Academic journal article Scandinavian Studies

Medieval Iceland: The Influence of Culture and Tradition on Law

Academic journal article Scandinavian Studies

Medieval Iceland: The Influence of Culture and Tradition on Law

Article excerpt

CULTURE AND TRADITION IN THE LEGAL CONTEXT

Culture and tradition appear to be broad, ambiguous, context-dependent, "intuitional," intangible terms, which makes them very difficult to define in a precise manner. Basically, culture refers more to an ongoing state, while tradition underlines the links between the past and today. But, due to the imprecise nature of these terms, I do not venture to provide any detailed exposition of them, adopting only a tentative working definition solely for the sake of this article. Thus, I will use both terms almost as synonyms and understand them as a set of convictions, beliefs, principles, precepts, or values lasting in time and ascribable to a specific community or society. Such convictions, beliefs, principles, precepts, and values result in a feeling of justice or fairness. The impression, however, that what these components lead to, whether separately or taken together, is always in conformity with the law, especially a positive (enacted) one, is misleading. (2) Pursuant to the proposed definition, law and culture (tradition) may overlap, but, equally, each of them may pull in totally different directions.

Specifically, the first sphere in which tradition and culture can permeate the law is the process of law-making. Tradition and culture, if taken into account by framers of legal acts, may be reflected in the shape of enacted rules. Next, tradition and culture are able to affect the law during its application. That pertains, in particular, to situations in which the scope of judicial discretion allows judges to choose between different interpretations of a given statutory provision or among two or more precedents with binding force. The same thing applies to leeway that a judge has when, in order to pass a judgment, she or he weighs countervailing principles or standards (norms prescribing attainment of goals, or protection of values, that contradict each other).

Incidentally, tradition and culture as understood above--that is, in a potential relation to a particular community--seem to be intrinsic to human beings and thus constitute a part of the physical world, not the eternal world of immutable ideas or norms. Otherwise, perceiving culture/tradition as something dependent on the changing conditions in which people live, their current needs, or views that prevail amongst them at a certain moment in time, would be hard to argue. Moreover, thus comprehended culture and tradition cannot be easily boiled down to the form of general, abstract rules. That is, some aspects of culture/ tradition, admittedly, lend themselves to being presented as directives (in such-and-such circumstances, thou shalt act in such-and-such a way), but others appear not to do so. It is quite conceivable that, in relation to a specific case, the members of a given society can widely agree on whether a judgment (opinion, behavior) is in accordance with their culture (their sense of justice) and at the same time may not be able to put forward any rule that all of them would consider as a part of their culture and that would entail the agreed judgment. Therefore, looking at tradition and culture as a bundle of norms would be an unwarranted reduction.

In consequence, turning to the language of legal philosophy, one is tempted to state that the culture and tradition I devote this article to cannot be deemed to be the pure "ought" (sollen), as they are rather a manifestation of the "is" (sein).

THE PARADIGM OF ICELAND: UNIQUENESS OF THE MEDIEVAL REPUBLIC

The influence of culture and tradition on law is sometimes regarded as a distinguishable feature of the Nordic legal systems in general, as the statutory law for civil law (the Romano-Germanic legal families) and the binding judicial precedent for common law (the Anglo-Saxon legal families) (Ran Tryggvadottir and Thordis Ingadottir 2010, section 3.6.). Nonetheless, the Icelandic example appears to be particularly unique. …

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