POLITICAL CENTRALIZATION AND THE TRANSFORMATION OF LEGAL SYSTEMS

A cursory glance through the pages of history would seem to justify

a claim concerning the general stability of that part of a social order
having to do with rules of conduct and the mechanisms or processes for
applying those rules. Yet, upon closer examination, processes of change
are as integral a feature of these institutions as they are in any other
product of human action, material or intellectual. An incremental process
of change is often referred to as evolutionary. Such processes are no
doubt inherent in all human institutions. A second type of change--which
is a consequence of forces different from that operating in former--can
be called transformational. A transformation in the nature of a system of
legal order can have an impact on the form of human affairs which reaches
far beyond its most immediate consequences. This essay will attempt to
determine what forces were operating in two legal systems which I believe
underwent a transformational change at a specific point in their history.
For significant periods of time, there were communities in England and
Iceland whose legal systems were based on unwritten and written customary
law. In both cases there occurred punctuated, though not necessarily
drastic, changes in the form and function of their legal systems which
set the pattern for future development. The changes were primarily a
consequence of political centralization, and although political
centralization had different causes in each case, the changes in each
respective case served a similar strategic purpose. Simply stated, legal
change was implemented by political elites seeking to use the law and
legal institutions as mechanisms for the transfer and redistribution of
wealth. Before presenting my two case studies, it will be useful to
describe generally how systems of customary law function.
Legal rules can either be produced and enforced by some coercive
authority (e.g., a king,a legislature or a supreme court), requiring the
support of a powerful minority, or they can emerge in the community
interstitially as a consequence of widespread acceptance. The latter
type--customary law--is recognized not because of the threat of a some
coercive institution or individual, but because there is a mutual
recognition by each individual of the benefits of behaving in accordance
with each other's expectations. (Hayek 1973: 96-97) Relationships of
reciprocity are the basic source both of the recognition of the duty to
obey and of law enforcement in a customary system of law. Since voluntary
recognition of laws and participation in their enforcement is only likely
to occur if there are substantial benefits to be gained, the rights of
individuals and the protection of personal property are likely to be
important primary rules of conduct in customary legal systems. Offenses,
then, are treated as torts (private wrongs) rather than as crimes against
a collective entity such as state or society. The resolution of disputes
is the primary mechanism by means of which legal rules are introduced,
changed or modified. Since all parties to a dispute must voluntarily
accept a proposed resolution and thus the introduction of a new or
modified rule, rules effective at facilitating interaction tend to be
selected over time, while those that do not are ignored. (Benson 1989)

Institutions for enforcement of customary law similarly evolve due

to the recognition of reciprocal benefits. Because no coercive authority
exists in a customary system, individuals have strong reciprocal
incentives to form mutual support groups to resolve legal disputes. Such
groups are often based on kinship, religion, geographic proximity (as in
Anglo-Saxon England), or contractual arrangements (as in medieval
Iceland). The ability to obtain support in a dispute is dependent on
reciprocal loyalty. Since violence is a costly means of resolving a
dispute, there are general incentives to accept procedures which avoid
violent forms of dispute resolution. Settlements are negotiated often via
the use of a mutually acceptable arbitrator. Judgements, usually in the
form of economic payments of restitution, are typically backed by a
severe threat of social ostracism and boycott. (Benson 1989)
Fuller (1964) described customary law as a "language of
interaction". Customary law coordinates interaction as do markets; The
development of the institutional arrangements of both are driven by the
favorable adaptive consequences which the more effective coordination of
actions promotes. Under customary law, "the spontaneous order arises from
each element balancing all the various factors operating on it and by
adjusting all its various actions to each other, a balance which will be
destroyed if some of the actions are determined by another agency on the
basis of different knowledge and in the service of different ends" (Hayek
1973:51). As we shall see, an emerging political hierarchy was the agency
which altered the contours of customary law, and it did so for the
purpose of transferring wealth to those with political power and not for
the purpose of facilitating interaction.
The Pre-Norman Anglo-Saxon Legal System
The Anglo-Saxons were descended from nomadic Germanic tribes. They
migrated into Britain, led by tribal war chiefs, after about A.D. 450.
War chieftains were chosen by followers expecting reciprocal benefits,
usually partly in the form of land; chieftains (or "kings") were granted
temporary authority for as long as the tribe was involved in a conflict.
Attempts by kings early in the Anglo-Saxon period to establish a system
of life tenure and hereditary succession were failures. The contractual
nature of kingship was deeply ingrained, specifying a customary set of
reciprocal duties between kings and their followers. Kings were expected
to provide battle equipment, a share of the plunder, and assistance in
the protection of the rights and properties of their followers, in
exchange for their loyalty and support in war. The coexistence of many
kingdoms and their fluid nature in this early period meant that the
contractual arrangements between kings and freemen (and their associated
land areas) could shift depending on the freemen's appraisal of the kings
effectiveness as a leader. (Blair 1956)
The Anglo-Saxon's legal order was based primarily on custom.
Evidence concerning its character is deduced from a few codes compiled by
kings during the late Anglo-Saxon period and later tracts written after
the Norman conquest. The early codes, which are considered by Pollack and
Maitland (1959a:27) to be "mere super-structures on a much larger base of
custom", were primarily organized around the protection of individuals
and their property. The codes delineate the kinds of compensation (mostly
economic) appropriate for homicide, assault, rape, and theft. Since legal

