Mark S. Weiner

Mark S. Weiner

Dr. Weiner is a professor of Law and Sidney I. Reitman Scholar at Rut- gers School of Law, Newark, New Jersey, USA. He holds a J.D. from Yale Law School and a Ph.D. in American Studies from Yale University, where he was awarded a Jacob K. Javits Fellowship from the U.S. Department of Education, a Samuel I. Golieb Fellowship in Legal History from New York University School of Law, and a dissertation fellowship from Mrs. Giles Whiting Foundation. Fulbright Scholar, University of Akureyri, Iceland, fall semester, 2009. This article is based on a talk delivered at the University of Würzburg, Germany, under the auspices of the Department of Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law. The author wishes to thank Adolf Friðriksson and Sigurður Líndal for generous and helpful conversations about their country and its history, and Timothy Murphy for his insightful comments on the manuscript, though conclusions drawn here are the author’s own.


Grein birt í: Lögfræðingur 2010

Public Memory and the Rule of Law in the Age of Globalization and the Internet: Lessons from Iceland

In this essay I would like to offer some reflections on the cultural foundations of the liberal rule of law by considering how the economic and constitutional changes associated with globalization are accompanied by changes in popular legal-historical consciousness. I would like to consider, that is, how the public memory of law changes in tandem with the linked processes of market liberalization and the consolidation of national sovereignties into ever- larger units of transnational governance, such as the European Union.  I also would like to consider how our contemporary digital culture, the culture of the internet, both facilitates those changes to public legal memory and offers potential solutions to the challenges they pose to liberal government. To put it simply, I believe that the way the public understands the legal past is changing as a consequence of changes in our economic and constitutional arrangements, and that the internet at once furthers this transformation and provides possible ways to address its dangers.  While I will be speaking about these issues partly in an abstract and theoretical way, I would like to focus my discussion on a  single, vivid example of legal and cultural change, namely contemporary Iceland, where my wife and I lived for five months in 2009, and especially on the relation between Icelanders and the legal history of their harsh, beautiful landscape. Iceland is often seen an outlier in European legal history, as a somewhat unusual case, long severed, even more than other Nordic nations, from some of the main lines of continental development. In contrast, I would like to suggest that the changing relation between Icelanders and their landscape offers an exceptionally clear window onto legal-cultural changes taking place today throughout Europe, indeed throughout the world—and, most important, that these changes reveal the pressing need for liberal constitutionalists to attend even more carefully to the cultural preconditions of their legal aspirations. We often think of modern law as something cut off from culture, a distinct realm of social experience best understood as a strictly formal body of rules, but I think that we do so at our ever-increasing peril, and that the case of contemporary Iceland shows why.

Let me begin by stating a basic proposition about the relation between law and culture, that legal ideas are not simply the province of specialists. As an academic field, law can be esoteric and technical, and because its principles are abstract, they often seem far removed from everyday life.  But the technical rules and esoteric ideas one studies in law school or puts into practice as a lawyer are only a part of what creates a legal system, what makes it work, especially for those who live under its formal rules. Alongside the knowledge of specialists, everyday people also possess ideas about the law, and they express those ideas in their daily lives. The American historian Robert Westbrook has written that people live political theory.1   One might equally say that people live a theory of law.  In the songs they sing, the games they play, the art they produce, the books and dramas they consume, in the way they gesture and move their bodies, as much as in their explicit attitudes toward courts and legislatures, people express a legal consciousness—and that popular consciousness of law is as important to the maintenance of the legal system as the formal rules and professional institutions on which the system runs.2    Popular legal consciousness is central to the legitimacy of the legal system as judged from within, it is vital to the consent people offer to its authority, and it lies behind the terms through which people contest its power.  I exaggerate only slightly when I say that when historians look back on our era, the television drama Law & Order should be seen as in some respects as consequential a legal document as the Lisbon Treaty. That is because law and the state reside, they have palpable existence, not in formal legal texts but in the human heart and in the everyday culture that produces our inner life.3

An essential component of popular legal consciousness is the popular consciousness of legal history.  Of course, to most people the history of law seems like an arcane field. And, indeed, much of what legal historians do is uncover changes in legal ideas and practices that are quite arcane.  How did our principles of contract, they might ask, develop from traditions that allowed a court to award a plaintiff monetary damages for having suffered a physical injury? But, like law, legal history isn’t simply the sole possession of specialist academics. This is particularly true of my own country, the United States, where law plays a central role in the construction of national civic identity.4   Most Americans have a very lively sense, for instance, of how our constitution was created in the late eighteenth century and how it has changed over time.  Many Americans, similarly, hold surprisingly complex ideas about the history of the legal profession (usually about its ethical decline). Or consider the case of Germany, where there is a widespread appreciation well beyond the academic world of the constitutional challenges that faced the Weimar Republic. Like Americans, though for different historical reasons, everyday Germans are continually engaged with ideas about how their law has evolved.  Significantly, this legal-historical engagement is present not simply in popular political conversation, in analytic discussion, but instead exists throughout German culture. Is there a view of legal history contained, for instance, within the architecture of government buildings, such as the glass dome of the Bundestag?5   Of course there is. The dome of the German parliament is an intentional materialization of legal-historical consciousness. Popular books and magazines, public monuments, courtroom architecture, painting, television, rock music- all of these are potential sources for a Volkskunde des Rechtsgeschichtlichebewusstseins, a folklore, and more generally a cultural an- thropology, of legal historical consciousness.6

