{"id":23890,"date":"2021-02-01T09:34:50","date_gmt":"2021-02-01T09:34:50","guid":{"rendered":"https:\/\/www.currentaffairs.org\/2021\/02\/trial-by-combat-and-the-myths-of-our-modern-legal-system\/"},"modified":"2021-02-01T17:34:42","modified_gmt":"2021-02-01T17:34:42","slug":"trial-by-combat-and-the-myths-of-our-modern-legal-system","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/02\/01\/trial-by-combat-and-the-myths-of-our-modern-legal-system\/","title":{"rendered":"Trial by Combat and the Myths of Our Modern Legal System"},"content":{"rendered":"\n
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In Burgundy, in the year 590, the royal chamberlain was accused of killing one of the king\u2019s prized buffalo\u2014which, at the time, was a capital offense. With his life on the line, the chamberlain opted for trial by battle, designating his nephew to fight for him. The counterparty, the royal forester, fought on his own behalf. Although the chamberlain\u2019s nephew managed to fatally wound the forester, the injured forester killed the nephew outright. By the rule of the day, therefore, the chamberlain was judged to have been guilty of killing the buffalo in the first place, and was executed. This was one of the earliest recorded instances of trial by battle, a legal procedure for resolving disputes that persisted in western Europe for nearly 1,000 years.<\/p>\n

Trial by battle, and related procedures such as trial by ordeal, tend to be popularly characterized today as the depraved, superstitious, barbaric practices of simpletons in the distant past, who just weren\u2019t rational enough to devise a legal system based on things like \u201cevidence\u201d and \u201cstatutory interpretation.\u201d In 1454, also in Burgundy, a man named Plouvier accused a man named Coquel of murdering one of Plouvier\u2019s relatives. Coquel claimed self defense. Plouvier had no way to prove his claim, but wasn\u2019t willing to drop the matter, so he opted for combat, and the accused Coquel agreed. The battle ended with Plouvier, the larger man, kneeling on Coquel\u2019s chest and gouging out his eyes. Having been thus found guilty of unjustified murder, the eyeless Coquel was hanged. What sort of society, we might ask, would resolve disputes using such base, might-makes-right procedures? For trial by battle in particular, what sort of backwards system would allow whichever party could hire the strongest champion to prevail in legal disputes?<\/p>\n

But these disfavorable comparisons of trial by battle and trial by ordeal with our current legal practices miss the mark on two counts. First, the past was not as simple as we imagine it. Battle and ordeal existed not as entire standalone systems, but largely as methods of proof <\/em>within sophisticated legal systems. One could still prove their case by sworn testimony, by documentary evidence, or by appeal to a jury. But in some cases, particularly where there was reason to doubt the reliability of these more familiar methods, battle and ordeal existed as alternatives. <\/p>\n

Second, we are not nearly as advanced as we think we are. The power dynamics laid bare in battle and ordeal will be familiar to any American trial attorney today, or simply any American who has ever been caught up in our justice system. The practice of American civil litigation\u2014i.e., a dispute between two parties\u2014far from being a noble quest toward truth, is largely an exercise in misery imposition. Whichever party can use the procedural rules to cost the other side more than they can afford (in legal fees, time expense, and reputational harm) is normally the victor. In trial by battle, it was considered completely fair to hire an expensive champion. Likewise, in our current legal system, the wealthy can retain very expensive law firms with armies of investigators and specialized software capable of processing millions of pages of documents, and a less wealthy party will retain\u2026 whatever schmuck with a law degree they can afford. In the end, might still makes right. <\/p>\n

Meanwhile, criminal defendants undergo their own torturous ordeal, in which they often face the choice between pleading guilty and taking their lumps, or undergoing grueling public trials, during which an agent of the state will endeavor to vilify, humiliate, excoriate, and do everything within their power to ensure the maximum number of years are taken off the defendant\u2019s life. As with much of history, the wide gulf separating the brutality of the past from the enlightenment today is, upon closer inspection, something more of a puddle.<\/p>\n

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Trial by ordeal and trial by battle existed as judicial procedures in western Europe within a pretty circumscribed period of time: although there were regional variations, and early examples like the Buffalo Case cited above, the heyday of the ordeal trial was from the 9th to 11th centuries, while trial by battle seems to have been in formal judicial use from about the 12th to 14th centuries. (More recent attempts to revive trial by battle have been made: last year, a divorced man in Iowa sought permission<\/a> to formally challenge his ex-wife and her lawyer to a katana battle, asking the court for 12 weeks to locate a suitable forge. His request was not granted.)<\/p>\n