customs concerning property were unwritten their details are unknown,

though disputes over land incorporated a conception of a right of
possession and a rule of judicial redress. (Pollack and Maitland
1959a:57)
Recognition and enforcement of customary law was based on kinship
and contractual reciprocity. The kindred was one of the principal bonds
of the Anglo-Saxon legal system and society in general; members of the
kindred were, based on a kind of surety, reciprocally responsible to each
other for protection from and for pursuit of offenders. Successful
pursuit resulted in a payment of restitution defined by a system of
wergeld or man-price. Anglo-Saxon tribes were divided into pagi, each of
which might have consisted of a hundred households. A vici or village was
a (non-territorial) subdivision of the pagus and was responsible for the
enforcement of customary law. (Lyon 1980:59-84) Procedures evolved in the
context of the vici for the purpose of encouraging parties to settle
their differences via arbitration and compromise. Parties unable to
settle their differences were not coerced into accepting a settlement
imposed by the community acting as a judge or jury, though those viewed
as uncooperative might be put outside the protection of the community.
(Baker 1971:10).
The kinship reciprocities of the vici eventually gave way,
probably due to increased mobility, to voluntary locally based
cooperative protection and law enforcement associations called
"tithings". Tithings were the basic components of a clearly recognized
(by the 10th century) legal institution called the "hundred". The primary
purposes these organizations were the rounding up of stray cattle and the
performance of local judicial functions. A twelve man judicial committee
of a hundred court served as an arbitrator in disputes between members of
different tithing groups. Four members of a tithing served as "suitors"
of a hundred court, and a representative body of all the suitors composed
the judicial committee. Disputes between individuals not in the same
hundred jurisdiction were handled by the judicial committee of a shire
court. All the suitors in the hundred courts within a shire were also
suitors in a shire court. Above the shire court there was apparently a
third court which handled disputes between individuals residing within
the jurisdiction of different shires. (Blair 1956: 232-240)
A tithings' members took responsibility for each others actions via
a surety arrangement; reciprocal responsibility for each others actions
on the part of each tithing member generated an incentive to abide by
law and custom. The reciprocal duties present in the tithing system were
secured by the fact that offenses were treated as torts. Since punishment
usually amounted to some form of economic compensation (wer), individuals
recognized that they would need support from others in order to recoup
their losses. Obligations were then founded on the recognition that
restitution for torts was a necessarily cooperative enterprise. An
individual who was not bonded by such a group would be unable to enter
into and benefit from exchange relations with its members. Similarly, an
individual with a history of wrongful conduct would be unable to enjoy
the social benefits of being bonded by a tithing since no tithing is
likely to accept responsibility for an individual who was a high
insurance risk.
The threat of violence (e.g. "the blood-feud") and social ostracism
was the primary sanction if an offender refused to submit a dispute to
arbitration or accept the monetary sanction set by the courts. Such an

offender became an outlaw, whom the accuser or other members of the

community had a legal right to kill. However, as Benson (1990) notes, the
similarity of the Anglo-Saxon legal system to other well documented
customary legal systems, indicates that the threat of violence and the
severity of social ostracism would likely have created strong incentives
for peaceful settlement in accordance with arbitrated rulings.
By about the ninth century, the king or his representatives had
become involved in the ostracism process by which an offender was made an
outlaw. The king's representative in a shire was called the ealdormen
(later called earls). Benson (1990:25-26) again on analogy with other
customary legal systems, speculates that this appointed position probably
evolved from an earlier tribal or kinship arrangement involving a
respected individual whose opinion carried weight in a community. A
victim could call upon the ealdormen or king to assist him in prosecuting
a claim against a strong offender who was resisting arbitration or
judgment. If this was necessary, the monetary cost to the offender would
not only be the fine due his victim or his kin (bot), but would also
include a fine (wite) paid to the individual (ealdorman or king) who had
used his power to bring about settlement. Although at this point the
kings and ealdormen had no sovereign powers to coerce compliance, the
institutionalization of the king's role in the process of local
adjudication via the wite was one of the "first steps in what would soon
be a rapid extension of the king's role in the law".
The Beginnings of Centralization in the Anglo-Saxon
Legal System
The spontaneously evolved legal rights (not to mention general
well-being) of freemen began to decline as the power of kingship
increased. The constant state of warfare among the Anglo-Saxon chiefs was
no doubt a principal cause of the shift from kinship based forms of
organization to the territorially based political forms associated with
the rise of kingship (Arnold 1984). Military ability created prestige and
wealth for a small group of war chiefs. Between 450 and 850, war had
reduced the number of kingdoms to only three. During this period the
king's primary function was in warfare; they were not involved with law
enforcement which remained in the hands of local associations. However,
none of the three kingdoms had a great enough concentration of military
force to defend the English coast from the Viking raids which had became
common as of the late eighth century. The Scandinavians ultimately
destroyed two of the three Anglo-Saxon dynasties. The third kingdom,
Wessex, held out against the Danish, and eventually under Alfred and
later his son was able to recover all the territory conquered by the
Danes. The older system of numerous small independent kingdoms had been
unified and brought under the rule of the kingdom of Wessex.(Blair 1956:
87).
The warfare and unification of England had a considerable effect on
the social and economic relations of the various segments of Anglo-Saxon
society. From the seventh century on, the well-being of the non-noble
freemen, mainly derived from the position he held in law, progressively
declined as a consequence of the physical destruction of war, the burden
of the taxes levied by lords and kings needed to pay tribute to the
Danes, and the growth of powerful families among the nobility. (Blair

