larrington, Carolyne (2008): A Viking in Shining Armour? Vikings and Chivalry in fornaldarsǫgur, in: Viking and Medieval Scandinavia, 4, pp. 269–288. [Lavaux, Jean Charles Thibault de] (1787): Vie de Frederic II, roi de Prusse. Accompagnée dʼun grand nombre der Remarques, Pièces justificatives & Anecdotes, dont la plupart nʼont point encore été publiées, tome 4. Vie Privée & littéraire (1787). Strassbourg. Lincoln, Bruce (1994): Authority, Construction and Corrosion, Chicago. Lincoln, Bruce (2014): Between History and Myth. Stories of Harald Fairhair and the Founding of the State. Chicago/London. Maršálek, Jakub (2010), Vůně ctností a zápach trestů. Postoj k psanému zákonu ve staré Číně [Fragrance of Virtue and the Stench of Punishment. Approaches to Written Law in Early China]. In: Antalík, Dalibor/Starý, Jiří/Vítek, Tomáš (eds). Zákon a právo v archaických kulturách. Praha, pp. 55–79. Mašek, Petr (2010), Prastaré pověsti české [Primeval Czech Legends]. Příbram. Moscovitz, Leib (2003): Legal Fictions in Rabbinic Law and Roman Law. Some Comparative Observations. In: Hezser, Catherine (ed.): Rabbinic Law in its Roman and Near Eastern Context. Tübingen, pp. 105–132. Miller, William Ian (1990): Bloodtaking and Peacemaking. Feud, Law and Society in Saga Iceland. Chicago/London. Müller, Peter Erasmus/Velschow, Johannes Matthias (eds.) (1839–1858). Saxonis Grammatici Historia Danica. København. Münster-Swendsen, Mia (2012): Saxos skygge. Sven, Saxo og meningen med Lex castrensis. In: Andersen, Per/Heebøll-Holm, Thomas Kristian (ed.): Saxo og hans samtid. Århus, pp. 91–112. Ryden, Edmund (1997): The Yellow Emperor’s Four Canons. A Literary Study and Edition of the Text from Mawangdui. Taipei. Schiller, Friedrich (2004): Die Gesetzgebung des Lykurgos und Solon. In: Alt, Peter-André (ed.): Friedrich Schiller: Historische Schriften. München/Wien, pp. 805–836. Spengler, Oswald (1963): Der Untergang des Abendlandes. Umrisse einer Morphologie der Weltgeschichte. München. Strauch, Dieter (2006). Västgötalag. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexikon der germanischen Altertumskunde 32, Berlin/NewYork, pp. 15–22.

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Strnad, Jaroslav (2010), Dharma jako zákon a řád ve starověké Indii [Dharma as Law of Men and Order of Things in Ancient India]. In: Antalík, Dalibor/Starý, Jiří/Vítek, Tomáš (eds). Zákon a právo v archaických kulturách. Praha, pp. 105–79. Szegedy-Maszak, Andrew (1978): Legends of the Greek Lawgivers. In: Greek, Roman and Byzantine Studies, 19, pp. 199–209. Ziolkowski, Theodore (1997): The Mirror of Justice. Literary Reflections of Legal Crises. Princeton/ Woodstock.

Anne Irene Riisøy

Vǫlundr – a Gateway into the Legal World of the Vikings In this paper I will use Vǫlundarkviða ‘The Lay of Volund’ as a case study to explore the jural world of the Eddic poems, which traditionally are associated not with legal issues, but with the Old Norse pagan religion.1 Vǫlundr is an elf, and the son of a Sámi king. Vǫlundr is also a master-smith; maker of golden rings, precious jewellery and weapons.2 He marries a swan-maiden who flies away, and when he goes in search for his bride, King Níðuðr’s men raid his home and steal a ring. Níðuðr is a king among the Swedish people (í Svíðióð), and his behavior seems to be motivated by nothing but pure greed.3 When Vǫlundr returns home and goes to sleep, he is tied up, hamstrung, and confined to an island where he is forced to make all sorts of treasures. Vǫlundr notices that the king carries his sword and that the king’s daughter, Bǫðvildr, wears the stolen ring, and he worries that he shall never get any compensation. However, fortunes are soon reversed. The king’s two sons are enticed to visit the smithy alone with the promise of treasure, but Vǫlundr cuts their heads off and covers their skulls outside with silver. A little later, Bǫðvildr approaches Vǫlundr, asking him to repair the gold ring, but she ends up getting drunk and seduced. Vǫlundr then flies off, presumably with wings, to see Níðuðr who begged him to reveal the boys’ fate. When the king swears not to harm Bǫðvildr, who is pregnant with Vǫlundr’s child, he is told the truth about his sons. Vǫlundr flies off again, leaving the sad and broken king behind. Vǫlundarkviða is a tale of wrongs and revenge, and these aspects have received some scholarly interest. Kaaren Grimstad argues that Vǫlundr’s actions deviate from the typical Old Norse heroic pattern where the protagonist would avenge someone else’s death, whereas Vǫlundr retaliates against wrongs done to himself, in particular the theft of the ring. The theft of the ring by itself should not be enough to warrant the scale of the revenge, and Grimstad suggests that this un-heroic behavior can be explained because the narrative is told from the point of view of a wronged elf, who perceives revenge against men as fair and just. The extreme nature of Vǫlundr’s ‘justice’ might have seemed acceptable in an ancient, primitive way.4 John McKinnell,

1 Schier 1986, p. 393. 2 Vǫlundarqviða. In: Edda (ed. Neckel/Kuhn 1983), pp. 116–123; The Poetic Edda (ed./transl. Larrington 1996), pp. 102–108. 3 Vǫlundarqviða, st. 6. In: Edda (ed. Neckel/Kuhn 1983), p. 118; Edda (ed./transl. Larrington 1996), p. 103. 4 Grimstad 1983, pp. 192–204. https://doi.org/10.1515/9783110661811-012

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who is inclined to regard Vǫlundr as more man than elf, points out that his revenge is not supported by any codes of law. The corporate responsibility of a whole family, particularly the killing of innocent children, reflects an archaic and dubious justice, which must have strained the audiences’ sympathy.5 In my opinion Vǫlundarkviða reflects genuine pre-Christian legal notions. Níðuðr had seriously transgressed prevailing legal norms. His actions were irredeemable, and Vǫlundr’s subsequent revenge was, therefore, to be expected. Níðuðr could never be trusted, and therefore, to ensure that his unborn child by the king’s daughter would live, Vǫlundr dictated Níðuðr’s oath.

Vǫlundr on Parchments and in Pictures Most scholars seem to agree that the extant Eddic poems contain the latest stage of the pagan myths, which had existed in oral form for a long time before they were written down.6 Vǫlundarkviða is preserved in the Icelandic manuscript Codex Regius of the 1270s, and Vǫlundr must have been a well-known character as his fame is otherwise widely attested in art and literature.7 A Vǫlundr-figure on a gold solidus from Schweindorf in East Frisia dated to 575–650 AD, with the runic inscription volundu in Anglo-Frisian, is the earliest pictorial representation of the myth.8 The most famous visual testimony to the myth appears on the early 8th century Franks Casket, a decorated whalebone chest possibly of Northumbrian origin.9 A recently discovered object from Uppåkra outside Lund in Scania, which belonged to Denmark during the Viking Age, shows a figure 7,5 cm long and 4,5 cm wide made of gilded copper alloy.10 The figure, which is ‘a mix of human body and flying device’, could be a nasal for a parade helmet. Torun Zachrisson shows how the figurine fits with the description found in the version of the story in Þiðreks saga, the other main Scandinavian account of Vǫlundr’s tale.11

5 McKinnell 2002. 6 Fidjestøl 1999. 7 Callmer 2002; McKinnell 2002. 8 Zachrisson 2017; Nedoma 2006. 9 Webster 2012. McKinnell 2002 points out that at least four stone relief carvings of Vǫlundr survive, all clear examples being from West Yorkshire. Whether, as McKinnell argues, it was composed there by an Anglo-Scandinavian poet is a moot point, as the final version that we have is preserved in a late 13th century Icelandic manuscript. 10 Helmbrecht 2012. 11 Zachrisson 2017.

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It is difficult to determine the provenance of Vǫlundarkviða. For example, it seems to contain Old English loan words and a stratum of German influence, such as personal names.12 Ursula Dronke asks if there was an Old English ‘Lay of Weland’, perhaps based on the German version, from which the maker of the Franks Casket found inspiration. If so, was a version of this lay known to the poet of Vǫlundarkviða?13 Dronke tentatively answers these questions positively, and she proposes that the tale reached Norway via someone like Ohthere, the trader and explorer from Northern Norway who visited the court of King Alfred in the late 800s. Here, Ohthere and his companions may have been entertained with tales of Weland.14 The legend was known well enough for casual allusions to appear in early tenth century skaldic poetry. Haustlǫng, composed c. 900 by Þjóðólfr ór Hvini, one of King Haraldr hárfagri’s court poets, calls Þjazi, the giant enemy of the gods, grjót-Níðuðr (‘Níðuðr among stone giants’) as an insult.15 New elements, such as Vǫlundr’s Sámi kinship may have been added to the tale in Northern Norway.16 Vǫlundarkviða is a palimpsest, with names, themes and terminology drawn from a wide area, and it was ‘given its final form’, as Dronke puts it, in Iceland.17 When Vǫlundarkviða received its final form is still an ongoing debate. In the Kommentar zu den Liedern der Edda a 12th century date for Vǫlundarkviða in its preserved form is suggested.18 However, Bernt Øyvind Thorvaldsen criticises the Edda-Kommentar for putting too much importance on textual influence and playing down the role of oral tradition. Thorvaldsen argues that most of the similarities between different poems are not due to textual influences but rather are what we might expect from oral tradition.19 Daniel Sävborg considers Vǫlundarkviða to be a relatively old poem. On linguistic grounds, counting the frequency of the expletive particle of/um, which shows a gradual abatement over time, Vǫlundarkviða ranks number six of nineteen heroic poems, most of which were probably composed between c. 900–1100.20 According to which method is applied, a poem may be ranked rather differently chronologically. For example, the Edda-Kommentar and Sävborg agree that Vǫlundarkviða is older than Atlamál. However, whereas the Edda-Kommentar ranks Vǫlundarkviða younger than Guðrúnarkviða II, Sävborg ranks Vǫlundarkviða the older of the two poems (number six

12 For example, the names of the three main personae in the poem, Vǫlundr, Níðuðr and Bǫðvildr, are not found as personal names in Old Norse or Old English historical records, whereas all three are found in German records. See Edda (ed./transl. Dronke 1997), pp. 269f. 13 Edda (ed./transl. Dronke 1997), pp. 276–280. 14 Extracts from Alfred’s Orosius, p. 16. 15 Skáldskaparmál 1, p. 32; Snorri Sturluson: Edda, p. 87. 16 Edda (ed./transl. Dronke 1997), pp. 272–289. 17 Edda (ed./transl. Dronke 1997), p. 289. 18 von See et al. 2000, pp. 112–117. 19 Thorvaldsen 2016, p. 84. 20 Sävborg 2004, pp. 86–88. See also Nedoma 2006.

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and twelve respectively among the nineteen heroic poems).21 Based on statistical methods, counting the frequency of the expletive particle of/um, Vǫlundarkviða may have been given its final form during the late Viking Age.

King Níðuðr the níðingr There is no information in the poem that Vǫlundr had committed any wrongs against Níðuðr in the first place. Therefore, Níðuðr behaved as a níðingr when he instigated unjustified and secretive attacks upon Vǫlundr. Níðingr can be hard to define and difficult to translate in a few words. There is a semantic connection between níðingr and níð, and cognates of níð are attested from all of the older Germanic dialects. Thomas L. Markey concludes that originally níð implied hostility and also a curse of lack of masculinity, and hence a níðingr is aptly nicknamed an ‘unmanly man’ by Preben Meulengracht-Sørensen.22 The níðingr had contravened important ethical rules, committed shameful acts, or previously neglected to avenge a wrong or rise to a challenge. However, if a níðingr did act, he behaved in a cowardly or treacherous way. In the earliest Scandinavian laws, níðingsverk/niþingsværk (‘the deeds of a níðingr’) or níðingsvíg (‘níðingr-killing’) applied to a certain class of outrageous felonies, and these were originally irredeemable cases.23 It was not the act of stealing, killing or attacking someone per se which brought on the níðingr epithet. The context in which these acts were committed was a decisive factor. Either the perpetrator made his intentions known, or he committed his deeds stealthily and refused to assume responsibility. For example, burning another to death and murdering a man (myrða mann) in a shameful manner, such as killing during the night or killing one to whom was given a pledge of safety (trygð or grið) brought on the níðingr epithet.24 Attacks on people who were particularly

21 von See et al. 2000, pp. 112–117; Sävborg 2004, pp. 86–88. 22 Markey 1972; Meulengracht Sørensen 1983. 23 Riisøy 2010. See the Old Law of the Gulathing § 178 in Norges gamle Love l, p. 66. There are similarities also in early Icelandic law, see Vígslóði 102 in Grágás 1, p. 178. In the Swedish provincial laws, niþingsværk (Old Swedish) only appears in the oldest version of the Västgötalagen written down around 1220, in the section on ‘Irredeemable and permanent outlawry’ (Orbotämal) in Svenska landskapslagar, pp. 70–74. 24 For aggravated cases of killing someone, see for instance the Old Law of the Gulathing § 178 in Norges gamle Love l, p. 66. Grið refers to a limited period of peace and security granted to a lawbreaker to enable him to put his affairs in order, or to peace and security that was enforced at certain times and in certain places, such as the assembly or the way to and from the assembly, or at home. Ideally, grið was followed by trygð, which is permanent peace and protection, often confirmed by oath. For Norwegian medieval law see grið and trygð in Norges gamle Love 5, pp. 248f., 649f.