Legal historical consciousness itself has a history. The way legal history is understood changes over time, and how everyday people view their legal past is part of a larger historical story of legal, political, and economic transformation. I believe the way popular legal consciousness has changed over time in modern western societies is especially interesting, because in liberal societies popular legal consciousness performs a unique symbolic role in constructing a Rechtsgenossenschaft—community, or a fellowship, of law. We can put the matter in general terms like this. At the heart of modern liberal society lies a deep conflict between the individual and the community, a tension between principles of Gemeinschaft and Gesellschaft.  The legal and constitutional arrangements of liberal societies, especially their principles of individual rights, enable a historically unprecedented degree of individual freedom. And yet this freedom not only lies in tension with the demands of the larger com- munity but, as anyone who has read Dostoyevsky knows, freedom itself can be felt as a kind of unfreedom. This is a tension which, among other things, fuels popular anti-Americanism, because the United States is so closely associated with liberalizing social and economic development and its principles of meritocratic competition. Popular legal consciousness helps resolve this conflict by linking the individualistic order of the present with the stable community and traditions of the legal past.  It provides a sense of unwavering and persistent value within a world of flux.  Put in anthropological terms drawn from the work of Claude Lévi-Strauss, popular legal- historical consciousness provides a symbolic resolution to an actual social contradiction.7   It is one element of the cultural resolution of tensions that cannot be resolved in the material world of social relations.

 

The Landscape of Icelandic Legal Memory: At once Emty and Full

With that in mind, let me turn now to the case of modern Iceland.  I would like to focus specifically on the changes taking place in the way Icelanders remember the law of the middle ages, which has tremendous symbolic importance for the country, and especially the way they relate to that history as it is embodied in their landscape. It would be easy to drive around Iceland and see simply a pristine world of natural beauty.  That may be how the valleys and hills and geothermal pools are typically viewed from the outside.  But from the inside, within Iceland itself, the landscape doesn’t stand outside of culture—it isn’t simply Nature with a capital N—but instead is filled with rich historical, and especially legal-historical, associations. The Icelandic landscape is a popular book about the legal past, or at least it has been.

Let me explain, first by providing a bit of background.  Iceland was settled in about the year 870 by people from western Norway.8 This was the same Germanic group who gave the world the Vikings, those fierce maritime raiders who entered the historical stage in the late eighth century as they pillaged Europe in their swift, deadly longboats.  On their way north, many of the Norwegian settlers stopped in Scotland and Ireland to gather wives and slaves, and so the genetic inheritance of modern Icelanders is also partly Celtic.  Before the settlement, Iceland had been uninhabited except by a few hardy Irish monks, but the landnám or, roughly, “land grab,” was quite rapid, and most of the arable land on the island was claimed within sixty years.  When the settlement era closed in about 930, Iceland had a population of between twenty- and thirty-five thousand people.  Nearly all modern Icelanders (there are about 320,000 of them) are descended from these first settlers, and this is a source of great pride.  Indeed, pride in medieval history generally is one of the leitmotivs of contemporary Icelandic culture.9

At the center of Icelandic historical memory is the extraordinary national park known as Þingvellir, or the assembly (þing) plains (vellir)—a materialization of legal-historical consciousness just as much as the glass dome of the Bundestag.  The government of medieval Iceland was quite unusual.  It centered around the leadership of about three dozen chieftains, known as goðar or, in the singular, goði (the term comes from the Norse goð, or god).10    Each goði was the leader of a group of yeoman farmers, or bóndi, under whom lived various dependents, including women and slaves. Beginning in 930, the chieftains began to gather together for two weeks each year in a grand assembly and social and cultural event known as the Alþingi. If you’re looking for a contemporary analogy, the gathering can be compared to the various tribal jirgas or the loya jirga of Pashtun Afghanistan (which, like medieval Iceland, is a remote, ethnically homogeneous culture with a proud warrior tradition and a society governed by principles of honor and shame). The Alþingi was a gathering of leading men and their followers.  In addition to the extraordinary splendor of its surroundings, what is exceptional about the Alþingi from the perspective of medieval Europe is that it boasted a complex legislative and judicial apparatus, and it offered an occasion for the island’s great leaders to engage in very sophisticated feats of legal arbitration and dispute resolution, but the Alþingi entirely lacked an executive office. There was no king (or, in modern terms, no president—no single leader of the government).  It is in this respect that Icelandic legal history differs critically from that of the western Germanic societies that emerged from the bands of warriors described by the great Roman historian Tacitus to develop strong, central- ized authority, as we see for instance under the Merovingian Franks or, in England, under great Anglo-Saxon leaders such as King Alfred.  (The Icelanders, descended from Norwegians, are a northern Germanic people, whereas the English, or Anglo- Saxons, are a western Germanic people; in historical perspective, they share a cultural lineage.)