1956: 261-262) In 1016, a Dane (Canute) took the throne and ruled England
in close cooperation with the Anglo-Saxon aristocracy. Just prior to the
Norman conquest, actual control of England eventually fell to the most
powerful Anglo-Saxon earls; these earls had acquired vast land holdings
during the long period of unification. (Lyon 1980:33).
During this period of political centralization, many of the
localized judicial functions began to come under the control of the
relatively more concentrated an powerful kings and aristocracy. By the
eleventh century, the localized functions of ealdormen had become the
province of royal appointees: sheriffs and earls. Earls were given
authority by the king over much larger areas (several shires) than the
locally based ealdormen. Anglo-Saxon kings began to use the justice
process as a source of revenue. Violations of certain laws began to be
referred to as violations of the "King's peace". Outlawery began to
involve not only the potential forfeiture of one's life but the actual
forfeiture of one's goods and land to the king (and not the victim).
Later codes drawn up just before the conquest indicate an increasing
concern that the king (as part of a general assertion of jurisdiction and
authority over his men and land) receive his share of dues, revenues, and
profits accruing to the local courts and lords. As Stafford (1989:141)
notes, the "chief beneficiaries" of the greater royal involvement in law
and order were the king and his officials. The king could generate
support for his changes in the legal system (including the creation of
new offenses requiring payment of wite) by redistributing the rights to
part of those revenue generating changes to other members (e.g. earls and
sheriffs) of a solidifying political hierarchy. Pollack and Maitland
(1959b: 453-454) have stressed that one of the
bad features of pecuniary mulcts was the introduction of a fiscal element
into the administration of criminal law. Criminal jurisdiction became a
source of revenue; "pleas and forfeitures" were among the profitable
rights which the king could grant to prelates and thegns [officials or
retainers]. A double process was at work; on the one hand the king was
becoming supreme judge in all causes; on the other hand he was granting
out jurisdiction as though it were so much land.
The Transformation of the Legal System under Norman Rule.
At the time England was conquered by the Normans, little
substantive change had been made in the Anglo-Saxon system of customary
law by the Anglo-Saxon kings. The consolidation and centralization of
power under the king and the widening distinctions between the nobility
and royal officials, and freemen were, however, associated with a
shifting relationship between royal power and the legal system. The most
significant development was the use of legal system to generate revenue
through reciprocal arrangements with earls, sheriffs, and the church.
England's new Norman rulers were, like their Anglo-Saxon
predecessors constantly involved in military struggle. To generate
revenue for their military operations they introduced a system
(feudalism) under which the lands seized by the king would be
redistributed to Norman vassals (barons) and the church in exchange for
various payments and services. Similarly, the Norman kings used law and
law enforcement to generate revenues needed to finance their military
operations, to enhance their own wealth, and to buy the support of

powerful groups. "In fact", as Lyon (1980:163) notes, "the expansion of

the king's justice in the period of its early development can be
explained satisfactorily only by the royal need for money".
The Normans, in codifying and translating Anglo-Saxon customary
law, made substantive changes which later resulted in new legal
institutions. Under Henry I, the old restitution-based system of bot,
wer, and wite was replaced with a system of fines, confiscations, and
corporal and capital punishment, partly for revenue reasons, and partly
to alleviate some of the confusion caused by the introduction of the
feudal system. The number offenses that were considered to be violations
of the kings peace were substantially increased, and although "we may be
certain [!] that the king's concern for law and order was a cause,
another interest was need of money; to increase his income the king only
needed to use his prerogative and throw his jurisdiction over another
offense" Any accused violation of the king's peace could be brought
before the royal court (an appeal), and because the accused person was
not allowed to deny breaking the king's peace, practically any offense
could be interpreted as a breach of the king's peace and so brought
before the royal court. Another new legal concept brought to England by
the Normans was the felony. A felony referred to the feudal crime of
betraying or committing treachery against one's lord. Punishment for such
a crime was death and resulted in the forfeiture of all goods and lands
to the lords. Soon after its introduction, the meaning and applicability
of this concept began to expand: "Again royal greed seems to be the best
explanation for the expansion of the concept of felony. Any crime called
a felony meant that if the appellee was found guilty his possessions
escheated to the king. The more crimes called felonies, the greater the
income, and so the list of felonies continued to grow throughout the
twelfth century". (Lyon 1980: 189-190).
Some of the major institutional changes implemented after the
Norman conquest included the curia regis. This institution was a feudal
court whose members, including barons, bishops and royal officials, were
obliged to attend to consider matters of law, state, war and church. The
court had a number of different functions, including rubber stamping
royal decisions, adjudicating cases of high treason and civil disputes
between the nobility, and dealing with financial matters. (Lyon 1980:
142-8) The latter function was undertaken by an independent tribunal
called "the exchequer". The exchequer received the royal revenue and was
generally responsible for financial administration,e.g., assessing fines
for those who breached their financial obligations to the king. The
office of chancellor extended the king's revenue interests into the area
of civil disputes through the issuance of writs. A writ was a royal
command purchased by a plaintiff for the purpose of executing a
judgement. (Pollack and Maitland 1959: 193-7)
Throughout the first hundred years, the Norman royal institutions
increasingly penetrated and displaced the customary forms of law
enforcement which had evolved as part of Anglo-Saxon society. The shire
became the Norman county, and sheriffs became the key local officials.
The sheriff's were the kings permanent judicial representatives and their
legal functions included presiding over and ensuring the operations of
the county court, empaneling royal inquisitional juries, enforcing royal
court decisions, conducting arrests, and enforcing royal writs. The
sheriffs growing autonomy led to widespread corruption (e.g., the
extortion of parties to a dispute) and reduced royal revenues, causing