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vulnerable also fall into this category, for example people who sat in the sauna, the killing of women and valrof, that is, robbery of a man fallen on the battlefield.25 Similar principles probably existed all over Scandinavia in the Viking Age, and in earlier times even beyond, but they are best preserved in the West Norse area.26 Of particular relevance here is heimsokn (‘violent housebreaking’), which was classified as a níðingsverk because legal protection was supposed to increase at home.27 King Níðuðr instigated heimsokn twice. The first time Vǫlundr was away and a precious ring was stolen. The second time Vǫlundr was captured and bound at night when he was sleeping. Presumably he slept in a bed cum high-seat, which had the very highest level of protection within the home, and consequently, attacks here were the most severe.28 Níðuðr had deviated from the prevailing norm in society in the Viking Age and the earlier Middle Ages, and his actions were irredeemable. Vǫlundr was expected to rise to the challenge and seek out compensation or retaliate; otherwise, he would become a níðingr himself. As several episodes in the Family Sagas (Íslendingasögur) attest, a coward became every man’s níðingr.29 In addition to this, laws that applied well into the thirteenth-century evidence that it was often perfectly acceptable to seek out revenge for wrongs. During the Viking Age, revenge was probably also the expected course of action. Evidence from the laws will be further discussed below.

Wrongs and Revenge Compensation was an important aspect of the Vikings’ system of solving wrongs, and the principle is fairly basic: the perpetrator or his family were supposed to award the victim or the victim’s family compensation, and if compensation was withheld, the victim or his family might retaliate and seek vengeance. Vǫlundr felt himself seriously aggrieved, lamenting bíðca ec þess bót – bauga rauða ‘I shall not get compensation for this – red-gold rings’.30 Compensation with baugar rauðir ‘red rings’ is a frequent expression in the Eddic poems.31 The term baugr (‘ring’) appears

25 Riisøy 2010. See for example the Old Law of the Gulathing § 178 in Norges gamle Love l, p. 66; Orbotämal in the Västgötalagen in Svenska landskapslagar, pp. 70–74. 26 Runic inscriptions widen the geographical distribution, see Jesch 2001, p. 255. 27 For a discussion in a wider Western European context, see Colman 1981. 28 Carlsson 1935; Brink 2014, pp. 46f. 29 Meulengracht Sørensen 1983, pp. 30–32. 30 Vǫlundarqviða, st. 19. In: Edda (ed. Neckel/Kuhn 1983), p. 120; Edda (ed./transl. Larrington 1996), p. 105. 31 Riisøy 2016a, p. 165.

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in other Germanic languages, and it was a compensation item and a fine in early laws.32 There is sound archaeological evidence for the existence of such rings.33 The ‘red’ may have had a double meaning; the ring was made of gold and the colour red could refer to blood, as the ring functioned as blood money. In the Eddic poems, Vǫlundr was one of many characters choosing revenge over compensation.34 Revenge was the more honourable option, and honour affected not only a person’s self-respect but also his or her standing in society. Henceforth I will pursue McKinnell’s line of thought and explore Vǫlundr’s retaliation from the perspective that the poet predominantly designates him as a man. If Vǫlundarkviða originated in Anglo-Norse areas in Northern England, it is pertinent to look into codes that were current then and there. As McKinnell points out, however, these codes do not endorse unrestrained revenge. For example, the early 11th century secular laws of King Knútr imply the right of vengeance, but only against the offender in person, where a murderer is handed over to his victim’s relatives.35 Vǫlundarkviða found its final form in Iceland, and McKinnell explores Grágás in search for relevant legal parallels. Grágás is the earliest Icelandic law where stray vocabulary and even whole sections point to Viking Age usage.36 Grágás permits vengeance for a number of offences, but exclusively against the offender himself, and vengeance is limited in regards of when and where.37 McKinnell finds that the only instance of shared responsibility in Grágás arises when a child did the killing or wounding. Then, the family was only liable financially and not supposed to pay with their lives.38 McKinnell concludes, therefore, that the shared responsibility of a whole family is not supported by any codes of law. Grágás sought to minimise revenge, at least partly due to Christian influence. However, revenge was, as McKinnell phrases it, ‘deeply rooted in the traditional culture’.39 Hence, the principle laid down in Grágás is at odds with the notion present in the Eddic poems and some of the Family Sagas, where vengeance is presented as a pressing moral

32 Green 1998, pp. 67f. Engeler 1991, pp. 84–92. For occurrences in the Old Law of the Gulathing and the Old Law of the Frostathing, see Baugr in Norges gamle Love 5, pp. 92f. On the Swedish Hälsinge Law, see Brink 2014, pp. 44–47. In the oldest Anglo-Saxon law, that of King Aethelberht from around AD 600, it denoted a fine to the king, see Fruscione 2015. 33 Whereas the rings were made of gold in the migration period, they were predominantly made of silver during the Viking Age. Skre 2017, pp. 277–299; Kilger 2008, pp. 282–284; Wendt 2007–2008, pp. 75–89; Foote 1987, pp. 53–64. 34 Riisøy 2016a, pp. 165f. 35 E.g. § 56, II Canute: The Laws of the Kings of England from Edmund to Henry I, pp. 202–203. Die Gesetze Der Angelsachsen 1, pp. 348f. 36 Foote 1987, pp. 53–64. 37 Grágás 1, chs. 86, 90, pp. 147, 164f. Laws of Early Iceland, pp. 141, 154. McKinnell 1997. 38 Grágás 1, ch. 91, 166; Laws of Early Iceland, p. 155. 39 McKinnell 1997, pp. 184f.

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duty.40 It should be noted, however, that Theodore M. Andersson draws a clearer distinction between the vengeful nature of the hero in heroic poetry and the more lenient nature of the hero in the Family Sagas. He finds that the stature of the individual, and hence the expectation to rise to a challenge and exact revenge, is stressed in heroic poetry.41 The hero in the Family Sagas, on the other hand, is more inclined to show moderation. As signs of moderation are older than Christianity, Anderson suggests that the difference between the morality in heroic poetry and the morality in the Family Sagas can be explained ‘[. . .] by the supposition that the heroic lays reflect the values of a warrior class while the sagas reflect the values of Icelandic society at large.’42 The values of such a ‘warrior class’ may have had a stronger and more prevalent standing in Norwegian society, which was socially more stratified than in Iceland, and where warfare was more common. In contrast to Grágás, Vǫlundr’s revenge finds some support in the oldest Norwegian laws, the Old Law of the Gulathing and the Old Law of the Frostathing, which applied to the western coastal areas of Norway. In medieval Norwegian legal language, there is a partial correlation between chronology and stylistic variation, and it is likely, therefore, that the earliest parts of these laws contain Viking Age rules.43 The Old Law of the Gulathing stipulates that a person (maðr), whether a man (karl) or woman (kona) had the right to compensation only three times, unless the wrong had been avenged in the meantime.44 This paragraph clearly encourages revenge, rather than merely tolerating it. Similar notions may once have been more prevalent in Icelandic law too, at least in the early phase of the settlement period. The leading families who colonised Iceland were mostly descended from those areas of Norway where the laws of the Gulathing and Frostathing applied, and they brought with them some concept of law and legal customs from their homelands.45

40 McKinnell 1997, pp. 183f. 41 Andersson 1970, pp. 575–593. 42 Andersson 1970, p. 593. 43 Røsstad 1997, pp. 110–114. The dating of the oldest laws will always be open to some debate because the earliest manuscripts in which they are preserved date from around 1200. Concerning the general pattern of surviving legal manuscripts from the Norwegian Middle Ages, see Norges gamle Love 5, pp. xivf. It is not easy to determine at which point in time the laws were first written down. The Christian laws, for example, may have been written down already in the 1020s, see Rindal 2004, pp. 108–110. Helle 2001, pp. 17–23, is sceptical of such an early date, but will not rule it out completely. 44 The Old Law of the Gulathing § 186, Norges gamle Love 1, p. 68. Other paragraphs also encouraged revenge for various wrongs; for example, if a man is killed on a ship, ‘then it is good if he is avenged’, the Old Law of the Gulathing § 171, Norges gamle Love 1, p. 65. Women were not exempt, and the Old Law of the Frostathing IV 33, Norges gamle Love 1, p. 168 stipulates that the relatives of the dead were allowed to kill a woman who had killed her own husband. 45 Karlsson 2009, pp. 77–91; Guðmundur Ólafsson 1987, pp. 343–349; Riisøy 2013, pp. 104f.

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The actions of a níðingr are often linked to that of a vargr (‘a criminal, an outlaw’), someone who also behaved in a cowardly and treacherous way.46 This ‘vargishness’ was somewhat considered to be transferred through the bloodline, as the term vargdropi, which means the child of a vargr, illustrates.47 Such a child may well grow up to follow the example of his ‘vargish’ father. From Vǫlundr’s point of view, if they were allowed to live, King Níðuðr’s sons might pose a serious threat in a few years, and they could never be trusted.48 Vǫlundarkviða aside, revenge directed against a wrongdoer’s innocent family members was not unheard of, neither in poetry nor in sagas.49 As William Ian Miller laconically commented after a close reading of the Family Sagas, the other side’s best man was often killed because the avenger’s side was eventually going to have to deal with him anyway.50 It took several generations, possibly even several centuries of Christian preaching and royal law enforcement to uproot this practice. For example, Norwegian law, prohibits acts of vengeance against innocent members of a killer’s family for the first time around 1260, and it took even longer before this principle was mirrored in legal practice.51

Swords and Rings – Symbols of Sex or Rulership? The theft of the sword and the ring seem to have particularly upset Vǫlundr. He bares his teeth when he sees the sword and when he recognises the ring; his eyes are similar to a shining serpent.52 McKinnell suggests that Vǫlundr’s revenge on Níðuðr, murdering the boys in order to replace the dynasty of Níðuðr with his own, is connected with the theft of his sword, which may be a male virility symbol. McKinnell also proposes that rings seem to function as symbols of female sexuality in the poem, and that Vǫlundr may repay wrongs done to himself with a negation of Níðuðr’s virility and a corresponding assertion of his own.53

46 For a discussion of the term vargr, see Schmidt-Wiegand 1994, p. 258. 47 Grágás 1, p. 224. 48 As Sigrdrífumál (‘The Lay of Sigrdrifa’) makes clear, it was a serious offence to break oaths, and one should never trust the oaths of a wrongdoer’s brat, vargdropi. Sigrdrífumál, st. 35: Edda (ed. Neckel/Kuhn 1983), p. 196; Edda (ed./transl. Larrington 1996), p. 172. 49 Riisøy 2016a, pp. 165f. 50 Miller 1990, p. 201. 51 An addition made to the Old Law of the Frostathing during the last years of King Hákon Hákonarson (1217–1263), Introduction, § 8, Um manns aftöku (‘Concerning the killing of men’), Norges gamle Love 1, p. 123. Following a close reading of legal texts, diplomas and sagas, Else Mundal found that the earlier view, that it was permissible to exact vengeance on someone else than the killer, no longer had defenders during the late Middle Ages. Mundal 2009, pp. 148–151. 52 Vǫlundarqviða, st. 17, 18 and 19. In: Edda (ed. Neckel/Kuhn 1983), pp. 119f.; Edda (ed./transl. Larrington 1996), p. 105. 53 McKinnell 1997.

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Swords and rings were more than symbols of sexuality; above all, they manifested the rulers’ status and legitimised their power.54 An ambivalent relationship existed between the smiths who produced these objects, and the rulers, who were both raw material suppliers and customers of the smiths.55 This situation is epitomised in the Vǫlundr myth, which also is a didactic myth demonstrating necessary restraint in handling the skilled craftsman.56 Perhaps Vǫlundr was put on an isolated island to hide the fact that he was the only person with the necessary knowledge to produce prestigious objects essential for the kingly ideal. As the case of King Níðuðr makes evident, demanding complete submission of the smith leads to catastrophe.57 During the Viking Age, areas with large concentrations of population were relatively few, and therefore, the majority of specialised craftsmen to a certain extent led an itinerant life. Although there were a few places in Scandinavia, like Uppåkra in Scania and Helgö in Lake Mälaren where smiths were present on a permanent basis, local demand for fine smithing was at such a low level that permanent local production was impossible.58 Johan Callmer argues that mobility, permanent or during parts of the year, is the solution to maintaining a high level of workmanship.59 Therefore, Níðuðr not only stole important items symbolizing rulership, he also took away the freedom of movement so important for the lifestyle of someone like Vǫlundr. Vǫlundr was the son of a Sámi king before another king captured and maimed him and reduced him to serfdom. There are several accounts of Sámi kings in the Viking Age and Early Middle Ages, and archaeology suggests that some Sámi belonged to the upper echelons of society.60 In my opinion, Vǫlundr sought to reassert his previous standing, which can also explain the scale of his revenge. In the world of the Vikings, a person’s life had a fixed value derived from his or her social position, and consequently, the expected retribution was highest at the level of royals. Additionally, smiths and goldsmiths in particular probably possessed a high

54 Carstens 2012, pp. 243–269. The ring as a royal cult-object survives well into the tenth century: Chaney 1970, p. 149. In regards of the importance of swords, see for example Davidson 1994, pp. 146–516; Grünzweig 2009, 343–440. 55 Pesch 2012, p. 39; Carstens 2012; Callmer 2002. 56 Callmer 2002. 57 Callmer 2002. 58 For Uppåkra and Helgö in Lake Mälaren see Zachrisson 2017. 59 Callmer 2002 points out that this was mainly a South Scandinavian phenomenon. Only very seldom did craftsmen reach Western Norway, not to speak of Iceland. However, Siv Kristoffersen suggests that archaeological material from Jæren in Rogaland, in South-West Norway, might be considered as locally produced in goldsmiths’ workshops during the 6th century. The idea of local production is based upon clusters of objects that are similar in form and style. Kristoffersen 2012, pp. 169–176. 60 Price 2000, pp. 12–27.

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status.61 In Vǫluspá ‘The Seeress’s Prophecy’, the gods themselves appeared as smiths immediately after the world was created: ‘[. . .] afla lǫgðo, auð smíðoðo [. . .]’ (‘[. . .] they set up their forges, smithed precious things [. . .]’). The following stanza makes clear that the gods ‘[. . .] vættergis vant ór gulli [. . .]’ (‘[. . .] did not lack for gold at all [. . .]’).62 Hence, smiths emulated the gods and they were closely linked with the supernatural.63 Vǫlundr’s revenge means the downfall of the line of Níðuðr. When Vǫlundr flies off, presumably to take up his former life as a prince and master metallurgist, he may have managed to replace the dynasty of Níðuðr with his own. In order to do so, he had to keep the king in check, which the oath towards the end of the poem helped to ensure.