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Art by John Biggs<\/a><\/em><\/figcaption><\/figure>\n

Trials by battle were not commonly fought with swords; they generally involved blunt weapons like clubs and staves, or other methods including the very popular eye-gouging. In a miracle attributed to Saint Wulfstan, an adulterer was accused of attacking his lover\u2019s husband. During the trial by battle, the husband managed to gouge out the adulterer\u2019s eyes and testicles, which the husband threw into the crowd. (In what sounds like the medieval equivalent of a One Weird Trick ad, the mutilated adulterer subsequently prayed diligently to Saint Wulfstan for forgiveness, and his eyes and testicles grew back. Hooray!) England\u2019s last recorded trial by battle, meanwhile, ended with a bitten nose and a thumb in the eye. Far from being considered foul play, gouging and biting were often essential tools in trials by battle. One prominent chronicler considered a man unable to fight if he was missing his front teeth, since \u201cthey help him greatly to victory.\u201d Regardless of how<\/em> someone won, if you slew their opponent or forced them to cry \u201cmercy\u201d after you popped both their eyeballs, you were deemed to have proven your case.<\/p>\n

Medieval ordeal trials were similarly brutal, taking the form of \u201cordeal by iron\u201d or \u201cordeal by water.\u201d In the iron ordeal, a person would grab hold of a red-hot piece of metal, and then, three days later, their bandaged hand would be unwrapped and the burned skin examined. If the skin had healed, the person was innocent, having carried their burden of proof; if it was festering, infected, or otherwise still visibly wounded, they failed. Ordeal by water involved tossing a person into water to see if their body sunk or floated: an honest or innocent person would sink, whereas a guilty or malingering person would float. There were a handful of alternate variations, like walking on hot plowshares or thrusting a hand into a hot cauldron, but the theory of each trial was the same: the person under inquiry was subjected to a painful experience, and the outcome of the test was contingent on some generally uncontrollable physiological reaction to the ordeal. <\/p>\n

Trials by battle or ordeal were basically treated as forms of proof<\/em>\u2014which might be used to dispose of an entire case, or a specific issue within a case. There were various other forms of proof considered acceptable (and sometimes strongly preferred) in legal proceedings. Compurgation, or oath-taking, was one of the most common forms of proof: a person would swear before God that their word was true, and then put forward a specified number of people from the community (somewhat like character or reputation witnesses) who would back up their oath. Alternatively, a person could submit documentary or material evidence to be considered; could \u201cput themself on the country\u201d and agree to a determination of their case by a jury; or an adjudicator might conduct an inquest and interview witnesses according to their own discretion. But if these forms of proof were unavailable\u2014some people, for example, were categorically or situationally unable to offer proof by compurgation\u2014or if the previously-offered proofs were disputed by the parties, then the issue might be decided by ordeal or by battle.<\/p>\n

Ordeal was often used for\u2014among other things\u2014crimes where oaths were deemed inherently untrustworthy and third-party witnesses were nonexistent. This covered cases like murders committed in secret, or sexual offenses such as adultery, rape, or bestiality. (\u201cIf a man is charged with having carnal dealings with cattle of any<\/em> sort,\u201d reads one Norwegian provincial law, \u201cwhich is forbidden to all<\/em> Christians [btw], the bailiff shall bring action against him with witnesses to the fact of common rumour; and let him carry the hot iron or go into outlawry.\u201d History, alas, is silent as to how many unrepentant cowboys lived in outlawry in medieval Norway.) In some times and places, it seems to have been more common for criminal matters to be decided by ordeal, and civil matters by battle, although this was far from a hard-and-fast rule.<\/p>\n

The ordeal was sometimes imagined as a way of getting God\u2019s input into difficult cases, by letting divine intervention settle a legal question. This premise, however, was subject to considerable theological ambiguity and debate. For one thing, the ordeal wasn\u2019t used exclusively<\/em> in high-stakes cases where the truth seemed fundamentally unknowable, like unsolvable murders; under some circumstances, it might also be used in comparatively mundane criminal proceedings or property disputes. Some theological commentators felt that the ordeal was inherently blasphemous because it involved \u201cputting God to the test,\u201d while others felt that it was unreliable because it could be manipulated by sorcery, or by the motivated interpretation of the clerics who administered the ordeal. Use of the ordeal required cooperation from the church, because only a priest was considered qualified to interpret the burn wounds, or the buoyancy of the flailing person in the river. Priests were sometimes even paid a fee for their services, and so for several centuries the practice was quite popular, despite skepticism from higher-ups in the church hierarchy.<\/p>\n

