This article is written by Bhavya, student of NALSAR University of Law, Hyderabad. This article is an analysis and exploration of themes and legal methods that persisted during the early-medieval phases of legal development.
Table of Contents
Introduction & methodology
Following the conquest of England by the Normans, led by Duke William of Normandy, England and Wales have witnessed the adoption of Common Law that is more prevalently known as the ‘English Law System’. The common law regime in Europe is directly attributed to the Norman Legacy and is often regarded as ‘the law of precedents’. The birth of common law right from the time ‘feudal hierarchy’ was entrenched within the legal blanket of England by William saw the incline in the jurisdiction of the king which later on formalized the judicial process in England.
The early common law that was ‘common’ to all the English King’s Courts started to adopt a ‘precedential character’ during the 12th and 13th centuries. This was followed by the formalisation of legal structures- formation of ‘Curia Regis’ (King’s trusted advisors), appointment of ‘justiciars’ by the king and establishment of a real apparatus of the government.3 The legal system was made rigid further when ‘the writ system’ was introduced and a new writ could only be introduced after the express authorization of the ‘King’s Council’, as was promised under the ‘Oxford Provisions’ of 1258. Clinging with ‘procedures’ is one of the most significant outcomes of this development that became a feature of the common law. These procedures gave rise to the culture of finding ‘forms of action’ in English Courts to adjust cases within the pre-existing pigeon holes of the existing writs, which still form an integral part of the legal heritage of ‘English Law’.
Despite the temporal establishment of such a robust system in England during this time, in which even the hoi polloi could assure for them the ‘king’s justice’, the common law couldn’t remain free of speckles and developed multiple systemic insufficiencies. Lack of local knowledge on part of the king and his subordinates proved to be one such example.
Aims and Objectives:
This article tries to identify and describe those practices and tribulations that were employed to deliver justice when the courts attempted to circumvent the problem of dearth of local awareness, to decide trials by the usage of ‘divine intervention’, of how and what techniques did they attempt to or actually put into force, to separate the ‘guilty’ from the ‘innocent’.
The topic of early trials in this article has been narrowed down to explain in detail how the trial procedures were undertaken during the development of common law in England and how literature and ideas of jurisprudence that revolve around the ensuing medieval themes try to highlight these procedures and their validity.
For this purpose, the research revolves around three major ways in which trials were conducted during this period- ‘trial by ordeal’ (and its exploration in case of India), trial by battle and wager of law. These topics have been further analysed and elaborated by bringing into picture the inspiration and consequences of such trials as laid down by George R.R. Martin in his novel series ‘A Song Of Ice & Fire’. Michel Foucault’s view of ‘punishment’ and its evolution is also explained to evaluate the rationale behind these practices and their effect upon future events.
Theoretical approaches and views of several authors in regard with the feasibility and success of these practices have also been regarded in the article.
Early trial procedures in English-Welsh regimes
The case of England:
When the king and council found it nearly unviable to decide cases and during instances when open processions took over formal proceedings, England observed ‘divine intervention’ and the ‘concepts of religious justice’ to come into play. ‘Trial by Ordeal’ that surfaced had its roots entrenched within one belief- “the god would punish the wrongdoer”.
The Frankish Traditions of ordeal, as enshrined within the first recension of the venerated ‘Salic Law’ (510) had a huge impact on English traditions. The initial loci of ‘ordeal by cauldron’ in Britain befalls in Irish law (7th Century). Frankish Law is also the likely foundation of trials by water and fire among the Anglo-Saxons and well along, the Normans of England. Trial by cauldron was used against both freedmen and slaves for cases of false witness, theft and contempt of court. Here, the accused was asked to pluck a stone from the base of a cauldron that had in it, sweltering hot water.
The trials were also different in terms of their intensity and procedures and were premised upon the ‘reputation and status’ of a person in his/her community as distinguished by the law of Canute. Trustworthy people of society, for example, were subjected to a verbal oath. On the other hand, miscreant bourgeoise (as they were called) and untrustworthy citizens had to face the harsh judgment of the ordeal.