The Weapon-Oath A colourful oath closes Vǫlundarkviða. When the king desperately wants to learn what has happened to his sons, Vǫlundr makes him swear that Bǫðvildr would not come to harm. Eiða scaltu mér áðr alla vinna, at scips borði oc at scialdar rǫnd, at mars bægi oc at mækis egg, at þú qveliat qván Vǫlundar né brúði minni at bana verðir, þótt vér qván eigim, þá er þér kunnið, eða ióð eigim innan hallar First you shall give me all these oaths, by the side of a ship and the rim of a shield, the back of a horse and the edge of a blade, that you will not torment Volund’s lady, nor be the slayer of my bride, though I have a wife who is known to you, and we have a child inside your hall.64

61 Pesch 2012 points out that the Old Law of the Frostathing, part IV § 60, Norges gamle Love 1, p. 175, decreed that goldsmiths and chieftains at the king’s court were to be deemed of equal rank, which was also similar to that of a hauldr. 62 Vǫluspá, st. 7 and 8. In: Edda (ed. Neckel/Kuhn 1983), p. 2; Edda (ed./transl. Larrington 1996), p. 5. 63 Carstens 2012, pp. 243–269. 64 Vǫlundarqviða, st. 33. In: Edda (ed. Neckel/Kuhn 1983), p. 122; Edda (ed./transl. Larrington 1996), p. 107.

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Before I turn to a discussion of the importance of the oath, a comment on the possible harm Bǫðvildr risked from her father is required. In the pre-Christian period and Early Middle Ages sexuality was considered a matter of civil law.65 If a man lay with a free man’s close female relative, the Norwegian and Icelandic laws directed sanctions against the male partner only, either in the form of a revenge killing, or in the form of compensation paid to the woman’s family.66 Studies of the Family Sagas illustrate that women were never blamed.67 There is, however, an important social dimension to this issue, which may, at least in part, explain why Bǫðvildr was in danger of being punished by her father. Vǫlundr was captured and tied up, and his situation is therefore similar to that of a slave. It should be stressed that the poem does not explicitly say that Bǫðvildr was raped, and she deliberately sought out Vǫlundr.68 The earliest Norwegian laws stipulate that free women who had sexual relations with slaves were held legally responsible. In essence, the law implies that if a woman gave birth to a child without naming the father, the father was assumed to be a slave.69 The woman then had to pay a fine of three marks. She probably lost her freedom temporarily until she had done the required forced labour in the king’s farm and paid the fine.70 Similar legislation was also a common feature of early Germanic law.71 In Bǫðvildr’s case, king and father were one and the same, and Bǫðvildr was at his mercy. The Old Norse term eiðr (‘oath’) and the corresponding verb ‘to swear’ sverja have cognates in all Germanic languages, and these terms are of considerable antiquity. Phonologically and semantically eiðr can be traced back to the Indo-European *oitos ‘walk, going’. The implicit notion is ceremonially going to an oath.72 In the following, I will address the fact that Vǫlundr expressly told King Níðuðr how to phrase the oath, and on which items he should swear. King Níðuðr’s oath is coined as poetry, and the rhythm in combination with the colourful images of weapons, ships and horses made this declamation easier to remember; a material

65 Jacobsen 1982, pp. 72–85; Riisøy 2009, pp. 154f. 66 The right to kill for revenge in the Old Law of the Gulathing § 160, Norges gamle Love 1, pp. 62–63 and the Old Law of the Frostathing IV § 39, Norges gamle Love 1, pp. 169f. 67 Meulengracht Sørensen 1993, pp. 235f. Byock 1982, pp. 235–238. There were differences within Scandinavia. In Sweden and Denmark, a women who had committed adultery risked loss of property, mutilation and death. See Jacobsen 1982, pp. 80–84. 68 Vǫlundarqviða, st. 26–28. In: Edda (ed. Neckel/Kuhn 1983), p. 121; Edda (ed./transl. Larrington 1996), p. 106. 69 The Old Law of the Frostathing II § 1, Norges gamle Love 1, pp. 130f. 70 The Old Law of the Gulathing § 198, Norges gamle Love 1, p. 70. 71 Drew 1988, see especially part V, The Germanic Family of the Leges Burgundionum, p. 13 and part VII, The Family in Visigothic Law, p. 7. 72 Green 1998, p. 158; Schmidt-Wiegand 1977, pp. 75–76; Nynorsk etymologisk ordbok, p. 754; Ordbog over det gamle norske sprog, 3, pp. 619f.

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point since this after all was a binding oath.73 This does not necessarily mean that alliteration as such is exclusively ‘old’ and ‘oral’.74 My point is rather that King Níðuðr’s oath probably reflects pagan legal procedure, as it bears a strong similarity with oaths sworn in the real Viking world.75 Moreover, the items invoked are also significant, and this aspect will be further discussed below. Mnemonic purposes aside, such a performance of the oath also served the preservation of a conservative tradition and it worked as a safeguard against mistakes.76 Vǫlundr may have considered this latter aspect of the utmost importance because certain words spoken in a specific way could effect legal changes. The Old Norse term mál, which means both speech and legal case, reflects these characteristics.77 Words were potentially dangerous. An oath spoken badly or wrongly could have dire consequences, particularly if the oath taker deliberately swore to something that was technically true but morally dubious. Herein lay embedded ‘the darker side of linguistic power’, as Robin Chapman Stacey shows in her study Dark Speech.78 Here Stacy explores how words changed legal status in early Irish law. Dictating the oath-formula may have served as a precaution to prevent trickery and deceit by Níðuðr as Vǫlundr had to ensure that Bǫðvildr, who was carrying his unborn child, would not come to harm. Similar to people in Early Medieval Ireland, people in Old Norse society well versed in words conjured ‘dark’ oaths. A first-rate example is found in Víga-Glúms saga, where the action is placed in 10th century Iceland. Glúmr swore that he had not killed Þorvaldr krókr, and he took ‘[. . .] hofseið at baugi, ok segi ek þat Æsi, at ek vark at þar ok vák at þar ok rauðk at þar odd ok egg, er Þorvaldr krókr fekk bana.’ (‘[. . .] a temple oath on the ring and I deny to the god, that I was not there and did not strike there and did not redden point or edge where Thorvald Hook met his death’).79 Viðar Hreinsson points out that the ‘ . . . oath depends on the preposition at having the same form as a poetic negative suffix, so that ek vark at þar – ‘I was at that place’ and ek varkat þar – ‘I was not there’ sound identical’.80 Glúmr’s adversaries did not find anything wrong with the oath. However, it was soon pointed out that

73 The idea that poetry and law were in close contact in ancient Germanic society goes back to Jacob Grimm and the early nineteenth century, and his line of inquiry is still relevant today. Brink 2011, pp. 147–156; Mees 2013, pp. 131–150. 74 Ehrhardt 1977. 75 For the existence of oaths similar to Níðuðr’s, both among the Vikings and other early Germanic peoples, see for example: Stein-Wilkeshuis 2002, pp. 155–168; Brink 2002, pp. 98f.; Riisøy 2016b, pp. 142–148; Hüpper-Dröge 1981, p. 126; Grundtvig 1871, pp. 6–14. 76 Mees 2013, pp. 131–150. 77 Mál, Norges gamle Love 5, pp. 428f. Examples of ‘speech’ are listed under 1) and examples of ‘case/legal case’ are listed under 5). 78 Stacey 2007, pp. 248f. 79 Víga-Glúms saga, ch. 25, p. 86; The Complete Sagas of Icelanders 2, p. 307. 80 The Complete Sagas of Icelanders 2, p. 307.

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Glúmr had in fact admitted to the killings, and that it was shameful for Glúmr’s foes not to have caught this hoax. Whereas verbal tricks may have been within acceptable limits, swearing outright falsely was not. Glúmr may have known about the Valkyrie Sigrdrífa’s advice where she told the dragon slayer Sigurðr never to ‘swear an oath unless it is truly kept; terrible fate-bonds attach to the oath-tearer (trygðrofi)’.81 In Viking Age society, and well into the later 13th century, legal transactions were preserved not in written records but through remembrance. Therefore, what people said and did, and whether they also used objects loaded with meaning, would be easier to recall than abstract legal principles. Circumstances like religion, politics and geography helped to shape various performance cultures, and images and various props were important to convey and preserve legal meaning and change legal status.82 King Níðuðr, who belonged to the uppermost echelons of society, was most likely imagined by the eddic audience to be in possession of the items upon which he swore; a full set of weapons, a horse and a ship, and it is conceivable that he relied upon these items to serve him well. As Sven Grundtvig argued back in 1871, in pre-Christian society people believed that if a person broke an oath, the items invoked would turn against the oathbreaker.83 This aspect is vividly expressed in Helgakviða Hundingsbana II. Here, Sigrún’s brother Dagr has slain the hero Helgi, Sigrún’s husband. Sigrún exclaims to her brother that she wishes all the oaths he swore to Helgi would rebound upon him, and that the objects upon which Dagr swore, the ship and the horse, would fail him. Finally, Sigrún also curses Dagr’s sword: Bítia þér þat sverð, er þú bregðir, nema siálfom þér syngvi um hǫfði May the sword that you wield never bite for you, unless it’s whistling above your own head84

Dagr invoked the same items as King Níðuðr, and in Dagr’s case, the paraphrasing of the oath may have turned it into a poetic curse.85 Similar notions are found in sources outside the Eddic poems, for example in a treaty of 945 between the Rus, predominantly Swedish Vikings operating in the East, and the Greeks. If the Rus

81 Sigrdrífumál, st. 23. In: Edda (ed. Neckel/Kuhn 1983), p. 194; Edda (ed./transl. Larrington 1996), p. 170. 82 Hibbitts 1992, p. 885. 83 Grundtvig 1871, p. 49; Davidson 1994, p. 210. 84 Helgaqviða Hundingsbana ǫnnor, st. 31–33, here 33. In: Edda (ed. Neckel/Kuhn 1983), p. 157; Edda (ed./transl. Larrington 1996), p. 138. 85 Poetic curses are discussed in Thorvaldsen 2010, pp. 253–267.

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broke the treaty, ‘may they rather be slain by their own swords, laid low by their arrows or by any of their own weapons, and may they be in bondage forever’.86

Conclusion The Eddic poems express ethical judgements of people’s actions, and they may also have had a didactic component directed towards the audience. They stated the cause and effect of the breach of the law, and how to solve the conflict, and in this way helped to regulate and stabilise society and keep up the central values of this society. Through the reciting of poems people were aware how disputes should be solved. Vǫlundarkviða, which is sprinkled with legal terminology, shows specifically how unlawful and coercive treatment of a master smith could lead to disaster. Scholars today often cast Vǫlundr in the role of the villain of the lay, however, we should not forget that it was not his name, but Níðuðr’s which was used to insult the giant Þjazi in the skaldic poem Haustlǫng, composed c. 900. In its preserved form, Vǫlundarkviða is a palimpsest, with names, themes, and terminology drawn from a wide area, and these elements were added to the tale at different times. I have argued that Vǫlundr’s responses reflect genuine pre-Christian legal notions. It was the responsibility of the offended party to react to a breach of law or to an infringement of their rights. One option was to claim compensation, and the culprit’s close relatives were collectively responsible for his or her deeds vis-à-vis the offended person and his or her family. It was, however, more honorable to retaliate, and revenge was a powerful feature in the mythological world as well as in the real world. I will not entirely rule out that Vǫlundr’s revenge, which shows no signs of moderation, is a better reflection of conditions in Norway than in Iceland. In contrast to Grágás, which accepts revenge but does not actively encourage it, the earliest Norwegian provincial laws stress the obligation to take revenge. Similar notions may once have been more prevalent in Icelandic society too, particularly in the early phase of the settlement period, and among the Icelandic elite. In this case, the earliest Norwegian provincial laws show traces of an even older system, which stresses the duty to exact vengeance.

86 The Russian Primary Chronicle, p. 74. For the existence of oaths similar to Níðuðr’s, both among the Vikings and other early Germanic peoples, see for example: Stein-Wilkeshuis 2002, pp. 155–168; Brink 2002, pp. 98f. Riisøy 2016b, pp. 142–148; Hüpper-Dröge 1981, p. 126; Grundtvig 1871, pp. 6–14.

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The distinction between Christian and pagan law is not absolute, as it took several generations before the principle of group responsibility in questions relating to the payment of compensation and exacting revenge disintegrated.87 Oaths in the form of poetry facilitated their preservation at a time when the law was still not yet put on parchment. As a safeguard, in order to prevent trickery and deceit, Vǫlundr expressly phrased Níðuðr’s oath.

Bibliography Primary Sources Codex Iuris Vestrogotici. Westgöta-Lagen, ed. by D. H. S. Collin/D.C.J. Schlyter (1827): Corpus Iuris Sueo-Gotorum antiqui. Samling af Sweriges gamla lagar, 1. Stockholm. Die Gesetze Der Angelsachsen. Erster Band, ed. by Felix Liebermann (1903). Halle. Edda: Die Lieder des Codex Regius nebst verwandten Denkmälern 1, ed. by Gustav Neckel/ Hans Kuhn (1983). 5., verbesserte Auflage. Heidelberg. Extracts from Alfred’s Orosius, ed. by Henry Sweet (1885). Oxford. Grágás: Islændernes Lovbog i Fristatens Tid, udgivet efter det Kongelige Bibliotheks Haandskrift 1, ed. by Vilhjálmur Finsen (1852). København Laws of Early Iceland: Grágás, ed./transl. by Andrew Dennis/Peter Foote/Richard Perkins (1980). Winnipeg. Norges gamle Love indtil 1387. Første Bind. Norges Love ældre end Kong Magnus Haakonssöns Regjerings-Tiltrædelse i 1263, ed. by Rudolf Keyser/Peter Andreas Munch (1846). Christiania. Norges gamle Love indtil 1387, ed. by Gustav Storm/Ebbe Hertzberg (1895). Femte Bind, indeholdende Supplement til foregaaende Bind og Facsimiler samt Glossarium med Registre. Christiania. Nynorsk etymologisk ordbok, ed. by Alf Torp (1919). Kristiania. Ordbog over det gamle norske sprog, ed. by Johann Fritzner (1973). Omarbeidet, forøget og forbedret udgave. 4 vols. Oslo. Skáldskaparmál 1, ed. by Anthony Faulkes (1998). London. Snorri Sturluson: Edda, transl. by Anthony Faulkes (1987). London. Svenska landskapslagar, tolkade och förklarade för nutidens svenskar, ed. by Ake Holmbäck/ Elias Wessén (1946). Stockholm. The Complete Sagas of Icelanders: Including 49 tales, ed./transl. by Viðar Hreinsson (1997). 5 vols. Reykjavík.

