Dojo Darelir, the School of Xenograg the Sorcerer

Trial by Combat Was a Legal Privilege

November 28, 2021

Trial by combat was…a legal privilege, the privilege of oathworthy persons to refuse to submit to the ordinary process in a court. The duel over the point of honor was fundamentally different….

The two forms of noble combat certainly did bear some resemblances…. Trial by combat rested on two assumptions…: high-status persons were persons whose word had to be accepted as true, and they had the privilege of settling their disputes through violence. Dueling rested on the same two assumptions, at least to some extent. The starting point for a duel might well be some form of the insult “you lie.” Just as the honorable truthfulness of an oathworthy person was theoretically proved by victory in trial by combat, the honorable truthfulness of the challenger could be proved by a duel. In that sense the purpose of dueling, in its early history, was close to the purpose of trial by combat.

Yet at their core the two institutions were deeply different. Dueling, unlike trial by combat, was not a proof procedure, and it did not symbolize the lawful nonservile privilege of settling one’s disputes without going to court. Trial by combat was an alternative to ordinary trial, used by privileged oathworthy persons to resolve a legal question.… Dueling, by contrast, was purely a contest over the honorability of the duelists…, and apart from the possible criminal liability of the participants, it had no legal consequences whatsoever.

James Q. Whitman, The Verdict of Battle, pp. 150-51