The Icelandic Canadian - 01.12.2001, Side 41

Vol. 56 #3
THE ICELANDIC CANADIAN
167
sisted of positive prescriptions for human
behaviour (defining what is to be done, if .
. .), rather than negative proscriptions
(denouncing “thou shalt not . . .); it
required an act, so it was always post facto
and backward looking (i.e., no law against
doing nothing, against not acting), and it
was not intention-oriented, requiring evi-
dence of an actor’s state-of-mind-at-the-
time (unlike modern Canadian criminal
law’s concern for motive); it never cited an
actual case, although the sagas are full of
them; thus, the law itself was non-cumula-
tive, non-evolving and did not learn prece-
dentially from previous judgments in simi-
lar cases; it was always generic, asserting
the principle or rule, “if . . ., then . . as
opposed to allowing each case to be a pos-
sible exception to the law, to be judged on
its own factual merits, as in English equity;
it had a wide variety of penalties and com-
pensations to award, from licensing the
winner to self-help against the loser, to a
range of fines (i.e., pay the wergild/man-
price to the family of the person one kills),
with a special emphasis on outlawries or
ostracism (e.g., “If a man pisses on some-
body, the penalty is lesser outlawry, (full)
outlawry if a man shits on somebody”
(Gragas I, 230); its law was book-based,
making literacy, not oral memory, its
declaratory medium; it required public par-
ticipation, with all issues of fact decided by,
usually nine, jurors, who were thus fact-
finders, not oath-helpers (who simply
swore support for one of the two adver-
saries), and with witness testimony always
required; and, the single most fundamental
characteristic of medieval Iceland’s legal
system was its meticulous emphasis on
procedure, suggesting that how the law
operated (i.e., according to due process for
everyone) was even more important than
the substantive law itself.
All this can be gleaned from these two
volumes, which are carefully, comprehen-
sively edited. This second volume provides
detailed footnotes, a “Guide to Technical
Vocabulary,” a thorough bibliography and
a brief index, as did the first volume. In
other words we are the beneficiaries of
three Icelandic-English experts who have
produced as complete a model for scholar-
ly excellence as our academic world can
still muster. The Icelandic community in
Manitoba should be especially proud, both
for its legal-literary heritage and for its
continuing commitment to fund modern
access to it, by way of intellectual enter-
prises such as this.
To get some sense of how significant
for legal history the Gragas remains, con-
sider the simple fact that none of the
world’s earlier cultures—Greece, Rome,
Egypt, Israel, Arabia, China, India—has
preserved evidence of such an integral,
democratic, law-centred, procedure-based
culture. At the very least the Gragas shows
us a people trying to substitute reason for
force, peace for war, negotiation for vio-
lence within human relationships. What
other thirteenth century country had equal
respect for a dual status for females?
“Debts are not to be separately attached to
a woman—not so as to give other men any
right of claim on her—as long as her hus-
band is alive, unless she has debts personal
to herself” (II, 219). Any plaintiff can con-
vene “a debt court . . . onto the assembly
slope .. . and name witnesses in the hearing
of a majority of the assembly participants”
(II, 163). As with classical Roman law
judices, “the two sides nominating the
(twelve) judges are to invite challenge of
them” and “the court-sitting is to end by
midday next day” (II, 165) to insure that
justice is prompt. “Now all who claim
property there are to swear oaths ... (with)
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