2I have been hampered in this work by my unfortunate ignorance of Old Norse. In particular Gragas, the earliest compilation of Icelandic law. seems never to have been translated into English, save for a few fragments in Origines Icelandicae (Gudbrand Yigfusson & F. York Powell trans. 1905) [hereinafter cited as Yigfusson & Powell]. A Norse scholar willing to correct that lack would do a considerable service to those interested in the legal institutions of this extraordinary society.
3Most of the principal sagas were written down in the second half of the thirteenth century, or at the latest, the first half of the fourteenth. Prior to 1262 the institutions seem to have been relatively close to those established in the tenth century, although their workings may have been substantially different as a result of the increased concentration of wealth and power which led to their final collapse.
4Magnus Magnusson & Hermann Palsson trans., Njal's Saga (Penguin ed. 1960) [hereinafter cited as Njal's Saga].
5Sveinbjorn Johnson, Pioneers of Freedom (1930). A partial exception is the status of thralls, although even they seem freer than one might expect; in one saga a thrall owns a famous sword, and his master must ask his permission to borrow it. Carl O. Williams, in Thraldom in Ancient Iceland 36 (1937), estimates that there were no more than 2000 thralls in Iceland at any one time, which would be about 3% of the population. Williams believes they were very badly treated, but this may reflect his biases; for example, he repeatedly asserts that thralls were not permitted weapons despite numerous instances to the contrary in the sagas. Stefansson estimates the average period of servitude before manumission at only five years but does not state his evidence. Vilhjalmur Stefansson, Icelandic Independence, Foreign Affairs, January 1929, at 270.
6C. A Vansittart Conybeare, The Place of Iceland in the History of European Institutions 6-8 (1877).
7New York Times, Feb. 16, 19,2, at 17, col 6. For an extensive survey of wergeld in Anglo-Saxon and other early societies, see Frederic Seebohm, Tribal Custom in Anglo-Saxon Law (1911).
8Terry L. Anderson & P. J. Hill, An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West ( 1978) (staff paper in Economics, Montana State Univ. at Bozeman, Ag. Econ. & Econ. Dept.).
9Marilyn E. Walsh, The Fence 17-23 (1977).
10H. S. Maine, Ancient Law 355-71 (1963).
11Id. at 360-61.
12Seebohm, supra note 6. at 330-335: and Naomi D. Hurnard, The King's Pardon for Homicide before A.D. 1307, at 1-5 (1969).
13Walsh, supra note 8, at 18-19.
14"In no part of Anglo-Saxon England and at no time in its history is any trace to be found of a system of government knowing nothing of the rule of kings." P. H. Blair, An Introduction to Anglo-Saxon England 194 (2nd ed. 1977).
15This question is discussed at some length in modern libertarian or anarcho-capitalist writings. See David Friedman, The Machinery of Freedom (1973); and Murray N. Rothbard, For a New Liberty (l973).
16Gary Becker & George Stigler, Law Enforcement. Malfeasance, and Compensation of Enforcers, 3 J. Legal Stud. I (1975).
17This is not quite true. since the trial process might impose costs on the criminal, such as uncertainty and unreimbursed time, he might be willing to pay the enforcer more than the expected value of the fine. In this case bribery is an efficient substitute for the court process.
18William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. I (1975).
19Id. at 34.
20Richard A. Posner, Economic Analysis of Law (2nd ed. 1977).
21Some estimates put it at about 10%.
22Barthi Guthmundsson, The Origin of the Icelanders (Lee M. Hollander trans. 1967), argues that the settlers were in large part Danes who had colonized in Norway and thus brought Danish institutions with them to Iceland.
23In the northern quarter there were twelve godord; the rules for membership in the lögrétta and the appointment of judges were modified to compensate for this fact, so that the northern quarter had the same number of seats as each of the other three quarters. I shall ignore the resulting complications (and some other details of the system) in the remainder of the description. I shall also ignore the disputed question of which features were in the original system and which were added by modifications occurring between A.D. 930 and c. A.D. 1000.
24Conybeare, supra note 5, at 95 ns.; and I Vigfusson & Powell, supra note 1, bk. 2, [[section]] 3, at 343-344.
25The Icelandic judges correspond more nearly to the jurymen of our system than to the judge, since it was up to them to determine guilt or innocence. Conybeare, supra note 5 at 146. There was no equivalent of our judge; individual experts in the law could be consulted by the court. According to Sigurdur A. Magnusson, Northern Sphinx 14 (1977), "Since every breach of the law had a fixed fine, the judges merely had to decide whether the culprit was guilty or innocent." The lögrétta had the power to reduce sentences.
26Conybeare, supra note 5, at 48.
27 at 50-51. But Sveinbjorn Johnson, supra note 4, at 64; and James Bryce, Studies in History and Jurisprudence 274 (1901), state that the judges of the quarter court were appointed only by the godar of that quarter.
28Magnusson supra note 24, at 14; and Conybeare, supra note 5, at 95 ns., both interpret the requirement for the lower courts as no more than six dissenting votes. If this was not achieved, the case was undecided and could be taken to a higher court. While there does not seem to have been anything strictly equivalent to our system of appeals, claims that a case had been handled illegally in one court could be resolved in a higher court. In a famous case in Njalssaga the defendant tricks the prosecution into prosecuting him in the wrong court by secretly changing his godord, and hence his quarter) in order to be able to sue the prosecutors in the fifth court for doing so. Id. at 93-94; Njal's Saga, supra note 3, at 309-310. Similarly, if a private court was unable to reach a verdict, or in cases of "contempt of court, disturbance of the proceedings by violence, brawling, crowding, etc.," or if the plaintiff was unwilling to submit the case to a private court, it went to the appropriate public court instead. Conybeare, supra note 5, at 77.
