4. THE EMERGENCE
OF SOCIAL ORDER IN THE ICELANDIC
The Commune, or Hreppar
Institutions of the Second-order
The Law, Its Enforcement and Penalties for Defections
Transmission of Information
Reintegration of Defectors
4. THE EMERGENCE OF SOCIAL ORDER IN THE ICELANDIC COMMONWEALTH.
The early history of the settlement and the formation of the Commonwealth as told by Ari, in Íslendingabók and by others in Landnámabók has mostly gone unchallenged. But, although most modern historians have tacitly accepted Ari's account at least one legal historian has questioned the story. Líndal (1969) concludes that whatever the truth may be it is not what Ari would have us believe.1 For my purposes here the most important point Líndal makes is that because of the customary nature of law in the high middle ages, a recreation or copying of "foreign" laws would not have been acceptable at that time. Líndal claims that since the settlers came from areas scattered around NW-Europe, although most were probably Norse by origin, these people had come into contact with various legal traditions.
Líndal's idea is that the legal system as it evolved in the settlement period was basically a mix of the various legal traditions that the settlers had known before. These laws often conflicted, so a legal structure arose which probably caused additional conflicts of law in addition to substantive disputes. With time, and as the hierarchial legal structure began to rise, some of the local leaders may have recognized the need to simplify the legal tradition and accept one unified legal code. Líndal therefore assumes that some leaders may have gotten together and discussed these issues, and, taking notice of their differences decided to send Úlfljót abroad to clarify some legal issues.
It is my aim here to use the theory, as presented in chapter 3 to offer a variation on Líndal's claim and explain the history presented in chapter 2. In essence, the decentralized order theory offers an alternative explanation of the emergence of institutions and social order in the Commonwealth. I do not claim to formalize Líndal's views, but rather to take his challenge and offer an alternative account of the evolution of the legal order in Iceland. Neither do I claim to prove the history of the Commonwealth; the theoretical explanation in this chapter only offers an alternative version of this history - an alternative that I myself find more convincing than Ari's version.
THE EMERGENCE OF INSTITUTIONS
The first settlers arrived in Iceland about 874 and the island quickly became populated. These settlers were in a new land they knew little about. They knew only that Iceland was uninhabited, land was abundant there, and it was a good place to settle. They also knew that the winters there could be harsh. Most settlers had probably heard of the expeditions that had found the country earlier. Members of these expeditions had stayed in the country during winter and may have given it names like Snowland and Iceland.3 Surviving the winters was a problem. Although the Sagas do not refer to such problems we may assume that many lost their homes, livestock, and their means of livelihood through hardships imposed by nature. That the settlers had conflicts with each other during the settlement period would be expected. Although they may have had inherited or invented rules of property, there would have been problems in the application of these rules. For example, two settlers in the same area may have argued about the location of a mutual boundary. Although both subscribed to the same property rule, it is in the interest of each to defect on the rule and get his claim enlarged. Since each person would expect to stay on his own land, it was in the interest of each to find a peaceful solution to the conflict. Of course, they could fight, but that would mean that they would have to fight continuously until one left. The two of them could negotiate a compromise solution, but if they could come to such an agreement, they presumably would not have had the conflict. Thirdly they could appeal to some outside agency to determine and enforce a solution. In Iceland, however, no such agency existed. Fourthly, they could accept an arbitrator, perhaps a respected leader. This would require that both trusted the same person to arbitrate between them. Fifthly, if they would not accept the same arbitrator, two arbitrators could possibly appeal to a third arbitrator.
Germanic, Scandinavian, and Celtic peoples all had some form of assembly for handling disputes (Líndal 1981;Berman 1983:ch. 1;Chadwick 1971:chs. 4-5). Therefore, it is not surprising that the Icelanders would come up with similar assemblies. What must be stressed here, however, is that, in contrast to assemblies of the races mentioned, the presence in Iceland of different or mixed races required assemblies of a new type. Each race had traditional tribal and kinship assemblies, presided over by kings; the members of these groups were of the same race. In Iceland, these traditional solutions were not possible (Byock 1988:ch. 4). What emerged in Iceland were local Þings, which acted as assemblies and courts, presided over by chieftains instead of a king, as in Scandinavia and the other colonies.
I conjecture, although no historical evidence is available on it, that the first assemblies were presided over by a single leader, a chieftain.4 These were likely very informal gatherings at first, but nonetheless initiated the later more formal and encompassing institutions. Those who became chieftains likely had been a captain of a settlement ship, had been a chieftain or petty king before, or had wealth or reputation. The sources on this matter are ambiguous. Some chieftain likely oversaw each assembly, but he had no more rights than any other freeman. The law itself was presumably copied from the law in the areas the settlers had come from; the assembly only applied the laws but did not make them. The different assemblies had different laws to begin with, arising from the different background or heritage of the members (Líndal 1969;1984;Byock 1988).
The way a chieftain established a following supports the view that the chieftains were originally arbitrators. This can be seen in that each freeman-farmer could pick a chieftain to follow; the farmer chose his arbitrator. After the establishment of certain of these chieftainships, their numbers became fixed by law. Each freeman-farmer could still pick a chieftain to follow, but his choices were now limited by the number of chieftains.5
Because of weather and poor crop yields, some settlers lost all their belongings, while others died, often leaving orphaned children. There were also man made disasters, such as fires, and natural calamities such as outbreak of disease. Such problems could have created a class of people who would have preyed on others. It was necessary for the Icelanders to discover how to cope with these problems and curtail the rise of a predatory class.
There were several potential solutions to such problems, but only one of these solutions is of value in the long term. Trying to eradicate the predatory class somehow would have resulted in increased violence, a never-ending war. The only workable solution was to assist these people in some way. Possible means of assistance, of course, varied, but all require some form of organization, whether private or public. The Icelanders took the middle way; partly public and partly private. The organization that emerged is called the Hreppur.