The Alþingi lasted for well over three hundred years, disbanding only in the wake of the bloody civil war known as the Sturlunga Era, which ended in 1262/4, when Iceland came under the authority of the Norwegian crown. But while the Alþingi as a gathering of medieval Germanic chieftains may have come to an end in practice, it remained very much alive in memory.  When the Icelandic independence movement began to flower in the nineteenth century, its leaders looked back to the Alþingi as the symbolic heart of their identity as a nation.  This institution of law and the extraordinary landscape in which it convened became the central icon for an independent Icelandic national consciousness.  Naturally, the Alþingi wasn’t celebrated for its specifically medieval character.  In the political context of the independence movement, this gathering of Germanic chieftains came to be described as a “national parliament” or, still more misleadingly, as an early democratic government.  It was neither, of course (those are fantasies of the nineteenth century), but the structure of the Alþingi as an assembly without an executive paved the way for the popular misinterpretation—and for the continued significance of the site for Icelanders today. An image of Þingvellir appeared on some of the earliest notes of the National Bank of Iceland, and its cliffs are intentionally echoed in the architecture of its modern supreme court.11 Icelanders are surrounded by icons celebrating a nineteenth-century vision of their medieval past.

Þingvellir is the most important historical monument in Iceland, and because of its overwhelming symbolic significance, it would be easy to miss something that distinguishes it from legal heritage sites in most other modern nations:  it is almost entirely devoid of human structures or artifacts. It is simply an empty piece of land on a wind-swept landscape.  That’s because in Iceland’s punishing climate, built structures don’t last long.  It is this fact about Þingvellir, however, that makes it entirely characteristic of Icelandic legal memory, because Icelandic legal history is contained within the landscape itself. Let me describe three other monuments to the Icelandic legal past—three other places that seem empty but are, in fact, filled with legal memory—to explain what I mean.12

In the middle ages, the great assembly plain at Þingvellir was not the only place where Icelanders gathered to discuss and administer their laws.  The island was divided into districts, each of which had a local assembly with its own meeting site.13 Consider, for example, the site near the charming village of Stykkishólmur, on the western coast, close as well to the mountain of Helgafell, a site sacred to medieval Icelanders. This place also is called Þingvellir: the former regional assembly plain. It is an important, well-known historical place, yet unlike the national assembly site it is not preserved or even signed for what it is. There is no historical marker there at all. It is simply a sheep farm. But the site is highlighted in the Icelandic Road Atlas, a popular driving guide for Icelanders, which in its description of the place draws special attention to a rock said to be where criminals were “broken”—and where, supposedly, blood can still be seen in the stone—so this wasn’t a place to miss.14   My wife and I found the place by driving down a long gravel road at the tip of a bucolic peninsula, finally coming upon a small, unassuming one-story house.  Our knock at the door was cheerily answered by the owner’s granddaughter, who told us that she grew up with stories of what had happened at her grandmother’s home “in ancient times.”  She gave us permission to wander about the farm, and she pointed out the execution stone in question, making sure that we didn’t confuse it with another rock that usually distracts the attention of visiting tourists.  For the visitor, the place has a powerful atmosphere of apparent remoteness (I say apparent, because it may be physically remote, but it is not so in a cultural sense, though it would be easy as a foreign tourist to conflate the two).

More seemingly remote still is a site in the north of the country, on the spectacular peninsula of Vatnsnes.  The place is called Breiðabólsstaður, and it contains a horse farm, a small, beautiful church, and a parsonage. We found it by driving about twenty miles down a narrow gravel road and then following a long, even narrower gravel driveway about half a mile toward some imposing hills.  The owner of the youth hostel in which we stayed that night, which also was a working farm, described Breiðabólsstaður in respectful, if not indeed hushed, reverential tones as a pilgrimage site for Icelandic lawyers, who regularly travel there to picnic and commune with the spirit of one of its former residents.  That resident is Hafliði Másson, the great lawspeaker who played a central role in producing the first written collection of Icelandic law in 1117, which we know through a thirteenth-century collection of laws known as the Grágás, or Grey Goose. A stone pillar placed at the bottom of the driveway in 1974 indicates the existence of the site, but one could very easily overlook the marker, as we did the first time, and we were looking for the farm!  Otherwise, the farm and church and parsonage seem to be merely what they are, without any further historical reference.  Breiðabólsstaður is just a part of the landscape—and yet it is a landscape whose importance for the history of Icelandic law that people know well.

