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Friday, September 19, 2014

Leeson on Trial by Combat and the Coase Theorem

I have been researching trial by combat for a project I hope to undertake in the near future. In the process I read Peter Leeson's article, Trial by Battle (3 J. Legal Analysis 341 (2011)). It is one of the most fascinating things I have read in some time, and the first three paragraphs of the introduction give a good summary of Leeson's argument:

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 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.

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. (citations omitted).
I previously blogged about trial by combat here. Leeson's article recounts the practice in detail and his approach to the practice from an economic perspective makes Trial by Battle the most interesting article I have read since R.S. Radford's, Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel (62 S. Cal. L. Rev. 615 (1989)).

In case you were wondering, Radford's article is also related to my current project. I will hopefully have more on that later.

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