THE COMMUNE, OR HREPPAR
"Thus, each commune was a mutual insurance company, or a miniature welfare state. And membership in the commune was not voluntary. Each farmer had to belong to the commune in which his farm was located and to contribute to its needs." (Gissurarson 1990:17)
The Hreppur seems to have developed early in Icelandic history, although historical evidence is lacking on this too.6 The only certain thing is that they were a part of the institutional structure by 1096, but were likely formed as early as the settlement period or in the 10th century (Benediktsson 1974:185). Like the early local assemblies, it is not much discussed in the Sagas. But according to the lawbook, the Grágás, the Hreppur was composed of a minimum of twenty farms and had a five member commission. Among other things, the Hreppur was responsible for seeing that orphans and the poor within the area were fed and housed. It did this by assigning these persons to member farms, which took turns in providing for them. How long each farm had to provide for the person was determined by the wealth of the farm.
The Hreppur also served as a property insurance agency. It assisted in case of fire and losses due to diseased livestock.7 If, for example, a farm's kitchen burned down, the other farmers in the Hreppur would pitch in to build a new one. If both kitchen and living quarters burned, then half of each was paid for. In case of disease, if more than a quarter of the livestock died, the other farmers would provide assistance. There was, furthermore, a maximum amount each farmer had to contribute, and no farmer had to assist the same farm more than three times. The Hreppur had its rules and regulations. Among these was a rule that no one could move into the Hreppur unless he had the recommendation of another such unit. Finally, the Hreppur may have organized and controlled summer grazing lands in cooperation with the members.8
These institutions, the Þing and the Hreppur, show how "cooperative clusters" developed in medieval Iceland. Both institutions arise about the same time, not long after the settlers arrived. This can in part be explained by the fact that the settlers were familiar with the assembly tradition. But the different settlers had different traditions, and therefore what emerged was actually different from all previous traditions. The local Þings were likely less kinship oriented in Iceland than in other places, and the Hreppur was a new development, not known elsewhere.
That these institutions would not span the whole country is similar to the "large-number" problem in Axelrod's theory. When a group contains a certain number of people, it becomes more beneficial for some group members to defect than cooperate. Thus, what developed early in Iceland was probably a number of each type of institution; many local Þings and many more Hreppar.9 The two types of institutions also fit well with the trust-rules vs. solidarity-rules distinction. The Þing emerged and functioned as a cluster for market activities, such as trade, and as an arbitrator for two-person dealings. These correspond to problems with trust-rules, and fit the prediction that these rules are essentially for market type orders. The Hreppur was as a cluster for common concerns, such as the need for private and social insurance. It corresponds to problems with solidarity-rules, and fulfils the more general prediction that such rules apply to organization type orders. It is also noteworthy that the Hreppur defines the relevant membership group before producing any benefits.
As Vanberg and Buchanan pointed out, this is essential for solidarity-rules groups to be able to emerge. Solidarity-rules can in some sense be thought of as rules for supplying public goods. The dilemma of the rule can be overcome by forming a sort of a "club" such that only members of the club can enjoy the benefits.10 The Hreppur was essentially a "club", although membership was compulsory for all residents of the "club" area. This monopoly status of the Hreppur can also explain why it was able to provide both public and private goods, or social and private insurance. By tying private and public goods a "club" may be better at attracting customers (Klein 1987;Cowen and Kavka 1990), although as mentioned, membership in the Hreppur was compulsory in Iceland.11
These two institutions are also seem to have been overlapping in membership. The Hreppur was geographical in jurisdiction, while the Þing was not. Once a farm had joined a given Hreppur, its affiliation could not be changed. The farmer, on the other hand, could legally change his alliance to another chieftain, and therefore another Þing, once each year. These institutions also fit the large-number distinction that was made above, in that each Hreppur had fewer members than each local Þing.12
INSTITUTIONS OF THE SECOND ORDER
Although there is no reason to think that the Þings and the Hreppar would not have worked fairly well in resolving intragroup conflict, we would expect conflicts to arise between members of different Hreppar. It is especially likely that there were a number of these conflicts, since the local Þings were not strictly geographical and probably only informal institutions at first.
It is clear from the sources that Vorþings arose, so no conjecture is needed here.14 These were local assemblies that gathered about 3 chieftains and their followers. It seems, from the sources and to an agreement among the historians, that at least two of these had arisen by 930, Kjalarnesþing and Þórsnesþing. These local þings, the Vorþings, acted both as assemblies of freemen and as local courts of law.
I conjecture in this thesis, as mentioned, that these could only have arisen after the formation of assemblies that had been and were even more local than these. Or in other words, courts and assemblies that restricted themselves to smaller localities. The Vorþings are, therefore, institutions of the second order, while their postulated predecessors were of the first order.
Besides looking to these local courts, there was the possibility for
the conflicting groups to fight, and this probably did occur in the settlement
period, as it did later. Another possibility in problems of conflict, the
solution adopted in Iceland, was to merge two or more assemblies. This
would enlarge the group and, yet, also allow for some intragroup structure
to be retained by having more than one chieftain in the new group. The
enlargement of the first order local assembly is seen in the Vorþing,
an assembly made up of three chieftains and their followers. The Vorþing
besides being an assembly of all freemen in the local, also acted as a
Another institution, the Quarter-Þing, or Fjórðungsþing, was also established in this same time period, before 965. The Quarter-Þing was comprised of nine chieftains and their followers and, like the other Þings, served as a court. The dates of the formation of these are not known for certain, but references in the Sagas to Þings date the emergence of some forms of these lower level courts before 965.15
What matters for our purposes is that an institutional structure to handle intergroup conflicts did appear. I postulate, inferring from my theory, that at the lowest level of the structure was an assembly formed around a single chieftain and the Hreppur formed around a single locality. These institutions handled problems of intragroup cooperation and allowed also for some intergroup cooperation. Next Vorþing and Fjórðungsþing formed to establish better intergroup cooperation as the relevant groups got larger.16
Although the enlarged court system had jurisdiction over more settlers, it still did not connect all settlers or groups. Therefore, we should still expect intergroup conflicts to arise and not be solved immediately. Followers of different chieftains belonging to different Vorþings or Fjórðungsþings could come into conflict; there was yet no institution to handle these problems.