A final example can be found in the imposing waterfalls of Goðafoss, among the greatest waterfalls of the country. The historical significance of the falls lies plainly in their name, which means roughly “falls of the gods.” In 999/1000, Iceland peaceably converted to Christianity through a grand legal arbitration among the chieftains at the Alþingi. (The link between the assembly site and Christianity is embodied in a diorama at a popular museum called the Saga Center, where the assembly activities of Þingvellir are depicted taking place beneath a large crucifix on the wall.) The law of the country was said to be splitting into two—in part, as suggested by Jón Jóhan- nesson’s great work Íslendinga Saga, because rival Christian and heathen chieftains repudiated the institutional ceremonies of the other group, refusing to recognize that their adversaries exercised lawful authority—thereby creating a deep rift in the country’s legal and political apparatus.15   A compromise was reached through the leadership of a lawspeaker named Þorgeir, who, though himself a pagan, decided that the people of the island would collectively convert to Christianity.16    This was a legal decision that lay the course for all of Iceland’s political and cultural history. After it was made, Þorgeir returned to his farm and, to demonstrate his commitment to the new order he had announced, threw his own statutes of pagan gods into the great falls near his home, to show that he would abide by the edict he had announced— hence the name of this extraordinary natural feature. Goðafoss, then, is not simply a site of powerful natural beauty. The falls are touchstones of legal memory. 

In all these legal historical sites, then, what one finds is a near-total lack of material artifacts alongside a very rich tradition of popular remembrance. The girl who grew up with memories of what happened at this Þingvellir in olden times, the hushed and reverential tones of a farmer describing the farm of Hafliði Másson, the very name Goðafoss—all exhibit the characteristic way legal memory is held in Iceland, where legal-historical consciousness is as pervasive as it is in the United States or Germany, but rooted in the landscape itself through the folk memory of law. It is this memory, I believe, that is about to change in Iceland under the pressures of globalization and its new constitutional arrangements.  And because how liberal societies remember their legal past is an essential element of the cultural foundation of the rule of law in the present, the reconfiguration of the relationship between Icelanders and their landscape of legal memory is something I believe is worth carefully observing. Let me now describe one way in which Icelandic memory is changing in response to contemporary economic and constitutional developments, and then consider the role the internet might play in addressing the challenges posed by this transformation in consciousness.

 

One Challenge to Traditional Memory: Modern Archeology 

There are three key moments in the history of Icelandic legal memory, each of which is associated with a new or emerging economic and constitutional arrangement and a historically distinctive communications technology.  The first moment is the early to mid-thirteenth century. This was the period of civil war in Iceland, a struggle for preeminent authority between the chieftains which ultimately transformed Iceland’s constitutional arrangements by bringing it under the formal power of the Norwegian crown.  Ironically, this also was the age of the greatest literary output in Icelandic history, and it saw the writing of a variety of histories and historical fictions about the age of Viking settlement some three centuries earlier. These include, especially, the sagas, the greatest body of European vernacular prose literature of the era, through which we possess a great deal of what we know about the workings of early Icelandic law. These texts were powerfully shaped by the context of the fraught social and political relations between Icelanders and Norway, including the desire of Icelanders to establish a proud and noble ancestry as their own independent society broke down and was incorporated into the kingdom they had left generations before. The production of those texts was made possible by the distinctive manuscript culture of thirteenth-century Europe, that now-romantic world in which monks and scribes wrote in common workshops in Latin script on illuminated parchments—and which understood both the nature of authorship and the relation between fact and fiction very differently from how we do today.17

The second key moment in the history of Icelandic legal memory is the nineteenth century.  This was the period of the Icelandic independence movement, when Icelanders sought a new relation with the Danish kingdom which had succeeded the Norwegian crown in its authority over the island, a search that ultimately resulted in the new constitutional arrangements created haltingly in 1918, when Iceland was declared a sovereign state within the Danish kingdom, and then finally in 1944, when Iceland became fully independent. The independence movement was characterized by a tremendous interest in the medieval past, and its greatest figure, Jón Sigurðsson, was an editor of medieval texts and friend of the great German scholar Konrad Maurer. Of special interest within the independence movement was the desire, both in scholarship and in popular culture, to establish the historical authenticity of the thirteenth-century saga literature and to reveal its traces in the contemporary Icelandic landscape.18    The intellectual technology of this cultural and intellectual effort was the cheaply printed book and pamphlet.

Today we are witnessing a third key moment in Icelandic legal historical memory, and it is shaped by the economic forces of globalization and the culture of the digital age as much as the writing of the sagas was rooted in the changing relations between Iceland and Norway in the thirteenth century and in the culture of medieval manuscript production.  This emerging historical consciousness, I believe, is fundamentally changing the relation between Icelanders and their landscape by destroying many of the folk myths about the past which served as the cultural foundation of the Icelandic state. This isn’t the place to dwell upon how and in what way Iceland has entered the global economic system, but as with so much in Iceland, the cause probably can ultimately be traced to fish. The modern Icelandic economy was built on the growth of fisheries in the early twentieth century, but the fishing market is notoriously volatile and subject to external shocks, which is why the country long experienced hyperinflation. It was the effort to combat this volatility which guided the nation’s recent liberalizing market reforms; which drove the nation to join the European Economic Area in 1992, thereby integrating Iceland more tightly into continental economic and intellectual networks; and which eventually—though this is in great dispute in Iceland today—may cause it to become a player in European constitutional integration by becoming a member of the EU.19