them to be replaced with residential justices, who were soon replaced by

traveling itinerant justices. Many Hundreds courts ceased functioning
altogether under Norman rule. The Norman frankpledge took on the local
law enforcement functions of the Anglo-Saxon tithing. The frankpledge,
imposed from above, was based on requirements of feudal obligation rather
than reciprocities. Fines were instituted if the frankpledge failed, for
instance, to pursue and capture thieves and perform court duties.(Lyon
1980: 170-196) The frequency of fines indicates that the voluntary
participation in the justice process had declined as the focus of the
Norman legal system shifted to the accumulation of royal revenue rather
than the restitution of damage to victims.
By the time of Henry II in the mid to late twelfth century, a
transformation in the English legal system had effectively taken place.
The customary, locally organized, voluntaristic, and restitution oriented
legal system of the Anglo-Saxon had metamorphosed into an authoritarian,
centrally directed, coercive system. Henry the II laid many of the
foundations of the modern English system, including the development of a
permanent and professional system of public administration and courts.
The king's court absorbed many of the functions that had historically
fallen to the county and hundred courts. Norman procedural innovations
such as the writ and jury were considered by Lyon (1980: 288) to be a
central reason why "royal courts so quickly snuffed out rival
competition".
At this point, the development of the English legal system was
largely driven from the center, especially as a consequence of the
struggle between various power holders in Anglo-Norman society. Much of
the development of the law enforcement and judicial apparatus was also
driven by the need to regularize the collection of revenue and the
production of justice from a legal system no longer organized around
reciprocal incentives and restitution. For instance, royal law made it a
crime for a victim to accept the return of stolen property or to make
other arrangements with a felon in exchange for an agreement not to
prosecute. (Laster 1970). Early coercive efforts to induce victims and
communities to pursue and prosecute criminals were however unsuccessful,
leading governmental institutions to gradually take over the production
of these services.
The Social and Legal System of Medieval Iceland
At the outset, something needs to said concerning the reasons I
choose Iceland as my second case study. Of what relevance is Iceland
relative to England in understanding what factors are operating in the
transformation of legal systems? Iceland has a unique origin and history.
Settled as an uninhabited island by Scandinavian free farmers (870 to
930) at time when the growing power Scandinavian kings threatened the
customary rights of freemen, it "is the first `new nation' to have come
into being in the full light of history, and it is the only European
society whose origins are known" (Tomasson 1980:4). The settlers brought
with them a set of customary legal concepts, which because of Iceland's
isolation, underwent independent development largely uninfluenced by the
transitions occurring in the legal and political systems across Europe.
Much of the knowledge of the workings of this society come from sagas
written by people who lived under Icelandic institutions and yet were

generally beholden to no social class. This itself is quite unusual given

the fact that knowledge of early European society comes from documents
produced by kings or histories written by political and social elites.
These characteristics make Iceland a unique laboratory for understanding
the operations of IndoEuropean style customary legal system largely
unaffected by exogenous factors such as external conflict, and cultural
and ideological diffusion. It also minimizes the variables that need to
be dealt with in trying to understand the processes leading to the
eventual destabilization and consequent transformation of the Icelandic
legal and social system.
The settlers of Medieval Iceland developed a decentralized social
order characterized by the absence any institutionalized hierarchical
structure of authority. Its system of order was organized around a
complex system of negotiable bonds of obligation between the chieftains
and the freeman. Chieftains were not, on the European model, territorial
lords, and their domains were not discrete territorial units. The fifty
or so chieftains lived interspersed among their client freemen, who had
the right to choose any chieftain as his advocate within certain limits.
The client-advocate relationship could be broken at will by either the
chieftain or the freeman. A chieftainship was a position held by law but
chieftains were not a legally defined class: chieftaincies could be
bought, shared, traded, or inherited, making it accessible to the most
successful and ambitious freemen. Chieftains and freemen had relatively
equal rights under their customary law, and chieftains had no claim to
obedience. They acquired their support through the consent of each of the
individual 4000-5000 substantial heads of households. These households
controlled most of the island's productive land, and most of the island's
60000 inhabitants lived on their farms. "The relationship between a godi
[chieftain] and his thingman [freeman] was a personal bond, a contract
for mutual support and aid between two parties which was unhampered by
executive institutions" (Byock 1986a:24).
The logretta was the central legislative institution of Iceland and
met at the same time as the annual national assembly meeting (Althing) of
all the chieftains and some of their clients; its function was to amend
old laws and iniate new legislation. Any freeman could initiate new
legislation before the logretta, though only the chieftains had the right
to vote on the new legislation. The one permanent official was the law
speaker who was elected every three years by the people in one of the
four regions; the region performing the election was chosen by lot. The
law speakers function was to recite annually the laws from memory at an
assembly attended by all the chieftains and/or selected freemen, and
discuss any amendments or changes with the attendees. The position of law
speaker was prestigious but carried with it no official power. (Byock
1988)
Law enforcement was considered a private concern to be settled
between the victim and the offender or their advocates. The inviolable
rights of freemen and the free exercise thereof were a central focus of
Icelandic law. Outlawery and fines were the primary penalties. Fines were
levied in both in court and out of court settlements, but private
settlements had to be approved at the logretta. Since there were no legal
gradations of rank in Icelandic society, amounts (man-price) designated
for redress of personal injury were the same for both chieftain and
freeman. Fines served the purpose of restraining violence and aggression,
while outlawery (being placed outside the laws protecting life and