29Id. at 33-34, 47; Bryce, supra note 26, at 268-69.
30Conybeare, supra note 5, at 28.
31But according to Johnson, supra note 1, at 112, for certain serious offenses the plaintiff was liable to a fine if he compromised his suit after it had been commenced.
32Quoted by Conybeare, supra note 5, at 78 ns., from the Gulathing Code.
33For a discussion of the contrast between Icelandic and (modern) English ideas of murder, see id. at 78-81.
34For examples, see Njal's Saga, supra note 3, at 75, 151.
35The question of why the system eventually broke down is both interesting and difficult. I believe that two of the proximate causes were increased concentration of wealth. and hence power, and the introduction into Iceland of a foreign ideology--kingship. The former meant that in many areas all or most of the godord were held by one family and the latter that by the end of the Sturlung period the chieftains were no longer fighting over the traditional quarrels of who owed what to whom, but over who should eventually rule Iceland. The ultimate reasons for those changes are beyond the scope of this paper.
36"But if you are forced to give ground, you had better retreat in this direction, for I shall have my men drawn up here in battle array ready to come to your help. If on the other hand your opponents retreat, I expect they will try to reach the natural stronghold of Almanna Gorge . . . I shall take it upon myself to bar their way to this vantage ground with my men, but we shall not pursue them if they retreat north or south along the river. And as soon as I estimate that you have killed off as many as you can afford to pay compensation for without exile or loss of your chieftaincies, I shall intervene with all my men to stop the fighting; and you must then obey my orders, if I do all this for you." Njal's Saga, supra note 3, at 296-97. A similar passage occurs id. at 162-63.
37See especially Posner, supra note 19; and Gary Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1963). Also. Gordon Tullock, The Logic of the Law (1971).
38I am here comparing the direct costs and benefits of different sorts of punishment. Both execution and fine have the additional indirect "benefit" of deterrence. Execution has the further indirect benefit of preventing repetition of the crime.
39Some additional punishment might be required to compensate for the chance that a guilty person would be acquitted on a technicality, as sometimes happened. The advantage of private enforcement for acts where detection is easy is discussed by Landes & Posner, supra note 17, at 31-55, in the context of modern law.
40My only source for this is Williams, supra note 4, at 117-121. The system seems to have differed from the later English imprisonment for debt. which served as an incentive to pay debts but not as a means of doing so.
41This may be only an approximate statement. The sagas describe many miscarriages of justice, including outlawry based on relatively minor offenses. Here as elsewhere I am trying to distinguish what the rules were from how they may sometimes have been applied, partly because I believe that misapplications probably became common only in the later years, as part of the general collapse of the system described in the Sturlung sagas. Since most of the sagas were written during or shortly after the Sturlung period, I regard their description of that period as accurate and their description of the earlier "saga" period as somewhat exaggerating the resemblance between the two periods. They portray the Sturlung period as one in which justice was less common than in the saga period, and much less common than in the period between the two.
42For a description of a very different system of private production of law (by lawyers), see Maine, supra note 9, at 32-41. There seems no obvious reason to expect the Roman system he describes to generate efficient law.
43Njal's Saga, chs. 36-45, at 98-119.
44One common procedure was for the defendant to offer the plaintiff "self-judgment"--the right to set the fine himself.
45Einar Olafur Sveinsson. The Age of the Sturlungs 68, 73 (Johann S. Hannesson trans. 953) (Islandica vol. 36); Njal's Saga 266.
46Id at 72 gives an estimate of three hundred and fifty killed in battle or executed during a fifty-two-year period (1208-12601). The population of Iceland ~ as about seventy thousand. For the U.S. figures, see Michael S. Hindelang et. al., Sourcebook of Criminal Justice Statistics-- 1976, at 443 (1977).
47Marta Hoffman, The Warp-Weighted Loom 213 (1964).
48Knut Gjerset, History of Iceland 206 (1924).
49 Njal's Saga 41, trans. n. Also *P*orkell Johannesson, Die Stellung der Freien Arbeiter in Island 37 (1933).
50Id. at 207-208.
51Id. at 211.
52The existence of maximum wage legislation raises a problem for my thesis that the Icelandic system generated efficient law. The simplest answer is that I do not expect to see perfectly efficient law. Maximum wage legislation can most naturally be interpreted as a cartel arrangement among the landowners; such an arrangement may well be in their interest, provided that the farm workers are unable, for organizational reasons connected with the public-good problem, to combine in order to bribe the landowners to repeal the legislation or, within the Icelandic system, to buy sufficient godord to repeal it themselves.
53Hoffman. supra note 46. at 215-16.
55In comparing this figure with current sentencing levels for murder or manslaughter, one must remember that killing, in Icelandic law, was distinguished from murder by the fact that the killer "turned himself in." Thus even if the average sentence served by the convicted killer~ in our society were as high as 12 1/2 years--which it surely is not--the corresponding expected punishment would be much higher in the Icelandic case.
56Njal's Saga, supra note 3, at 63.
57Vigfusson & Powell, supra note 1, bk. 2, at 340, 356, 358-59.
58This is only a first approximation; the optimal fine must make allowance for enforcement costs--part of the cost of a crime is the cost of catching the criminal--and for the net cost of collecting the fine. This is a complicated subject and beyond the scope of this paper.