The applicability, however, of these trials in England was strictly restricted to ‘criminal cases’ as against civil offences which dates back to the year 1166.
Before the trial by ordeal, ‘compurgation’ was the most widely accepted practice that was based on oral statements and testimony of the witnesses. Ordeal was used as a practice where the accused was under the presumption of being already guilty or in cases where he failed to pass the ‘oath’ stage. This distinction was made between those who were suspected fama publica, by public outcry and those who were accused on the root of explicit facts.
It was also pronounced in The Assize of Clarendon that each one of those said by a jury of presentment to be “denounced or famously suspect” of robbery, theft, or murder or of getting any individual who had submitted quite a wrong testimony were to be put to the difficulty of water. These juries of presentment settled on the transitional choice of whether a blamed individual would confront the last judgment of the ordeal. These bodies delivered ‘verdicts’ of either suspected or not suspected. When the accused was blamed for at least one explicit reality, the litigant was shipped off the trial upon the verdict of jury alone.
The case of Wales:
“Medieval methods of trials and tribulations are often observed as irrational. The dissimilarity between those procedures and our modern procedures is that the former is objective while the latter are subjective. It has been therefore apposite to say that in the medieval setting, “we have not to speak of trial, we have to speak of proof”.
The distress of the ordeal and the seeming injustice of battle excuse the denunciation of proof for England but Wales recognized neither ordeal nor battle. There is, in fact, no Welsh word for ordeal. ‘Ornest’, found in some late writings for ‘trial by battle’ is a borrowing clearly demonstrated in the fourteenth century.”
The most significant element in Welsh law is the ‘oath’. These oaths were of several kinds: the plaintiffs’ oaths in assertion of their claims or their repudiations of claims made against them and the oaths of testifiers.
“One may be forced to think that ‘oath’ would be a perfect mechanism as compared to the ‘supernatural intervention’ in the trial by ordeal and battle approaches in England that time. But the truth lies in the history of common Welsh law much disparate and table-turning.
The exhibition of oaths in evidence as well as compurgation is so prevaricated by special conditions with the noticeable intent of making it as probable as conceivable that the truth would appear, that rare swearers may have succeeded in misleading the court.
“The concentration of justice at Westminster did much to debase the wager of law by giving employment for a race of professional swearers. In the village courts, on the other hand, it would not be easy for a man of bad repute to produce helpers: his neighbours would be afraid or ashamed to back his negations”.
Therefore, for Wales, there was no chief concentration of justice. Procedural awareness re-counts the cogency of oaths and to the factor, the support required for their admission.”
Trial by ordeal in early & medieval Europe
The etymology of the word ‘ordeal’ itself lies in German ‘Urteil’, which later coincided with Dutch ‘ordeel’ and has the original meaning – verdict/judgment. Trial by ordeal traces its origin back to Code of Ur-Nammu (which is the oldest surviving law code in the world). The practice also finds an echo on the inscriptions of Babylonian ‘Code of Hammurabi’.
Trial by Fire:
The ordeal by fire was a painful affair. The accused was expected to walk a certain distance on scalding hot pieces of iron or were forced to hold in hand, red hot pieces of iron to determine guilt or innocence. If the accused showed signs of recovery within few days, or in some cases, didn’t suffer any burns, innocence was maintained. On the other hand, unhealing of burns was a sign of being guilty and that the almighty wasn’t favouring the wrongdoer.
Trial by fire has Norman Roots for the very reason that Emma of Normandy was the first woman to undergo ordeal of fire. On being accused of committing adultery with the Bishop of Winchester, she was made to walk barefoot on a sheet of laid red, hot iron which she survived unharmed and was thus, declared innocent.
Legend in India
The concept of ‘Agnipareeksha’ was a measure to estimate innocence of a person in Ancient India. The concept here was again the same- the holy pyre on which the person had to sit had fire all around. Lord Agni, or the holy fire was believed to save the innocent and injure the guilty.
Holika, the sister of King Hiranyakashipu is believed to have died in the pyre for having the ‘guilty intent’ of committing ‘nepoticide’.
