At first glance Hen-Thorir’s Saga[1] appears to be a simple family saga presenting to the reader a blood feud along with the moral code of the Icelandic society, but in truth it pertains to much deeper societal matters. After peeling back the false front of the saga, it can be seen that the saga discusses the conflict between natural law and positive law, and also how this conflict affected the nation. The question then becomes how is this done, and why?

When reading Icelandic literature, many of the stories take on a similar shape and this is partly due to the ideologies of the people. The characteristics that the Icelanders found imperative and noble can be summed up as courage, loyalty, generosity, physical prowess, and the jealous defense of rights and honor.[2] All of these are illustrated in Hen-Thorir’s Saga. Courage is portrayed through Herstein’s quest for justice in spite of the odds when he starts out. Loyalty is observed in not only Orn who defends the honor of his host Blund-Ketil after he had been declared a thief, but also in Arngrim who, all because of a pledge of allegiance he made years earlier, stays with Hen-Thorir even when he believes Hen-Thorir is not doing what is right. Generosity is personified by Blund-Ketil; whether a stranger needs a place to stay, his tenants don’t ration their supplies for the winter properly, or in bartering, he is helpful and extremely generous. Lastly, the defense of one’s rights and honor is depicted by almost all parties in one way or another; Orn defending the honor of his host, Hen-Thorir defending his honor after his rights had been violated, Herstein defending the honor of his father, and Tung-Odd defending the honor of his family by defending the decisions his son Thorvald made.[3] Every quality that the Icelandic people held most dear can be witnessed in this saga. Yet, although they are presented to the reader straightforward and play a specific role in the story itself, they are not the entirety of what the saga is trying to convey but instead only a single piece of the puzzle.

If the reader goes one level deeper in the saga, the reader quickly discovers that the text also contains a conflict between laws. Natural law and positive law are two of the four main philosophies of law, the other two being customary law and pragmatic jurisprudence.[4] Natural law is rooted in the morals and life style of a given culture.[5] Positive law on the other hand is man made law, statutes that have been developed over time.[6] In most cultures it can be observed that these two walk hand in hand, positive law being the written and executable law with natural law shaping and giving the positive law context. A good example of this would be the First Amendment to the United States Constitution, which protects freedom of speech allowing for opinions to be expressed freely. However, they can also be found to oppose each other such as in cases where positive law has been manipulated and therefore conflicts with natural law. For instance although the First Amendment has been was created with the right idea in mind, some groups have used it to defend themselves from prosecution when spreading hateful messages. Hen-Thorir’s Saga displays the latter of the two quite well, instances where positive law had been corrupted to benefit a specific person. There were also instances in the saga illustrating how sometimes natural law became subjectively defined by individual people instead of the culture as a whole. However, best depicted by the saga was how in grey areas of positive law, literal positive law was followed instead of the supplementing natural law. The saga is fantastic at illuminating the issues that are able to arise when positive law incorrectly or falls short of solving a legal matter.

The beginning of the saga outlines a confrontation between Tung-Odd, the head chieftain and law speaker of the district, and Orn, a popular Norwegian ship captain and merchant. Orn lands in Borgarfjord, part of Tung-Odd’s district, and plans to stay there for the winter while trading his goods. Tung-Odd, being who he is, takes it upon himself to set the prices of all the goods for any merchants in his district. Orn wants to set his own prices and refuses to submit to Tung-Odd. Tung-Odd, aggravated, goes against the natural law of generosity by denying hospitality to this guest in his district and asserts his own version of positive law by forbidding Orn to trade his goods and forbidding any man to aid him over his winter respite from the sea.[7] This is interesting in the sense that although Tung-Odd was the chieftain of the district, this did not bestow upon him the power to set market prices. It is not expressed in the text whether Tung-Odd does this for his own benefit or the people of this district, but being how Tung-Odd is portrayed it seems more likely that he is twisting law to his benefit.

