July 28, 2015


Iceland

They also brought the rule of law

We all assume that rule-of-law is a good thing, but we need to remind ourselves that law is only a medium, never an end in itself. After all, rule-of-law can support the best or worst of government, including Nazi Germany. And what are alternatives to rule-of-law? Rule-of-religious-faith? Rule-of-economics/corporate-power? Rule-of-executive/royal-will? Rule-of-militia-or-maiosa? Many regimes combine all of these.

One such regime existed in Iceland one millennium ago. That huge mound of volcanic lava in the North Atlantic, known since earlier medieval times as Iceland, offers rich historical examples for all such varieties of rules and rulers.

Read any of their two-dozen-plus sagas, where the action begins in the ninth century. Their texts burst with stories of family loyalties and feuds, violent body mutilations and court awarded compensations, bargains and bullyings, inheritances and takings: all claiming rule-of-law for authority.

Then read any of the thousands of collected laws (the Grágás) from the 12th century. (An edited and translated version was published by the University of Manitoba Press). It is full of rules governing marriage, commerce, landholding, debt, homicide, theft, gossip, incest, piracy, even farming and livestock.

How could it be that this medieval European outpost had such an advanced rule-of-law system? Its legislature, the Althing, dates from 934, more than two centuries before similar parliaments in England, Spain, Germany, France and Italy. Its laws combined transplants from Norway with local landlord legislation; but the amazing thing was that this land of Norse farmers had any rule-of-law at all, and the law courts to enforce it.

The Vikings began as warrior thugs and pirate retinues who routinely terrorized the coasts of Ireland, Scotland, the Orkneys, Hebrides, Shetlands, Isle of Man and south into the Mediterranean. The Normans who conquered England (1066) were direct descendants of Viking sea-raiders (and French maidens) who had sacked Lindisfarne (793), Ireland (795), Rouen and Paris (845), arriving in Iceland before 874.

For all the rule-of-violence that the Icelanders recorded in their sagas, they also retained an instinctual rule-of-law and law-making. They created local councils and courts run by landlords and clan chieftains. Their rule-of-law, however, was never based on the sources and institutions that other European relied on.

An 11th-century chronicler, Adam of Bremen, wrote that Icelanders uniquely " ...Have no king except the law." By the year 1000 there were over 10,000 Icelanders but no monarchy or royal family. And unlike the rest of Europe, there were no churches, no faith-based cult of priests, no central government and executive bureaucracies, no cities, no merchant class, and no professional lawyers. Furthermore, there were no prior indigenous, aboriginal inhabitants, with no pre-existing legal system to be conquered, displaced or absorbed. There were gods and goddesses but they were not divine law-givers.

When Roman Christianity slowly arrived it had to adapt to what it called "paganism." It remained distant to that huge body of secular criminal and civil laws that already was thriving.

So where did Icelanders believe their rule-of-law came from, if not from some "god" or some king or some religion, or professional lawyers? And how did this unique rule-of-law come to Manitoba, centuries later?

Just as much Norwegian customary law came across the North Sea in the minds and memories of medieval Norsemen and women, so too did the Icelanders' law sail in the minds of economic refugees to the Lake Winnipeg area during and after the 1870s.

They were part of Prime Minister Sir John A. Macdonald's grand European immigration strategy, including the Mennonites bargained from the Russian government, to outnumber the Métis majority in the Red River valley.

And the law that these Icelanders brought, to Gimli lands and lakes, was still based in the millennium-old traditions from the sagas and the Grágás, which had travelled through a chain of 40 generations of ancestors. It still did not rely for its authority on any monarch, any monotheism, any municipalities, only on Canada's allowance that these Icelanders could create their own New Iceland constitution (1877), claiming limited self-government within the District of Keewatin, north of "postage stamp" Manitoba. New Iceland, alias Vatnsthing (Lake Region), had four districts and, just like the world's first legislature, the medieval Althing, it had a Thingrad, annually elected, until 1881.

There is then, a millennium of Icelandic legal history in which the law's authority was uniquely secular, local, family and landlord based, totally pragmatic, answerable annually to an electorate, and in every detail designed to resolve conflicts peacefully, according to rule-governed behaviours and due process.

The alternatives to rule-of-law were always on display: just read the blood-soaked Sagas. But also read the Grágas to see that Icelanders, long before their European contemporaries, aspired to a better way, a way of self-governance and rule-of-law that they helped to plant in Manitoba.

DeLloyd J. Guth is a professor of law and legal history in the faculty of law at the University of Manitoba.

Republished from the Winnipeg Free Press print edition November 24, 2012 J11

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