In the year 870, Ingolfur Arnarson left Norway to found the first settlement in Iceland. He soon had company: dozens of petty chieftains and small landholders, fleeing the tyranny of Harald Fairhair, first king of a united Norway. In 930, the Icelanders established a parliament, the Althing. From then until 1262 flourished what historian William Pencak calls "perhaps the closest approximation of an anarchist or libertarian republic that the world is likely to see."
Shortly after the fall of their republic, the Icelanders began writing the Sagas.
"The Icelandic Sagas are concerned with many things," says Pencak, "but one of the things they are really concerned with is, Why does the Icelandic republic deteriorate? Why after almost 400 years does Iceland turn from a republic to a dependency of the Norwegian monarchy, which the Icelanders had fled to begin with?
"It would be as if in a hundred years we asked the English to please take us back."
An expert on Colonial America, Pencak "discovered" the medieval Icelandic Sagas when he was invited to present a paper at the 1993 conference of the International Association for Philosophy of Law and Social Philosophy. As the meeting was to be held in Iceland, he determined to learn what he could of the nation's culture. "Unfortunately, I was unable to attend the conference," he writes, "but once I began thinking about the sagas, I could not stop writing." The result is his latest book, The Conflict Between Law and Justice in the Icelandic Sagas.
In the book, Pencak, who is a member of Penn State's Center for Semiotic Research in Law, Government, and Economics, applies "the methodology of legal semiotics to a body of literature that cries out for such an approach." As he explains, "No other nation, to my knowledge, has given the problem of legal institutions so central a place in its literature, or examined them from so many points of view with all the advantages and drawbacks of each presented so thoroughly or poignantly."
Legal semiotics, as Pencak explains, is an outgrowth of the literary theory of signs, which is best expressed in the works of Umberto Eco. Legal semiotics sees law (as literary semiotics sees the meanings of words) not as fixed and authoritative, but as amorphous and constantly changing. Law is the product of continual conflict and compromise among what Pencak terms "different communities of interpreters—judges, lawyers, scholars, legislators, interested citizens—[who] interact to create 'the law' in accordance with their needs and expertise." Complexities arise when each community defines the law differently. "The climactic moment in several of the Sagas," Pencak notes, "is when the Althing turns into a battlefield because one side doesn't accept what the law is."
A semiotic reading of Njal's Saga, for example, finds that the "pros and cons of different types of behavior and different theories of law and justice are presented with great subtlety." Says Pencak, "The saga's author poured several centuries of the feuds, reconciliations, and legal history of Iceland into one man's life and experiences. He did so to test the hypothesis whether law can govern the passions and do justice in a free, consensual society.
"But there are no definitive answers, either for Njal's republic or for any other. The saga may be interpreted in at least two ways": that greed and corruption destroyed a well-functioning republic, or that an unstable and inadequate legal system was bound to give way before the ideal of Christian monarchy.
Another case concerns the saga of Grettir the Outlaw, a quarrelsome youth who is cast out of society, ironically, for the first good deed he attempts in his life; his subsequent efforts to live honorably earn him no justice. "Iceland and Grettir are tragically destroyed by their greatness taken to extremes—a system of law that gets bogged down in technicalities, which encourages those who would do the right thing to ignore the law altogether."
Similar semiotic readings of Laxdaela Saga, Egil's Saga, Bandamanna Saga, "The Story of Ale-Hood," and Eyrbyggja Saga round out Pencak's book. As he concludes, "The central issues of these sagas are: Can the legal system represented by the courts do justice, and can it keep the peace and preserve the Icelandic republic? These goals were not always compatible, as Grettir's unjust outlawry graphically shows."
The sagas, says Pencak, are the Icelanders' attempt to confront this conflict between law and justice. "Like Thucydides bewailing the destruction of Periclean Athenian democracy or Tacitus mourning the decline of the Roman republic, the sagas' authors looked unblinkingly at both the faults and virtues of the country they loved. In so doing, they assured medieval Iceland of immortality, and left citizens of future republics the opportunity to think deeply about whether law—and what sort of law—can coincide with justice."
William Pencak, Ph.D., is professor of history in the College of the Liberal Arts, 108 Weaver Building, University Park, PA 16802; 814-865-1367. The Conflict of Law and Justice in the Icelandic Sagas will be published in 1995 by Rodopi in the Value Inquiry Book Series.