PRIVATE LAW ENFORCEMENT, MEDIEVAL ICELAND, AND LIBERTARIANISM

Iceland is known to men as a land of volcanoes, geysers and glaciers. But it ought to be no less interesting to the student of history as the birthplace of a brilliant literature in poetry and prose, and as the home of a people who have maintained for many centuries a high level of intellectual cultivation. It is an almost unique example of a community whose culture and creative power flourished independently of any favouring material conditions, and indeed under conditions in the highest degree unfavourable. Nor ought it to be less interesting to the student of politics and laws as having produced a Constitution unlike any other whereof records remain, and a body of law so elaborate and complex, that it is hard to believe that it existed among men whose chief occupation was to kill one another.

JAMES BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE (1901), P. 263.

The traditional history of many nations starts with a strong ruler who put the country together: Arthur, Charlemagne, George Washington. The history of Iceland also starts with a strong ruler. His name was Harald and he ruled over one of the small kingdoms making up what is now Norway. After being rejected by the woman he wanted to marry on the grounds that he was too small a king, Harald swore that he would neither wash nor comb his hair until he had made himself king over all of Norway; for some years they called him Shaggy Harald. When he had completed his career of conquest he washed his hair and everyone was impressed at how much better he looked. He went down in Norwegian history as Haraldr inn Hárfagri—Harald Fairhair.

What Harald established was not merely a single monarchy over all of Norway but a monarchy with considerably more power over the Norwegian populace than its predecessors. The change was not uniformly popular. Norwegians of the ninth century had two major professions, farming and piracy. Many of those who disapproved of the change voted with their feet, or rather their oars. They loaded their longships with families, retainers, and as much of their stock as would fit and sailed west; by some estimates as much as ten percent of the population left. Many of them went to Iceland, which had recently been discovered. That is the beginning of the history of Iceland as the Icelanders tell it.

The settlement began, according to the Icelandic sources, about 870 A.D. In 930 A.D. the Icelanders held an assembly at which they agreed on a common legal system for the whole island. It was based on Norwegian legal traditions, with one major exception. The Icelanders decided they could do very well without a king.

The central figure in the Icelandic system was the chieftain. The Icelandic term was Goði, originally meaning a pagan priest; the first chieftains were apparently entrepreneurs among the settlers who built temples for the use of themselves and their neighbors and so became local leaders. The bundle of rights that made up being a chieftain was called a goðorð. A goðorð was private property; it could be sold, lent, inherited. To become a chieftain, you found one who was willing to sell his goðorð and bought it from him. The term goðorð was also used for the group of men who followed a particular chieftain.

What were the rights that made up the position of being a chieftain? One, perhaps the most important, was the right to be the link by which ordinary people were attached to the legal system. If you wanted to sue someone, one of the first questions you had to ask was who his chieftain was. That would determine what court you ended up suing him in just as, in the U.S. at present, the court you are sued in may be determined by what state you are a citizen of. Everyone had to be connected with a chieftain in order to be part of the legal system. But the link between the chieftain and his thingmen was a voluntary one—the chieftain, unlike a feudal lord, had no claim over his thingman’s land. The thingman was free to switch his allegiance to any chieftain willing to have him.

Other rights included in the goðorð were a vote in the legislature and a hand in picking the judges (by our standards jurymen—there were 36 on a court) who decided legal cases. The court system had several levels, starting at the thing court and going up through the quarter courts to the fifth court.

Under the legal system set up in 930, the government of Iceland had one part-time employee. He was called the lawspeaker and was elected by the inhabitants of one quarter, chosen by lot, for a three-year term. His job was to preside over the legislature, memorize the law, give legal advice, and, during the course of his three years, recite the entire law code aloud once. The recitation took place at the Allthing—an annual assembly, lasting two weeks, of people from all over Iceland. The Allthing was also where the legislature met and where cases in the four quarter courts and the fifth court were tried. At each Allthing the lawspeaker recited a third of the law. If he omitted something and nobody objected, that part of the law was out. Think of it as an early form of sunset legislation.

I have described the legislative and judicial branch of the government established by the Icelandic settlers but have omitted the executive. So did they. Aside from the lawspeaker there were no government employees.

You and I are Icelanders; the year is 1050. You cut wood in my forest. I sue you. The court decides in my favor and instructs you to pay ten ounces of silver as damages. You ignore the verdict. I go back to the court and present evidence that you have refused to abide by the verdict. The court declares you an outlaw. You have a few weeks to get out of Iceland. When that time is over, I can kill you with no legal consequences. If your friends try to defend you, they are violating the law and can in turn be sued.

One obvious objection to such a system is that someone sufficiently powerful—where power is measured by how many friends and relatives you have, how loyal they are, and how good they are at fighting—can defy the law with impunity, at least when dealing with less powerful individuals. The Icelandic system had a simple and elegant solution to that problem. A claim for damages was a piece of transferable property. If you had injured me and I was too weak to enforce my claim, I could sell or give it to someone stronger. It was in his interest to enforce the claim in order both to collect the damages and to establish his own reputation for use in future conflicts.