87 In Norway a new law for the whole country in 1274 establishes a radically new legal framework, and similar rules applied for Iceland, which by that time had pledged fealty to the Norwegian crown. In cases of manslaughter and illicit sexuality compensation was to be paid exclusively by the killer, alternatively seducer, to the victim’s closest relative. In addition, the responsibility of the extended family to contribute to the payment of compensation had come to an end. Finally, the right of kinsmen to seek revenge by killing was also considerably restricted. For a discussion of the legal changes which took place see Vadum 2004; Riisøy 2009.

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The Laws of the Kings of England from Edmund to Henry I, ed./transl. by Jane A. Robertson (1925). Cambridge. The Poetic Edda, ed./transl. by Carolyne Larrington (1996). Oxford/New York. The Poetic Edda. Volume 2: Mythological Poems, ed./transl. by Ursula Dronke (1997). Oxford. The Russian Primary Chronicle: Laurentian text, ed./transl. by Olgerd P. Sherbowitz-Wetzor/ Samuel H. Cross (1953). Cambridge. Víga-Glúms saga. In: Eyfirðinga sǫgur, ed. by Jónas Kristjánsson (1956): Íslenzk fornrit, 9. Reykjavík, pp. 1–98.

Secondary Sources Andersson, Theodore M. (1970): The Displacement of the Heroic Ideal in the Family Sagas. In: Speculum, 45, pp. 575–593. Byock, Jesse L. (1982): Feud in the Icelandic saga. Berkeley. Brink, Stefan (2002): Law and legal customs in Viking Age Scandinavia. In: Jesch, Judith (ed.): The Scandinavians from the Vendel Period to the Tenth Century: An Ethnographic Perspective. Woodbridge, pp. 87–110. Brink, Stefan (2011): Oral fragments in the earliest Old Swedish laws? In: Mostert, M. et al. (eds.): Medieval Legal Process: Physical, Spoken, and Written Performance in the Middle Ages. Turnhout, pp. 147–156. Brink, Stefan (2014): The Hälsinge Law between South and West, King and Church, and Local Customs. In: Brink, Stefan/Collinson, Lisa (eds.): New Approaches to Early Law in Scandinavia. Turnout, pp. 44–47. Callmer, Johan (2002): Wayland. An Essay on Craft Production in the Early and High Middle Ages in Scandinavia. In: Larsson, Lars/Hårdh, Birgitta (eds.): Centrality and Regionality: The Social Structure of Southern Sweden during the Iron Age. Stockholm, pp. 337–361. Carlsson, Lizzie (1935): Högsätet och hemfriden. In: RIG Kulturhistorisk Tidskrift, 18/2, pp. 65–92. Carstens, Lydia (2012): Might and Magic: The Smith in Old Norse Literature. In: Pesch, Alexandra/ Blankenfeldt, Ruth. P. (eds.): Goldsmith Mysteries. Archaeological, Pictorial and Documentary Evidence from the 1st Millennium AD in Northern Europe. Neumünster, pp. 243–269. Chaney, William A. (1970): The Cult of Kingship in Anglo-Saxon England: The Transition from Paganism to Christianity. Manchester. Colman, Rebecca V. (1981): Hamsocn: Its Meaning and Significance in Early English Law. In: American Journal of Legal History, 25, pp. 95–110. Davidson, Hilda, R.E. (1994): The Sword in Anglo-Saxon England: Its Archaeology and Literature. Woodbridge. Drew, Katherine F. (1988): Law and Society in Early Medieval Europe: Studies in Legal History. London. Ehrhardt, Harald 1977: Der Stabreim in Altnordischen Rechtstexten. Heidelberg Engeler, Sigrid (1991): Altnordische Geldwörter. Frankfurt am Main. Fidjestøl, Bjarne (1999): The dating of Eddic poetry: a historical survey and methodological investigation. København. Foote, Peter (1987): Reflections om Landabrigðisþattr and Rekaþattr in Grágas. In: Hastrup, Kirsten/Meulengracht Sørensen, Preben (eds.): Tradition og historieskrivning: kilderne til Nordens ældste historie. Århus, pp. 53–64.

Vǫlundr – a Gateway into the Legal World of the Vikings

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Fruscione, Daniela (2015): ‘Drithinbeag’ and the Question of the Beginnings of Punishment. In: O’Brian, Bruce/Bombi, Barbara (eds): Textus Roffensis. Law Language, and Libraries in Early Medieval England. Turnhout, pp. 157–174. Green, David H. (1998): Language and History in the Early Germanic World. Cambridge. Grimstad, Kaaren (1983): The Revenge of Vǫlundr. In: Haraldur Bessason/Glendinning, Robert James (eds.): Edda: A Collection of Essays. Winnipeg, pp. 187–209. Grundtvig, Sven (1871): Om de Gotiske Folks Våbenéd. København. Grünzweig, Friedrich E. (2009): Das Schwert bei den ‘Germanen’. Kulturgeschichtliche Studien zu seinem ‘Wesen’ vom Altertum bis ins Hochmittelalter. Wien. Guðmundur Ólafsson (1987): Tingnes by Elliðavatn: The First Local Assembly in Iceland? In: Knirk, James E. et al. (eds.): Proceedings of the Tenth Viking Congress. Oslo, pp. 343–349. Helle, Knut (2001): Gulatinget og Gulatingslova. Leikanger. Helmbrecht, Michaela (2012): A Winged Figure from Uppåkra. In: Fornvännen, 107, pp. 171–178. Hibbitts, Bernard. J. (1992): ‘Coming to our senses’: Communication and legal expression in performance cultures. In: The Emory Law Journal, 41 (4), pp. 874–958. Hüpper-Dröge, Dagmar (1981): Schutz- und Angriffswaffen nach den Leges und verwandten Fränkischen Rechtsquellen. In: Schmidt-Wiegand, Ruth (ed.): Wörter und Sachen im Lichte der Bezeichnungsforschung. Berlin, pp. 107–127. Jacobsen, Grethe (1982): Sexual Irregularities in Medieval Scandinavia. In: Bullogh, Vern L./ Brundage, James A. (eds): Sexual Practices and the Medieval Church. Buffalo. pp. 72–85. Jesch, Judith (2001): Ships and Men in the Late Viking Age: The Vocabulary of Runic Inscriptions and Skaldic Verse. Woodbridge. Karlsson, Gunnar (2009): Was Iceland the Galapagos of Germanic Political Culture? In: Gripla, 2, pp. 77–91. Kilger, Christoph (2008): Wholeness and Holiness: Counting, Weighing and Valuing Silver in the Early Viking Period. In: Skre, Dagfinn (ed.): Means of Exchange: Dealing with Silver in the Viking Age. Århus, pp. 253–325. Kristoffersen, Siv (2012): Brooches, bracteates and a goldsmith’s grave. In: Pesch, Alexandra/ Blankenfeldt, Ruth. P. (eds.): Goldsmith Mysteries. Archaeological, Pictorial and Documentary Evidence From the 1st Millennium AD in Northern Europe. Neumünster, pp. 169–176. Markey, Thomas L. (1972): Nordic Níðvisur: An Instance of Ritual Inversion? In: Medieval Scandinavia, 5, pp. 7–18. McKinnell, John (1997): The Ideology of Vengeance in Old Norse Mythology. In: Lambert, T.B./ Rollason, David (eds.): Peace and Protection in the Middle Ages. Toronto, pp. 181–194. McKinnell, John (2002): The Context of Vǫlundarkviða. In: Acker, Paul/Larrington, Carolyne (eds.): The Poetic Edda: Essays on Old Norse Mythology. London/New York, pp. 195–212. Mees, Bernard (2013): Weaving Words: Law and Performance in Early Nordic Tradition. In: Amsterdamer Beiträge zur älteren Germanistik, 70, pp. 131–150. Meulengracht Sørensen, Preben (1983): The Unmanly Man: Concepts of Sexual Defamation in Early Northern Society. Odense. Meulengracht Sørensen, Preben (1993): Fortælling og ære: Studier i islændingesagaerne. Aarhus. Miller, William Ian (1990): Bloodtaking and Peacemaking: feud, law and society in Saga Iceland. Chicago. Mundal, Else (2009): The View of Blood Vengeance in Medieval Norwegian Sources. In: Sausverde, Erika/Steponaviciute, Ieva (eds.): Approaching the Viking Age. Vilnius, pp. 139–152.

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Nedoma, Robert (2006): Wieland § 2. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds): Reallexikon der Germanischen Altertumskunde 33. Berlin/New York, p. 610. Pesch, Alexandra (2012): The Goldsmith, His Apprentice and the Gods. A fairy tale. In: Pesch, Alexandra/Blankenfeldt, Ruth. P. (eds.): Goldsmith Mysteries. Archaeological, Pictorial and Documentary Evidence From the 1st Millennium AD in Northern Europe. Neumünster, pp. 37–48. Price, Neil (2000): Drum-Time and Viking Age: Sámi-Norse identities in early medieval Scandinavia. In: Appelt, Martin et al. (eds.): Identities and cultural contacts in the arctic. København, pp. 12–27. Riisøy, Anne Irene (2009): Sexuality, Law and Legal Practice and the Reformation in Norway. Leiden. Riisøy, Anne Irene (2010): Outlawry and Moral Perversion in Old Norse Society. In: Crawford, Sally/ Lee, Christina (eds.): Bodies of Knowledge: Cultural Interpretations of Illness and Medicine in Medieval Europe (Studies in Early Medicine 1). Oxford, pp. 19–26. Riisøy, Anne Irene (2013): Sacred Legal Places in Eddic Poetry: Reflected in Real Life? In: Journal of the North Atlantic, 5, pp. 28–31. Riisøy, Anne Irene (2016a): Eddic poetry: A gateway to Late Iron Age ladies of law. In: Journal of the North Atlantic, 8, pp. 157–171. Riisøy, Anne Irene (2016b): Performing oaths in Eddic poetry: Viking Age fact or Medieval fiction? In: Journal of the North Atlantic, 8, pp. 141–156. Rindal, Magnus (2004): Dei eldste norske kristenrettane. In: Jón Viðar Sigurðsson et al. (eds.): Religionsskiftet i Norden. Brytinger mellom nordisk og europeisk kultur 800–1200 e.Kr. Oslo, pp. 103–137. Røsstad, Rune (1997): A tveim tungum: Om stil og stilvariasjon i norrønt lovmål. Oslo. Sävborg, Daniel (2004): Om eddadikternas ursprung och ålder. In: Arkiv för nordisk filologi, 119, pp. 55–104. See, Klaus von et al. (2000): Vǫlundarkviða. In: See, Klaus von et al.: Kommentar zu den Liedern der Edda. 3. Heidelberg, pp. 77–265. Schier, Kurt (1986): Edda, Ältere. In: Beck, Heinrich et al. (eds.): Reallexikon der Germanischen Altertumskunde 6. Berlin/New York, pp. 355–394. Schmidt-Wiegand, Ruth (1977): Eid und Gelöbnis. Formel und Formular im mittelalterlichen Recht. In: Classen, P. (ed.): Recht und Schrift im Mittelalter. Sigmaringen, pp. 55–90. Schmidt-Wiegand, Ruth (1994): Spuren paganer Religiosität in den frühmittelalterlichen Leges. In: Keller, Hagen/Staubach, Nikolaus (eds.): Iconologia sacra: Mythos, Bildkunst und Dichtung in der Religions- und Sozialgeschichte Alteuropas. Festschrift für Karl Hauck zum 75. Geburtstag. Berlin, pp. 249–262. Skre, Dagfinn (2017): Monetary Practices in Early Medieval Western Scandinavia (5th–10th Centuries AD). In: Medieval Archaeology, 61, pp. 277–299. Stacey, Robin Chapman (2007): Dark speech: the performance of law in early Ireland. Philadelphia. Stein-Wilkeshuis, Martina (2002): Scandinavians swearing oaths in tenth-century Russia: Pagans and Christians. In: Journal of Medieval History, 28, pp. 155–168. Thorvaldsen, Bernt Øyvind (2010): The poetic curse and its relatives. In: Rankovic, Slavica/Melve, Leidulf/Mundal, Else (eds.): Along the Oral – Written Continuum: Types of Texts, Relations, and their Implications. Turnhout, pp. 253–267. Thorvaldsen, Bernt Øyvind (2016): The Dating of Eddic poetry. In: Larrington, Carolyne/Quinn, Judy/ Schorn, Brittany (eds.): A Handbook to Eddic Poetry. Myths and Legends of Early Scandinavia. Cambridge, pp. 72–91.

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Vadum, Kristoffer Mathias (2004): Dom og straff i Kongespeilet: En analyse av verkets rettslære i forhold til en norsk og europeisk bakgrunn. Oslo. Webster, Leslie (2012): The Franks Casket. London. Wendt, Antje (2007–2008): Viking Age Gold Rings and the Question of ‘Gefolgschaft’. In: Lund Archaeological Review, 13–14, pp.75–89. Zachrisson, Torun (2017): Volund was Here. A Myth Archaeologically Anchored in Viking Age Scandinavia. In: Hermann, Pernille et al. (eds.): Old Norse Mythology – Comparative Perspectives. Cambridge/Massachusetts/London, pp. 139–162.