After the conflict between Tung-Odd and Orn has been explained, the reader is then presented with the next conflict of the saga. Blund-Ketil is one of the landowners in the area and some of his tenants failed to properly ration their food stores for their livestock during the winter. Blund-Ketil has heard that Hen-Thorir possesses excess hay and therefore travels to Hen-Thorir’s estate looking to purchase the excess. Although Hen-Thorir knows that he has extra that will go to waste if it remains on his estate, he decides to go against the idea of generosity and refuses to sell Blund-Ketil anything at all. Blund-Ketil, being loyal to his tenants, takes the excess hay from Hen-Thorir, but is honorable and leaves money for what he took. Hen-Thorir feels his honor has been tarnished and rights disrespected. Thusly, he decides to defend his image by persecuting Blund-Ketil. Hen-Thorir goes out looking for someone to take up his case, but everyone rejects him. Eventually he runs into Thorvald, son of Tung-Odd, who decides to take up his case and together they head to Blund-Ketil’s estate to settle the matter. Thorvald discusses the situation with Blund-Ketil and Blund-Ketil expresses thoroughly that he is more than willing to pay an excessively generous compensation. Hen-Thorir declares that no compensation will be enough; he wants to make Blund-Ketil suffer. This leaves Thorvald rather confused, both natural law and positive law are illustrated as such that if someone has been wronged, the accused, if guilty, is to pay compensation in some form. This is a grey area though; Blund-Ketil is more than willing to abide by this but Hen-Thorir refuses to accept it. If natural law were to prevail in this murky area of law, the matter probably would have been dropped, but that is not the case. By strictly following positive law, Thorvald has no other option but to declare Blund-Ketil a thief and this only escalates the situation. Orn, who has been taken in by Blund-Ketil for the winter, feels that his host has been defamed and in anger fires an arrow in the general direction of Hen-Thorir’s men. The arrow strikes and kills Hen-Thorir’s foster son Helgi. Hen-Thorir is not truly saddened by this event but uses it as excuse to push the situation further. Hen-Thorir has Thorvald and his men burn the estate to the ground that night. Blund-Ketil’s son Herstein finds out about his father’s death in the morning and a blood feud ensues over the rest of the saga.[8] It only is settled at the end with help from the highest order of governance that only met once a year, the Althing.[9]

There are a handful of interesting phenomena that appear in this sequence of events. Take for instance when Thorvald was attempting to settle matters between Blund-Ketil and Hen-Thorir. Thorvald was faced with an atypical situation; someone had refused to accept compensation. In most societies when a matter seems impossible to settle, the social norm, natural law, is typically instituted.[10] In this instance though, this was not the case. A general positive law was applied for a predicament where it wasn’t well defined. The positive law observed in the text made it such that the offender had to pay the compensation but seemingly failed to stipulate that the victim must accept. In this grey area, Thorvald took the positive law literally, which in turn caused Blund-Ketil to be deemed a thief. Now whether or not this was actually the positive law at the time is not important, what matters is what the writer is trying to express through the positive law that is illustrated in the saga. What the writer expresses is, that at some point in Icelandic history, what happened in the case of a situation not well defined with positive law was longer decided by natural law but instead positive law, which was inflexible for differing situations.

How willingly Hen-Thorir uses the grey areas of positive law for his selfish desires is a very interesting aspect in the story. In the beginning he goes against the social norm of generosity and although doing so is frowned upon, he has every right to do so. Later while prosecuting Blund-Ketil, he takes advantage of the grey area in positive law so that no matter what Blund-Ketil will be deemed guilty in the matter. Defaming Blund-Ketil is not enough to satisfy his anger though – he wants to destroy him. His opportunity arrives when Orn looses an arrow into the sky and which, on its way back down, buries itself in the body of Hen-Thorir’s foster son. As already discussed, this is the excuse for which Hen-Thorir was looking. The author portrays Hen-Thorir such that it is impossible to like him. Hen-Thorir is written to symbolize the different ways people were able to manipulate positive law for their own betterment instead of the community’s.