Proof by battle, meanwhile, always existed largely outside the ambit of church sanction and didn\u2019t require direct clerical involvement\u2014although some clerics and monasteries battled as litigants themselves in cases affecting their own property interests. Like the ordeal, trial by battle was sometimes conceptualized as a way of leaving a case up to divine rather than human judgment. However, unlike the ordeal, which generally put one particular party\u2019s word up to the inscrutable judgment of providence, battle was a bilateral endeavor pitting two parties against each other, and the martial strengths of these respective parties were easier to gauge in advance by ordinary human observation. As noted by Ariella Elema, who has studied trial by battle in France and England extensively, trial by battle was fundamentally a matter of honor and reputation, and as such, could usually only be waged between social equals. Someone of lower social status generally could not wage battle against someone of higher status, although free men of equal status could battle each other regardless of rank.<\/p>\n

In theory, it was also possible to bring combat \u201cappeals\u201d against judges or jurors (individually, or as an entire body), if they refused to hear your case when it was clearly in their jurisdiction, or if they rendered a false verdict. Apparently, this kind of appeal rarely, if ever, occurred in practice. We can only hope that some Wat of Watsfield once challenged the entire county magistrate to trial by battle, shouting \u201cTHIS WHOLE COURT IS OUT OF ORDER\u201d\u2014but if so, his saga has been lost to the mists of time. <\/p>\n

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When you read about trial by ordeal and trial by battle, you might think, not unjustly, that they were barbaric rituals that put people in painful, horrifying situations for no good reason, and left the outcome of cases up to irrelevant and mostly uncontrollable factors, like \u201cphysical strength\u201d and \u201chaving naturally flame-retardant hands.\u201d But in times and places where records exist, the rates of acquittal by ordeal trial are actually quite high\u2014which is not at all what you\u2019d expect, given the nature of the trials themselves. Based on these rather perplexing figures, scholars speculate that the administration of ordeals was perhaps manipulated by the priests, or that the results of the ordeal were leniently interpreted on purpose to acquit defendants, in a manner similar to jury nullification. (13th- and 14th-century court records in England also show extremely high rates of acquittal at jury trials, possibly suggesting that juries were motivated to find ways to avoid imposing capital punishments.) The right to wager trial by battle, meanwhile, was sometimes imagined as a privilege to be jealously guarded, and at other times as a nightmare scenario that people were eager to avoid. Some towns negotiated for mass immunity for their citizens from being subjected to proof by battle. On the other end of the spectrum, when trial by battle was officially outlawed in France by royal decree in the 13th century, a popular song lamented: \u201cI say to all those who were born on fiefs: by God you are no longer free; you are well separated from your liberty, for you are judged by inquest.\u201d<\/p>\n

In practice, it appears that lots of legal proceedings in which either ordeal or battle were proposed never actually progressed to that stage, but rather ended in mutual settlement. Actual combat, in particular, appears to have been pretty rare, and fatalities on the dueling pitch were rarer still (although if you forfeited a battle after being charged with a capital crime, you still got executed afterwards, so this was not the preferred<\/em> form of arbitrated settlement). Proposing to submit oneself to ordeal or go to battle seems to have sometimes been a rhetorical manner of emphasizing or substantiating the value of one\u2019s proof by oath, since a person who wasn\u2019t willing to lay their bodily integrity on the line for their oath was presumed to be more likely to be a perjurer. On the other hand, some people might be ineligible to offer up proof by oath in the first place, because they had a prior bad reputation or lacked community ties, and ordeal or combat might then be their only resort. Women could be subjected to the ordeal, but could not usually directly participate in trial by battle, although they could wager it against their ranked equals and then put forward a champion on their behalf; as could people with physical disabilities. (Jews, meanwhile, were held immune from the ordeal because Christians considered it theologically and juridically meaningless for Jews to make oaths on doctrines they did not believe, and it seems that Jews were only rarely required to wage trial by battle because of their marginal social status.)<\/p>\n

