Trial by Battle, Trial by Argument

44 Pages Posted: 18 Oct 2002

See all articles by Edward L. Rubin

Edward L. Rubin

Vanderbilt University - Law School; Vanderbilt University - Department of Political Science

Date Written: May 1, 2002

Abstract

When we, the inhabitants of the United States, want to resolve a legal dispute, we have a trial. Each party to the dispute hires a trained professional who presents arguments in favor of his principal's claim to a neutral judge or jury. The judge or jury is then required to reach a decision based on the arguments presented and the prevailing legal rules. This article attempts to obtain some perspective on trials by comparing them to their immediate predecessor, that is, the way legal disputes were resolved before trials, as we know them, came into existence. During the Middle Ages people also resolved legal disputes by what they called a trial, but it was trial by battle, an armed conflict between two opponents. Juxtaposing these two practices illuminates several serious problems with contemporary trials: their inherent inaccuracy, their reliance on professional champions to represent the parties, and their conscious antiquarianism. These features of contemporary trials have produced an excessively litigious society, led to the under-enforcement of social policy, and discouraged the development of alternative methods of resolving disputes. If we stand back from our own practice, and ask whether it is truly achieving its stated purposes, we may be able to achieve what people in the Middle Ages did when they dispensed with trial by battle and developed the mode of trial that we inherited from them. That is, we may be able to devise a distinctly new mode of resolving legal disputes that is appropriate to our own society, and that functions effectively for the next several hundred years.

Keywords: Legal Rights, Legal Theory, Litigation, Legal History

JEL Classification: K4

Suggested Citation

Rubin, Edward L., Trial by Battle, Trial by Argument (May 1, 2002). Available at SSRN: https://ssrn.com/abstract=328642 or http://dx.doi.org/10.2139/ssrn.328642

Edward L. Rubin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

Vanderbilt University - Department of Political Science ( email )

VU Station B #351817
Nashville, TN 37235-1817
United States

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