Truly intriguing is that the conflict was never taken to any of the district Things or the district Quarter Courts in Iceland. Iceland, when it was established, was divided into four districts. Each district had three small Things and one Quarter Court.[11] These institutions were put into place to settle matters in their districts and only if the disputes could not be settled would they go on to the nation’s Althing. In the saga this is never mentioned while the feud rages on. In the saga Herstein is traveling to gain allies to assist him at the coming Althing. The Althing continually draws nearer and Hen-Thorir knows that with the coming of the Althing will be the coming of his demise. Convinced the Althing will be the end of him, Hen-Thorir plots to ambush Herstein while he travels to the Althing. Herstein spots Hen-Thorir’s ambush causing the ambush to fail and Hen-Thorir to perish. Once Herstein eventually reaches the Althing, the matter of the feud is set straight. The incorrupt positive law of the Althing manages to diffuse the situation. In the end, Thorvald is forced to go abroad for a period of three years and everyone else who was present with Hen-Thorir and Thorvald at the burning of Blund-Ketil are declared to be outlaws. There is some resentment towards Herstein and his allies from Tung-Odd due to the outcome, but this is negligible. Although the outcome isn’t perfect, the action chosen had been deemed the best available. Thus ends Hen-Thorir’s saga. Nowhere during any point in the story does the author mention the district Things or Quarter Courts. This is not because they are not important to tell the story, but they are not important in expressing the author’s message. The Althing is important because it symbolizes the imperfect solution to a terrible situation.

It is interesting to observe the relationship of natural law and positive law as the author depicts them in the saga as well as it is interesting to observe how the dispute is in the end resolved. It is perhaps more interesting to understand why the saga as a whole is depicted as it is. To do so though, the reader must understand the context in which the sagas were written. The Saga Age was during the years from 930 C.E. – 1030 C.E., which means that Hen Thorir’s Saga originated roughly two hundred years before it became a written piece of literature.[12] Whether it is fact or fiction is irrelevant; the writing of the saga still took place sometime during the 13th century. Societies change over time and Iceland is no exception especially during the two hundred years between when the saga supposedly occurred and when it was written. Not only had the Icelandic society shifted from a polytheistic society to a Christian society,[13] but saga writing also took place when Norway began asserting its rule over Iceland.[14] Iceland was founded as a republic and its positive law was based on natural law. Over time positive law had to change in order to keep the order to resolve conflict in the grey areas where natural law slowly disappeared. As time went on, positive law changed not for societal betterment but instead personal benefit. Positive law became a means of getting what one wanted and not a means of justice. Iceland’s legal system had been deteriorating due to corruption and Norway had to step in to stop Iceland from collapsing in on itself because of its never-ending feuds. This is why the author records the event how he did and why the story is told how it is.

The saga is not simply about an event that possibly occurred, it is about the history of Iceland. It characterizes the morals the Icelandic people deemed desirable with each character possessing one or more of the traits. Hen-Thorir’s saga presents one of the major factors pertaining to its inner turmoil by depicting the conflict between natural law and positive law. It also reveals to the reader the imperfect solution to the problem and the highest legal power, the Althing, which alludes to the authoritative power of Norway. It is not overly surprising that Hen-Thorir’s Saga had an underlying message pertaining to Icelandic society. This message can actually be found as a motif in many Icelandic sagas. This is because a major part of saga writing took place during the time Norway had finally begun asserting its rule over Iceland and when a society is being forced into submission, it is natural for it to want to preserve its culture.[15] In sagas the reader observes strong portrayals of the characteristics that this society valued and this is due to its desire to hold fast to its culture. The sagas were the embodiment of Icelandic society and their history, and that is exactly what is presented in Hen-Thorir’s Saga.

In conclusion, Hen-Thorir’s Saga is a recording of the Icelandic society. The saga does not simply depict the morals of generosity, courage, loyalty, the defense of one’s rights and honor, all of which the Icelanders held most dear, but also the legal system and the struggles the country faced because of it. Through Blund-Ketil the reader sees natural law, through Thorvald the reader is presented with the disregard for natural law and replacement of positive law, through Tung-Ood the reader witnesses the corruption of positive law, and the Althing is an allusion to Norway taking control and reforming the laws as the last resort to resolve conflict. The saga is not a simple story about life in Iceland, it is a recording of its history. It depicts not only the characteristics important to the people, but also describes how the corruption of their originally utopian legal system forced the country to crumble, only to be saved by its protector, Norway.

 

Bibliography

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McTurk, Rory. “The world of the Icelandic saga.” Times Literary Supplement. 15 Mar. 1991, 21. Web. 8 Oct. 2013. [12][14][15]

Miller, William Ian. “Of Outlaws, Christians, Horsemeat, and Writing: Uniform Laws and Saga    Iceland.” Michigan Law Review. The Michigan Law Review Association. August 1991. Web. 8 Oct. 2013. [13]

Pencak, William. The Conflict of Law and Justice in the Icelandic Sagas. Amsterdam: Rodopi B.V., 1995. Print. [4][6][11]