In the Ramayana, Sita proved her purity by facing a fire ordeal, as perceived in a fresco feature at the Emerald Buddha Temple. She stood tranquilly with blazes burning around her. After being parted from Sita for fourteen years during her detention by Ravana, Lord Rama is hesitant of his spouse’s fidelity.
To demonstrate that she has been loyal to her husband Sita willingly undergoes a trial by fire. It is also said that lotus floras budded beneath Sita’s feet to shield her from the fire and not even a flower petal of her hair got worn by the fire because the gods aware of her purity and chastity guarded her completely.
Trial by Water:
Mentioned in the Salic Law of 16th century, the accused was asked to dip his hand in pot or kettle of boiling water. For proving innocence, the accused had to retrieve a stone, that rested at the bottom of the utensil. Assessment of injury proved innocence or guilt.
The ordeal of cold water takes a pattern in the Code of Hammurabi and the Code of Ur-Nammu under which a person accused of sorcery was kept underwater in a brook and acquitted if he lasted. The practice is also present in the Frankish law. It was eliminated by Louis in 829.
Ordeal of water, at times, was also connected with witch-hunts. The accused was plunged into a pool of water. Floating indicated that the person was involved in witchcraft while sinking denoted ‘acceptance by water’ and hence, innocence.
Apart from classical methods of fire and water, other hazardous techniques were employed. Trial by cross involved the standing of the accuser and the accused on either side of a cross. The one to lower down spread hands was deemed guilty. It was in 876 that the practice was abolished after Lothar 1 passed a decree to avoid mockery of Lord Jesus Christ through this practice.
In other instances, ‘ingestion’ was used as a method of trial. A dry bread coupled with cheese, was offered to the accused and if he choked on ingesting the same, ways were deemed to be paved for punishment.
A woman accused of adultery (called a Sotah later) was made to sip “the bitter water that causeth the curse” in order to govern her guiltiness.
The sign of guilt was visible if “her belly shall swell and her thigh shall rot”. Sadakat Kadri recently contended that the process has a rational base foreseeing penalty only upon clear proof of gestation or venereal infection (a decaying thigh) unless the woman had been impregnated by her own husband.
Trial by poison was another deadly way to decide guilt. In Nigeria, for instance, the toxic Calabar Beans were to be eaten by the accused. If the accused vomited the beans after consumption, he was deemed innocent but if he didn’t, and died with it, he was deemed guilty.
Similarly, in Madagascar, Inhabitants could indict one another of numerous misconducts including theft, following Christianity and witchcraft. The ‘ordeal of tangena’ was mandatorily used here. In the 1820s, for instance, consumption of the fatal tangena nut caused about a thousand deaths per year. This average figure inclined to around three thousand between 1828 and 1861. The ‘penalty of peach’ in Europe was also employed to determine guilt with the use of pits that had in themselves, poisonous amygdalin.
Trial by ordeal finally came to an end in the year 1215, when the English Church forbade priest-participation in the process.
Trial by battle (combat)
Trial by battle or Trial by Combat or Wager of Battle, as it was called in England and Wales, was used in non-criminal cases. The principle of divinity and intervention of supernatural forces still persisted here- that the almighty wouldn’t allow a wrongdoer to emerge triumphant in a war between the concerned parties.
Demand for a ‘trial by combat’ became much famous throughout the medieval years. Trial by battle, in fact, had its legacy back in the Norman Conquest of England which was further validated by superstitious communities of early-medieval England.
The process involved a fight between the contesting parties who could even employ champions for the fights. Not in appeal of murder, but trial by battle was employed in cases where severe acts had taken place in furtherance of a future crime, like, escape from a prison or a criminal conspiracy. If the defendant was defeated and still remained, he was hanged till death on site. However, if the plaintiff was defeated by the defendant, or was able to defend himself from the defendant from sunrise till sunset, he was acquitted. In case, the losing party yielded and cried ‘craven’ (which means, ‘I am vanquished’), he was deprived of all perks of being a freeman, was declared infamous openly and also had to pay damages to the triumphant person or party.