In this economic and constitutional context, there are two forms of memory characteristic of the country today, and at first glance they would seem to stand in opposition to each other:  on one hand, international, critical scientific knowledge and, on the other, ironic tourist kitsch.  Here I would like to consider only the first, focusing es- pecially on modern archeology, leaving a discussion of tourism for another occasion, though I think it is equally important. Both are part of the same historical moment, two sides of a coin, together transforming the relation between Icelanders, the landscape, and their past.20    Modern archeology is revising that relationship by supplanting folk knowledge with academic knowledge created by specialists.21   Consider, for instance, one of the foundational legal stories about Icelandic nationhood, the settlement of the island in the ninth century.  There is a popular view, widely-held among Icelanders, of the settlement as a rather neat, orderly legal process.  That view is drawn from the thirteenth-century Landnámabók, or Book of Settlements, which describes in extraordinary detail who the original settlers of Iceland were and where on the island they made their homes.22   The depiction of the settlement as a rational process of immigra- tion and land-claiming served the interests of powerful thirteenth-century chieftains who sought to legitimate their rule through legal history, and the myth they created stuck—and it stuck not simply regarding specific land claims made during the settlement, but more generally in the view of the settlement as almost deliberative in nature. A well-known statue in Akureyri of the first settlers of the area, Helgi the Lean and Thorunn Hyrna, is one of many images that put this view into pictorial form: a happy Viking nuclear family in a ship, smiling merrily on their way to a new land.

What archaeologists find when they examine the earliest farms in Iceland, however—what the young archeologists revolutionizing their field, with extensive training abroad, find—suggests a very different story about the history of property in medieval Iceland.  Consider this example. At present, Icelandic archeologists have uncovered about 330 burial sites in about 160 separate places across the island. The majority of these burials are located a good distance away from settlement-era farmsteads, at the edge of ancient property lines between farms and near well-worn medieval paths.  Individuals in these graves are taller than those in the other graves archeologists have found on the island, and the graves include more women and children. Then there are graves of a somewhat different type, a minority of the finds, which are located quite near the main farm activity areas and away from ancient paths. Analysis of bones suggests that individuals in these graves were poorer, and that they lived a much more difficult life. What explains the difference? The settlement myth would suggest that the more distant burials, those along property-line boundaries, were older.   Popular memory would reason from the account in the Landnámabók that when a family settled in a new place they buried their kin at the border of the property they claimed, in part to assert their ownership of the land. Graves would serve as markers of possession.  What modern archaeologists have found, however, is in fact contrary to this hypothesis:  the distant graves are more recent—the graves containing smaller, poor men were dug earlier during Icelan- dic colonization. And this fact about burial sites points to a very different view of the settlement:  not the neat, orderly process depicted both in Landnámubók and in popular culture, but rather something potentially “savage.”23    Picture not a smiling Viking family on a boat making its new home, but instead a group of hard men living in deep anxiety, huddled near their farmsteads, not wishing to venture far beyond the immediate area where they had settled.  Imagine the settling of land as guided by force, uncertainty, and fear. This was a place, after all, where every social institution had to be established anew.  Only later, once property was secure, could graves be put at its margins. A similar process surely took place not only regarding property but regarding law more generally.  Iceland is a remote, harsh land, and law didn’t emerge there under rational, deliberative conditions.

The story of archeology and settlement-era land claims suggests how modern, scientific knowledge promises to overturn folkloric conceptions of the legal meaning of the land, including the legal meaning of the assembly sites we visited on our trip. Icelanders have long told each other stories about the landscape they so intimately inhabit—a landscape which, because of the austere environment, contains almost no historic, man-made structures with which to verify historical facts. But under scientific scrutiny, much vernacular understanding of the landscape will break down.  Popular stories about the landscape will be shown to be but an echo of some thirteenth-century need as voiced through nineteenth-century nationalist history. To echo Nietzsche, sci- ence historicizes with a hammer.  In time, the hammer of science will sever many of the bands of memory that for generations have linked Icelanders to their environment. The landscape of Iceland will be emptied of old legal memories, to be replaced by facts ascertained by specialists.  Icelanders’ relation to their land will be mediated by the knowledge of an international class of academic historians.

From the perspective of scientific knowledge, this is all well and good, and there is no need to be nostalgic for the world of popular legal history that will vanish. But it is helpful to recognize that science is not acting in an intellectual vacuum.  Just as today we view the work of nineteenth-century archeologists within the context of an Icelandic nationalism that partook of a larger European moment, so too the transformation of popular legal memory in Iceland today is but one component of the engine of economic and political integration of transnational Europe. The idea that blood can still be seen on the execution-block stone near an ancient assembly site will disappear in the face of the cultural and intellectual forces that ground the young constitutional entity Iceland is under pressure to join. Academic science will demystify the cultural basis of the nationalism which Europe seeks to overcome politically through its Kantian aspirations, at the same time that the popular memory of law will change as a consequence of the new European legal order being created here through the slow force of political will.

