Gripla - 20.12.2009, Page 87

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where no one single party or system of officials had the role of keeping law
and order, feud and minor warfare must have been a constant nuisance. It
seems likely that people tried to restrict this nuisance by setting down rules
about as many possible moot points as they could possibly think of.
When we come to the content of the laws, the most distinctive feature
of the Icelandic ruling system is the separation of legislative and judicial
power, which is said to have been all but unknown in Europe until the 18th
century. In Norway, the lögrétta was predominantly a court of justice,
although the name of the institution, lög­rétta, “law-corrector” indicates
that its original role was to ensure that the law of the district was kept cor­
rectly at all times. Because of this and other differences that scholars find
between Norwegian and Icelandic law, it has sometimes even been doubted
that Ari’s statement in his Book of the Icelanders, that the Icelanders based
their law on the Norwegian Gulaþingslög, can be correct.20 on this ques­
tion Icelandic scholars have followed the lead of Vilhjálmur Finsen, who
stated that the Norwegian system was “primitive and imperfect” compared
to the Icelandic one.21
It appears to me that this difference between Norwegian and Icelandic
law has been greatly exaggerated. The hierarchy of courts is even more
complicated in Gulaþingslög than in Grágás; in Gulaþingslög cases are sup­
posed to start in ad hoc courts nominated by the litigants and they can go
through skiladómr, fjórðungsþing, fylkisþing and finally to lögrétta at Gulaþing
itself.22 This makes five successive instances, whereas in Iceland the
instances are three at most: vorþing, fjórðungsdómr and fimmtardómr. It is
true that the distinction between the legislative role of the lögrétta and the
judicial role of the courts in Iceland appears to be remarkably modern. But
I do not find anything that makes it likely that this was done in order to
secure the impartiality of the courts, as was the purpose of independent
courts in 18th­century europe. the goðar, the holders of legislative power,
nominated all judges to all courts from the farmers in their following, and
there are no stipulations in the law to secure the independence of judges
20 ólafur Lárusson, Lög og saga, ed. by Lögfræðingafélag íslands (Reykjavík: Hlaðbúð, 1958),
120.
21 vilhjálmur finsen, “om de islandske Love i fristatstiden,” 206n (“den primitive, mindre
fuldkomne Character, som viser sig i den norske ordning”).
22 Den eldre Gulatingslova, ed. by Bjørn eithun, Magnus Rindal,tor ulset (oslo: Riksarkivet,
1994), 146–148 (ch. 266).
WAS ICeLAnD tHe GALAPAGoS . . . ?