Matthias Teichert

Týr, Fenrir and the Brísingamen. Tales of Law, Crime and Violence in Eddic Mythology and their Indo-European Subcontexts Grausamkeit ist eine versetzte und geistiger gewordene Sinnlichkeit.

(Friedrich Nietzsche)

Disregarding to a certain extent the framework provided by this volume’s title, the present paper ventures to introduce some terms and categories on a broader scope in order to approach two rather scattered and mysterious narratives each focussing on one major type of breach of law: theft in the case of the Loki-Heimdallr-Brísingamen myth, and extremely grievous bodily harm as far as Fenrir and Týr are concerned. Aiming at a reading as lucid and compelling as possible in terms of methodology, I will draw on selected aspects of various theories of violence, power and force.

Týr and Fenrir The tale of Fenrir (or Fenrisúlfr for that matter) mutilating the god Týr by biting off his right hand is often reckoned as a prime example of negotiating legal issues in the mode of myth and pre-Christian Norse religion. Its significance is furthermore strengthened by the fact that it is actually the only surviving myth centring around Týr as a more or less active character within a narrative system except for the Ragnarǫk complex of course, in which Týr and Garmr kill one another reciprocatively. The notorious story is elaborated in Snorri Sturluson’s Gylfaginning: Úlfinn fœddu æsir heima, ok hafði Týr einn diarfleik til at ganga at úlfnum ok gefa honum mat. En er guðin sá hversu mikit hann óx hvern dag, ok allar spár sǫgðu at hann myndi vera lagðr til skaða þeim, þá fengu æsir þat ráð at þeir gerðu fiǫtur allsterkan er þeir kǫlluðu Lœðing, ok báru hann til úlfsins ok báðu hann reyna afl sitt við fiǫturinn. En úlfinum þótti sér þat ekki ofrefli, ok lét þá fara með sem þeir vildu. It fyrsta sinn er úlfrinn spyrndi við, brotnaði sá fiǫturr. Svá leystiz hann ór Lœðingi. Því næst gerðu æsirnir annan fiǫtur hálfu sterkara er þeir kǫlluðu Dróma, ok báðu enn úlfinn reyna þann fiǫtur ok tǫlðu hann verða myndu ágætan miǫk at afli ef slik stórsmíði mætti eigi hallda honum. En úlfrinn hugsaði at þessi fiǫturr var sterkr miǫk, ok þat með hafði afl vaxit síðan er hann braut Lœðing; kom þat í hug at hann myndi verða at leggia sik í hættu ef hann skyldi frægr verða, ok lét leggia á sik fiǫturinn. Ok er æsir tǫlðuz búnir, þá hristi úlfrinn sik ok laust fiǫtrinum á iǫrðina, < ok knúðiz fast at, spyrndi við, braut fiǫturinn> svá at fiarri flugu brotin. Svá drap hann sik ór Dróma. [. . .]

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Eptir þat óttuðuz æsirnir at þeir myndu eigi fá bunndit úlfinn. Þá sendi Allfǫðr þann er Skírnir er nefndr, sendimaðr Freys, ofan í Svartálfaheim til dverga nǫkkurra ok lét gera fiǫtur þann er Gleipnir heitir. Hann var giǫrr af .vi. hlutum: af dyn kattarins ok af skeggi konunnar ok af rótum biargsins ok af sinum biarnarins ok af anda fiskins ok af fogls hráka. [. . .]. Úlfrinn segir: ‘Ef þér bindið mik svá at ek fæk eigi leyst mik, þá skollit þér svá at mér mun seint verða at taka af yðr hiálp. Úfúss em ek at láta þetta band á mik leggja. En heldr en þér frýit mér hugar, þá leggi einn hverr hond sína í munn mér at veði, at þetta sé falslaust gert.’ En hverr ásanna sá til annars ok þótti nú vera tvau vandræði, ok vildi engi sína hǫnd fram selia, fyrr en Týr lét fram hǫnd sína hœgri ok leggr í munn úlfinum. En er úlfrinn spyrnir, þá harðnaði bandit, ok því harðara er hann brautz um, því skarpara var bandit. Þá hlógo allir nema Týr; hann lét hǫnd sína. The Æsir brought up the wolf at home, at it was only Tyr who had the courage to approach the wofl and give it food. And when the gods saw how much it was growing each day, and all prophecies foretold that it was destined to cause them harm, then the Æsir adopted this plan, that they made a very strong fetter which they called Leyding and brought it to the wolf and suggested he should try his strength with the fetter. The wolf decided that it was not beyond its strength and let them do what they wished with it. At the first kick that the wolf made at it the fetter broke. Thus he loosed himself from Leyding. Next the Æsir made a s second fetter twice as strong which they called Dromi, and asked the wolf again to try this fetter and declared that he would achieve great fame for this strength if such mighty pieces of engineering could not hold him. The wolf thought to himself that this fetter was very strong, but also that his strength had grown since he broke Leyding.It occurred to him that he would have to take some risks if he was to achieve fame, and allowed the fetter to be put on him. And when the Æsir declared they were ready, the wolf skook himself and knocked the fetter on the grounds and strained hard, kicked with his feet, broke the fetter so that the fragments flew far away. Thus he struck himself out of Dromi. [. . .] After this the Æsir began to fear that they would not manage to get the wolfbound. The All-father sent some one called Skirnir, Freyr’s messenger, down into the world of black-elves to some dwarfs and had a fetter called Gleipner made. It was made of six ingredients: the sound of the cat’s footfall and the woman’s beard, the mountain’s roots and the bears sinews and the fish’s breath and bird’s spittle. [. . .] The wolf said: ‘If you bind me so that I am unable to release myself, then you will be standing by in such a way that I should have to wait a long time before I got any help from you. I am reluctant to have this band put on me. But rather than that you question my courage, let some one put his hand in my mouth as a pledge that is done in good faith.’ But all the Æsir looked at each other and found themselves in a dilemma and all refused to offer their hands until Tyr put forward his right hand and put it in the wolf’s mouth. And now when the wolf kicked, the band grew harder, and the harder he struggled, the tougher became the band. Then they all laughed except for Tyr. He lost his hand.1

Snorri’s version seems to be based upon a remark in Eyvindr’s Hákonarmál stanza 20 according to which Fenrir will be ranging the world in the apocalyptic days of Ragnarǫk. The majority of details provided by Snorri, including the array of proper names for each and every single object involved, however, seems to have poured

1 Old Icelandic text cited from Lorenz 1984, pp. 412f. English translation cited from Faulkes 1987, pp. 27–29.

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from popular tradition or even Snorriʼs own imagination. The tale’s literary structure heavily resembles what Eugen Mogk has labelled ‘mythologische Novelle’2 (‘mythological novelletta’) including the striking fairy-tale-like traits such as the adynaton-like structure. Gleipnir, for instance, might well be a secondary construction modelled after mythological object names such as Gungnir, the spear of Óðinn, and Mjǫllnir, Þórr’s hammer. Despite the seemingly young age of all these embellishments confided by Snorri, the tale’s core element, namely Týr’s right arm being bitten off, has to be construed as much older, in fact not only very old, that is to say Viking Age, but extraordinarily old, presumably retraceable as far back as the Indo-European era. Needless to say, I am completely aware of the doubts and suspicions usually aroused by large-scale theories on substrates of an Indo-European phantom mythology allegedly preserved in Eddic mythological poems or other medieval written records.3 Nevertheless, the brutal story of the loss of Týr’s hand is one of the very few intriguing cases in which we may encourage ourselves to take a daring glimpse into the abyss of the Indo-European phantasmagoria with some legitimation at least (a second one being apparently the myth of the mead of the skalds with its Greek and Vedic connections, a third being the basic structure of the theogonies, which is strikingly resemblant to its Greek and Hittite counterparts). Týr’s Indo-European relationships regarding the loss of the right hand covers the Irish god Nuadu and the Indian-Vedic deity Sûrya.

Table 1: Týr’s Indo-European Relationships. Name

Týr

Nuadu

Sûrya

Origin

Norse (/West Germanic – *Tiwaz)

Irish (Celtic)

Indian (IndoAryan)

Sources

Old Norse Literature, West Germanic material

Lebor Gabála Érenn

Rigveda

hand chopped off in battle

wolf biting off hand

silver hand

golden hand

Way of losing hand wolf biting off hand

Substitute for lost hand

–

Whereas Nuadu forfeits his right hand in the course of a fight, Sûrya gets his hand chopped off by a wolf – nota bene. Unlike Týr, however, both the Celtic as well as 2 Cf. Mogk 1923. 3 Cf. the criticism put forward by Schlerath 1995/96, e.g.

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the Vedic deity acquire a metal substitute for their hand gone astray, a silver hand in the case of Nuadu, a golden one in the Sûrya tale. This trait is completely missing of course in the Fenrir-Týr myth but this might be explainable by the fragmentary shape in which Snorri has passed the tale down to us, as Jan de Vries has suggested.4 In return, the Týr myth features one special aspect unparalleled in the Nuadu and Sûrya tale, which is the heavily emphasized fact that Týr puts his hand in the mouth of the Fenris Wolf as a pledge. Týr’s one-handedness is attested in other literary sources, and possibly on a petroglyph from Lökeberg, Sweden.5

Fig. 1: Rock carving in Lökeberg, Bohuslän, Sweden. Source: Montelius, Oscar (1877): Sveriges hednatid, samt medeltid, förra skedet, från år 1060 till år 1350. Stockholm, p. 161.

Following Karl Hauck and other scholars, Týr putting his hand into the mouth of the Fenrir might be depicted on a migration period gold bracteate from Trollhättan, Västergötland (cf. fig. 2). It might be objected that the lycophore beastly creature is somewhat too small to represent Fenrir and that it is ostensibly not the right but the

4 De Vries 1957, p. 23. 5 ‘Es erscheint verlockend [. . .] aber diese Deutung bleibt natürlich sehr fraglich’ as De Vries (1957, p. 25) puts it.

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Fig. 2: Bracteate from Trollhättan, Västergötland, Sweden. Source: Oehrl, Sigmund (2011): Vierbeinerdarstellungen auf schwedischen Runensteinen. Studien zur nordgermanischen Tier- und Fesselungsikonografie (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 72). Berlin/ New York, fig. 226.

left hand involved here but this might be too concretistic a view, ignoring the extraordinary and somewhat quaint iconographical codes of mythic abbreviations dominating the pictural universe of the bracteates. A closer look at the two protagonists of the Fenrir-Týr myth confirms the thesis that the story of their encounter ending up in Týr’s mutilation contains comparatively archaic narrative substance regardless of the seemingly young fairy-tale-like structure of Snorri’s 13th-century highly stylized retelling. It is actually the only myth related in the Eddas in which Týr, an otherwise ‘mythless’ deity, appears in persona and plays a more or less active role. Since Wolfgang Krause’s etymological studies,6 the majority of scholars agree that the primary meaning of the name Týr is actually simply ‘god’, which, strictly speaking, makes the word an appellative rather than a proper name (plural tivar) and that the word is cognate with Latin deus, Greek Zeus, Sanskrit देव (devá), and so forth. It has been argued (quite convincingly in my opinion) that Týr as a god used to be the principal deity of the Norse, or proto-Norse, North Germanic and possible proto-Germanic pantheon but has declined in significance, successively remaining a hazy shadowy deity in the literary sources.7 In Snorri’s account of the series of individual combats between the Æsir and their dark-side opponents at Ragnarǫk, Týr fights a duel with the hellhound – or wolf – Garmr. Tellingly, this clash between Týr and Garmr is not recorded in Vǫluspá – the poet who wrote it does not even seem to have known about the existence of a canine creature called Gramr at all. Even those who might be extremely doubtful about the Indo-European connection may therefore approve the theory put forward by Axel Olrik, Gabriel Turville-Petre plus many others that Garmr being chained before the cave Gnipahellir until Ragnarǫk is in total a kind of secondary spin-off, or hypostasis (to be more accurate) of Fenrir; a

6 Cf. Krause 2014 (first published 1940). 7 Cf. Stefánsson 2005, p. 242; Turville-Petre 1964, p. 182.

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‘Sproßerscheinung’8 as Lorenz puts it. However, since Snorri places value on Týr performing at Ragnarǫk and Fenrir, Týr’s well-recorded archenemy from ancient times, is already occupied – so to speak – with killing and swallowing Óðinn, Garmr serves as a proxy or deputy monster, if we may say so. Fenrir himself is one of the key figures of Norse mythology, or even perhaps the key figure in Norse mythology, as Lorenz has boldly argued even if this might be a bit too reckless a view.9 It is justified, however, to a certain extent by the fact that Fenrir, the bestia horribilissima of Norse lore, is possibly the most constant figure in the fluid North Germanic mythological system. Put extremely simply, Fenrir might have been the antagonist of the giants at a very early pre-Viking Age or even Bronze Age stage, later the antagonist of Týr, as we still see him, acting in the Gleipnir story and Snorri’s account thereof, and yet later the antagonist of Óðinn after Óðinn had superseded Týr in the top-rank position of the pantheon. It is in this sense that I called Garmr a substitute/proxy for Fenrir earlier, since Týr seems to have been associated with Fenrir as his nemesis, before Óðinn emerged as the central deity. In this reading, the Óðinn-Fenrir deathmatch in Gylfaginning’s Ragnarǫk vision is the result of a later shift entailing the necessity to provide Týr with a substitute counterpart after Fenrir had been withdrawn from this position. Scholars have directed attention to at least two further possible Indo-European analogues to the Fenrir-Týr myth, at least one of which seems extraordinarily conspicuous indeed. It was the contentious French mythologist Georges Dumézil (1898–1986), widely known and partly infamous because of his extremely venturous und farreaching idéologie tripartite, who invoked the Roman legend of Gaius Mucius Scaevola as related by, for example, Livy and Dionysius Halicarnensis. Set in 508 BC, that is to say in early Roman history, the story centres on the protagonist who gets captured by the Etruscan king or rather warlord Porsena and sacrifices his right hand to defend his honour, claiming that his physical bodily integrity is worthless in comparison. Subsequent to his mutilation, Gaius Mucius adopts his speaking epithet scaevola (meaning ‘left-handed’). Despite the fact that Scaevola gets his right hand burnt by fire instead of having it chopped off by another living creature, like in the case of Týr, Dumézil and, in his wake, De Vries asserts that ‘[d]ie Übereinstimmung ist so treffend, daß sie nicht zufällig sein kann’,10 which is why he draws the conclusion ‘daß ich diesen Mythus von Týr als sehr alt betrachte und ihn schon der indogermanischen Zeit zuschreiben will’.11 This (Re-)Indogermanisierung of the Fenrir-Týr myth by Dumézil and his followers is based not so much on matches on a motivic level or on

8 Lorenz 1984, p. 418. 9 ‘Fenrisúlfr ist eine der zentralen – vielleicht sogar die zentrale Gestalt – der nordgermanischen Mythologie [. . .]. Die Bedeutung Fenrirs wird auch daran deutlich, daß Snorri ihn noch vor den Asen in seine Mythologie einführt.’ (Lorenz 1984, p. 418). 10 De Vries 1957, p. 24. 11 De Vries 1957, p. 24.

