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The gods defend their rights

April 4, 2016

Trial by combat has historically been an integral part of Germanic/Gothic cultural systems, involving as it does an appeal by violence to both a higher authority and social custom. After having been codified in law since the early Middle Ages, it fell out of favor in the modern era, with Edmund Burke describing it as “superstitious and barbarous”, and was formally abolished in English law in 1819.  The famous jurist Sir William Blackstone referred to the practice as “unchristian” and “uncertain”. In spite of these criticisms, trial by combat has not only continued, it has become the standard method of jurisprudence in a submerged but nonetheless significant way.

The modern court trial, civil or criminal, is no more than a preliminary to the later trial by combat. In a civil trial, the state decides to which of two opponents it will grant its quasi-divine support; in a criminal trial, it decides whether or not it will itself oppose the accused. The trial by combat begins when the court trial concludes, with the unsuccessful litigant or convicted defendant facing off against the state. The key difference in these two situations is that, following a civil trial, the state acts as a proxy for the litigant of its choice. In a criminal trial, in the event of a guilty verdict, it acts on its own behalf. In either case, the individual, with his private and limited capacity for violence, stands opposed in a very real trial by combat to the state and its collective capacity for violence.

It is plain that the odds in such a trial are so heavily against the individual that he stands very little chance against the state. Those convicted of criminal offenses find the state employing violence, in the form of prison and confiscation, against them from the outset. Those who are only found liable for civil offenses are generally treated with some forbearance, although they are as a rule compelled to obey certain orders given to them by the state, which can be considered acts of violence against the human will. And if they fail to comply with those orders, the state will then employ physical violence against them as well. The result is almost always the same. Just as in a traditional trial by combat, the party capable of inflicting more violence and damage is held to have prevailed. The state prevails in such trials due to its greater capacity for violence, not the justice of its system of adjudication or its sovereign authority.

An alternate and perhaps simpler view, reaching the same conclusion, places the state as the default opponent in every trial by combat by seeing each offense or complaint as an act of lese majeste, in which the state is always the offended party. Some form or exercise of violence is necessary to vindicate it and its privileges. From this perspective the actions of a court appear less like a medieval trial by combat and more like an eighteenth-century duel, where maintaining honor was prioritized above resolution of a dispute.  In either case, however, the outcome of a trial is still determined by force.  That is as much a fact of life today as it was a thousand years ago, and it is dishonest to suggest otherwise in order to discover fictitious evidence of human progress.

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