I Can't Possibly Be Wrong All the Time

The legal system in Westeros leaves much to be desired. There is no dedicated feudal analog of a judicial branch, ideally guided with fairness, objectivity, and the concept of justice. Instead, legal disputes are adjudicated by lords who often have vested interests in the outcomes and the overpowered ability to settle disputes by fiat (and with the martial support to have their decisions enforced.)

One would hope that disputes aren’t entirely decided arbitrarily by feudal lords; that local customs, precedents, and traditions might hold sway. But that’s not a given when the common-folk are facing the sharp end of Westeros justice.

Although the smallfolk of the Seven Kingdoms have less flexibility when it comes to facing legal issues, those with more status and privilege do have the option to take decision-making out of the hands of overlords and into their own. If they can accept the risks of Trial by Combat.

[ATTENTION: This post is going to have plot spoilers not only for the A Song of Ice and Fire books, but also for the three Dunk and Egg novellas. You’ve been warned.]

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The theoretical basis behind trial by combat (or trial by battle, as it is alternatively called) can be framed by the idea that the gods are good, are all-knowing, and would seek to see the righteous rewarded and the wicked punished. If there was a dispute that couldn’t be resolved by examining the known and understood merits of the case, trial by combat is an appeal to the gods (particularly the Warrior aspect of the Seven) to favor one of two champions and indicate the truth. (Presumably, the stakes should be of sufficient gravity to make an appeal to the gods warranted.)

From a modern perspective, one that is skeptical of the existence of gods, their goodness, or their interest in making their legal opinions known to mere mortals, trial by combat seems ridiculous. Any outcome determined by two people bashing on one another clearly would be less of a resolution based on who is right and who is wrong, but who is weak and who is strong.

But there might be practical reasons for trial by combat to exist and applied to serious legal disputes; especially in the context of the feudal structure of Westeros. Before these practical considerations are discussed, a sampling of notable trials by combat should be considered. (Feel free to skip down to the Too Long; Didn’t Read summations. I don’t mind.)

TOO LONG DIDN’T READ:

• I’m going to be discussing issues surrounding Trial by Combat. Duh.

GUILT OR INNOCENCE? GOD(S) ONLY KNOW(S)

When discussing trial by combat in A Song of Ice and Fire, Tyrion Lannister’s multiple experiences as a defendant makes him something of an exemplar. In the books (so far) twice Tyrion has been accused of serious crimes, and twice he astutely had no faith in the possibility of acquittals in the conventional trial setting that had been offered to him. Instead, he risked all on the hope that a champion could prevail over the designated champion of his accusers.

His 50% acquittal rate casts some shade on the involvement of virtue-seeking gods, since the Lannister was innocent of both charges. Of interest is this exchange from the books when Tyrion was notified of the judicial participants in his second trial, where he’d been accused (and later convicted) of regicide.

“Justice belongs to the throne. The king is dead, but your father remains Hand. Since it is his own son who stands accused and his grandson who was the victim, he has asked Lord Tyrell and Prince Oberyn to sit in judgment with him.

Tyrion was scarcely reassured. Mace Tyrell had been Joffrey’s good-father, however briefly, and the Red Viper was . . . well, a snake. “Will I be allowed to demand trial by battle?”

“I would not advise that.”
— A Storm of Swords, Tyrion IX

Based on Tyrion’s conversation, trial by battle might not automatically be a guaranteed legal right for the nobility, although in The Hedge Knight Ser Duncan the Tall is assured that all knights have the right to demand trial by combat when accused of a crime. But Tyrion certainly had the expectation (particularly after making use of the option while captive in the Vale) and the crown probably felt no reason to deny it, since their formidable champion Ser Gregor Clegane would make such a demand insanely risky.

Tyrion did choose the risky martial option when his courtroom trial turned extremely grim, but not everyone involved in a trial by combat gets to choose.

In The Mystery Knight, the third Dunk and Egg novella, Ser Glendon Ball is accused of stealing a dragon’s egg from Lord Butterwell of Whitewalls. After some initial torture that fails to extract a confession, Ser Glendon is forced to prove his innocence in a joust against John the Fiddler (aka the pretender Daemon Blackfyre.) There were other contributing factors that led up to this joust between a scapegoat knight and a would-be king, but for all intents and purposes the trial by combat was dictated in lieu of a more conventional trial, to either prove Ball’s innocence in the theft or to condemn him.