The next step in the development of the institutional structure was the formation of the general assembly, the Alþing. With this development the whole population of the country began to become united under one body of law, referred to as "our law" (vár lög). At the same time the court system was becoming more formalized. Procedural rules embodied in a constitution were being established. The functions of the Alþing were twofold. First, the Alþing served as a Law-Council. Second, the Alþing served as the highest court. To begin with the Law-Council likely acted as a court also but after 965 the court at the Alþing was divided into Fjórðungsdóma, or Quarter-Courts. These corresponded to the lower level Fjórðungsþings, but were seemingly established at the Alþing, and the former became abandoned. The Alþing formed around 930, and the structure established in the period 930-965 remained more or less the same until the fall of the Commonwealth. One change took place in the period 1004-1030; the Fimmtardómur, or the Fifth-Court, was added. This court became the final court, in some respects like a supreme court. It became responsible for unresolved cases and procedural cases, such as cases involving perjury or the bribing of jurors.
After the formalization of the Alþing, or, rather, in the early 11th century, the court system had three levels. The lowest level was the Vorþing, which assembled twice a year, in the Spring and the Fall. It gathered in the Spring and was there divided in two assemblies. The first, the Sóknarþing, served as a regular court, and the second, the Skuldaþing, served as a place to settle debts. It also assembled in the Fall, called the Leiðir, to announce to the locals what had happened at the Alþing.
The Quarter-Courts formed the second level of the court system. As mentioned, these sat at the Alþing, and the former Quarter-Þings were abandoned at about this time. The establishment of the Quarter-Courts made juries more "national" in character, since now all the chieftains appointed jurors for the Quarter-Courts.17 Each Quarter-Court was assigned the task of resolving cases from their particular quarter.
With the formalization of the quarters an additional Vorþing was added in the Northern quarter because of a conflict there. Thus, the number of chieftains in that quarter became 12, and therefore 39, instead of 36, in the whole country.18 To rectify the balance of power between quarters, nine new chieftainships were established for the other quarters, but these new chieftains only had duties at the Alþing.
The third level was the Fifth-Court, and in this court a simple majority
was required for a decision. At the lower levels, complicated rules required
super-majorities in order to render a valid decision, and these requirements
may have contributed to the need for a Fifth-Court.
Aside from this official structure, there was also private dispute resolution by individual chieftains, and sometimes a few chieftains would come together with their followers and resolve cases in Private-Þings. It therefore seems that the abandonment of the Quarter-Þings resulted in the formation of extra-legal institutions, although these were essentially continuations of previous institutions (Benediktsson 1974).
The logic of the institutional emergence is as follows: on the one hand I have the postulated individual chieftain group, and on the other the Hreppur. On top of these the local assemblies and then the Quarter-Þings evolved. Finally, as the overlapping layer, we have the Alþing, interconnecting all groups.19 At the same time however, the Icelanders were beginning to restructure the boundaries between these groups to correspond to geographical boundaries, and this may have given rise to new conflicts. However, this restructuring also established clear procedural rules for handling cases and institutionalized the flow of information about legal matters and defections. Through this institution, known as the Leiðir, everyone should have been able to acquire knowledge necessary to distinguish between cooperators and defectors, and learn the law.
What emerged in Iceland was a form of federalism.20 In some sense this structure is centralized, in that by the 960s "Our Law" defined the whole structure and in that the Law Council could restructure parts of the whole system. But nothing has been said about judgments, penalties, or how enforcement and it is necessary to look into these issues.
THE LAW, ITS ENFORCEMENT AND PENALTIES FOR DEFECTION
The law, or "Our Law", was essentially an accumulation of the laws of all the settlers. The Law-Council, or the Lögrétta, did not construct legislation as such, but, rather, tried to determine what the law was. The Lögrétta was comprised of 36 chieftains (later 48) and each chieftain's two advisors. Only the chieftains had the right to vote to decide what the law was. Since Icelanders had not yet begun to make written records, the Lögrétta chose a Lawspeaker, the Lögsögumaður, to memorize and recite the law. The Lawspeaker recited the constitution every year and all the laws over a three year period. As the name of the Law-Council, the Lögrétta,21 suggests, the purpose was to put the law right; the Lawspeaker would recite laws that he thought were relevant and amend older ones if he found it necessary.
It is important to note that the law of the Commonwealth was Customary Law, as was all laws of that era.22 Customary Law is a living law that is rich in details rather than in principles. The law is perceived as old, the older the better, although this does not exclude the possibility of the law's changing. Change, however, is seen as the rectification of older law rather than as the creation of law. It is therefore essential that the people in a community governed by customary law agree on what the law is, since the motives of the accused were not considered when juries decided the guilt of defendants.23
The laws provided for specific penalties for every type of offence, and the court would only give a verdict of `guilty as charged' or `not guilty'. (Jóhannesson 1974:69)
The juries, typically composed of 36 citizens, only decided the issue of guilt, once this was decided the penalty was stipulated by the law.24 There were no judges in the Commonwealth system, only juries (Líndal 1984).25
The Customary Law of the Commonwealth was a private or civil law, in that all cases were disputes between citizens. As Gissurarson says:
However, the penalty of outlawry is a form of public sanction, as will be discussed below.
To confirm his recitation of the inherited law, the Lawsayer required simple majority in the Lögrétta. But all chieftains had to agree to the amendment of a law,26 and all free-men had the right to protest against such an amendation within the next three years.27
Whether this right of protest actually ever had any effect is not known, but it seems safe to assume that compromise between the "official" legal authorities and private citizens was common. In support of this claim I note that the Lawspeaker was required by law to consult with at least five knowledgeable people if he had any doubts as to what the law was or should be. If any one did not accept the law, he essentially "resigned" from Our Law, and it seems that the Icelanders were keen to compromise rather than risk that. This becomes especially clear in the way Christianity was accepted. The country was divided equally on the issue of religion, and yet Christianity was approved as the official religion in the year 1000. In general, the Sagas and other sources give evidence of an attitude of compromise in Iceland (Líndal 1984).
It is important to note that even after the law was recorded in writing
in the early 12th century, the Lawsayer still was required to recite the
law and amended it as he thought necessary. The written "text" never became
an "external expression" of the Commonwealth, but rather the "text" was
"an integral part of the definition of the social reality," (Hastrup 1985:208).