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parallels in terms of narrative structure but draws significantly on the functions of the category of law and justice and the ways it is negotiated. Remaining for a moment in the hyperstructured and yet awkward and somewhat bizarre world of Dumézil’s idéologie tripartite (trifunctional hypothesis), we may call to mind how Dumézil imagines the three functions – namely sovereignty, physical force, and prosperity in herding, farming, crafts etc. – being realized in the paradigm of Norse mythology.

Table 2: Dumézil’s Trifunctional Hypothesis – Basic Structure. Function

Indian (vedic)

Roman

Germanic- Celtic Norse

a. juridical, priestly, wordly

Mítra

Dius Fid(i)us

*TîwazTýr

Teutates quiescent, placating

priest

b. magic, religious, powerful, sinister

Varuna

Jupiter

WodanÓðinn

Esus

mysterious, threatening, subversive

king

. force., military, war

Índra

Mars

DonarÞórr

Taranis

heroic traits, armed, monsterfighting/killing

(aristocratic) warrior

often siblings or twins

peasants, stock farmers

. productivity, Nasatya Quirinus Freyr and fertility, farming, Freyja, crafts Njǫrðr

Commentary

Counterpart in human social structure

Dumézil registers a strong tendency to split up the first function into two subfunctions, a bright, quiescent, placating, apollinisch (in Friedrich Nietzsche’s terminology) one and a sinister, threatening, subversive, dionysisch one; the former is represented in Norse by Týr and the latter by Óðinn. Most certainly, Týr and Óðinn share the core feature of physical mutilation both have to suffer while acting in their respective functions, Týr losing or rather sacrificing his right hand in some awkward legal affair, Óðinn sacrificing one of his eyes for an insight into the secrets of the runes. In terms of comparative Indo-European mythology, the major equivalents would be the sinister Varuna and the bright Mitra in Vedic mythology, and Jupiter and Dius Fidius (who is associated with oaths) in the Roman pantheon. Dumézil and his multiplicator Åke V. Ström have further drawn attention to the legend of Publius Horatius Cocles, ending up with two stories of Roman heroes defeating the Etruscan king Porsena, one of them one-handed (Mucius Scaevola), the

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other one-eyed, namely Horatius Cocles (cocles obviously meaning one-eyed).12 The story, set in 507 BC is preserved in Polybios (2nd century BC) and Livy.

The Brísingamen A second classic story, or rather collection of fragments of stories, centering around the categories of law, crime and violence, is the scattered and obviously somehow distorted myth on the Brísingamen, the exceptional, magical and posh necklace of the goddess Freyja. She is actually a descendant of the Vanir tribe but habitually dwells among the Æsir as a consequence of a hostage exchange following the ÆsirVanir war. The surviving literary relicts of the Brísingamen myth in Old Norse are basically preoccupied with three different aspects or episodes if we presume that the Brísingamen myth at some stage has had a coherent continuous storyline: firstly, the production of the precious jewellery by dwarfs and the slightly salacious twist by which it comes into Freya’s possession; secondly, the theft of the Brísingamen at Freyja’s disposal, the purloinment being carried out by Loki; and thirdly, a mysterious fight staged by Loki and Heimdallr for an object which is very possibly though not irrefutably the Brísingamen. The first episode represents an example of myths of origins that are so frequent in Norse mythology as well as in Indo-European lore on the whole. More precisely, it belongs to an array of structurally related tales of dwarfs manufacturing fantastic precious objects coveted by the gods and goddesses and finally passing them over more or less voluntarily in return for some consideration or reward. We remember the Brokkr and Sindri myth and of course the background stories of Draupnir and Mjǫllnir. The story of Freyja appropriating the newly made Brísingamen is not canonized in the Gylfaginning but in the 14th century Sǫrla þáttr (‘mythologische Klitterung’,13 as Klingenberg has called it) indulges in a trenchant retelling of its burlesque content. The plot with its lewd subtones resembles the popular (high and) late medieval genre of the fabliau, including a rather misogynistic stress on female lustfulness and easy-going attitude towards casual erotic adventures. Despite these later elements Sǫrla þáttr records some seemingly pre-Viking-age mythologemes otherwise lost, albeit in grotesque distortion. The promiscuity theme, excessively used in saga literature with reference to maidservants, is also strongly prevalent in Loki’s accusations towards Freyja in Lokasenna and to a certain degree Freyja seems to have structurally been affiliated with sexuality and lechery, compliant with her Vanir background, which is associated with the deities of fertility, productivity,

12 Cf. Ström 1975, p. 131. 13 Klingenberg 1978, p. 464.

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farming, herding, and the like (thus representing the third function in Dumézil’s theory). We immediately think of Freyja’s incestuous relationship with her brother Freyr and definitely of her eminent association with cats. The two other Brísingamen episodes, the purloinment of the Brísingamen and the fight over it may reasonably be analysed jointly since both portray Loki in a leading role and there might be some common mythographical matrix or a shared superordinated complex of ideas. The theft of the Brísingamen is recorded in the kenning Brísings goða girðiþjófr referring to Loki in stanza 9 of Þjóðolfr’s Haustlǫng from the late 9th century.14 The term girðiþjófr seems to indicate that at this stage and/or possibly in the region involved (Norway), the precious jewellery was regarded as a belt rather than as a necklace as in later sources and as preconditioned in the compound Brísingamen and its Old English cognate Brosinga mene mentioned in Beowulf. Snorri’s Skáldskaparmál records the kenning þjófr Brisingamens for Loki. We may conclude that Loki purloining the Brísingamen was a well-known established element of Viking-Age North Germanic mythology despite the absence of any cohesive narrative account in either skaldic or Eddic poetry. The great uncanny and cryptic mystery of Brísingamen scholarship is undoubtedly stanza 2 of Húsdrápa, an ekphrasis poem ascribed to Úlfr Uggason. The text is as follows (Finnur Jónsson’s edition): Ráðgegninn bregðr ragna rein at Singasteini frægr við firna slœgjan Fárbauta mǫg vári; móðǫflugr ræðr mœðra mǫgr hafnýra fǫgru, kynnik, áðr ok einnar átta, mærðar þǫttum. Renowned defender [Heimdall] of the powersʼ way [Bifrost], kind of counsel, competes with Farbauti’s terribly sly son at Singastein. Son of eight mothers plus one, mighty of mood, is first to get hold oft he beautiful sea-kidney [jewel, Brisingamen]. I announce it in strands of praise.15

The Brísingamen is not explicitly mentioned in the verses and various readings have been put forward asserting doubts whether this enigmatic stanza contains any reference to the Brísingamen at all. Kurt Schier is among these sceptics, for example.16 The two major elements of mystification are the proper name Singasteinn and the kenning hafnýra. According to Wilhelm Heizmann’s recent and rather extensive 14 Cf. Lexicon poeticum 1931, p. 65, s.v. Brísingr; Meissner 1921, p. 255. 15 Den norsk-islandske skjaldedigtning B I (ed. Jónsson), p. 128. English translation cited from Faulkes 1987, p. 77. 16 Cf. Schier 1992.

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study on the subject, however, Singasteinn is to be regarded as a place name and most likely as a designation for a skerry or islet whereas hafnýra may actually and most satisfyingly be rendered as a kenning for the Brísingamen.17 The two persons fighting and jostling for the precious object are easily to be identified with Loki and Heimdallr respectively. The two deities are attested as antagonists elsewhere, most notably in the Ragnarǫk myth. The exceptional trait here is that the two opponents struggling for the Brísingamen appear in the shape of seals, at least in Snorri’s prose account. This might be regarded as a secondary addition and an Islandismus, a specific Icelandic feature, since seals and their inherent animal symbolism play a significant role in Icelandic myth and lore from the Eyrbyggja saga up to the present day. However, the seal shape perfectly fits the two figures’ liminal characters. An interesting aspect is the etymology of the name Heimdallr, or of its second element, for that matter. It is apparently to be linked with dallr ‘sheen, gleam’, cognate with Old English deall.18 The same element appears in Freyja’s sobriquet Mardǫll, with marr meaning ‘sea, ocean’. In both the Fenrir-Týr episode and in the Brísingamen myth we thus find a deity associated with some sort of brightness and order in a conflict with a representative of the chaotic dark side of the Force, so to speak. In both cases, lawbreaking, contracts or collusions are involved and somehow turn out to be dysfunctional, thereby revealing the fragility of the underlying law system and its rules. And in both cases, some object of fundamental significance in terms of force, power and law as well as of tremendous symbolic impact is at stake and finally is withdrawn from the gods’ control. Týr’s right hand is a clear case, and as for the Brísingamen it should be noted that this item, though never really described in any text, is to be conceived as one of the major and central objects and artefacts in Norse mythology, obviously dating back to a comparatively archaic layer, to say the least. Paraphrasing the two cases presented in this paper on a more abstract level: there is grievous bodily harm following the violation of a contract on the one hand and there is aggravated theft on the other. Both acts of lawbreaking are highly charged with mythological, in particular cosmological/cosmogonical and theogonic subtexts, comparable with one Indo-European parallel or other on the one hand and forming integral parts of larger narrative structures within the vast framework of Norse mythology on the other. The two lawbreakers portrayed in our two myths are Fenrir, whom I have characterized as the prime sinister figure and chief representative of the black, demonic forces, and Loki, whose function as a trickster and a culture hero has often been debated.19 Admittedly, the case of the purloinment of the Brísingamen and the subsequent struggle between Loki and Heimdallr is probably the easier and more obvious one. 17 Cf. Heizmann 2009. 18 For an extensive etymological analysis of the name Heimdallr cf. Cöllen 2015, pp. 254–258. 19 Cf. De Vries 1933; Stefánsson 2005, p. 148, s.v. Loke and p. 239, s.v. trickster; Simek 32006, p. 254.

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Thinking of the domestication image commonly used to describe the process of establishing civiliazation and culture and considering the Brísingamens’s obvious heavy sexual and erotic subtexts (or supertexts?) as well as Freyja’s own Vanir background including her according associations with fertility, sexual intercourse and possibly promiscuity and lustfulness, the tale of the Brísingamen might be seen as a story of an enforced cultural assimilation extorting Freyja to abandon her ‘primitive’ Vanir-like sexual lifestlye and her ‘third-function-activities’ and subordinating her to more distinguished and elitist rites and customs the Æsir have developped. The means of achieving this aim is to dispossess her of her exceeding attribute, her belt or necklace. The Middle High German Nibelungenlied provides us with a similar story regarding the situation of Prünhilt after her arrival at Worms (The Nibelungenlied, Chapter 9). Pondering about Gro Steinsland’s rather suggestive question ‘Dreier det seg kanskje om en variant av maktenes kamp om tilgang til fruktbarhetsgudinnen?’20 I would cannily answer: just the other way round! The Æsir as the keepers of supreme hegemonial power, a status gorily carved out in the earlier stages of cosmogony against adversaries (mind the Ymir story) defend and consolidate their supremacy by eliminating or at least subdueing the relicts of the atavistic, unprogressive elemens that Freyja has introduced not to say smuggled into the higher developped world of the Æsir, revealing permissive female sexuality among others. Within Norse (Eddic) mythology‘s fictitious inherent narrative grammar, the Æsir do very similar things when killing Ymir to create the universe from his dead body remains which establishes cosmic order and at the same time acts as a self-empowerment of the Æsir towards the until-then reigning Giants, or when bilking the Giant Builder after the edification of Asgarðr, when burning Gullveig (in Vǫluspá), and when fighting the subsequent Æsir-Vanir war with the inconscionabilities involved in the adjustment negotiations. In all of these cases the use of violence and force in order to establish social and legal systems on the Æsir‘s own terms is by no means coincidental or accidental. It is not random violence, but structural violence that is displayed in these tales. The conspicious item in the Brísingamen myth is that it features theft paired with kind of slyness on Loki’s part, i.e. soft, white-collar deliquincy and no direct physical harms, at least if we ignore Loki stinging the sleeping Freyja‘s cheek after he has turned into the shape of a flee and, more serious, Freyja’s successive sexual acts with the four dwarfs which is at least close to what has been labelled raptist violence and/or (sacred?) prostitution. Anyway, the thief can be no one other than Loki with his well-known impulsive intelligence. Even though theft is ususally perceived as inglorious, dishonest, shameful and unmanly it might be noticed that there appears to be a shade of hidden estimation of thieves in certain cases and contexts. Robin Hood as the paradigm of the noble thief concept comes to mind,

20 Steinsland 2005, p. 159.

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and also the commonly used compound ‘master thief’ (think of the fairy-tales in Asbjørnsen’s/Moe’s and Grimms collections, ATU 1525A) expressing at least a slight notion of admiration and respect for the master thief’s boldness, slickness, quick thinking, in a word: smartness. The same may apply to card sharpers and forgers of banknotes, e.g.

