Gripla - 20.12.2016, Qupperneq 304

GRIPLA304
Much has been written on the nature of the anglo and roman trials
— especially that of the anglo trial, which seems to want more explaining
than the roman system of the Continent, the processes of which tend
to seem self-evident. It’s been said that the difference between anglo and
roman trial process echoes the difference in classical Greece between the
sophists (like Protagorus) and the philosophers (like aristotle and Plato).
the anglo trial has also been called a “proof” system, as opposed to the
roman trial’s “truth” system. the anglo system is also said to have no au-
thority beyond its own process, but rather to be “manifestly dependent on
human argument and without any existence outside human argument.” and
it goes without saying that the proof-system trials have a lot of theatrical
value. In the sagas, we see people attending trials, reacting to them, talking
about them, judging the lawyers’ performances, and so on. those spectators
look a lot like anglo “courtwatchers” – members of the public who just
go to trials, different people for different reasons. they too talk about the
proceedings, judge the lawyers’ performances, and so on – both in conversa-
tion and in courtwatcher meetings, courtwatcher newsletters, courtwatcher
blogs, and the like. and saga trials and anglo trials have some obvious com-
monalities: both stage a confrontation between two parties, each with its
own advocate; both select a “jury” via a process of challenges; and both have
a rigid turn-taking format and are formalistic in the extreme.
I can think of only one of the Íslendingasögur proper that has no trial,
and that is the very short Þorsteins saga hvíta. The rest have at least one and
often two or more – sometimes several. How many trials that adds up to,
I don’t know, but it’s a lot; trials are clearly central to the saga enterprise.
and the drama of the trial doesn’t begin and end in court with the formal
pleadings. the causal event – a killing, say – is also narrated, before and as
it happens, with close attention to who the witnesses were, or, if it wasn’t
a public or admitted killing, then what indirect or circumstantial evidence
there might be. there are even CSI’s (crime-scene investigations, like that
at Bergþórshváll after the burning) and forensic tests (like that of chapter
49 of Njála, in which Hallgerðr’s cheese wedges are fitted into a neigh-
bor’s mould to prove theft). I would go as far as to say that the methodical
recording of facts, evidence, and proof — not in some primitive sense, but
exactly as those things are defined in the modern era—is part of the sagas’
operating system.