Further, as Byock (1988:27) notes, "alongside the provisions in Grágás
there surely existed a body of customary rule and law whose operation we
at times witness in the sagas." Líndal (1984) goes even further,
claiming that the unwritten Customary Law was to the end of the Commonwealth
the Law of Iceland and the written texts were mere tools of assistance.28
Yet, codification did change the nature of the law (Líndal 1984):
The jury determined the guilt or innocence of the accused. If the accused was found guilty, the law provided the terms of punishment; it was not up to the jury or any judge to decide that.30 Basically, a rule of strict liability applied in Iceland; determining the intention of the defendant would have been too costly. As Gissurarson says:
Witnesses supplied the means of proof in Iceland, both witnesses of the act and character witness.32 The ordeal was never important in Icelandic courts. As Miller states:
All penalty was either in the form of restitution or fines (Benediktsson 1974).34 Restitution, or Útlegð, was used for lesser offenses, while fines were demanded in more serious cases. Fines, or Sekt, were either sentences of lesser outlawry, Fjörbaugsgarður, or greater outlawry, Skóggangur. A person sentenced to lesser outlawry was required to leave the country, the protection of "Our Law," for three years. Someone sentenced to greater outlawry was to leave the country permanently, and could be rightfully killed after three months. Both types of outlaws lost their property, which was distributed by the Féránsdómur. Only the guilty person's property, not that of his wife or other family members, could be confiscated, as long as the family member could show legitimate ownership.
Enforcement of judgments was private, in that the victim was responsible for enforcing a judgement in his favour.35 In most cases the law specified when payment of a judgement should take place, and failure to pay on time was itself a criminal offense. To make the system more effective, the payment of a judgment usually required witnesses or consultation with the aggressor's chieftain, and, in addition, the victim could sell his judgement to someone stronger than himself.36
If the property of the outlaw was valued at more than the victim had a right to, complicated rules governed the distribution of what remained. The distribution of the remainder was so arranged as to provide incentives, usually monetary incentives, for others in society to see that the enforcement of the judgement was carried out. It seems that the Icelanders were keen not only on compromise in major disputes on what the law was, or should be, but in disputes between individuals compromise was also common. According to Miller, despite having "had a complex court structure, most disputes did not lead to adjudicated outcomes" (1984:99). In customary legal systems, this preference for compromise is widespread. Bonefield states that "indeed compromise rather than judgement more often settled disputes in the [English] manor court. Few cases were actually decided" (1989:533).37
TRANSMISSION OF INFORMATION
One problem for the theory of cooperation arising in relation to the large-number problem, is that of the transmission of information about rules and defectors. As long as the cooperative groups are small, persons have little problem in acquiring the relevant information about defectors. The larger the group, however, the harder it becomes for people to acquire this information. An especially acute problem is the identification of defectors from other groups. Also, some sort of information-relaying mechanism is necessary to inform people as to what the rules or laws are. Apparently, institutional devices are required to cope with these problems.
In Iceland, as mentioned, the Leiðir or Fall assembly served these purposes. All freemen attended such gatherings in their locality to get news about what had happened at the Alþing. The announcements there identified defectors from all groups and clarified the law. Clarification of the law took two forms. First, new laws were introduced which all freemen had the right to accept or protest against. Second, by hearing judgments, people could infer the legal principles being used.
Defectors from other groups could also be identified through the sponsorship function of the Hreppur.38 In order for anyone to settle in a new community, he was required to provide references. Presumably these references were both recommendations and served as some form of status identity.39
Although these institutions serve to bridge gaps left by Vanberg's and Buchanan's theory, these are not required by theory. Rather, these institutions complement the Axelrod-Vanberg-Buchanan theory, and in no way exclude other possible institutions.
REINTEGRATION OF DEFECTORS
Another question that deserves attention is that of how defections are to be dealt with. There are two types of defections, deliberate and unintended. The first does not pose much of a problem, since presumably cooperators would want to rid the group of intentional defectors and would be unconcerned as to what became of them. The second poses a problem, since if someone did defect by mistake, the group might prefer "forgiving" the person to permanently cutting him off. The problem that emerges here can not be answered by Axelrod's tournament, because we now want to consider the defector's intentions instead of only his actual behaviour.40 With a TIT-FOR-TAT stragety the defector would only be punished once, if he resumed cooperative behaviour immediately after the mistaken defection. But if the defecting actor now mistakingly responds to the punishment by defecting again, we have the possibility of a breakdown. If communication between actors is allowed, the defector could admit his mistake and offer reimbursement, and cooperation should be able to resume.
How were defections handled in medieval Iceland? The law established specific and detailed instructions as to the proper punishment of deviant behaviour.41 The laws decided what was reasonable and unreasonable, and what remedies should had be in each particular case. In general, the lesser the offense, the lesser the penalty. Payment of money or livestock was usually required. But the more serious the offense, the more likely a form of outlawry would be required. District outlawry was the punishment for offenses against a community as a whole. Next was lesser outlawry, or Fjörbaugsgarður, and the highest penalty was that of full outlawry, or Skóggangur.
In addition, the aggressor's property was confiscated. For lesser outlawry, all property belonging to the aggressor except his land was confiscated by the Féránsdómur. The exclusion of land of the lesser outlaw from confiscation, was intended to allow the aggressor to be readmitted as a full citizen at the end of the three years. All of a full outlaw's property was confiscated, since he was not expected to return (Hastrup 1985).
If making someone an outlaw resulted in his children becoming orphans, the district became responsible for providing for them. But even a full outlaw could be readmitted into the protection of "Our Law." To be readmitted the outlaw had to declare before witnesses that he would kill three other full outlaws, and then be able to prove he had done so. Succeeding in this, he was readmitted.
Violations for which outlawry was the penalty were both private and public offenses. The private element of the offence were dealt with through confiscation; public offence was dealt with by the penalty of outlawry. The public element of the offence was the violation of "Our Law". This is illustrated by the obligation of the plaintiff to execute a full outlaw brought before him;42 the plaintiff who refused faced the possibility of being outlawed himself for threatening "Our Law". This is clearly an example of what Axelrod calls a metanorm.