Conclusion The case of the severe harm Týr suffers from Fenrir is more shrewd and refined in so far as it confronts us with a legal deity losing his hand, the Schwurhand, through an act of intended law-breaking since we have to presume, of course, that the Æsir were decided from the beginning to break the oath given to Fenrir. By Æsir I here mean the other Æsir god except Týr in the first insance.21 In Snorri’s tale or retale it is not stated explicitly whether Týr himself is consciously in the plot or not. If he is not and the Æsir sacrifice their mate’s right hand in order to get rid of their wolfish nemesis Fenrir without him, the donor, knowing about this bloody trick in advance, the story is cynical, morbid, ghoulish and based on a rather black and wicked cruel sense of humour. Interestingly enough, this reading would ingeniously reflect the process of the actual real-life dethronement or marginalization of the deity Týr in favour of Óðinn in the mode of narrative and story-telling. A restructuring of the Norse pantheon would then have been fixed and codified into mythological fiction and thereby translated and in a way transferred onto a sort of meta-level with the gods acting as homodiegetic figures within a twice-told and highly metaphoric narrative. Enticing this reading may seem it is doomed to failure at second glance for the latest. As outlined above, the central idea of Týr losing or having lost his hand is retraceable up to the Migration period, an era long before Óðinn took over and usurped the top of Asgard in which role and function we know him so well from Eddic sources. What is more, both Týr and Óðinn share the key trait of a physical handicap as an anatomic marker of their exorbitance that pours from or is associated with their first-functiondesign and set-up. Consequently, Týr’s injury can hardly be interpreted as a metaphor for or symbol of decline. Otherwise, Óðinn’s loss of one eye in return for runic wisdom would not make much sense. Tackling the story on its mytholgical or probably rather mythographical level, the key element is very distictly Fenrir. To sum up: Fenrir is a fiend being so

21 I may conveniently quote the conclusions drawn by De Vries and Lorenz: ‘Die Bedeutung des Mythus von Týr ist also diese, daß er zeigt, wie ein Gott zur Sicherung der kosmischen Ordnung eine notwendige Lüge mit dem Verlust seiner Hand bezahlen will.’ (De Vries 1957, p. 24) – ‘Týr verliert seine Hand durch einen Rechtsbruch; Fenrir wird nicht nur durch eine einfache List gefesselt [. . .], sondern durch einen bewußten Eidbruch der Götter.’ (Lorenz 1984, p. 430)

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powerful and menacing that unlike e.g. the Midgard Serpent he cannot be vanquished in the ordinary way – by which I mean apart from the Ragnarǫk myth – and even the humble goal of keeping Fenrir under control requires a physical sacrifice and/or systematic lawbreaking and oathbreaking paradoxically involving the very deity with is associated with Law and Justice. Though law and order are commonly considered as a tool to reduce violence and disavowe its use or even to gradually eliminate it from society as social structures and cultural progress, like Norbert Elias has suggested,22 in extreme cases such as the Fenrir-Týr affair systematic well-inadvance-planned lawbreaking/oathbreaking is necessary to keep the cosmic ordo by using violence against the embodiment of the dark force, Fenrir. In fact, the fettering remains an act of violence despite the chain being so wondrously soft and silken. Since violence tends to engender violence it is comprehensible and to a certain degree justified that Fenrir does what he had announced to do in case of fraud. Interestigly enough, Týr appears not only as Fenrir’s chief opponent but also as Fenrir’s feeder and fostering person. This aspect of the Týr-Fenrir relationship is not recorded elsewhere and very likely a supplement added by Snorri. Presumably he decided that the way the figures and particularly Fenrir act during the whole business seem not very plausible and replicable and from a modern psychological viewpoint this is certainly true. So Snorri might have decided to substantiate and polish things a bit. The result is the metamorphosis of a (fragmented) myth of Law and Justice into a fairy-tale like and somewhat bizarre god/ hero-v-monster narrative.

Bibliography Primary sources Gylfaginning. Snorri Sturluson. Texte, Übersetzung, Kommentar, ed. by Gottfried Lorenz (1984): Texte zur Forschung, 48. Darmstadt. Snorri Sturluson. Edda, transl. by Anthony Faulkes (1987). London/Melbourne. Den norsk-islandske skjaldedigtning B I, ed. by Finnur Jónsson (1912). Copenhagen.

Secondary sources Cöllen, Sebastian (2015): Heimdallr – Der rätselhafte Gott. Eine philologische und religionsgeschichtliche Untersuchung (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 94). Berlin/Boston.

22 For a concise and convenient introdution to Elias‘ work on violence and civiliazation see Fletcher 1997. Elias‘ most prominent book on the subject is, of course, the two-volume study Über den Prozeß der Zivilisation, first published in 1939.

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Finn Stefánsson (2005): Gyldendals leksikon om nordisk mytologi. Copenhagen. Finnur Jónsson (1931): Lexicon poeticum antiquæ linguæ septentrionalis. Ordbog over det norskislandske skjaldesprog. 2nd edition. Copenhagen. Fletcher, Jonathan (1997): Violence and Civilization. An Introduction to the Work of Norbert Elias. Cambridge. Heizmann, Wilhelm (2009): Der Raub des Brísingamen oder: Worum geht es in Húsdrápa 2? In: Heizmann, Wilhelm/Böldl, Klaus/Beck, Heinrich (eds.): Analecta septentrionalia. Beiträge zur nordgermanischen Kultur- und Literaturgeschichte (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 65). Berlin/New York, pp. 502–530. Klingenberg, Heinz (1978): Brísingamen. In: Beck, Heinrich/Geuenich, Dieter/Steuer, Heiko (eds.): Reallexion der Germanischen Altertumskunde 3. Berlin/New York, pp. 464–465. Krause, Wolfgang (2014): Ziu*. In: Beck, Heinrich/Düwel, Klaus/Job, Michael/van Nahl, Astrid (eds.): Krause, Wolfgang: Schriften zur Runologie und Sprachwissenschaft (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 84). Berlin/Boston, pp. 549–564 (first published 1940). Lorenz (1984): see Gylfaginning. Meissner, Rudolf (1921): Die Kenningar der Skalden (Rheinische Beiträge und Hülfsbücher zur germanischen Philologie und Volkskunde 1). Bonn/Leipzig. Mogk, Eugen (1923): Novellistische Darstellung mythologischer Stoffe Snorris und seiner Schule (Folklore Fellows Communications 51). Helsinki. Schier, Kurt (1992): Skandinavische Felsbilder als Quelle für die germanische Religionsgeschichte. In: Beck, Heinrich/Ellmers, Detlev/Schier, Kurt (eds.): Germanische Religionsgeschichte. Quellen und Quellenprobleme (Ergänzungsbände zum Reallexikon der Germanischen Altertumskunde 5). Berlin/New York, pp. 162–228. Schlerath, Bernfried (1995/96): Georges Dumézil und die Rekonstruktion der Indogermanischen Kultur. In: Kratylos, 40, pp. 1–48, and 41, pp. 1–67. Simek, Rudolf (2006): Lexikon der germanischen Mythologie (Kröners Taschenausgabe 368). 3rd edition. Stuttgart. Steinsland, Gro (2005): Norrøn religion. Myter, riter, samfunn. Oslo. Ström, Åke V. (1975): Germanische und baltische Religion (Die Religionen der Menschheit 19,1). Stuttgart et al. Turville-Petre, Gabriel (1964): Myth and Religion of the North. The Religion of Ancient Scandinavia. London. Vries, Jan de (1933): The Problem of Loki (Folklore Fellows Communications 110). Helsinki. Vries, Jan de (1957): Altgermanische Religionsgeschichte. Volume II: Die Götter – Vorstellungen über den Kosmos – Der Untergang des Heidentums. 2nd edition. Berlin.

Name Index The annotation of names is a compromise. For pragmatic reasons, the names of historical Icelanders as well as the names of persons who are only attested in one historiographical text are accompanied by a reference to the saga(s) in which they occur. Ælnoth of Canterbury (Odense), Danish hagiographer (early 12th c.) 5 Aischylos, Greek poet († 456 B.C.) 238 Alfred the Great, Anglo-Saxon King († 899) 257 Althoff, Gerd 67 Andersson, Theodore M. 146, 171, 261 Apollo, Greek deity 26, 226 Ari Þorgilsson, Icelandic historiographer († 1148) 6, 83, 113 Arinbjǫrn, Icelander (Egils saga) 62, 99 Aristotle, Greek philosopher 230 Arngrímr Þorgrímsson, Icelander (Eyrbyggja saga) 174 Arnkell Þórólfsson, Icelander (Eyrbyggja saga) 181f., 241f. Ásbjǫrn Guðmundarson, Icelander (13th c., Þórðar saga kakala) 14, 16 Ásdís Styrsdóttir, Icelander (Eyrbyggja saga) 175f., 178–180 Áskell Eyvindarson, Icelander (Reykdœla saga ok Víga-Skútu) 139, 141, 146–152 Ástríðr Vigfússdóttir, Icelander (Víga-Glúms saga) 153, 191f. Athena, Greek deity 227 Athenians 232 Atli Hjálmsson, Icelander (13th c., Þórðar saga kakala) 14 Bakhtin, Mikhail 19, 142 Banakar, Reza 172f. Bárðr Hallason, Icelander (Víga-Glúms saga) 124, 129 Berg-Ǫnundr, Icelander (Egils saga) 61f., 99f. Bibire, Paul 93, 109 Bǫðvarr Ásbjarnarson, Icelander (12th c., Þorgils saga ok Hafliða) 123 Bolli Bollason, Icelander (Laxdœla saga) 192, 194–196 Boulhosa, Patricia P. 120 Bourdieu, Pierre 10 Brahma, Indian deity 226

https://doi.org/10.1515/9783110661811-014

Brandr inn ǫrvi Vermundarson, Icelander (11th c., Morkinskinna) 70 Brodd-Helgi Þorgilsson, Icelander (Vápnfirðinga saga) 247 Brunner, Otto 136 Brynhildr (heroic legend) 16 Buc, Philippe 69, 71 Byock, Jesse 121, 131, 145 Callmer, Johan 263 Camus, Albert 19 Cecilia Sigurðardóttir, Norwegian princess († after 1185) 59 Charondas of Catane, Greek philosopher (7th 6th c. B.C.) 225, 230f., 236 Cicero, Marcus Tullius, Roman politician († 43 B.C.) 247 Cosmas of Prague, Bohemian historiographer († 1125) 226, 227 Cowell, Andrew 208 Dagfinnr bóndi, Norwegian (13th c., Hákonar saga Hákonarsonar) 65 Daniel Adam of Veleslavín, Bohemian humanist († 1599) 226 David (biblical) 245 Demeter, Greek deity 231 Dostoevsky, Fyodor 19 Dronke, Ursula 111, 257 Dumézil, Georges 26, 280f., 283 Egill Skalla-Grímsson, Icelander (Egils saga) 21, 61–63, 99–102, 111f., 191f., 198–200 Einarr Eyjólfsson, Icelander (Ljósvetninga saga) 157 Einarr skálaglamm Helgason, Icelandic skald (10th c.) 111 Eiríkr blóðøx Haraldsson, Norwegian King († 954) 61f., 99–102 Emundr af Skǫrum, Swedish lawman (Heimskringla) 239

290

Name Index

Eskil Magnusson, Swedish lawman († 1227) 234, 238 Esphœlingar, Icelandic family 130, 153f. Eyjólfr Bǫlverksson, Icelander (Njáls saga) 84f. Eyjólfr Einarsson, Icelander (Reykdœla saga ok Víga-Skútu) 148, 151 Eyjólfr Guðmundarson, Icelander (Ljósvetninga saga) 157 Eysteinn Mánason, Icelander (Reykdœla saga ok Víga-Skútu) 147 Ezra (biblical) 227

Gunnlaugr ormstunga Illugason, Icelandic skald (Gunnlaugs saga) 103f., 109f. Gunther (Nibelungenlied) 205–219 Guttormr, Archbishop of Niðaróss († 1224) 57–59, 63 Guðmundr inn ríki Eyjólfsson, Icelander (Ljósvetninga saga) 156, 157, 158, 160 Guðrún Ósvífsrsdóttir, Icelander (Laxdœla saga) 191 Gyða Eiríksdóttir (Ragna), Norwegian Queen (10th c.) 236f.