Trial by battle was not free of discrimination, however. The citizens of the city of London, the priestly classes and peers of the realm had certain immunity and could deny an offer of ‘trial by battle’.
The trial of battle was never formally abolished, even though it became quite obsolete and outdated by the end of thirteenth century. In Scotland and Wales, however, it continued till the sixteenth century.
Ashford v. Thornton Case
It was in 1819, in the case of Ashford v. Thornton that one of the parties demanded trial by battle much surprisingly in position of the court process. In this celebrated case, Thornton had to be set free by the court as no legislation was in place that abolished ‘trial by battle’ by then and Ashford had refused to participate in the trial by combat being a person without any immunity or privilege of refusal.
Following this case, Lord Eldon who was the Lord Chancellor then, had to introduce a bill that abolished trial by battle and private appeals that followed acquittals in June 1819.
Trial by battle originally emanated from ‘Germanic law’ and was prevalent among the Burgundians, the Swedes, the Lombards and the Alamans. Otto the great had sanctioned the Germanic tribal practice in the holy Roman Empire in 967. Throughout the middle ages and in the sixteenth century, Trial by Combat persisted in Great Britain and Ireland.
Wager of Law
Proof was not same as what we now know as proof but rather a plea to the supernatural through battle, ordeal, or what was called wager of law (compurgation) which meant “swearing to the truth of one’s claim” and bringing sufficient ‘oath-helpers’ who testify that the oath taken by a person was clean and authentic.
A group of around twelve people had to be produced before the court in order to affirm that the person who was ‘trustworthy’ in the sense of the oath he was taking, was confirmed to be true to his word. At times, written records fell less credible in front of compurgation by a group of men.
Wager of law has its root not only in the English Law, but it originated as a ‘German Law’ and further developed in French Law, Welsh Law as well as the Roman Law.
Following Magna Carta, from 1215 to 1297, the wager of law was replaced by the ‘jury’. They were a specialised class of local persons who determined facts and managed legal procedures but it is also essential to note that the concept of ‘impartial jury’ is a new creation. In early days, the jurors acted upon their prior knowledge and assumptions of truth and were not free from biases.
In Islamic Jurisprudence, the concept of compurgation and wager of law also finds consonance. Called ‘qasama’ in the customary law of pre-Islamic Arabia, compurgation became a part of early Islamic jurisprudence.
If the body of a murdered person was found on occupied lands or any village, around fifty people were asked to proclaim an ‘oath’ so as to affirm that neither did they or any one among them caused the death of the dead person nor did any one of them know the cause of his or her death.
This process freed people from any sort of criminal liability after they had paid blood money to the decedent or the king.
Peter Leeson on Trial by Ordeal
Peter Leeson, the professor of Economics and Law at George Mason University justified the ordeal process as the right rig that sifted right and the wrong with both the involvement of the ecclesiastical intervention (supernatural divinity) and the judicial courts.
He goes on to maintain that trial by ordeal was a painful process and the courts didn’t sanction them. Instead, it was the person or the party that ‘demanded it’. Even though, the person may not have faith in the divine or the ‘god’s justice’, the ordeal was a treacherous affair and those who were actually innocent and had much belief in divine intervention, were mostly probable to demand its support.
In his celebrated article, ‘Justice, Medieval Style’, Leeson says:
“Modern observers have roundly condemned ordeals for being cruel and arbitrary. Ordeals seem to reflect everything that was wrong with the Dark Ages. They’re an icon of medieval barbarism and backwardness. But a closer look suggests something very different: The ordeal system worked surprisingly well. It accurately determined who was guilty and who was innocent, sorting genuine criminals from those who had been wrongly accused. Stranger still, the ordeal system suggests that pervasive superstition can be good for society. Medieval legal systems leveraged citizens’ superstitious beliefs through ordeals, making it possible to secure criminal justice where it would have otherwise been impossible to do so. Some superstitions, at least, may evolve and persist for a good reason: They help us accomplish goals we couldn’t otherwise accomplish, or accomplish them more cheaply.”