The analysis above suggests that the theory of the emergence of cooperation, as developed by Axelrod (1984) and Vanberg and Buchanan (1988), fits the historical case analyzed rather well. The major points demonstrated are the following:
i) The theory predicted that cooperation could evolve and spread, provided that only two individuals started cooperating. When account was taken of the large-number problem (interacting randomly), the theory predicted that many cooperative clusters would emerge instead of one large group. The historical study shows how such clusters or groups emerged in Iceland.
ii) The distinction that Vanberg and Buchanan made between trust-rules and solidarity-rules, or clusters of the market type and clusters of the organization type, was shown to have relevance for the theory presented. I showed that trust-rules are not afflicted by the "large-number" problem, while solidarity-rules are.
The historical study showed that Icelanders handled different types of rules by forming two different types of clusters. The Þings were clusters of the market type and the Hreppar of the organization type. I further noted that, as the theory predicted, the Hreppar had fewer members than the Þings, therefore supporting the theories prediction with respect to the "large-number" problem.
iii) Vanberg and Buchanan suggested that for cooperation to emerge among many clusters, all that was needed was for any two groups or any group members to start cooperating, and group cooperation would then spread. This they called "secondary clustering", because what would emerge would be overlapping groups or a hierarchial group structure.43
The historical study showed how "secondary clustering" occurred in Iceland, showing itself in the institutions of the Vorþing, the Fjórðungsþing, and the Alþing.
iv) In the last two sections of this chapter I discussed possible problems
in my theory, namely those of the transmission of information and the reintegration
of defectors. I further showed how institutions and rules emerged in Iceland
to solve such problems. It was suggested that these institutions, not predicted
by the presented theory, complement the theory.
Although I have presented a coherent explanation of how cooperation could emerge in a non-cooperative situation, and supported these arguments with a historical example, it should not be concluded that this is how cooperation always emerges. The Axelrod-Vanberg- Buchanan theory, which I have also referred to as mine, and the historical study only show how cooperation can emerge.
Further, I used the theory to inform the history, not to prove it. I have stuck with the available historical evidence and only where it was missing have I allowed the theory to inform a conjectural story. My conjecture may be selective and therefore disputable, but it is not fictional.
I have, in this chapter, offered an alternative explanation of the Commonwealth's emergence. I have also rejected the story given in Landnámabók and Íslendingabók, the story repeated by most historians, as unconvincingly constructivist. Instead I used Líndal's (1969) claim that a more evolutionary explanation was needed.
1 Líndal even suggests that in medieval times,
and before, it was common to ascribe the initiation of law and whole systems
to some great lawgiver. Morris (1910), similarily, claims the same on the
origins of the Frankpledge system in England: "The definite medieval statements
concerning the rise of frankpledge prove to be but traditions founded on
inference. William of Malmesbury, the first of the chroniclers to mention
the system, says in his Gesta Regum, written a little before 1125, that
King Alfred originated the suretyship tithing as well as the hundred. This
assertion is, however, the merest conjecture, accepted by no reliable modern
authority, and apparently due to an old-time tendency to explain institutional
beginnings by a single act of some great lawgiver." (Morris 1910:7) See
also Líndal (1969).
2 Quoted from the English version by Ellwood (1898:26-7). The term hof goði translates as temple-priest.
3 It has also been suggested that the name derives from the common vision or sight that travelers to the island got: That in approaching the island from the South-East, which most did, the first sight or vision they had was of a huge snowy mountain, Europe's largest glacier Vatnajökull, from which the travelers gave it its name (Benediktsson 1974:158).
4 Actually, there is no evidence as to how the first assemblies/courts formed in Iceland. A logical sequence, as mine hopefully is, would postulate that a local assembly arose first around a single chieftain and then only later the local þings, the Vorþings, would have arisen. This would seem more sequential than the Vorþings arising right away. The only historical evidence on these pre-Alþing assemblies mentiones the existance of two Vorþings, but tells us nothing of their origin or procedures (see page 72). Historians have not really addressed this issue, but instead rather tried to retell us what the sources tell us. Lárusson (1932:16) is an exception; he assumes that local assemblies arose around each chieftain at first.
5 The origin of the chieftainship is disputed. The Goði (Icelandic for chieftain) seems to be derived from Goð, or God in English. There have been suggestions that this refers to the chieftain role as keeper of the temple (heathendom). This probably is the correct origin of the term, but not necessarily of their functions. On the origin of the chieftain functions, see Byock (1988:chs. 4-6), Benediktsson (1974), Jóhannesson (1956). On the legal definition of their functions, see Grágás, vol. 1. It is also interesting to note the similarity of the Icelandic chieftain-farmer relation to the Anglo-Saxon practice. Taswell-Langmead states: "In the original Teutonic community, the monarchic and aristocratic elements were subordinate to the democratic element. The growth of the Thegnhood, working in close alliance with the Kingly power, which from motives of self-interest it was bound to support as the source of its own dignity, reversed this original relation. Thus the aristocratic and monarchic elements obtained a decided pre-eminence. Purely voluntary in its origin, service rapidly grew to be universally compulsory. It soon came to be regarded as a principle that every freeman, not being a hlaford, must be attached to some superior, to whom he was bound by fealty, and who, in return, was his legal protector and the guarantee for his good behaviour. The freeman had indeed the right of choosing the lord to whom he should, in technical language, commend himself; but if he failed to do so, his kindred were bound to present him to the shire court and name a lord for him. The lordless man was treated as a kind of outlaw, and might be seized like a robber by anyone who met him. Having once commended himself to some lord, the freeman was prohibited from exchanging into the service of another lord in another shire without the consent of the ealdorman of the shire which he was desirous of quitting" (1896:20-21).
6 Nothing is known on the origins of the Hreppar, i.e. from what tradition they arose. Some, such as G. Guðmundsson, have suggested that they originated in the other Viking colonies: "Í víkinganýlendunum var þörf mikillar samheldni, því að þær voru umkringdar óvinum á alla vegu. Einnig var nauðsynlegt að sjá farborða konum og börnum þeirra, sem féllu á víkingaferðum. Samheldni og bræðralag hefur því einkennt þessi samfélög" (G. Guðmundsson 1981:65). Jóhannesson (1974:83) states: "Figures showing the total number of hreppar in Iceland during the Commonwealth Period are not available, but in 1703 they amounted to 162, and there are several reasons to believe that from the Middle Ages to the present time this number has remained quite constant."