In the second Dunk and Egg novella, The Sworn Sword, Ser Duncan finds himself involved as a champion in a trial by combat, one which had been specifically called for instead of any deliberative trial. Ser Duncan’s lord, Ser Eustace Osgrey, had been having tensions with his neighbor the Lady Rohanne Webber of Coldmoat. The Osgrey forest had been set ablaze during these troubles, for which Lady Rohanne stood accused. Despite his right to seek justice, Ser Eustace was unwilling to seek any involvement from their mutual lord (who was unfriendly to Ser Eustace.)

The fat septon turned to Lady Rohanne. “Good-sister, if you did this thing, confess your guilt, and offer good Ser Eustace some restitution for his wood. Elsewise blood must flow.”

“My champion will prove my innocence before the eyes of gods and men.”

“Trial by battle is not the only way,” said the septon, waist-deep in the water. “Let us go to Goldengrove, I implore you both, and place the matter before Lord Rowan for his judgment.”

“Never,” said Ser Eustace. The Red Widow shook her head.
— The Sworn Sword

This demand for trial by combat from Lady Rohanne – although she certainly had other motives – was cast as her needing to defend her honor, rather than as a response to an enforceable legal challenge. The militarily weak Ser Eustace was no threat to her, nor was he willing to bring in the authorities to address the burning of Wat’s Woods. It was absolutely a situation dictated by Lady Rohanne.

TOO LONG DIDN’T READ:

• Tyrion opted twice for trial by combat, because he was otherwise boned in court.
• Ser Glendon Ball (who?) was forced into a trial by combat to prove his innocence or else. (Torture was also a thing.)
• Lady Rohanne Webber (the LOVELY Red Widow) demanded a trial by combat when her neighbor was talking trash about her.

LET THE PUNISHMENT FIT THE CRIME

Trial by Combat is not always used specifically for determining guilt or innocence. In George RR Martin’s first Dunk and Egg novella, The Hedge Knight, Ser Duncan requests trial by combat against Prince Aerion Targaryen, who’s called for the amputation of a hand and a foot from Dunk. This punishment was in response to Dunk hitting and kicking the volatile prince while the knight defended a damsel in distress (from Aerion.)

There was no question of Dunk’s guilt. Witnesses saw Ser Duncan assault the prince. There was no need for a trial to establish Dunk’s guilt and therefore the gods were also not required to reveal Dunk as a culprit. In response to Dunk’s assault on the prince, custom had declared that royal persons are inviolable and there were harsh penalties for striking them.

“You have another choice, though,” Prince Baelor said quietly. “Whether it is a better choice or a worse one, I cannot say, but I remind you that any knight accused of a crime has the right to demand trial by combat. So I ask you once again, Ser Duncan the Tall—how good a knight are you? Truly?”
— The Hedge Knight

A knight enjoys the right to trial by combat when accused of a crime, but in this instance the combat was not strictly intended to establish his lack of guilt – Dunk is guilty of striking a royal – but his trial by battle demand served to challenge the appropriateness of the punishment. Dunk intervened with Prince Aerion who was unjustly attacking a commoner. The vows of a knight include defending the weak, so a case could be made that Dunk’s chivalry should be excusable.

There was a similar situation that led to a trial by combat in A Song of Ice and Fire, where the trial was less an appeal to the gods to determine if the accused was a criminal, and more an appeal to the gods to determine if a crime had occurred at all.

In A Storm of Swords, Sandor Clegane had been captured by the Brotherhood without Banners, who were engaging in guerrilla warfare against the Lannisters and opposing the Lannister extended chevauchee campaign in the Riverlands. Since Clegane had gone AWOL from the Lannister war effort, there turned out to be little financial benefit in keeping him alive as a hostage. So the Brotherhood considered putting him to death.

The Hound was accused of various warcrimes, against which Clegane successfully defended himself by pointing out that those were the actions of his brother, Ser Gregor. Things changed when Arya Stark accused the Hound of murdering Mycah the Butcher’s Boy, who’d been killed in response to injuries done to Prince Joffrey.

Harwin took her arm to draw her back as Lord Beric said, “The girl has named you a murderer. Do you deny killing this butcher’s boy, Mycah?”

