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Trial by Battle

Trial by Battle

By Peter T. Leeson

Journal of Legal Analysis, Vol.3:1 (2011)

trial by battle - Depiction of a judicial combat in the Dresden codex of the Sachsenspiegel (early to mid-14th century

Abstract: For over a century England’s judicial system decided land disputes by ordering disputants’ legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle’s “auctions” permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction.

Modern legal battles are antagonistic and acrimonious. But they aren’t literally battles. Disputants don’t resolve conflicts with quarterstaffs. Their lawyers don’t fight to the death. This wasn’t always so. For more than a century England’s judicial system decided land disputes by ordering disputants’ legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle.

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To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it “monstrous”. The institution’s barbarity seems equaled only by its senselessness. As Richard Posner put it, “trial by battle” is one of those “legal practices that no one defends any more”.

Almost no one. This paper defends trial by battle. It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179. I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efficiently.

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Click here to read this article from Peter Leeson’s website

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