7 "Í Grágás kemur skýrt fram, að hlutverk hreppa var a.m.k. tvenns konar: fátæktarframfærsla og samtrygging gegn fjárskaða og eldsvoða. Fimm menn voru valdir úr hópi bænda til að sjá um málefni hreppsins. Þeir áttu að sækja alla þá menn, er óskil gerðu í hreppnum, skipta tíundum manna og matgjöfum og sjá eiða að mönnum. Framfærsla ómaga lenti því aðeins á hreppsmönnum, að ómaginn ætti enga nákomna ættingja í hreppnum, sem gæti séð honum farborða. Hreppar lutu ekki stjórn stærri heilda eða goða og voru þannig sjálstæðir um eigin málefni." (G. Guðmundsson 1981:63)
8 It is not wholly clear from the sources when the Hreppar began organizing summer grazing lands. The usual claim is that they began this function in the 12th or 13th centuries, at the latest. On the role of the Hreppur see Jóhannesson (1956:103-9) and Benediktsson (1974). The formation of the Hreppur also supports the contention that the kinship groups had broken down in Iceland, and the Hreppur took over some functions that kin groups had previously performed.
9 I say probably, because the number of local þings, before the establishment of the Alþing, and of the Hreppar, before 1096, is not known. Conjecture, as my claim is, therefore needs to fill in the gaps that exist before the periods mentioned.
10 The club analogy is derived from Buchanan (1987b).
11 On the other hand, an efficient "club" or Hreppur may have been able (although we have no knowledge on this) to attract wealthier people into the community and drive up property values.
12 The actual number of Hreppar in the settlement period is not known. Jóhannesson (1956:103) states that in 1703 they were 162, and claims that it is reasonable to assume that there were about the same number in the 10th century. The number of Goðar (chieftains) was 36, before 960, and 39, after 960. The number of local Þings after 960 was 13. If these figures are correct, then it follows that the Hreppur had fewer members than the Þing, and that supports the theory. In fact, little or nothing is known on the Hreppar before 1096, as G. Guðmundsson says: "Elsta heimildin um hlutverk hreppa á Íslandi eru tíundarlög Gissurar biskups. Ekki er vitað með vissu, hvenær þau voru sett. Í einu hinna fornu handrita er það talið hafa gerst árið 1096, en í flestum annálum er tíundin sögð lögleidd árið 1097. Ártalinu 1098 hefur einnig verið haldið fram.... (63)
13 Quoted from Ruth (1965:24).
14 The reader may recall, from page 66, that conjecture was needed to establish the existance of the preceding local-þings.
15 Actually, we cannot be confident on the dates before the year 1000. But, it is usually accepted that the Alþing (see below) emerged around 930 (Jóhannesson 1956). Here that date is accepted as correct. I do not, on the other hand, necessarily accept that the structure was as formalized at this time, as most historians would have us believe. The structure was not formalized until 965 and thereafter. I conject that the various þings were forming from the time of the first settlement, starting with the formation of some local þings and eventually the Alþing being formed about 930 as an informal gathering. Further, my conjecture shows the structure not being fully formalized and accepted until after the 960-5 period.
16 This corresponds to the secondary clustering suggested by Vanberg and Buchanan (discussed in the previous chapter).
17 As mentioned in chapter 2, there is some disagreement on the number of jurors at the Quarter-Courts and how they were selected.
18 The number of Goðar (chieftains) seem to have been set at 36 when the Alþing was formed, although this is by no means certain despite what historians claim. How many there were before 965 is not known, and there is no way to guess. On this and the structure of the court system, see Byock (1988:ch. 4) and Jóhannesson (1956).
19 Again, the secondary clusters evolved roughly as Vanberg and Buchanan would predict.
20 As Jóhannesson (1974:63) says: "To a certain extent the Icelandic Commonwealth may may likened to a union of many states (i.e. chieftaincies) where administration of law and justice embraced the entire union but in which executive power was altogether lacking."
21 Lögrétta, literally means "law rectifying". That the name has significant meaning has been argued by Líndal (1984). "It would be misleading to say that the lögrétta was a legislative body. The old Icelandic conception of law was different from what it is in most modern societies. Law was not statutory; it was not made; rather, it was discovered. The old Icelandic law was, in other words, law without legislation." (Gissurarson 1990:10)
22 Icelandic law shares some features with laws in primitive societies: "The legal system evident in Kapauku culture - and in many other primitive societies - exhibits several characteristics: 1) primary rules characterized by a predominant concern for individual rights and private property; 2) responsibility of law enforcement falling to the victim backed by reciprocical arrangements for protection and support in a dispute; 3) standard adjudicative procedures established in order to avoid violent forms of dispute resolution; 4) offenses treated as torts and typically punishable by economic payments in restitution; 5) strong incentives to yield to prescribed punishment when guilty of an offense due to the reciprocally established threat of social ostracism; 6) legal change arising through an evolutionary process of developing customs and norms." (Benson 1990:21) It is particularly worth pointing out that in the Commonwealth individual rights and property were the norm. As Hastrup says: "It appears that ownership was completely individual, and that any person might own, buy, sell, or rent any piece of land. The explanation of this individual ownership lies in the nature of the settlements" (Hastrup 1985:189). The Commonwealth law is similar, in its emphasis on the individual, to Anglo-Saxon and Irish law. Benson (1989:ch. 3 p. 38), in discussing early Anglo-Saxon law, states: "Note the striking similarity in emphasis on individual harm and property between the Anglo-Saxon (and Germanic) customary law and the laws of primitive, Icelandic and Irish societies..." Chadwick, however, states that the Irish law may have put a little less emphasis on the individual and more on the kin: "But most important [for stability]....was the fact that the individual counted for little in law. It was the kinship group which was ultimately responcible for the actions of its members. This was the basis of the stability of ancient Irish society. Beyond the bounaries of his tuath an individual could not rely on legal protection, unless there was some form of reciprocal agreement between different tuatha as, for example, when a minor king owed allegiance to an overking" (1971:113).