The big man shrugged. “I was Joffrey’s sworn shield. The butcher’s boy attacked a prince of the blood.”

“That’s a lie!” Arya squirmed in Harwin’s grip. “It was me. I hit Joffrey and threw Lion’s Paw in the river. Mycah just ran away, like I told him.”

“Did you see the boy attack Prince Joffrey?” Lord Beric Dondarrion asked the Hound.

“I heard it from the royal lips. It’s not my place to question princes.” Clegane jerked his hands toward Arya. “This one’s own sister told the same tale when she stood before your precious Robert.”

“Sansa’s just a liar,” Arya said, furious at her sister all over again. “It wasn’t like she said. It wasn’t.”

Thoros drew Lord Beric aside. The two men stood talking in low whispers while Arya seethed. They have to kill him. I prayed for him to die, hundreds and hundreds of times.

Beric Dondarrion turned back to the Hound. “You stand accused of murder, but no one here knows the truth or falsehood of the charge, so it is not for us to judge you. Only the Lord of Light may do that now. I sentence you to trial by battle.”

The Hound frowned suspiciously, as if he did not trust his ears. “Are you a fool or a madman?”
— A Storm of Swords, Arya VI

The question being put before the gods or rather before R’hllor, was if Clegane was guilty of murder. It’s a known fact that Clegane killed Mycah, the Hound was not denying that he’d killed the unlucky butcher’s son.

The Hound’s defense of “I was just following orders” might not ring valid to us today, but it was a factor that Beric and Thoros seemed to consider in accordance with the accepted inequities in the feudal system that offer scant protections for commoners. With the facts of the case boiling down to a he-said-she-said situation, an appeal was made to R’hllor with Beric championing Arya’s accusation.

TOO LONG DIDN’T READ

• Trial by combat isn’t always to determine innocence or guilt – but to determine if a prosecuteable crime happened at all. In essence, it’s a risky appeal to avoid punishment
• Dunk was guilty of striking Prince Aerion, but he chose trial by combat to appeal the punishment. (Prince Aerion then escalated to a Trial by Seven – we don’t need to talk about that here though.)
• Sandor Clegane had killed Mycah the Butcher’s Boy. His involuntary trial by combat was to determine if the killing counted as murder – or was just the kind of wacky justifiable homicide Westerosi fighting men get away with.

THE MERITS OF WINNER-TAKE-ALL

When resources are in competition or agendas are at odds,  conflicts arise. Stable societies develop systems to resolve these conflicts before they escalate.

In an ideal situation, a matter in conflict is settled well. Parties are mostly in agreement and a recognizably just solution is executed. Rarely are things achievably ideal, so the next best thing to a matter settled well is a matter well settled. A solution gets enacted and the matter is likely not to be re-litigated. The matter is … settled.

Sometimes an arbitrarily determined resolution is acceptable to settle a dispute. Imagine that there are three apples and two people. Each person gets one apple and the extra is given out based on some random determination – a coin flip for example. (For sake of argument, these are magic apples that can’t be cut in half or otherwise shared.) Unless the stakes are higher than we would normally assume, the loser would likely accept their given apple and shrug away the loss of a second fruit.

It’s possible that the third magically-indivisible apple could have been distributed without relying on random selection, but unless it was immediately obvious who should get the excess, there’s a cost to examining multiple factors in trying to determine a theoretical most just determination.

When the stakes are higher (such as in life and death/crime and punishment) a coin flip wouldn’t seem legitimate. And legitimacy is important to achieve the reasonable goal of conflict resolution: settling the conflict. Coming to a solution that most can live with. (In some of these disputes, that most of the survivors can live with.)

Lord Varys, in his lecture/riddle to Tyrion on the nature of power, stated that “power resides where men believes it resides.” If enough people feel that trial by combat is a legitimate way to determine an outcome, then it meets the criteria of well-settling a dispute. Westeros is a feudal society, and regardless of the philosophical flaws of Might Makes Right, the concept that strength is a virtue permeates all levels of the society.

It’s what enabled the first Daemon Blackfyre to challenge Daeron Targaryen for the Iron Throne. He appeared to be the stronger king, and had he won his battles against the Targaryens, his right to the throne would have seemed legitimate through the blessings of battle.