The victim in such a situation gives up part or all of the damages but gets something more important in exchange: a demonstration that anyone who injures him will pay for it. The powerful individual who took over such claims and enforced them might be a chieftain acting for one of his thingmen or merely a local farmer with a lot of friends; both patterns appear in the Icelandic sagas.

It may help to understand the legal institutions of medieval Iceland if we look at them as an extreme case of something familiar. Our own legal system has two kinds of law, civil and criminal. There is a sense in which civil law is enforced privately and criminal law publicly. If someone breaks your arm, you call a policeman; if someone breaks a window or a contract, you call a lawyer. The lawyer in a civil case does, as an employee of the plaintiff, the same things that the district attorney would do as an employee of the state.

In medieval Iceland all law was civil. The victim was responsible for prosecuting and enforcing his claim, individually or with the assistance of others. The victim who transferred his claim to some more powerful individual in exchange for half what he was owed was like a plaintiff who agrees to split the damages with his lawyer instead of paying him a fee.

It could be argued that even if this provides a workable way of enforcing the law, it is unfair. Why should the victim of an aggressor have to give up part or all of the damages owed him in order to win his case? Perhaps it is unfair, but less so than the system under which we now live. Under our system, the victim of a civil offense, like the injured Icelander, must pay the cost of proving his case, while the victim of a criminal offense gets no damages at all unless he files, pays for, and wins a parallel civil suit.

Because the Icelandic system relied entirely on private enforcement, it can be seen as a system of tort law expanded to include what we think of as criminal offenses. It is similar to our tort law in another sense as well. The loser of a tort case typically, although not inevitably, ends up paying money damages to the winner; the loser of a criminal case typically ends up with a non-monetary payment such as a jail term or, in extreme cases, execution. Under the Icelandic system the typical settlement was a cash payment to the victim or his heirs. The alternative, if you lost your case, was outlawry. The payment for killing someone was called wergeld—man gold.

Before assuming that such a punishment is obviously insufficient to deter crime, it is worth asking how large the payment was. My estimate is that the payment for killing an ordinary man was the equivalent of something between 12.5 and 50 years of an ordinary man’s wages; the analysis leading to that number is in an article of mine listed in Appendix I. That is a considerably higher punishment than the average killer receives today, allowing for uncertain conviction and probable parole.

The comparison is even more favorable to the Icelandic system if one allows for the distinction made under that system between killing and murder. If you were a law-abiding Icelander and happened to kill someone, the first thing you did after putting down your sword or your axe was to go to the nearest neighbor, stick your head in the door and announce “I am Gunnar. I have just killed Helgi. His body is lying out by the road. I name you as witness.” One of the early Norwegian law codes specifies that “The slayer shall not ride past any three houses, on the day he committed the deed, without avowing the deed, unless the kinsmen of the slain man, or enemies of the slayer lived there, who would put his life in danger.” By reporting the killing you established yourself as a killer, not a murderer. A murderer was a secret killer, someone who killed and tried to conceal the deed. The wergeld paid for a killing corresponds to the punishment imposed on a murderer in our system who turns himself in immediately after the deed.

The distinction between killing and murder was important in two ways. Murder was regarded as shameful; killing, in a society where many people were armed and going viking a common activity for young men out to see the world, was not. The two acts also had different legal consequences; by committing murder you forfeited all justifications, such as self-defense, that might make your action legal.

One question which naturally arises in reading a description of the Icelandic system, or anything else very different from our own society, is how well it worked in practice. Did powerful chieftains routinely succeed in defying the law with impunity? Did the system result in widespread violence? How long did it last? What was the society which developed under that legal system like?

A powerful chieftain who wished to defy the law, as some certainly did, faced two problems. The first has already been discussed; his victim could transfer his claim to someone who was also a powerful chieftain. The second was that, under the Icelandic system, the party who lost a court case and ignored the verdict was in an inherently weak position. Many of his friends might refuse to support him. Even if he had supporters, every fight would create a new set of law cases which his side would lose. If someone on the other side was killed, his kinsmen would expect to collect wergeld; if it was not paid, they would join the coalition against the outlaw. Thus the coalition against someone who defied the law would tend to expand. As long as power was well enough distributed so that no single faction had anything approaching half the fighters in Iceland on its side, the system was, in essence, self-enforcing.

There is a scene in Njal’s Saga that provides striking evidence of this stability. Conflict between two groups has become so intense that fighting threatens to break out in the middle of the open air court. A leader of one faction asks a benevolent neutral what he will do for them in case of a fight. He replies that if they start losing he will help them withdraw from the fight and if they are winning he will break up the fight before they kill more men than they can afford. Even when the system appears to be breaking down, it is still assumed that every enemy killed must eventually be paid for. The reason is obvious enough; each man killed will have friends and relations who are still neutral and will remain so if and only if the killing is made up for by an appropriate wergeld.

