Law, Economics, and Superstition Part 2: "Trial by Battle"

Several months ago I posted on the first paper in a 3-part series I'm writing that investigates the "law and economics of superstition."  That paper was "Ordeals."

I've recently completed a preliminary draft of the second paper in that series: "Trial by Battle."

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.

Enjoy.

The third (and final?) paper in this series is "Gypsies." As some of you will know from having spoken to me or heard me talk about in class since I moved to GMU, I've been working on this paper for nearly two years. I hope to make it available soon.

Comments

[Doc Merlin]

Another possibility:
Also, ultimately violence and ability to use force collectively determines land use. This just codifies that into law.

[FC]

I agree. If a landowner has responsibilities for internal security and external defense the regime would want to vest real property in those who could obtain the loyalty of the best warriors.

[TGGP]

A little while back I read a feminist legal argument for unincorporating the "confrontation clause", which goes into how the old trial by battle evolved to our more modern system:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553455

[Donald A, Coffin]

What a nice piece of work. This clearly sets out a model of the behavior in question and makes a series of testable predictions about it. And demonstrates that those predictions are, in general, accurate. Note that this model actually is flexible enough to incorporate Doc Merlin's and FC's points.

[Roger Koppl]

Another nice one, Peter. Congratulations for that. Randomizing reduces rent seeking. Nice. I'm a big believer in randomization, as is your great colleague David Levy. Has he given you comments? I don't recall now whether you made the point that the existing tenant will generally have more precise knowledge of the value of the tenancy. Thus, the system favors incumbents, which was probably efficient. Have I got that bit right? Hm . . . this system could be compared to the market for corporate control couldn't it? If you are not a good manager of your land and tenants and if I know it, then I can hire an expensive champion and grab the money you've been leaving on the table. Talk about hostile take over!

Wouldn't the champions be involved in repeat dealings? If so, wouldn't that give you a repeated prisoner's dilemma ? In the extreme it would be like professional wrestling -- all show. But because better champions get higher wages, there is a counter-incentive to keep it honest. Presumably, the equilibrium has everyone trying pretty hard, but no one daring to really damage other champions lest they be womped pretty hard themselves next time out.

This is serious stuff, but lots of fun too.

[Ariella Elema]

I think you've got a valuable point in here, but I don't think the historical evidence in this paper supports it.

Why go only to 1179? The bulk of the records for writ of right duels comes from after this date. In the appendices of his unpublished dissertation, M.J. Russell lists all the records of writ of right battles in order of the year that they happened. The sharp drop-off in the number of duels occurs around 1230 or 1231. The question is: what happened at that time?

Also, we can't ignore the problem that there's very little evidence of twelfth-century champions being hired for money or other remuneration. In the 1959 article, all the examples of professional fighters that Russell mentions come from after 1179, and all but a handful are from the first decades of the thirteenth century. The only exception is the king's champion, and that job is described in later documents as an hereditary office.

We can't even really be sure how common it was to keep a champion on retainer. Outside of the royal court, the earliest surviving accounting book for a secular household comes from the middle of the thirteenth century. If everyone had a champion on call, we would never know. Given that the majority of litigants involved in writs of right were just prosperous peasants, it does seem unlikely, but that brings up another problem. In a world where even prosperous peasants weren't living much above subsistence levels, and even lords were perpetually short of cash, I'm not sure that the liquidity issue can be dismissed quite as easily as note 18 would have us believe.

There are more anachronisms, but these are less important to the argument. (There were no specially-constructed lists or viewing stands in the twelfth century and a baculus cornutus can't really be described as a quarterstaff, among other things.)

It's a fun discussion, though. Let me know if it gets published!

Ariella Elema
(who's working on a dissertation about trial by battle)

[topills.com review]

Government-back-stopped investment banks behaving like hedge funds on the taxpayer dime have given capitalism a pretty bad rep lately.