23 The customary law in Iceland was in this, also, similar to that of Anglo-Saxon Britain: "The essence of early English law is that it was `popular' law. The people at large were the repositiories of law; they were the judges in the public courts. Law represented custom, of which any man with a good memory might be the repository, and local opinion; it was the one quasi-democratic thing about our early society" (Brooke 1961:68).
24 Again, similarities to the Anglo-Saxon practice is appearent: "The great original principle of the English Judicial system was that of trial in local courts popularly constituted, or as it was termed in later times, trial per pais, in the presence of the country, as opposed to a distant and unknown tribunal. This was at once as evidence of freedom and the surest guarantee for its permanence. But before describing the different local courts it is necessary to notice, shortly, the principle of pledges, by which provision was made that every man should be either personally forthcoming, or have some representative bound to answer for him, in every case of litigation" (Taswell-Langmead 1896:29).
25 Where did the juries originate? Some historians have suggested that it originated in Germanic Custom: "The Anglo-Saxon court had no jury, in anything like the modern sense. Non the less, the jury is the one survivor from the days when the law was essentially unprofessional. Some of the books tell us that the jury system came over with the Conqueror, and is descended from the late Carolingian sworn inquests -- from those small groups of local worthies who gave information on oath to royal ofiicials in the Frankish kingdoms. Others tell us that it originated in the Danelaw, in the twelve senior thegns of the wapentake (the Dansih `hundred'), who produced a list of the notorious scounderels in the neighboorhood to provide a basis for criminal proceedings. This has a Scandinavian background, and is very close in principle to the later `jury of presentment,' which performed the same office in the courts of Henry II. But the vital point about the origin of the jury is that it represented a compromise between the way in which courts were generally conducted in early times, and the convenience which all societies have discovered in delegating essential business to small committees. There are plenty of cases in the years immediatly after the Norman Conquest of folk being collected in little groups of four or seven or twelve to give specific information. The Danelaw thegns are the only case known before the Conquest; but there is no reason to suppose that they were unique" [emphasis added](Brooke 1961:68). According to this, the modern day Anglo-American jury can therefore be said to originate in Anglo-Saxon (Germanic) England, rather than in the Conquest. Pollock and Maitland (1959:44) also stress the similarities between Anglo-Saxon (both before and after the Conquest) and Germanic Custom. It is also noteworthy what Jones (1984) states on the Scandinavian connection to the Danelaw and the origin of the jury system: "[A]nd though the Danelaw's political independence lasted fifty years at most, its seperate, i.e. Scandinavian, quality was recognized not only by Alfred and his English successors, but by the laws of Knut in the early eleventh century and by Norman lawgivers after the Conquest... (421) Dönsk tunga was spoken in parts of England long after the end of Danish rule there, and in parts of Scotland even later...(422) The Scandinavian basis of law and legal custom in the Danelaw was frequently and handsomely acknowledged by the law-makers of all England.... This was not just a matter of terminology, though such Scandinavian or anglicized terms as lahslit, `breach of law', lahcop, `purchase of law', sammæle, `agreement', botleas, `unantonable', festerman, `surety', sacleas, `innocent', and the like, bear witness to concept as well as vocabulary; but the notion of law itself was at times distinct from that of England... But the most striking example of Danelaw legal usage will be found in the Wantage code of Ethelred the Unready, which describes the legal assemblies or courts of the Five Boroughs; first, the court of the Five Boroughs considered as a unit, presided over by an ealdorman or king's reeve; second, the court of each seperate Borough; and, third, the wapentake court. All this is strongly reminiscent of the supra-Things and local Things of Scandinavia and Iceland; but the resemblances do not end there. In each wapentake there were twelve leading men, thanes, with a special responcibility for law - the so-called jury of presentment. These twelve were required to take oath on holy relics that they would neither accuse the innocent nor shield the guilty, after which they were empowered to arrest any of ill fame then at odds with the reeve. In Stenton's words: `The sworn jury is unknown to pure Old English law, and it is safe to follow the long succession of scholars who have seen in the twelve leading thegns of the wapentake an institution derived from the juries of twelve familiar in the Scandinavian north... (423) See also Stenton (1943:494-518).
26 Líndal (1984) argues for unanimous votes on new laws.
27 Noting, again, similarities between Iceland and Anglo-Saxon practice (or maybe rather the Teutonic heritage), and further showning differences in interpretation, Taswell-Langmead states: "Concerning the constitution of this assembly [the Witenagemot], there exists considerable difference of opinion. It is admitted that in the local gemots every freeman had a right to attend. In the gemot of his own mark or township - whose modern representative is the parish vestry - every Teutonic freeman was entitled a voice. So every freeman, whether eorl or ceorl, had a voice in the folkmoot of the shire, the shire-moot or country court of later times. But here the divergence makes itself manifest. According to one view every freeman had also the right to attend the National Assembly, although this right had practically gone out of use at an early period. The Witenagemot was `democratic in ancient theory, aristocratic in ordinary practice,' a view which to a certain extent, is supported by the high authority of Kemble. according to another view the central assembly was never formed on the model of the lower courts as the folkmoot of the whole nation, the ordinary freemen never rising higher than their respective shiremoots; but yet, constructively, the Witenagemot represented the whole people, whose rights, as against the King, were all vested in this assembly" (1896:25-26).
28 G. Guðmundsson claims that relying solely on Grágás on what the law was would be mistaken: "Í fyrsta lagi er varasamt að byggja á Grágás, eins og hún væri lög í eiginlegum skilningi. Í rauninni er hún aðeins minnisgreinar lagamann þeirra tíma og enginn trygging fyrir því, að rétt sé skráð í smærri atriðum" (1981:32-3). "Similarily, Pollock and Maitland surmised that `written Anglo-Saxon laws [of Ethelbert down through Cnut] ... are mere superstructures on a mush larger base of custom'" (Benson 1989:ch. 3 p. 37). See also Pollock and Maitland (1959:27).
29 Gissurarson is basically reproducing Líndal's comments on this issue (see Líndal 1984). The experience in central and southern Europe seems to have been the same: "When old custom was written down, its failure to fit new circumstances became more obvious." (Reynolds 1984:338)
30 "The law was a stable structure. It was highly elaborate, prescribing the correct legal procedures in detail, and the appropriate punishments for illegal acts. Nonstatutory like the English common law, it differed from it in that the main source was not judicial precedent, but custom.... They believed that the rule existed prior to the new case; their only task was to find it" (Gissurarson 1990:11).