property) alleviated the necessity of maintaining a policing body for

purposes of corporal punishment or incarceration. A freeman could ask his
chieftain for help in pursuing a claim or collecting on a verdict. For
this service, a chieftain would receive a fee, or in the alternative he
could buy the entire claim from his client, assuming all the risk and
collecting all the damages.
Iceland had an extensive system of courts which applied both
unwritten and written customary law. The courts were empowered to issue
verdicts in cases if no out of court settlement was forthcoming. Verdicts
had to be almost unanimous; The system was composed of one national, four
regional, and 13 district assemblies. Holding the district assembly was
the responsibility of three local chieftains, and all local freeman were
required to attend. Freeman were appointed by chieftains to be judges
(jurors), and then assigned by lot to each one of the courts to ensure
impartiality and the standardization of decisions. Chieftains took no
part in the judicial process besides naming the judges and thus were free
to participate in litigation and efforts at out of court settlement. The
national assembly acted as a court of appeal and cases were decided by a
majority vote of attending freemen.
Iceland had no executive, administrative command or policing
apparatus whatsoever. Reciprocity was the basis of all the arrangements
which maintained social order. The operation of the courts resulted in
acts of governance only when called upon to provide judgements in
response to specific situations. The settlement of disputes was also
accomplished via formalized forms of negotiation and compromise, with
chieftains assuming the role of arbitrators or advocates on behalf of
those with whom they had preexisting contractual or kinship obligations.
The chieftains received compensation for the arbitration services they
provided. The Islanders elaborated specific community norms which were
part of this "lateral system of decision-making". Arbitrators who
developed reputations as men of moderation, justice, and temperance were
widely admired, no doubt because this demeanor was better suited to the
smooth functioning of a highly voluntaristic and individualistic system
of dispute resolution. On the other hand, arbitrators who displayed
intemperance, unfairness, or injustice were censured by their peers. If
such or otherwise greedy or ambitious behavior was extreme and thereby
threatened the balance of power upon which this kind of consensual
decision-making depends, then other leaders would ban together to counter
the threat. The highly fluid system of alliances and micro-political
social norms were mechanisms by which adjustments were made in the
balance of power and the system kept in equilibrium. (Byock 1986a)
Although Icelanders migrated from and were aware of the developing
European hierarchical social systems, their legal and social system was
not shaped by forces analogous to those operating in the European petty
kingdoms; the island underwent a unique and substantially divergent
course of development. Byock (1986a;1988) attributes the unique
characteristics of the Icelandic social order to the conditions of
settlement and to the island's relative isolation. Because the island was
uninhabited, there was no need for military commanders or organizational
forms as part of the settlement process. The first settlers attempted to
become regional lords by claiming huge land areas. Without the means to
defend these claims against newcomers though, a social leveling took
place within a generation or two and original land claims were divided up
into relatively equal estates. Early attempts at a system of vassalage

broke down in the absence of any internal or external threat sufficient

to bind freemen into cohesive defensive units commanded by powerful
families. Because of Iceland's distance from other European lands, any
potential external threat was minimal. Iceland was not divided up into
military protectorates and developed no military chains of command or
regional military arrangements for defense against invasion. In both
Scandinavia and England, defense against external threat and the
potential profit derived from the conquest of proximate weaker social
groups was often a critical factor in the development of disciplined,
cohesive, centralized, hierarchical authority structures.
The relative balance of power among the settlers and lack of
concentrations of wealth acquired through conquest, meant that the
relationships between Chieftains and freemen were motivated by mutual
self-interest and tempered by an awareness of mutual dependency. Status
and prestige were acquired by both chieftains and freemen through the
successful intervention and resolution of disputes; both realized the
costliness of conflict and the advantages of compromise. The
voluntaristic nature of this relationship also meant that chieftains were
unable to impose taxes on their followers.
In addition to the absence of a military hierarchy, early Iceland
functioned without a religious hierarchy. The position of chieftain was
originally largely religious. They were responsible for maintaining a
temple for their followers, even after the introduction of Christianity.
In the last decades of the 11th century the church established a separate
organization, but its power was quite circumscribed, and it was not until
just before Iceland submitted to Norwegian rule that the church was able
to wield any significant influence in Icelandic public affairs. (Byock
1986a)
The Transformation of the Icelandic Legal and Social Order.
The transformation (perhaps too strong a word) of the Icelandic
legal and social system in the 13th century set the pattern which endured
for the following three centuries. The 13th century was characterized by
internal strife and shifts in the balance of power in Icelandic society,
leading up to the eventual submission of Iceland to Norwegian rule. A new
"social class" (storhofdingjar) emerged from among the chieftains in the
late 12th century; "they sought to achieve executive power for themselves
and to establish a new and more hierarchical political structure".
However, as Byock (1986:29) argues, there was a certain continuity in the
local systems of reciprocity even though a small group of chieftains was
pursuing national power, since prominent, ambitious, and upwardly mobile
freemen (storboender) began fulfilling many of the roles that had
formerly been prerogatives of the chieftains.
The storhofdingjar were unsuccessful in their attempts to establish
effective regional states. Because this group had to leave intact
traditional forms of government, and could not implant their own
administrative hierarchies in place of kinship and contractual ties of
reciprocity, their attempts at building coalitions were subject to the
centrifugal forces inherent to associations made up of self-interested
autonomous actors. Attempts to garner the support of the storboender were
unsuccessful given this groups own ambitions and the absence of any
tradition among free farmers for honoring orders contrary to their