Renly: You might have the stronger claim, but I have the bigger army.
Stannis: *grinds teeth*

A coin flip might assign the third apple easily enough, but if the two candidates wrestle for the extra apple, the winner has earned it.

We have evidence in the text that not only are the results of trial by combat accepted by society in general, they are often accepted by those who have reason to oppose those results.

After Tyrion’s champion Bronn defeated Ser Vardis, Tyrion was a free man. Even though Lysa Arryn was counting on framing the Imp for the death of her husband Jon Arryn. (Lysa was hoping to pin the murder charge on Tyrion so as to deflect any suspicions from the true criminals behind Lord Jon’s death: Lysa and her beloved Petyr Baelish.) Despite any wishes she might have to ignore Tyrion’s victory, she does not have the standing to oppose it. Lysa does punitively go on to endanger Tyrion and Bronn’s lives, by inhospitably sending them out of the Vale and into the lawless Mountains of the Moon, populated by the savage mountain clans and dangerous shadowcats.

The Brotherhood without Banners treated Sandor Clegane more charitably. They also had a vested interest in killing him: he was dangerous, was until recently an enemy Lannister man-at-arms, and he now had insights into where they were operating from. But despite the risks, they let him go (without putting him into a dangerous situation like Lysa did with Tyrion) because they respected the result of his battle with Lord Beric. In the end, this cost them a valuable asset in Arya Stark, whom Clegane later abducted for his own hostage-exchange plan.

This notion of “to the victor goes the spoils” and the accompanying legitimacy to a competed-for prize can be found outside of strictly legal issues.

In Catelyn Stark’s past, she was once betrothed to Brandon Stark, Ned Stark’s older brother. (Also known as Eddard, Clint. Don’t split hairs with me.) Petyr Baelish challenged Brandon Stark to a duel for Catelyn Tully’s hand in marriage. On the face of it (if we rudely conflate Catelyn Tully with a parcel of land) Baelish and Brandon dueling over Catelyn is not that much different than the duel ordered by King Joffrey between two knights who had come to court to petition a ruling on a land dispute.

I’ll admit that I am being rather reductive and there are differences – ones other than the fact that Catelyn is not acreage. Joffrey had no real interest in who ended up with the disputed land, but a dead knight would have no claim so a duel would serve to settle the matter (perhaps not well) and entertain the king as a bonus. But had Petyr Baelish killed Brandon Stark in a duel for Catelyn, Lord Hoster Tully had an overriding interest in choosing his daughter’s future husband. It’s unlikely that he would allow his daughter to marry a penurious minor noble and would have instead acted to maintain the alliance between himself and Rickard Stark by offering Catelyn’s hand to Ned.

Power resides where men believes it resides, and Lord Hoster’s well-recognized powers as a lord and father would trump the outcome of an unauthorized romance-fueled duel. But that feels like the exception that proves the rule. Otherwise, why would Baelish go mano y mano against the very dangerous Brandon Stark, unless he thought that his victory would be honored?

TOO LONG; DIDN’T READ

• A winner-take-all situation is easy to understand
• People in Westeros (usually) respect the outcome of trial by combat, and that adds legitimacy to the process

PROS AND CONS, SORT OF

Trial by Combat is not an ideal solution, but very little is ideal in Westeros when it comes to conflict resolution. Tyrion chose trial by combat as his best chance to survive Westerosi justice. His court trial in King’s Landing demonstrated terrible systemic injustices for the accused. (I strongly recommend reading up on the legal assessment of Tyrion’s trials on the Laws of Ice and Fire blog. It was a fascinating and accessible legal analysis, particularly for a non-lawyer like me.)

Even worse than Tyrion’s situation was the more typical experience faced by Ser Glendon Ball, who was accused of a crime and then tortured with the intention of providing a confession. Had Ball confessed, that might have settled the matter but certainly not well and certainly not with an air of legitimacy, since torture initiated from an accusation is equivalent to summary judgment and punishment, without any trial at all.

Trial by Combat, although providing an option to bad conventional trials and in some situations providing a means to appeal mandatory punishments, is unfortunately a practice that is vulnerable to being used to push agendas other than strictly settling legal questions.