Because it was generally possible, for litigants that could afford it, to wager trial by battle through a champion, serving as a legal \u201cchampion\u201d was a viable occupation for the duel-inclined, and in some places, it seems that the government actually funded public champions. Scholar Robert Bartlett notes that in Italy, \u201cprofessional champions were organized, regulated, and provided for litigants by the communes.\u201d (This seems significantly cooler than being a state-funded legal aid attorney.) In England, the crown also funded a cadre of jailhouse snitches called \u201capprovers\u201d\u2014this was, essentially, a kind of plea deal where a defendant could escape a capital sentence by ratting out their accomplices, and then, as necessary, prove their case against these accomplices through trial by battle. Successful approvers might then be kept around by the government and trained to do battle in other cases. Private mercenary champions were also sometimes used to intimidate opponents in property disputes\u2014for example, a wealthier person might steal the land of his poorer neighbors by wagering trial by battle and then bringing forward a paid professional champion; the neighbor, unable to afford a champion and knowing that he\u2019d be forced to participate in the battle personally, would then cede his claim to save his life.<\/p>\n

That these systems of proof were of dubious merit and subject to all kinds of interference did not go unnoticed upon by contemporary commentators. Agobard, a 9th-century archbishop of Lyons, wrote that \u201cGod\u2019s judgments are secret and impenetrable\u2026 if all future events are uncertain, what astonishing fatuousness it is to try to make uncertain things certain through detestable combats,\u201d and argued that, if the ordeal \u201cworked,\u201d it would render the entire judicial system superfluous: if God\u2019s will could be known simply through the condition of a burned hand, why would anyone need \u201cjudges and magistrates\u2026 those who deny a charge to be convicted by witnesses, or, in the absence of witnesses, the case to be brought to an end by an oath\u201d? Peter the Chanter, a 12th century critic of the ordeal, wrote that \u201cno one should tempt God when the resources of human reason are not yet exhausted\u201d and suggested that clerics debased themselves by accepting money to perform such questionable rituals. Some accounts of ordeals and battles that supposedly produced a \u201cwrong\u201d outcome\u2014condemning or sparing a party against popular opinion\u2014are riddled with a sense of theological unease, and hagiographies sometimes featured saints intervening to \u201ccorrect\u201d ordeals and battles that had initially doomed the wrong person. Ultimately, clerics were forbidden from participating in ordeals at the Fourth Lateran Council in 1215, as part of a general prohibition on clerical involvement in rituals and legal procedures that involved bloodshed: \u201cNo cleric may decree or pronounce a sentence involving the shedding of blood, or carry out a punishment involving the same, or be present when such punishment is carried out. \u2026 nor may anyone confer a rite of blessing or consecration on a purgation by ordeal of boiling or cold water or of the red-hot iron.\u201d Trial by battle was interdicted by the church even earlier, and was periodically outlawed by royal decree within kingdoms, although that procedure proved harder to regulate because it generally took place at the level of noble or manorial courts, without requiring either clerical or royal involvement.<\/p>\n

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Like all legal methods that pretend to offer \u201cproof,\u201d trial by battle and trial by ordeal were undergirded by an inherent futility: much of what must be \u201cproved\u201d in a legal proceeding is simply unknowable. Sworn testimony, documentary evidence, witness corroboration\u2014all of these methods of \u201cproof\u201d can lend credulity to one version of events or another, but none can ascribe absolute certainty. In many situations, it is simply impossible to know what happened, and dispute resolution systems have to account for that uncertainty. In a formal legal sense, our modern system purports to account for this uncertainty by imposing different \u201cburdens of proof.\u201d In civil matters, the burden is \u201clow\u201d: one side need only win by a preponderance of the evidence, which is often translated as 51 percent on their side. In criminal matters, the formal burden is \u201chigh\u201d: the evidence must illuminate the unknowable past \u201cbeyond a reasonable doubt.\u201d But these \u201cburdens of proof\u201d are simply system design choices. We could just as easily solve close cases with a coin flip, or by the relative wealth of those in the dispute (in whichever direction we choose). We could solve them by duking it out with clubs or carrying some hot metal.<\/p>\n

And of course, the idea that \u201cburdens of proof\u201d have any kind of independent, objective meaning is a legal fiction. The burdens and standards of proof form the walls of the legal octagon, so to speak, but the matches themselves are won and lost on the mat. The legal \u201ctactics\u201d used by high-powered lawyers have little to do with wobbly legal concepts or law in the abstract, much less the events in dispute. Top tier firm Boies Shiller did not sit around agonizing about the standard of proof in the case of its client Harvey Weinstein: instead, they hired<\/a> ex-Mossad operatives to spy on and intimidate the women their client had assaulted. When Arnold & Porter sought to defend Chevron after they poisoned a bunch of indigenous Ecuadorians, they didn\u2019t worry about what actually happened<\/em>. Instead, they ran a public relations smear campaign against the Ecuadorians\u2019 lawyer, Steven Donziger, and filed a racketeering lawsuit against him<\/a>. <\/p>\n