10

wishes. The storhofdingjar lacked the right to claim the authority

enjoyed by the hereditary nobility of other countries.
After the early 1230's, Icelandic leaders started to became
retainers of the Norwegian king Hakonarson with growing frequency, and
virtually all the Icelandic chieftains became members of the Norwegian
court. "The readiness of ambitious individuals to accept the status of
royal followers was owing to their competitiveness with one another; once
a few of them had taken the step, thereby claiming increasing authority,
many others felt compelled to follow...In turning to the king, aggressive
Icelanders were seeking escape from the confining structures of an island
society that offered them only vague rights to command and little power
to tax" (Byock 1986b:36).
Through a classic policy of divide and rule, the Norwegian king
played one Icelandic retainer off against another, granting overlapping
spheres of authority in order to use native antagonisms among leaders to
ensure their dependence on him. The uncertainty interjected by the
Norwegian king into the Icelandic political structure generated the
internal strife for which this period is famous. Finally powerful groups
throughout the island became willing to pay tribute and become subjects
of a foreign ruler who promised to end the conflict among the
storhofdingjar. An agreement (1262-64) was ratified by the local and
national assemblies whereby each freemen was to pay a nominal tribute in
perpetuity in return for the king's respect for Iceland's laws and a
promise to maintain the peace. The tribute was roughly the same as the
fees freeman paid to their chieftain in return for the religious and
other services they performed. Under the agreement, the tribute went to
the crown and to the Norwegian organized administration, staffed
initially by Icelanders, as opposed to the individual chieftains; all
chieftaincies became the property of the king.(Byock 1986b). This itself
must have been a substantial transfer of wealth, since chieftaincies were
a marketable commodity in Iceland.
Given the political instability of the time, Byock (1986b:40)
argues that the choice by Icelanders to enter into a covenant with the
crown was a reasonable one. The covenant specified the Icelander's right
to accept or reject new legislation proposed by the king, and the right
to withdraw from the covenant if the Norwegian king breached his
commitments. The covenant took the traditional Icelandic form of a
personal contract and was in keeping with the traditional practice of
settling disputes via negotiated compromise. They received the immediate
benefit of stability, an end to internal strife and the pretensions of
the storhofdingjar, while retaining their local traditions. They could
not foresee that the power of the Norwegian crown would grow so
significantly in the 14th century that it would be able to ignore some of
the guarantees given earlier.
In the decades following the covenant, the Crown generally
refrained from using its powers repressively, though it did make repeated
unsuccessful attempts to introduce new law codes. In 1281, the Crown was
successful in getting accepted a Norwegian law book called Jonsbok1; it
was composed of roughly 40% Icelandic law and 60% Norwegian. Jonsbok
altered, in order to conform to contemporary Norwegian practice,
important aspects of Icelandic law. Jonsbok was part of a widespread
program by Hakon's son, after the long drawn out, violent unification of
Norway, to "reform" and standardize Norwegian law. There was resistance
in Norway to the changes in the law instituted by the crown, the most

11

fundamental of which "was that the state interfered more with daily life
and that [like England] crimes were now considered offenses against the
state, not against the individual or family" (Larsen 1948:164).
There was also some initial resistance from the Icelanders to
Jonsbok, particularly from the clergy and their allies. Jonsbok
eliminated the Icelandic church's judicial and legislative authority,
its exemption from taxation, and generally it economic independence.
Jonsbok had new laws which interfered with the free management of one's
goods, one's freedom to enter into contracts, and various other
interferences into the conduct of everyday business affairs. Laws
concerning theft, arrest, trial, and conviction reflect Norwegian
influence. The kings magistrates brought charges in criminal cases,
appointed judges to confirm their decisions, and supervised corporal and
capital punishment (previously absent from Icelandic law). The laws
specified new taxes and fines to be paid to the king, e.g., for the
murder of one of the kings subjects, and gave more discretion to judges
on the amount of fines. Laws were to be amended by the king in
consultation with the tribunal of a general assembly of royal appointees.
These kinds of changes were the subject of considerable discussion at the
General Assembly of 1281. "The perennial conflict between the demands of
the state and the rights of the individual became one of the main points
at issue". (Introduction to Skarosbok: Codex Scardensis).
The Jonsbok introduced some legal concepts into Iceland which were
coming into vogue all over Europe in association with the increasing
power of kingship and the displacement of customary law. One of these new
concepts, adopted from Roman law, was that the ancient customary law was
not simply something which the king had a duty to defend (the traditional
view), but that law itself was the expression of the sovereign's will.
The Icelanders, even after the adoption of Jonsbok, rejected this view in
theory, if not in practice. A second significant conceptual divergence
for the Icelanders was the idea that individuals,i.e., freemen and
chieftains, were no longer responsible for maintaining peace and order,
and upholding the law. These functions were transferred to the king and
his officers. Jonsbok provided a framework for Icelandic law which
remained intact until the mid 1600's, at which time Iceland succumbed to
absolute monarchy.
Legal Transformation in England and Iceland
It is surely no more than a banality to state that political
centralization is closely associated with significant changes in legal
order. The heuristic purpose of the English and Icelandic case studies is
to discern why the processes of political centralization and legal
transformation are causally connected or correlated. As such, it is
difficult to separate questions concerning the origin and development of
the state from those concerning transformations in customary legal
systems. Without necessarily dealing systematically with the vast and
unwieldy literature on state origins, it will still be useful to
integrate into this discussion some anthropological material, especially
given the fact that customary legal systems are associated with prestatist societies.
Contrary to the pretensions of a number of political theorists in
Western history, the state is not a simple matter of human nature working