Leeson, therefore, has a belief, that the judgment of God (known as Iudicium Dei) was a feasible ‘way-out’ then. Gods were not something challenged like the way they are done today. They were extensively believed in. It was this belief, literally, the fear of the God that had allowed the ordeals to function efficiently.
Peter Brown and the diminishing ordeals
Peter Brown, in his work, ‘Society and the Supernatural: A Medieval Change’ has drawn out the reason that the growing authority and procedural rule of the sovereign that expanded and formalised into legal structures was the reason behind the abandonment of the ordeal process.
He attributes the existence and perpetuity of the ordeal process to the kind of societal consensus it created in the highly feudal English and other European societies at that time. The ‘sacred’, he says, for these people, infiltrated into the chinks of irreverent and gave a medium to people to live peacefully. The system assured that without the existence of a ‘central penalising authority’, god’s justice was the most acceptable, pragmatic and the only legible way out.
As institutions developed and central authority formalised, these ordeal practices started diminishing. The science and industrialisation dawned upon the ‘barbaric’ sentiments of people that were so inextricably intertwined in their belief that they had to abandon these practices and reforms followed.
Philosophies of George R.R. Martin & Michel Foucault
It has been rightly said by Judge Richard Posner about the role of literature in law: “What literary texts that have law for a theme can do for legal teaching and scholarship is to illuminate issues of jurisprudence or legal process.”
Picking the oath also achieves Richard Posner’s other aim: “Other aspects of law and literature, such as interpretation, the use of literary techniques in legal writing, the claimed humanizing effect of literature on law, and the regulation of literature by law, are worth teaching, of course. But they are best taught by giving students brief excerpts from literary works and from such legal texts as statutes, judicial opinions, legal essays (including oppositional narratives), and constitutions, to read and discuss.”
George R.R. Martin, in his highly acclaimed novel series ‘A Song of Ice and Fire’ and its adaptation ‘Game of Thrones’, has taken inspiration from a variety of medieval histories that governed the societal, legal and judicial order of England and Europe throughout the Norman Conquest and years beyond. In pursuance of his commitment to the series, Martin employs the concept of ‘God’s Justice’ and ‘Early Methods of Trials’ and how exactly, the realities unfolded in pursuance of these practices. We, therefore, in this section, look forward to explain his philosophies with regard to our very own issue of early jurisprudence.
Tyrion, one of the greatest characters of the series is alleged to have committed ‘regicide’ by murdering King Joffrey by the royal men including his own father, Tywin Lannister and his sister (the mother of Joffrey), Cersei Lannister.
During his trial, representative of the early English Courts that were set up locally, the right to a fair trial, right to a counsel as well as due process of law are absent. The judges of the case blatantly violate the principles of natural justice- Tywin Lannister, the father of Tyrion and the grandfather of Joffrey is himself the judge. This is reminiscent of the system of ‘Impartial Jury’ that persisted in Early Europe, as we have discussed before.
In the Kingdom of Vale, Tyrion is charged with the attempt to murder Catelyn Stark’s youngest son. The judge, or the king, like the one who ruled and delivered justice in Norman English Courts, is in this case, not a reasonable, mature, prudent person. Instead, he is a small boy of eleven years who wants to incriminate Tyrion so that he can see the ‘small man being punished and thrown out from the moon door, down from the mountains’. This brings out another issue with trials that occurred in Europe at times- “the law is determined by whoever is king, or whoever he deems stand in his place. That individual’s word is the law. He can determine verdicts at his pleasure.”
Also, their replies to criminal mistrusts were common to those in medieval periods.
‘Oath-breaker’ is a widely used term for those who break it and ‘death’ is the punishment of breaking oaths. Smugglers and Robbers are flogged and, in some cases, they lose their hands. Castration is the punishment for rapes. Flaying is forbidden, but Boltons still use them as punishments. All these ordeals find an echo in the regional usage of ‘retributive justice’ in early Europe and Arabia.
Will of the God
Melisandre, the priestess of Asshai, is like a Zoroastrian. She worships fire and ‘trial by fire’ is her mechanism to determine guilt. The Lord of The Light, like regional communities of England, as we discussed above, is the sole jury for her- the one who decides guilt.