Fenrir, mythological creature 26f., 275–287 Filippus, Norwegian King († 1217) 59f. Flaubert, Gustave 19 Flosi Þórðarson, Icelander (Njáls saga) 78–80, 125 Folkviðr, Norwegian lawman (12th c.) 59 Frederick I Barbarossa, Emperor († 1190) 8 Frederick the Great, King of Prussia († 1786) 245f. Freyja, Norse deity 26f., 113, 281–285 Freyr, Norse deity 101, 155, 276, 281, 283 Frið-Fróði (legendary King of the Danes) 229, 245

Hacks, Peter 246 Hafliði Másson, Icelander (12th c., Íslendingabók) 40 (Þorgils saga ok Hafliða) 43–49, 111, 123 Hájek of Libočany, Václav, Bohemian chronicler (†1553) 226 Hákon galinn, Norwegian jarl († 1214) 58f. Hákon inn góði Haraldsson, Norwegian King († 961) 94 Hákon IV Hákonarson, Norwegian King († 1263) 4, 17, 21, 49f., 57–73, 135 Hákon Sigurðarson, Norwegian jarl († 995) 156, 175 Hákon III Sverrisson, Norwegian King († 1204) 58, 71 Hálfr Hjǫrleifsson (legendary) 229 Halldórr Guðmundarson, Icelander (Ljósvetninga saga) 157 Halldórr Snorrason, Icelandic skald (11th c.) 112 Hallfreðr vandræðaskáld Óttarsson, Icelandic skald (10th/11th c., Hallfreðar saga) 96–99, 102–105 Hallgerðr Hǫskuldsdóttir, Icelander (Njáls saga) 82, 192, 196–198 Halli, Swedish berserk (Eyrbyggja saga) 171, 175–182 Haraldr inn hárfagri Hálfdanarson, Norwegian King († c. 932) 236f., 240f., 248, 257 Haraldr inn harðráði Sigurðarson, Norwegian King († 1066) 70, 112, 158 Hastrup, Kirsten 174 Hauck, Karl 278 Helgi Droplaugarson, Icelander (Droplaugarsona saga) 191f., 200 Helgi Njálsson, Icelander (Njáls saga) 78–80

Geirmundr gnýr, Norwegian viking (Laxdœla saga) 190 Geirr goði Ásgeirsson, Icelander (Njáls saga) 197f., 200 Geitir Lýtingsson, Icelander (Vápnfirðinga saga) 247 Gija (Jizi), Korean ruler (legendary) 226 Gísli Súrsson, Icelander (Gísla saga) 106, 107, 140, 150 Gratian, canonist († before 1160) 7 Grävenitz, Johann Wilhelm 246 Grettir Ásmundarson, Icelander (Grettis saga) 106, 178, 182, 246 Grimm, Jacob V, 8, 286 Grímr geitskǫr, Icelander (Íslendingabók) 234 Grimstad, Kaaren 255 Gunnarr grjónbak, Norwegian lawman (13th c.) 63 Gunnarr Hámundarson á Hlíðarenda, Icelander (Njáls saga) 82, 85, 130, 192f., 196–200 Gunnhildr Gormsdóttir, Norwegian Queen († c. 980) 62, 100–102

Name Index

Herjólfr Áskelsson, Icelander (Reykdœla saga ok Víga-Skútu) 148f. Heusler, Andreas 12, 117f., 126f., 136f., 144, 158, 187–189, 193, 198 Hinkmar, Archbishop of Reims († 882) 10 Hjalti Skeggjason, Icelander (Íslendingabók) 113 Homer, Greek poet 236 Hǫrðr Grímkelsson, Icelander (Harðar saga ok Hólmverja) 106 Hǫskuldr Kollsson, Icelander (Laxdœla saga) 190 Hǫskuldr Þráinsson, Icelander (Njáls saga) 82–85, 197f. Hrafnkell Hallfreðarson Freysgoði, Icelander (Hrafnkels saga) 139, 148 Hrútr Herjólfsson, Icelander (Laxdœla saga) 190 (Njáls saga) 82, 85, 197f. Huangdi, the ‘Yellow Emperor’, China (legendary) 226 Hvamm-Sturla Þórðarson, Icelander († 1183, Sturlu saga) 48 Inga Óláfsdóttir frá Varteig, mother of King Hákon Hákonarson († 1234/35) 58, 64 Ingi Bárðarson, Norwegian King († 1217) 58f. Ingibjǫrg Þórisdóttir, Icelander (Vatnsdœla saga) 97–99 Ingimundr prestr Einarsson, Icelandic skald (12th c., Þorgils saga ok Hafliða) 111 Jómsvíkingar (10th c.) 230 Jón Viðar Sigurðsson 118, 126f. Kári Sǫlmundarson, Icelander (Njáls saga) 22, 91–94, 105 Kjartan Óláfsson, Icelander (Laxdœla saga) 190f. Knud the Great (Knútr inn ríki), Danish King, King of England († 1035) 4, 225, 229, 233–237, 248, 260 Knud VI, King of Denmark († 1202) 9, 237 Knútr Hákonarson, Norwegian pretender (13th c.) 59 Kriemhilt (Nibelungenlied) 25, 205–220 Kuthen of Šprinsberk, Martin, Bohemian chronicler († 1564) 226

291

Landau, Peter 52 Langobards 149 Lassalle, Ferdinand 18 Leiknir, Swedish berserk (Eyrbyggja saga) 175–182 Libuše, legendary ancestor of the Přemysl Dynasty 227 Ljósvetningar, Icelandic family 146, 156–158 Lombard de Langres, Vincent 246 Lorenz, Gottfried 280 Luhmann, Niklas 9 Lycurgus, Athenian orator († 324 B.C.) 231 Lycurgus, Spartan lawgiver (9th c. B.C.) 225f., 230, 232f., 236 Magnús inn góði Óláfsson, Norwegian King († 1047) 94f., 102, 158 Magnús Erlingsson, Norwegian King († 1184) 58, 60 Markey, T. L. 101, 258 Mauss, Marcel 208 McKinnell, John 255, 260, 262 Melville, Herman 19 Meulengracht Sørensen, Preben 17, 171, 258 Miller, William Ian 12–14, 128, 137, 172, 177–180, 243, 262 Minos, legendary king 226 Mǫrðr gígja Sighvatsson, Icelander (Njáls saga) 22, 80–84, 86 Mǫrðr Valgarðsson, Icelander (Njáls saga) 22, 78–85, 196f. Moses (biblical) 227, 239, 241 Mǫðruvellingar, Icelandic family 156–158 Müller, Heiner 246 Müller, Jan-Dirk 206, 220 Münster-Swendsen, Mia 225 Nietzsche, Friedrich 275, 281 Níðuðr (heroic legend) 26, 255–269 Njáll Þorgeirsson, Icelander (Njáls saga) 7, 22, 77, 82–86, 91, 94, 124, 130f., 139, 188, 197 Nordal, Sigurður 101, 146 Numa Pompilius, King of Rome († 672 BC) 226 Oddr Ófeigsson, Icelander (Bandamanna saga) 107, 191 Oddr skáld Breiðfirðingr, Icelandic skald (Eyrbyggja saga) 109

292

Name Index

OʼDonoghue, Heather 93, 95, 109 Óðinn, Norse deity 26, 101, 229, 277, 280f., 286 Ófeigr Skíðason, Icelander (Bandamanna saga) 107f., 111 Ohthere, Norwegian trader and explorer 257 Økland, Arne Larsen 73 Óláfr in kyrri Haraldsson, Norwegian King († 1093) 152 Óláfr inn helgi Haraldsson, Norwegian King († 1030) 57, 60, 64f. Óláfr Tryggvason, Norwegian King († 1000) 96 Ondřej of Dubá, Bohemian chronicler († 1412/1413) 226 Ǫnundr sjóni Ánason, Icelander (Egils saga) 198f. Ǫrvar-Oddr (Fornaldarsögur) 229 Persephone, Greek deity 231 Phillpotts, Bertha 48 Pomponius, Sextus, Roman jurist (2nd c.) 7 Poole, Russell 98, 104 Přemysl the Ploughman, legendary ancestor of the Přemysl Dynasty 226f. Prünhilt (Nibelungenlied) 25, 205–220, 285 Pythagoras, Greek philosopher (6th c. B.C.) 236 Ragna See Gyða Eiríksdóttir Ragnarr loðbrók, legendary King of Denmark (9th c.) 229, 235f., 246–248 Reykdœlir, Icelandic Family 147 Sävborg, Daniel 257 Saxo Grammaticus, Danish historiographer († circa 1220) 5, 7, 9, 25, 149, 225, 228, 233, 245 Schiller, Friedrich 225 Shang Yang, Chinese philosopher (4th c. B.C.) 245 Sîfrit (Nibelungenlied) 9, 25, 205–220 Sigarr frá Brabant, member of Skúli jarl’s entourage (Hákonar saga Hákonarsonar) 65f., 71 Sighvatr Þórðarson, Icelandic skald (11th c.) 94f. Sigmundr Þorkelsson, Icelander (Víga-Glúms saga) 153, 155

Sigurðr Fáfnisbani (heroic legend) 17, 267 Sigurðr ribbungr, Norwegian pretender († 1226) 58 Skalla-Grímr Kveld-Úlfsson, Icelander (Egils saga) 199 Skapti Þóroddsson, Icelandic lawspeaker (Njáls saga) 22, 91f., 94, 124f. Skjǫldr, legendary King of Denmark 228f., 236 Skúli Bárðarson, Norwegian jarl († 1240) 21, 58–67, 72 Snorri goði Þorgrímsson, Icelander (Eyrbyggja saga) 24, 109f., 148, 176, 179–183 (Laxdœla saga) 17 (Njáls saga) 91f. Snorri Sturluson, Icelandic historiographer and lawspeaker († 1241) 3, 6, 9, 47–49, 61, 108, 146, 161, 239, 275–280, 283f., 286f. Sǫlmundr Víðarsson, Icelander (Ljósvetninga saga) 156 Solon, Greek politician († 559 BC) 225, 227, 230, 232f. Sǫrli (legendary) 229 St Magnús Erlendsson, Jarl of Orkney († 1115) 149 Stacey, Robin Chapman 266 Steinarr Ǫnundarson sjóna, Icelander (Egils saga) 198f. Steingrímr Ǫrnólfsson, Icelander (Reykdœla saga ok Víga-Skútu) 147–150 Ström, Åke V. 281 Sturla Sighvatsson, Icelander († 1238, Íslendinga saga) 160 Sturla Þórðarson, Icelandic historiographer and lawman († 1284) 3, 57 Sturlungar, Icelandic family 14, 143, 161 Sven Aggesen, Danish historiographer (late 12th c.) 4f., 25, 225, 233, 237 Sverrir Sigurðarson, Norwegian King († 1202) 57 Tacitus, Publius Cornelius, Roman historiographer († ca. 120) 8 Thorvaldsen, Bernt Øyvind 257 Timaeus of Tauromenion, Greek historiographer († 250 B.C.) 230 Tungu-Oddr Ǫnundarson, Icelander (Bandamanna saga, Íslendingabók) 121 Turville-Petre, Gabriel 107, 279 Týr, Norse deity 26f., 275–287

Name Index

Úlfljótr í Lóni, Icelandic lawspeaker (Íslendingabók) 40, 234f., 239f. Vémundr kǫgurr Þórisson, Icelander (Reykdœla saga ok Víga-Skútu) 147–149, 151f. Vermundr Þorgrímsson, Icelander (Eyrbyggja saga) 147, 175, 178 Víga-Glúmr Eyjólfsson, Icelander (Víga-Glúms saga, Reykdœla saga ok Víga-Skútu) 93, 150–162 Víga-Skúta Áskelsson, Icelander (Reykdœla saga ok Víga-Skútu) 146, 150–154, 158, 160 Víga-Styrr Þorgrímsson, Icelander (Eyrbyggja saga) 24, 110, 171, 174–181 Vigfúss Víga-Glúmsson, Icelander (Víga-Glúms saga) 129f., 154, 192 Viðar Hreinsson 266 Vogt, Walter Heinrich 16, 150 Vǫlundr (heroic legend) 26f., 255–269 Von See, Klaus 193 Weisberg, Richard 19 William of Sabina, cardinal († 1251) 135, 142 Zachrisson, Torun 256 Zaleucus of Locris, Greek lawgiver (7th c. B.C.) 225, 227, 230f. Zeus, Greek deity 227, 231, 279 Þjóðólfr ór Hvini, Norwegian skald (9th c.) 257, 283 Þórarinn Þórisson á Espihóli, Icelander (VígaGlúms saga) 153f.

293

Þórðr gellir Óleifsson, Icelander (Bandamanna saga) 121 Þórðr kakali Sighvatsson, Icelander († 1256) 14 Þorgeirr Ljósvetningagoði, Icelandic lawspeaker (Ljósvetninga saga) 156f. Þorgeirr skorargeirr Þórisson, Icelander (Njáls saga) 79f. Þorgils Oddason, Icelander (12th c., Þorgils saga ok Hafliða) 43–50, 111, 123 Þorgrímr Kjallaksson, Icelander (Eyrbyggja saga) 174 Þórhallr Ásgrímsson, Icelander (Njáls saga) 83–85, 124 Þórir Ketilsson, Icelander (Reykdœla saga ok Víga-Skútu) 151 Þorkell hákr Þorgeirsson, Icelander (Ljósvetninga saga) 157 Þorkell inn hávi, Icelander (Víga-Glúms saga) 153 Þorleifr inn spaki Hǫrða-Kárason, Icelander (Íslendingabók) 234, 240 Þorleifr kimbi Þorbrandsson, Icelander (Eyrbyggja saga) 241f. Þormóðr Hjálmsson, Icelander (13th c., Þórðar saga kakala) 14 Þorsteinn Egilsson, Icelander (Egils saga) 198f. Þorsteinn inn hvíti Ǫlvisson, Icelander (Þorsteins saga hvíta) 15 Þorsteinn Kuggason, Icelander (Bjarnar saga hítdœlakappa) 128 Þuríðr Óláfsdóttir, Icelander (Laxdœla saga) 190

Places Index Alþingi. See Þingvellir Berlin 246 Björgvin (Bergen) 21, 57

Niðaróss (Trondheim) 67, 95 Norway 2, 5, 7, 21f., 24, 26, 57–62, 66, 72f., 85, 95, 102, 106, 112, 120, 135, 142f., 146, 153, 156, 175, 225, 228–230, 234–237, 239f., 248, 257, 261f., 265, 268f., 283

Catane 231 Oklunda (Östergötland) 229 Denmark 2, 5, 8, 209, 235, 245, 256, 265 Dubá 226 Eleusis 231 Empire, Romano-German 6, 67 England 73, 138, 233, 235, 260 Eyjafjörður 45, 52, 146, 153, 159, 161 Eyraþing 60 Forsa (Hälsingland) 229 Frostuþing 7, 17, 261 Gautland (Götaland) 96, 238f., 278f. Gulaþing 57, 60f., 99, 102, 234, 240 Helgö (Lake Mälaren) 263 Hlíðarendi 82, 196f. Iceland 1, 3–17, 20–24, 26, 39–53, 61f., 70, 77–85, 91–113, 117–131, 135–161, 171–183, 234–247, 256–268, 284

Reykholt 49 Reykjahólar 191 Rome 227 Sanssouci 246 Schweindorf (East Frisia) 256 Sparta 225, 230, 232 Sunnudal 247 Sweden 7, 171, 175f., 229f., 234, 238f., 255, 258, 260, 265, 267, 278f. Trondheim. See Niðaróss Uppåkra (Scania) 256, 263 Upplönd (Norway) 57 Västergötland 238f., 278f. Veleslavín 226 Víkin (Viken) 57 Worms 25, 206–220

Kirkjubœr 197 Xanten 206–220 Libočany 226 Locris 225, 230 Lombardy 8 Munkaþverá (monastery) 23, 145f., 159, 161 Mýrar 199

https://doi.org/10.1515/9783110661811-015

Þingvellir (Alþingi) 21f., 40, 83, 78, 82–86, 105, 107, 112, 121, 127, 142f., 157, 234 Þrændalög 17, 57, 63