12

itself out. If statist behavior was genetically programmed, states would

have made their appearance in human history earlier than they did (which
was probably a mere 5000 years ago). Statism and its core enabling myths
is both a comparatively recent phenomenon and a comparatively small
fraction of the total number of human societies of which we have
knowledge. The earliest human societies (beginning about 2 million years
ago and comprising 99% of human temporal existence) for which we have
evidence were small extended kinship based bands of hunters and
gatherers. The leadership within these groups tends to be a task-oriented
(e.g. hunting) form of consensus leadership based on persuasion and
closely related to parental authority. Is there power tied to these types
of social relations? Undoubtedly, to some extent there is, for "[t]o
define power not as a property or entity or possession but as a
relationship in which two or more persons tap motivational bases in one
another and bring varying resources to bear in the process is to perceive
power as drawing a vast range of human behavior into its orbit. The arena
of power is no longer the exclusive preserve of a power elite or an
establishment or persons clothed with legitimacy. Power is ubiquitous; it
permeates human relationships. It exists whether or not it is quested
for" (Burns 1979: 15).
The relational nature of power means that an individual has power
to the degree that he can produce more changes in the emotional states of
others advantageous to himself than they can produce in his emotional
states. If there is no asymmetry in two individuals' effects on each
others internal emotional states, then in the aggregate their relations
are characterized as being in a state of no power. Contrary to common
materialistic assumptions, power is not simply a matter of physical
force, for power relations based on material factors are only stable to
the extent that they effect the meaning which human beings give to their
experiences. Power is ultimately a state of emotional dependency, and the
more one believes his emotional state depends on the actions or thoughts
of another toward him, the more power that other has over him.
In hunting and gathering societies, the lack of concentrated
sources of stored value means that it is difficult for anyone to gain the
material factors necessary for them to affect others emotionally. Power
is then generally based on unmediated personal interaction. Given the
relative physical equality of human beings, power in these societies is
likely to be unstable and fluid, being tied closely to specific tasks
like hunting or defense, or the result of the mediation of perceived
supernatural forces. The evolution of these societies in situations of
scarcity meant that a rule of reciprocal sharing of food had positive
adaptive consequences. An ability to store value and some accumulation
thereof may have been sufficient to loosen the strictures of this rule
and thereby provide the foundations from which the proto-state phenomenon
known as chiefdom developed. While Marxist anthropologists argue that the
origins of coercive state powers were rooted in the need to protect (and
produce more) material inequalities generated by differential efficiency
and property accumulation, Service (1975) argues, quite the opposite,
that chiefs were more the causes of material inequalities than the
effects of them. The power of chiefs developed from their initially very
modest power to redistribute goods individuals desired. I do not think
that any of the evidence currently accumulated is sufficient to establish
a single interpretation of the original formation of state powers.
Nevertheless, although there are probably a number of paths to state

13

powers, there are also some basic common factors. Highly valued
emotionally arousing personal qualities, inequalities of goods, external
threat, and mythopoetic rituals and justifications, are all factors which
in some combination have generated state powers,i.e., institutionalized
asymmetrical relations of emotional dependency.
In the light of extant anthropological and historical knowledge,
Hobbes can safely be considered wrong both on the degree of rationality
involved in the origins of state powers, and on the extent to which life
in stateless societies would be nasty, brutish, and short. However, his
intuitions concerning the extent to which human beings will accept
considerable dependency to escape pervasive violence and uncertainty were
right on the mark. In the face of violent conflict, resistance to the
imposition of increasingly asymmetrical relations of dependence will
diminish. To end the violence (which they likely had a hand in
generating), elites will demand more privileges and prerogatives,
including the right to use more force. An ensuing peace will be
mythically associated with these elites and their new apparatus of force.
Once institutionalized and legitimized, this apparatus will be used to
create further dependency, first by taking legal jurisdiction over all
crimes, then all civil conflicts, then contractual exchange relations,
and finally over any conflicts over equity. Of what use is dependency to
ruling elites? First and foremost, a state of asymmetrical relations of
dependence facilitates transfers of wealth from the ruled to the rulers.
It is the ubiquitous presence of redistribution among complex
societies that led Service (1975) to argue that it was tied to the origin
of chiefdoms, states, and empires. Once a threshold is reached in the
amount of power held by an individual or group, i.e., once their occurs a
certain asymmetry in the relations of dependence, redistributive
mechanisms become not simply a route to the acquisition of wealth, they
also come to be used to stabilize and increase concentrations of power.
The control of vital services (e.g., the production of law and order), or
the production or importation of essentials, luxuries or status goods,
can be used by an elite to purchase support among other potential power
actors, making these recipients of redistributed goods dependent on
themselves, since they will receive these goods only by continuing to
support the ruling elite. As we see in the case of England, extensive and
continuing conflict among the Anglo-Saxon tribes and between the AngloSaxons and the Danes and Normans, leads to concentrations of power among
a military aristocracy. These asymmetrical relations of dependence are
used to gain control of a community's of customary methods of resolving
disputes for the purpose of transforming them into a system which can
redistribute wealth to powerful groups or individuals and thereby
generate support for the military aristocracy's rule.
The evolution of customary legal systems was driven by the
internalizable benefits that could be derived from voluntary interaction
and exchange characterized by a minimum of conflict. Individuals had
reciprocal incentives to recognize their rules of obligation and
participate in the enforcement of such rules. A concentration of power is
the prerequisite necessary to effect a transformation in a customary
legal system. When a concentration of coercive power emerges in the form
of a political hierarchy, as it does in early English kingdoms via the
exchange of military support from powerful groups for special privileges,
rights, and property from the king, it is then able to centralize control
over the resolution of disputes; rules of conduct and the institutions