31 Although it is generally claimed that the rule of strict liability applied in the Commonwealth, there are dissenting voices. Konrad Maurer is one who disagrees (see Líndal's note on Váðaverk in KLNM, vol. 22). Miller (1990:65-66) states in referring to the statement "there shall be no such thing as accidents" from Grágás, that "this does not mean, as von Amira thought, that in matters of doubt a wrong should be deemed intentional. It simply means that accidents are not to provide a basis for a cause of action. The claim of accident is a defense to an action for an intentional wrong. This is confirmed by the rest of the same provision which states that the people to decide on the defendant's submission of lack of intention `are to be drawn from the prosecution panel with which he [the wrongdoer] is prosecuted, and five neighboors are to be drawn from it'."
32 The Icelandic juries, in determining the guilt or innocence of a defendant, may have done so in a way similar to that of Anglo-Saxon juries: "What was the function of these `peasants learned in the law'? If we look closer, we find they did almost everything except what a modern jury does. They provided local knowledge. They answered such questions as: Who has held this land in living memory? Is this man a notorious criminal? They were witnesses and counsel, so to speak. They also, in theory, stated the law, although they must normally have had to submit to guidance on this point. But they did not normally say whether the party in a criminal suit was innocent or guilty. With a becoming humility they confessed they did not know. Indeed, in many cases it must have been extremely difficult to discover" (Brooke 1961:69).
33 "The sagas, however, suggest that the possibility of recourse to ordeal in Iceland might have been a little more in the air than the laws indicate. The greater portion of Icelandic dispute-processing took place outside the formal confines of the law. The sagas show ordeals being offered, demanded, and administered in context of negotiations and arbitrations stipulated to by private agreement of the parties. Ordeals are thus extended to include cases of theft, simultaneous death, plots to kill, and....homicide, when it was uncertain exactly who in a group of people involved in a melee had done the killing. ...[W]e do not see the ordeal imposed on unwilling litigants by coercive authority. For the most part it is a matter of private arrangement, of disputants' choice." (Miller 1988:193)
34 It should be noted that some Icelandic legal concepts had different meaning in the Commonwealth than they did in later times. The concept sekt, for example, which may be translated to English as either guilt or a fine, really had the former meaning in the Commonwealth. When, therefore, I refer to a fine I am really referring to the older meaning of guilt. Guilt, i.e. a fine, was associated with two forms of outlawry, lesser and greater. The Icelandic word útlegð, is another example, which literally translates into English as outlawry, did not have that meaning in the Commonwealth. Útlegð in the Commonwealth referred to a monetary fine, a form of restitution. On further notes on terminology and fines in the Commonwealth, see Ingvarsson (1970).
35 Enforcement was private, as in Ireland: "The obligations and rights of each freeman within a tuath [the assembly] were defined clearly and enforced by customary law, although there was nothing even approaching a police force to enforce the law. The power of custom appears to have been adequate" (Chadwick 1971:113).
36 Benson offers an interesting discussion on the relation between reciprocity and individual rights: "Because the source of recognition of customary law is reciprocity, private property rights and the rights of individuals are likely to constitute the most important primary rules of conduct in such a legal systems. After all, voluntary recognition of laws and participation in their enforcement is likely to arise only when substansial benefits from doing so can be internalized by each individual. Punishment is frequently the threat that induces recognition of law imposed from above, but incentives must be largely positive when customary law prevails. Individuals must expect to gain as much or more than the costs they bear from voluntary involvement in the legal system. Protection of personal property and individual rights is a very attractive benefit" (1990:13) "Reciprocities are the basic source both of the recognition of duty to obey law and of law enforcement in a customary law system. That is, individuals must `exchange' recognition of certain behavioral rules for their mutual benefit" (1990:12).
37 Despite similarities in Icelandic and Anglo-Saxon law, there are also differences: "In contrast to early Anglo-Saxon laws, Icelandic law made no distinction in wergeld values among free men or women. The corpse of a chieftain and a servant, male or female, had the same price. Such was the theory; practice was otherwise. The amount the kin were actually able to collect for the victim of a killing was intimately linked to the social standing of the victim, his popularity, and to the wealth and power of his kin and affines." (Miller 1990:27) As Miller suggests, though, looking exclusively at the law would lead to misunderstandings, because the Sagas often give differing account.
38 The sponsorship function of the Hreppur is discussed in Jóhannesson (1956:103). The only problem with this discussion is that there is no mention of how new settlers were sponsored.
39 This is similar to the Frankpledge system in England: "This healthy system tended to reduce or prevent the introduction into any society of anyone who did not have credentials transferred from a previous peaceful participation in a surety association." (Liggio 1977:274)
40 A stragety of TIT FOR TWO TATS possibly has some relevance here, see Axelrod (1984).
41 On the whole issue of crimes and punishments in the Commonwealth, see Ingvarsson (1970).
42 This is similar to Anglo-Saxon law: "Among the punishments for felony crimes were exile or banishment from the jurisdiction and outlawry or declaration of wolfshead, providing for execution on sight if a felon returned to the jurisdiction." (Liggio 1977:274)
43 Benson (1989:ch. 3 p. 40-1) shows how the Anglo-Saxon court structure was also hierarchial: "There was, in fact, a hierarchial structure for courts remniscent of the Icelandic system. Four members of the neighborhood pledge group or tithing (forerunners of townships) were specified to serve as `suitors' of a `hundred court,' along with four members of all the other neighborhood pledge groups within the jurisdiction of that court.... A dispute between individuals who were not in the same hundred court jurisdiction was handled by a `count court.' ... Above the county court there was, apparently, a third court `which were, so to speak, hudreds in themselves, so that disputes between individuals that did not reside within the jurisdiction of a particular county could be handled .... Note that there is no indication of appeal. The hierarchy was not anything like modern courts where appeal can, under limitied circumstances, be made from one level to the next. They were simply increasingly inclusive so that jurisdictional rules were like those of the Kapauku [a primitive tribe] -- dispute was handled by the least inclusive group that encompassed the parties in a dispute."