Somehow, the myth that the American legal system operates according to Enlightened Rationality persists. Popular legal shows like Law and Order <\/em>treat the investigation of crime as discovery of Truth; in the much more accurate Better Call Saul,<\/em> a corporate retirement home attempts to overwhelm the lawyer investigating them with hundreds of bankers\u2019 boxes, each containing thousands of pages of files. This is a very real and very common tactic\u2014hide the evidence in mountains of trash. Robert Frost, meanwhile, famously quipped that \u201ca jury consists of twelve persons chosen to decide who has the better lawyer.\u201d Even this joke now feels quaint and anachronistic: after all, more than 90 percent of litigants today never make it before a jury, because the relative strength of the parties\u2019 resources pre-determines the outcome, without need for pesky trifles like \u201cevidence.\u201d<\/p>\n

This holds true in the criminal context as well. Something like 97 percent of criminal defendants accept a plea deal when a prosecutor threatens them with the ordeal of a lengthy trial which includes a trial detention period, and whose uncontrollable outcome may then lead to a further crushing years-long prison sentence. In immigration courts\u2014which are similar to criminal courts, in that they carry life-or-death consequences, but in which people enjoy even fewer<\/em> due process rights\u2014asylum-seekers are forced to undergo the ordeal of reliving their worst traumas to an audience of hostile strangers, and then having these traumas interpreted by an adjudicator according to completely arbitrary and subjective standards. An immigration judge in Atlanta will find that only 2 percent of the asylum-seekers who come before him have proven their cases, whereas a judge in New York will find that 80 percent of them have\u2014just as an evil priest would say that every man thrown into the river floats, every time, while a slightly more humane and God-fearing one might look at a struggling, visibly drowning person and say\u2014eh, I\u2019m pretty sure he\u2019s sinking.<\/p>\n

Just as in trial by battle and trial by ordeal, our system encourages parties\u2014including prosecutors\u2014to flex their strength mainly as a deterrent<\/em> to the ultimate showdown. In earlier centuries, the willingness to fight or suffer an ordeal demonstrated a litigant\u2019s seriousness, lent credulity to their claims, and often resulted in a pre-battle or pre-ordeal resolution. In civil cases today, litigants jockey to prove to each other during the pretrial period that they are willing to spend huge amounts of time, energy, and money, to give their opponent a (hopefully discouraging) taste of how much a trial will ultimately cost them. Battles and ordeals were highly ritualized formalities that calibrated the parties\u2019 incentives to settle, and mostly they settled. Discovery, motion practice, and trial costs are the same\u2014highly ritualized, very risky. Their actual occurrence is rare because the threat of them alone is so effective in forcing settlements. The structure of the system dictates what terms the settlements will have. One expects that for trial by battle, where the richer party could hire the most skilled champion, most settlements favored the wealthy. In this regard, our system is almost identical.<\/p>\n

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Ultimately, there may be some value in finding final resolution through procedures that are clearly and obviously decoupled from the facts of the particular case. The level of certainty that our culture reposes in legal outcomes is a bit baffling: when a judge or jury declares that something happened, its certainty is taken as gospel, never mind the fact that the finding might have been based on a 51 percent likelihood. A person who is convicted of a crime is considered to have done it<\/em>, even if they just pled guilty to avoid an unfair trial and a worse sentence. The notion that an adjudicator can always look at available evidence and come to a correct conclusion, and that this is indeed how our legal procedures operate, may breed undue faith and confidence in the infallibility of some of our most deeply flawed institutions. One imagines that, a few true believers aside, it was probably quite obvious to medieval Europeans that the results of battles and ordeals were somewhat arbitrary. But these people likely understood that sometimes you just have to make a call and live with it. These procedures didn\u2019t find Truth, and they weren\u2019t meant to find Truth; only resolution. This is no less true of our current system, but it\u2019s considered uncouth to say so. If outcomes are going to be arbitrary, maybe it would be better for them to be obviously<\/em> arbitrary.<\/p>\n

At the very least, we all probably know some attorneys we would really like to fight. <\/p>\n

For sourcing on much of the factual information in this article and more, see <\/em>Trial by Battle in France and England<\/a> by Ariella Elema.<\/em><\/p>\n <\/section>\n\n\n

This post was originally published on Current Affairs<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

Conflict resolution has changed a bit since the Middle Ages, but not as much as you might think. <\/p>\n","protected":false},"author":1665,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23890"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1665"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=23890"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23890\/revisions"}],"predecessor-version":[{"id":23891,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23890\/revisions\/23891"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=23890"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=23890"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=23890"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}