“During a trial by lord, evidence must be brought forward, and witnesses must testify. Cross-examination is even allowed. The trial will often start with a prayer from a Septon asking the Father (one of the Seven) to guide them towards justice, and that Septon will make witnesses swear an oath of honesty before testifying. In earlier times, the High Septons would appoint seven judges to try a case — and if a woman is accused, three of those judges might be women.”
Trial by Combat
Trial by Combat is one of the most epic moments in Martin’s world of Essos and Westeros where he employs the use of ‘trial by battle’, the one that was performed throughout medieval centuries of England during the establishment of English Law.
Just like Great Britain and Ireland, Trial by Combat is a right of the accused in Martin’s world. It is the last resort to save life if one has might by his side. It is the only refuge to evade tyrant and unjust judge-turned-kings. But Martin also presents the ugly side of the picture. Poor Tyrion is unable to employ for himself a powerful champion every time. In such moments, fortune is his only penny.
Cersei, the queen of Westeros employs ‘The Mountain’, the mightiest person in the seven kingdoms by her side and with his might, even the skilled Oberyn Martell, fighting for Tyrion, is defeated. Trial by Combat, in that sense promises a temporary, on-chance justice. Yet, the odds are highly unfavourable even for those who are ‘just and innocent’. In this regard, ‘Might is Right’ is a serious blow to the concept of Justice, which the people of Westeros have to experience just like the masses who had to face such trials in Early Real England.
“There is no glory in punishing” ― Michel Foucault in ‘Discipline and Punish: The Birth of the Prison’
All the trial methods we talked about and all the procedures that happened in early Europe have one objective in common- punishment and penalisation of the wrongdoer. Taking a divergent shift from the perspective, Foucault, a French philosopher, attempted to explain what actually constitutes ‘discipline’ and the cause and validity of what we call ‘punishment’.
Ordeals and Punishments were transformed into the ‘civilisational prisons’. But were they really humanitarian? This is the question Foucault asks. It was the time when trial procedures underwent serious reformation, Western penal systems started developing and codification of laws as a function blossomed, which Foucault tries to analyse by commenting on the theoretical and social mechanisms, that stayed behind these changes in the penal systems.
Foucault explains these questions in light of the human’s appeal to ascendancy. The trial by ordeal system might be prima facie, irrational, but it was collectively decided by the ‘society’.
Foucault explains why, the factual craving for every question eliminated divinity and how, ‘the humanitarian reformists’ developed a system where ‘reason and rationality’ became subjective.”
Appraisal, analysis & exploration
The relevance of this research paper lies in the roots of history of common law and what were the factors that led to the creation of more complex and more organised system of English Law – of what we not only see in England today, but all those countries that have inherited the system, in whole, or in part.
The first section of the paper shows the differences between trials and perception of communities within the same British Isles- while England felt that ‘divine intervention’ could lead to untangle the conflict between parties, Wales focussed upon the ‘moral obligation’ of the oath system and how, neither of the systems were not free of problems.
The divine intervention in England turned out to be very subjective. Justice is true sense, was limited to the mercy of Gods and dictates of forces that were employed in such trials. Guilty or not, a hot iron would burn the skin of a person if held for a long time.
We also saw how the oath system yielded before human diplomacies and emotions. How life and liberty in Wales, even rescinded the need for morality and justification. The oath breaking process, in humans, developed so cunningly that ‘professionalism of oath breaking’ dawned upon Welsh Courts.
The paper not only speaks about trials, but also invokes the larger legal questions of issues like feminism that persist even in a seemingly equal and just society. In Indian Context, for example, the invocation of Agni Pareeksha for Sita and no such mechanism for estimating loyalty of the husband, corresponds much to the issue of how ‘females’ were objectified even in legends and had to bear the brunt of proving infidelity through these trial processes. This throws light upon the other feature of trials- they have emotional and societal humiliation attached to them, formalisation of court procedures for the purpose of which gained supreme importance in the years to come.