When Lady Rohanne Webber demanded her honor be proven before the gods by insisting on trial by battle between Ser Duncan and her champion, Ser Lucas Inchfield, she was undoubtedly hoping that Ser Lucas would fall in battle and cease being an annoying suitor. Her plan worked, despite her being found guilty of the charge of arson. (Not that that was all that big a deal, since Ser Eustace was not pressing for damages, he ended up marrying Rohanne, and ended up dying not too long after.)

Ser Glendon Ball was compelled by the lesser Daemon Blackfyre into a trial by combat, not really because of any desire to seek justice, but to give the ambitious Daemon a symbolic victory in an attempt to lift his status with the lords who’d come to Butterwell’s traitor’s tourney. Daemon’s plan was overthrown when Ball overthrew him on the jousting field, so maybe the gods do make their desires known.

But trial by battle is not alone in being co-opted to serve ancillary interests. Lysa Arryn was quick to approve a courtroom trial that would be adjudicated by her bloodthirsty son, as a means to frame and execute Tyrion for the crime she’d committed.

Even the trial by battle called for by Lord Beric to judge Clegane’s deeds, was less about determining the judgment of R’hllor between murder and justifiable homicide, and more about being able to kill Sandor Clegane with a clean conscience.

With Clegane in their charge, the Brotherhood was in a bit of a pickle – they’d had no qualms about ambushing and killing Lannister troops – that was war, not murder. The Hound had been captured rather than killed out of hand because he might have been valuable as a hostage. When that proved to be false because of his disgraced deserter status, simply killing him became more complicated.

Lord Beric had made all of the Brotherhood knights, and before Beric’s final death and Lady Stoneheart’s terrifying influence on the group, there was an attempt to live by some chivalric code.

They were unwilling to put Sandor Clegane to death for crimes that they could not prove (to their satisfaction), nor were they willing to simply kill a prisoner with a legitimate process guiding them. A trial by battle where the absolutely-terrifying flaming-sword-wielding Beric would have an advantage seemed likely to solve their prisoner problem and keep their knightly honor intact.

The legitimacy of the justice process is important. Not only to respect the rights of the accused, but also to reassure society that the right thing is being done. But it’s also important to those who mete out the punishments. Some of them have conscience.

Bran had no answer for that. “King Robert has a headsman,” he said, uncertainly.

“He does,” his father admitted. “As did the Targaryen kings before him. Yet our way is the older way. The blood of the First Men still flows in the veins of the Starks, and we hold to the belief that the man who passes the sentence should swing the sword. If you would take a man’s life, you owe it to him to look into his eyes and hear his final words. And if you cannot bear to do that, then perhaps the man does not deserve to die.
— A Game of Thrones, Bran I

Trial by combat has flaws, but it harmonizes well with the martial brutal underpinnings of the feudal state. It’s respected as legitimate by the society, which isn’t as good as being truly just, but the legitimacy has some of the incidental benefits of a just system. If people believe justice is being done, that’s a good start. Power resides where men believes it resides, and perhaps justice does too. It’s when things become so obviously unjust, that the system breaks down.

If trial by combat is so keen (I am not saying it is keen, but just hang with me some more) then why isn’t it applicable up and down the social spectrum of the Seven Kingdoms? Why are only knights guaranteed the right? (And probably lords too, mostly.) Is it wrong to deny the smallfolk the right to demand trial by combat?

I honestly don’t think that the smallfolk would relish the expectation of taking on a trained man-at-arms for criminal offenses. If we think trial by combat is dumb (and I do, even if I feel it makes a sort of sense in the feudal framework) then expanding it to the population at large seems counter to the development of more reasonable and just methods to resolve legal conflicts.

Besides, a knight’s vows include defending the weak. So if a knight witnesses injustice, they are free to intercede on a peasant’s behalf. Or at least, they should intercede.

But knighthood, like trial by combat as an actual method of the gods intervening on behalf of justice, works better as a romantic concept than a practical system.

Don’t agree? Fight me.

TOO LONG; DIDN’T READ

• Fight me.

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(Comments are always welcome. Super welcome! But if you want to talk spoilery Game of Thrones talk with me (also welcome) I’d invite you to visit my Safe Spoilers page on my backup blog. That way my non-book-reading friends won’t be shocked with foreknowledge.)

Images from HBO’s Game of Thrones (obviously.)

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