14

for enforcement become oriented not by the purpose of facilitating

voluntary interaction but to the purpose of facilitating involuntary
transfers to those powerful enough to affect the king's well-being. As
Benson (1990) notes, "public interest" or efficiency justifications for a
centrally directed and coercively organized legal system must be viewed
as ex post rationalization rather than as ex ante explanations for their
development, once it is recognized that the central purpose of coercive
institutions is the transfer of wealth to those with political power.
In the case of Iceland the explanatory conundrum is the absence of
the exogenous factor of extensive large-scale conflict, which explains
in the case of England the resulting concentration of political power and
the consequent transformation in the legal system. In Iceland, power
remained relatively dispersed and decentralized for almost three
centuries. What can explain the destabilization of this balance of power
and the consequent transformation in the Icelandic legal system? To
answer this question, one must first understand what forces act to
maintain balances of power in stateless social orders.
As I have indicated, dependency is a characteristic of all human
communities and the social relations therein. Communities will vary in
the type of dependency and the degree of asymmetry or symmetry in the
relations of dependence prevalent among its members. The pursuit of
asymmetrical relations of dependence by some individuals is also a
characteristic of all human communities but is counterbalanced in
stateless societies by a set of deeply rooted natural checks and
balances. The checks and balances of these spontaneous social orders have
evolved over time through incremental adjustments at the margins of a set
of customary rules which facilitate adaptive interaction based on mutual
dependency. Aidan Southall (1968:167) has drawn a parallel between
stateless social order and the spontaneous market order which emerges
from voluntary economic exchanges:
The remarkable spectacle of societies positively maintaining
themselves at a high level of integration without any obvious means
of specialized enforcement has undoubtedly led to new insight and
attention to the fundamental responsibilities of all citizens,
which for the most part are obscured by the ubiquity of specialized
political institutions.
In stateless societies every man grows up with a practical and
intuitive sense of his responsibility to maintain constantly throughout
his life that part of the fabric in which at any time he is involved.
Stateless societies are so constituted that the kaleidoscope succession
of concrete social situations provides the stimulus that motivates each
individual to act for his own interest or for that of close kin and
neighbors with whom he is so totally involved, in a manner which
maintains the fabric of society. It is a little like the classical model
of laissez-faire economics translated into the political field. But if
every man is thus for himself he is so only within a very tight framework
of reciprocal obligation that he cannot avoid absorbing. The lack of
specialized roles and the resulting multiplex quality of social networks
means that neither economic nor political ends can be exclusively pursued
by anyone to the detriment of society, because the ends are intertwined
with each other and further channeled by ritual and controlled by the
beliefs which ritual expresses.

15

In Icelandic society a balance of power was maintained among social

actors through the dynamics of the relationship between the chieftains
and the freemen. I believe the chieftains of Iceland (and also the
ealdorman of England) resemble to some extent the phenomenon of the "big
man" that has been observed in many simple societies. A. R. RadcliffeBrown gives a classical description of these Big Men and their limited
powers:
Besides the respect for seniority there is another important factor
in the regulation of social life, namely the respect for certain
personal qualities. These qualities are skill in hunting and
warfare, generosity and kindness, and freedom from bad temper. A
man possessing them inevitably acquires a position of influence in
the community. His opinion on any subject carries more weight than
another even older man. The younger man attach themselves to him,
are anxious to please him by giving him any presents that they can,
or by helping him in such work as carving a canoe, and to join him
in hunting parties or turtle expeditions. In each local group there
was usually to be found one man who thus by his influence could
control and direct others. Amongst the chief men of several
friendly local groups it would generally happen that one of them,
by reason of his personal qualities, would attain to a position of
higher rank than the others. Younger men would be desirous of
joining the local group to which he belonged. He would find himself
popular and respected at th annual meetings of the different
groups, and his influence would thus spread beyond the narrow
limits of his own community...There was no special word to denote
such men and distinguish them from others. In the languages of the
North Andaman they were spoken of as er-kuro = "Big". (quoted in
Service 1966: 53).
As a result of their normative dependency on their kin and the
prevalence of internal competition, Big Men are constrained in the
acquisition of power (asymmetry in their relations of dependence) via a
mechanism of redistribution. One way of circumventing this obstacle is
through the acquisition of wealth or knowledge from a foreign source
which he can redistribute as gifts so as to increase others dependency on
him. Because what he is redistributing has been acquired from a foreign
source, that is, it has been acquired without becoming reciprocally
obliged to anyone inside his society, it is an effective means of
building one way dependencies on himself.
The Icelandic chieftain's favored role within the law was probably
a consequence of the religious functions originally associated with the
position. Thereafter Chieftains acquired status, influence and a certain
amount of wealth from the successful resolution of disputes. The
relations between chieftain and freeman were built on a relative symmetry
of mutual dependence. Status acquired in Icelandic society usually
generated obligations. The more status desired by a chieftain, the more
clients he had to be responsible to. This dynamic placed an upper limit
on the amount of power that could be acquired by any single chieftain.
Without the ability to tax or redistribute expropriated wealth, a
chieftain could not generate enough support to overcome the competition
posed by the other chieftains.

16

The nature of the events leading to Iceland's submission to Norway

is somewhat unclear. Whether the Norwegian king tempted leading
chieftains with promises of power and authority unavailable to them
otherwise, or whether leading chieftains sought the king out in an effort
to centralize control of Iceland is not necessarily theoretically
significant. Either way, these events signify that the foreign ideology
of Kingship had invaded Iceland. Up to this point, the absence of
external threat had inhibited the creation of a redistributive apparatus,
which also inhibited the centralization and concentration of power. In
effect, the leading chieftains contacts with the Norwegian king imported
not only a foreign ideology, but more importantly a rudimentary
redistributive apparatus. Leading chieftains were able to redistribute to
their support groups the potential status, power and authority, that had
been promised them by the Norwegian King. The divide and rule tactics of
the king, though, only succeeded in creating internal disorder which he
quickly took advantage of. Thus, the symmetrical dynamic between
chieftains and freemen began to break down in the 13th century as some
chieftains attempted to use domestically, authority and status acquired
from a foreign source--the Norwegian king. According to expectation, one
of the first exercises of royal power was the centralization of the
Icelandic legal system and its transformation into a redistributive
device for generating revenue and support from powerful Icelanders.

Notes
1. I was able to find very little detailed analysis on the changes in
Icelandic law instituted by the Norwegian king via this law book. The
following account comes from a brief English introduction to a
reproduction a later Icelandic law code called Skarosbok: Codex
Scardensis .

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