Physical suffering along with mental trauma even before judgment to decide a ‘trial’ was unjustly associated with the ‘Trial by Ordeal’ and the question of guilt, to be decided with physical pain and in some instances, direct death of a person within the trial process seriously discouraged the value of human life in early years. This again, helps us to understand, how there is a need for ‘rights of the accused’ to embrace veneration before and after, one is accused of some wrong. Articles 21-22 of the Indian Constitution speak about the rights of the accused in India.
In pursuance of exploring dimensions, one must also keep in mind the other perspective- Can Trial by Ordeal be an effective test of guilt?
Authors like Peter T. Leeson, as we read, explain that trial by ordeal was a process that was used in exceptional circumstances for atonement of the wrong and had a moral policing feature. People then were divine, and this path would be suitable to draw out truth- as even the true guilty person, in his mind, would be afraid of the ‘God’s Justice’ and this led to the effectiveness and speedy delivery of justice.
After all, according to Peter brown, trial by ordeal was a practice that was established by local communities consensus ad idem.
The paper also highlights the instances where ‘trial by combat’ proved to be one of injustice. It was privileged for the citizens of certain classes and cities and thus defeated the ‘levelling purpose of law’. But, as the realities brought out in the inspiration of Martin, it may be probable that it provided a mechanism to people to avail the only hope of acquittal given that the local justiciars were at times biased and corrupt. Escaping tyranny and incrimination in that regard would be a perk that this practice ‘might have provided’ to the people.
Issues like this allude to and consolidated the principles of natural justice followed by a majority of courts in the present-day world- why every party has a right to be heard and how bias should be restricted so that no on is the judge in his own or his nears’ case.
Compurgation is one of the successful practices of this period which has remnants in courtrooms till date. Testimony and Witnesses play a quintessential role in decisions of court today. The system of knowledgeable ‘local jury’ and fact finders heralded the system that promised confirmation of no-guilt and actual presence of people, if any, on crime scenes.
As highlighted in the golden words of Judge Posner, literary texts that are inspired from hitherto realities have a major role to play in understanding the societal order and to view the procedures in the shoes of people that persisted that time.
George R.R. Martin’s elements of trial procedures and law serves two purposes:
First, it helps us to gain clarity on how, trial affairs might have occurred that time in a visual sense and the reactions that people involved in such procedures might have had, on facing such trials.
Secondly, Martin’s Westeros, reminiscent of medieval Europe also makes us value the importance of the civil liberties we had- of what significance, do accepted and codified or at least recognised right hold for people; how law is one of the ways out from selfishness, lawlessness and anarchy.
Human follies and the will to enslave others with knowledge and subjecting criminals to prisons is for Foucault, even more evil than punishing them openly. Foucault’s views in that regard, help us to evaluate the contemporary theories of jurisprudence- is retributive justice the promising way? Or is it that the ‘reformation of a captive’ should assume supreme importance? Or is there a midway between the both.
All in all, it is in regard with such analytical questions and explorations, that true answers and the need for a ‘civil, equal and reasoned society’ can be found because when ‘we ask’ and ‘get into the skin’ of an issue, only do we get to know, for the least, to some extent, what is the right way to deal with humans. How and why, society in legal sense should flourish the way it is.
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- “See, e.g., the special issue edited by Melissa de Zwart and Jason Bosland: Law and Law Breaking in Game of Thrones, MEDIA & ARTS L. REV. (2015). A nice illustration of the legally relevant aspects can be found at https://abovethelaw.com/tag/game-of-thrones/. For a quick overview of the laws of Westeros, see Rules of the Game of Thrones – What are the laws of Westeros?, UNLOCK THE LAW (June 18, 2015), https://www.unlockthelaw.co.uk/News/rules-of-the-game-of-thrones-what-are-the-laws-of-westeros/22862938.html. For a description of the justice system: Jennifer Vineyard, How Does the Justice System Work in Game of Thrones?, VULTURE, May 11, 2014, http://www.vulture.com/2014/05/explainer-the-game-of-thrones-justice-system-tyrion-trial.html.”
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