As this process moves forward, it is vital to appreciate that the historical disenchantment of the landscape will come with some troubling cultural consequences—especially changes in the culture of our Rechtsgenossenschaft.  There are, for instance, certain revealing trends within elements of popular culture consumed by Icelanders that celebrate hyperviolence or, more pointedly, the subversion of law. One recent incarnation of that tendency is a controversial music video, “Supertime” by Berndsen, which involves a carnivalesque overturning of law, and life, in the symbolically charged setting of the Icelandic countryside.  In the video, a group of young people come upon the scene of a car crash and play bloody and perverted games with the bodies of the victims.24  The video expresses a deep cultural anxiety about the association of land, law, and community that has defined Iceland for generations. Here we are a long way from a landscape knit together by the common legal identity established at Þingvellir in 999/1000; we are in a subculture whose ironic self-consciousness is characteristic of a nation torn within a generation from its communitarian folk roots and the law that sustained it.  Like new efforts in academic history, the video responds to circumstances that are putting pressure on the link between legal memory and the environment in an age of global capital flows and European integration. And in doing so, it draws us to ask whether Iceland can develop a new form of historical consciousness which will safely ground the liberal, trans-national constitutional arrangements it may join on a firm cultural foundation.

Prospects for Legal Memory in a Digital Age 

One way the country might do so, ironically, is through the very medium that is facilitating the economic, political, and intellectual changes driving the transformation of its popular legal-historical consciousness. I mean, specifically, the internet. That the web is an essential building block of globalization hardly needs elaborating to an audience composed largely of students. The internet fuels global economic integration and enables otherwise costly intellectual ties between nations, most pertinently between Iceland and the rest of Europe.  But what may not be so readily apparent, perhaps especially to a younger generation that grew up with the latest information technology, is that the digital age is not just knitting people and nations together but also is changing the very substance of communication. It is changing the nature of speech and knowledge.  Within a specifically legal context, for example, the existence of legal search engines like Lexis/Nexis is doing much more than simply making judicial precedents or statutes or comparative legal texts easier to find. By making them easier to find, Lexis/Nexis provides the technological infrastructure for the global harmonization of law and so is changing the very nature of law itself.  Legal search engines are altering the nature of law today just as much as the nature of law in Europe was changed when, in the wake of Christianization, the law was written down with the newly available, extraordinary technology of the Latin alphabet and its material infrastructure, the Church and its scribes.

The internet is changing the nature of speech and knowledge by changing the social conditions of its production, and these new social conditions create the opportunity to address the alienation of people from legal-historical consciousness that threatens the stability of the rule of law.  Let me mention three features of the web as a new structure or environment for speech and, thus, for legal-historical consciousness.  I draw my discussion from the work of the legal scholar Jack Balkin.25   The first way the internet alters the social conditions of speech is by making mass distribution of information essentially costless.  This is a fundamental change from the traditional mass media of the twentieth century, which required substantial investment of time and resources for information to be distributed on a grand scale.  One no longer needs access to a room full of video equipment and a financial fortune to broadcast a video to millions of people.  You can create your movie at your kitchen table using equipment that costs as little as a few hundred euros and that you probably own already, and you can post it on YouTube or send it to people directly via email for free. The negligible cost of information distribution on the internet radically democratizes the speech environment.  Second, the internet allows individuals to bypass traditional broadcast media or, in Balkin’s words, to “route around” traditional centers of information distribution and control.  The structure of the web makes information distribution radically decentralized, enabling individuals to reach audiences directly, without the meditation of major centers of media power.  The mass speech environment is no longer defined largely by asymmetrical imbalances of authority. Third, and most important, the internet allows individuals easily to comment on or appropriate the information or messages generated by others, a phenomenon Balkin calls “gloming on” (“glom” is a colloquial synonym for “attach”).  What are many blogs, for instance, but someone cutting, pasting, linking, and commenting on information generated elsewhere?  The culture of the internet in this respect bears some similarity to the manuscript culture of the middle ages in that it is a culture in which the notion of individual authorship is substantially complicated; in which a unit of knowledge expressed in a single text is viewed as part of a larger, global knowledge on which all can draw and share; and in which annotation assumes a central place— with the critical difference that in the digital age the activity of appropriation and an- notation is not fixed within a single institution, the church, but instead is distributed throughout society.