Our main sources of information on the Icelandic system are the sagas, a group of histories and historical novels written in Iceland, mostly in the late thirteenth and early fourteenth centuries. On first reading, they seem to describe quite a violent society. That is hardly surprising. At least since Homer, the spectacle of people killing each other has been one of the principal ways in which writers entertain their audience. The chief innovation of the saga writers was to spend as much time on law suits as on the violent conflicts that generated them. The one error in the quotation from Bryce with which I started this chapter is the claim that the chief occupation of Icelanders was killing each other. The chief occupation of the characters of the sagas appears to be suing each other; the killings merely provide something to litigate about.

A more careful reading of the sagas tells a different story. The violence, unlike that in contemporary accounts elsewhere in Europe, is on a very small scale. The typical encounter in a saga feud involves only a handful of people on each side; everyone killed or injured is named. When two such encounters occur in consecutive chapters of a saga it seems as though the feuding is continual—until you notice that a character not yet born at the time of the first encounter is participating in the second as an adult. The saga writers telescope the action, skipping over the years that separate the interesting parts.

The Icelandic system finally collapsed in the thirteenth century, more than three hundred years after it was established. The collapse was preceded by a period of about fifty years characterized by a relatively high level of violence. According to an estimate by one scholar, deaths from violence during that period, calculated by going through the relevant historical sagas and adding up the bodies, totaled about 350. That comes to 7 deaths a year in a population of about 70,000, or about one death per ten thousand per year.

That is comparable to our highway death rate or to our combined rates for murder and non-negligent manslaughter. If the calculation is correct, it suggests that even during what the Icelanders regarded as the final period of catastrophic breakdown their society was not substantially more violent than ours. To put the comparison in terms of contemporary societies, one may note that in three weeks of the year 1066 Norway, Normandy, and England probably lost as large a fraction of their combined population to violence (in the battles of Fulford, Stamford Bridge, and Hastings) as Iceland did in fifty years of feuds.

It is not clear what the reason for the breakdown was. One possibility is that increasing concentration of wealth and power made the system less stable. Another is that Iceland was subverted by an alien ideology: monarchy. Traditionally, conflicts involved limited objectives; each party was trying to enforce what he viewed as his legal rights. Once the conflict was settled, today’s enemy might well become tomorrow’s ally. During the final period of breakdown, it begins to look more and more as though the fighting is no longer over who owes what to whom but over who is going to rule Iceland.

A third possible cause is external pressure. From Harald Fairhair on, the kings of Norway took a special interest in Iceland. In the thirteenth century, after the end of a long period of civil war, Norway had a strong and wealthy monarchy. The Norwegian king involved himself in Icelandic politics, supporting one side and then another with money and prestige. Presumably, his objective was to get one or another of the chieftains to take over Iceland on his behalf. That never happened. But in the year 1262, after more than fifty years of conflict, the Icelanders gave up; three of the four quarters voted to ask the king of Norway to take over the country. In 1263, the north quarter agreed as well. That was the end of the Icelandic commonwealth.

This is not a book on history, even history as interesting as that of Iceland. The reason for including this chapter is that the medieval Icelandic legal system comes closer than any other well-recorded historical society that I know of to being a real-world example of the sort of anarcho-capitalist system described in Part III. One might almost describe anarcho-capitalism as the Icelandic legal system applied to a much larger and more complicated society.

In both systems, law enforcement is private; neither depends on enforcement by an organization with special rights beyond those possessed by all individuals. Private rights enforcement agencies are a more formalized version of the arrangements by which individuals and coalitions in Iceland used force to protect their rights. The major difference between the two systems is that in Iceland there was a single system of courts and legislature, whereas under the institutions I described in Part III of this book there could be many independent courts, each using whatever set of laws it thought would sell.

One more thing should be said about the Icelandic Commonwealth. If we judge societies by how much they produced that is still of interest to us, Iceland must rank, along with such better-known societies as Periclean Athens and Elizabethan England, as one of the great successes. It had a population of about 70,000, a large suburb by current standards. Of the sagas that it produced, there are at least a dozen currently in print in English paperback translations, some seven hundred years after they were written. The best—I would recommend Egil’s Saga and Njal’s Saga to start with—are better stories better written than the great bulk of what is published today.

I once tried to construct a crude measure of the importance of Iceland to our civilization, in part as a response to friends who wondered how I could be interested in such an obscure place and time. I did it by counting trays in the card catalogs of two major university libraries in order to estimate what fraction of the cards were for books filed under Iceland or the Icelandic language. It came to about a tenth of a percent—one book in a thousand. That is a very small fraction of a library but a very large influence for seventy thousand people seven hundred years ago.

[Since writing this chapter I have studied a much wider range of legal systems, including a number where law was, as in Iceland, privately enforced. The results of that research are the subject of the book I am currently writing on legal systems very different from ours. Some of the conclusions are discussed in Chapter 49.]