These features of the internet make our new speech environment anti-elitist, interactive, and multidirectional, allowing everyday people to participate in the making of public culture in unprecedented ways.  Balkin has explored how this new technological environment should change the nature of our theory of the freedom of speech.  I would like to suggest that it also should change the way we think about culture and legal-historical consciousness.  Specifically, the internet may offer a new way for in- dividuals to connect with their legal past, and in particular to relate to the legal history of their environment.  How it will do so will be a matter, in part, of the structures for interpersonal interaction created by information technology entrepreneurs—and the young thinkers in other fields, including law and legal history, who collaborate with them. The vague outlines for a new relation of citizens to legal historical knowledge may already exist, for instance, in the various sites for social networking such as Facebook. Social networking sites offer a glimpse into a future in which the technological infrastructure of information distribution will enable discrete communities to appropriate and use for their own local ends historical knowledge created by an international academic class.  Such sites enable us to imagine a multidirectional historical body of knowledge which can be local and global at the same time, and in which individuals can take active control in forging their own legal historical knowledge alongside that of critical, academic approaches to the past.  In Iceland in particular, where ninety percent of the population has internet access and over forty-six percent are members of Facebook (the highest per capita ratio in the world), contemporary social networking might serve as a template through which the dynamic, interactive features of the web could be used to provide a new structure for mediating the relation between citizens and their landscape.26    Picture, for instance, a rich body of legal-historical information and stories linked both to the GPS device in your phone (a geocache app, in iPhone terms) and to a social networking application enabling sophisticated public annotation and commentary.  The web might thereby become a tool through which the people themselves generate a public culture that provides the symbolic resolutions to the so- cial contradictions of liberal society—it might, that is, enable citizens themselves to create the cultural foundations for the rule of law.

As I suggested at the outset of my remarks, I believe the opportunity that information technology provides for building and maintaining the cultural foundations of law is important not simply for Iceland, where the tensions of globalization and lib- eral constitutional integration are felt with special force, but for Europe and the west in general. As multi-national institutions such as the Group of 20 gain new authority to review national fiscal policies, as international treaties on issues from polar law to climate change seem likely to curtail the sovereignty of individual states, and, especially, as EU integration proceeds—how will legal-historical consciousness change under the pressures of these new legal and constitutional arrangements?27   Will the relation between individuals and the legal past become unstable? Will this instability pose a substantial challenge to the cultural foundations of institutions such as the EU at the very moment they have been consolidated as a matter of formal legal rules? Can we provide new ways for our culture to foster the rule of law on a trans-national scale? Can we generate a culture, and a legal-historical consciousness, that will link individuals to trans-national legal arrangements with the same type of personal force with which communities in the past, most famously in the middle ages, identified with their own legal orders? The internet may facilitate the cultural foundations for modern liberal government in a global era just as it facilitates globalization itself. But whether it will, and if so, how, remains to be seen. In sum, then, how might our technology allow us to shape the cultural foundation of the rule of law by allowing us to refigure the popular relation to the legal past? That is a large question, but it is a question that, I believe, a school such as this one—dedicated not only to the study of legal doctrine but also to the development of the cultural and philosophical competence of its students—puts one in an excellent position to address.

End notes

1. See Robert B. Westbrook, Why We Fought: Forging American Obligations in World War II (Washington: Smithsonian Institution Press, 2004).

2. For a discussion of “the interconnectedness of law and things,” see John Brigham, Material Law: A Jurisprudence of What’s Real (Philadelphia: Temple University Press, 2009).

3. See Mark S. Weiner, Americans Without Law: The Racial Boundaries of Citizenship (New York: New York University Press, 2006), 4-5.

4. For my own consideration of the centrality of law to American identity and its significance for minority group inclusion, see Mark S. Weiner, Black Trials: Citizenship from the Beginnings of Slavery to the End of Caste (New York: Alfred A. Knopf, 2004), 9-13.

5. For images, see http://www.bundestag.de/htdocs_e/artandhistory/architecture/index.jsp (German parliament web site).

6. For an early discussion of rechtliche Volkskunde, see Hermann Baltl, “Folklore Research and Legal History in the German Language Area,” Journal of the Folklore Institute 5 (1) (June 1968), 142-151.

7. Claude Lévi-Strauss, Structural Anthropology (New York: Doubleday, 1967).  See also Fredric Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act (Ithaca: Cornell University Press, 1981).

8. For a general survey of Icelandic history in English, see Gunnar Karlsson, The History of Iceland (Minneapolis: The University of Minnesota Press, 2000).

9. For brief overviews of the post-war political context of that pride, see Gísli Sigurðsson et. al., “‘Bring the manuscripts home!’,” in Gísli Sigurðsson and Vésteiin Ólason, eds., The Manuscripts of Iceland (Reykjavik: Árni Magnússon Institute in Iceland, 2004), 171-77; Jón Karl Helgason, “Parliament, sagas and the twentieth century,” in Sigurðsson and Ólason, The Manuscripts of Iceland, 145-55; and Helgi Þorláksson, “Myth,” in Byndís Sverrisdóttir, ed., Reykjavík 871 +/- 2: Landnámssýningin, The Settlement Exhibition, 68-85 (Reykjavik: Reykjavik City Museum, n.d.).  For a more general historical and anthropological perspective, see Kirsten Hastrup, “Creating a nation: nationalist trends in 18th and 19th century Iceland,” Island of Anthropology: studies in past and present Iceland (Odense: Odense University Press, 1990), 103-22 and “Finding oneself in history: the cultural construction of Icelandic identity,” Island of Anthropology, 123-35.

10. For the best discussion in English of the settlement and “commonwealth” era, see the classic Jón Jóhannesson, Íslendinga Saga: A History of the Old Icelandic Commonewalth, trans. Haraldur Bessason (Winnipeg: The University of Manitoba Press, 2006 [1974]). On the legal background, see also William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: The University of Chicago Press, 1990) and Lester Bernhardt Orfield, The Growth of Scandinavian Law (Philadelphia: The University of Pennsylvania Press, 1953), 89-100.

11. On bank notes, see Opinber gjaldmiðill á Íslandi: Útfáfa og auðkenni íslenskra seðla og myntar [The Currency of Iceland: Issues and features of Icelandic notes and coins] (Rejkjavík: Myntsafn, Seðlabanka Og Þóðminjasafns, 2002 [1997]), 39, 45; on Supreme Court architecture, see http://www.haestirettur.is/baeklingur/page3 (Supreme Court web site).

12. For a recent effort to make the presence of the past visible in the Icelandic landscape to outsiders, see the work of the Iceland Saga Trail Association: http://www.sagatrail.is/ (Saga Trail Association web site). For notable regional efforts, see the Settlement Center in Borgarnes, www.landnam.is (Settlement Center web site), and the Saga Center in Hvolsvöllur, http://www.njala.is/en/default.asp (Saga Center web site; see “Surrounding Sites” under “Njáls Saga”). For a discussion of the ritual features of Icelandic tourism, see Magnús Einsarsson, “The Wandering Semioticians: Tourism and the Image of Modern Iceland,” in Gísli Pálsson and E. Paul Durrenberger, eds., Images of Contemporary Iceland: Everyday Lives and Global Contexts (Iowa City: University of Iowa Press, 1996), 215-35.

13. For a helpful map, see “Assembly Sites,” in The Sagas of Icelanders: A Selection, pref. Jane Smiley, intro. Robert Kellogg (New York: Penguin Books, 2001), 727

14. Icelandic Road Atlas, Eleventh Edition, orig. text Steindór Steindórsson frá Hlöðum, eds. Eva Hálfdanardóttir and Örlygur Hálfdanarson (Icelandic Geological Survey and Vegahandbókin Ehf., 2007), 263.

15. Jóhannesson, Íslendiga Saga, 131.

16. For the classic original accounts, see Njáls Saga (New York: Penguin Books, 2001), sec. 104-5, and Ari Þorgilsson (fróði), Book of the Icelanders (Íslendingabók), ed. and trans. Halldór Hermannsson (New York: Kraus Reprint, 1966).

17. For a discussion of the sagas, legal texts, and manuscript culture, see Patricia Pires Boulhosa, Kings of Norway: Mediaeval Sagas and Legal Texts (Leiden: Brill, 2005).

18. See Adolf Friðriksson, Sagas and Popular Antiquarianism in Icelandic Archeology (Brookfield, VT: Ashgate Publishing Company, 1994).

19. For the Icelandic constitutional background, including the nation’s continuing deferral of constitutional reform, see Ágúst Þór Árnason, “The History of the Icelandic Constitution and Some Economic Issues,” in Lise Lyck, ed., Constitutional and Economic Space of the Small Nordic Jurisdictions: The Aaland Islands, the Faroe Islands, Greenland, Iceland (Stockholm: NordREFO, 1997), 48-72.

20. For a telling musical document of the transformation of the relation between Icelanders and their economic past whose gentle, loving humor is driven by a culture of market liberalization, see “Sonur hafsins” [The Song of the Sea], words and music, Arngrímur Arnarsson, performed by Ljótu Hálfvitarnir: http://www.ljotuhalfvitarnir.is/video (band web site).

21. See generally Friðriksson, Sagas and Popular Antiquarianism. On the Archeological Heritage Agency, established in 2001, see http:// www.fornleifavernd.is.  For a popular documentation of some archeological finds whose bold design highlights how the Icelandic cultural negotiation of the relation between the present and the past is undertaken through a symbolic encounter with death, see Dauðir rísa… Úr Gröfum Skriðuklaustrus (Egilsstaðir: Minjasafn Austurlands [East Iceland Heritage Museum], 2009).

22. Landnámabók: The Book of Settlements, trans. and intro. Hermann Pálsson and Paul Edwards (Manitoba: University of Manitoba Press, 2006 [1972]). The following discussion is drawn from the author’s conversation with Adolf Friðriksson, 5 August 2009.

23. Adolf Friðriksson, conversation with the author (5 August 2009).

24. See http://www.youtube.com/watch?v=jtYD1vmUqCU (YouTube video linked to band MySpace page).

25. Jack M. Balkin, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” 79 New York University Law Review 1 (2004), 9-12.

26. Kristján Már Hauksson, “92% of Icelandic households with Internet access,” Multilingual Search: World Edition (7 October 2009), at http://www.multilingual-search.com/92-of-icelandic-households-with-internet-access/07/10/2009 (citing survey by Statistics Iceland); “Army of Iceland on Facebook,” IceNews (12 September 2009), at http://www.icenews.is/index.php/2009/09/12/army-of-iceland-on- facebook/.

27. On the University of Akureyri’s unique program in polar law, see www.polarlaw.com.

 

 

 



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