Over at the ABA Journal, Adam Banner claims that Thor: Ragnarok is the "latest instance of trial by combat in popular culture." He writes (don't worry, no spoilers yet):
First off, if you haven’t seen the new Thor film, I highly suggest it. It’s one of the best entries in the Marvel Cinematic Universe, and it contains one of the best scenes any fan could ask for: a battle between the God of Thunder and a giant, green rage monster. Without giving too much away, Thor is promised his freedom if he can best his captor’s “champion” in combat—it just so happens that champion is a super-angry Hulk. Trial by combat? Definitely.I've seen Thor: Ragnarok twice (it's fantastic), and I've written a fair amount about trial by combat (see blog posts here, here, and here and a peer reviewed (!?) article that I coauthored with my former classmate, Raj Shah here). After reflecting on the history, basis, and characteristics of historic (and even Game-of-Thrones-style) trial by combat, the fight between Thor and Hulk in the movie cannot be fairly characterized as an example of trial by combat.
Banner (what a name for a guy writing about a fight that involves the Hulk) decides to write his article without spoilers, which allows him to advance his claim behind a fog of uncertainty that maybe there are other events in the movie that make the fight into a trial by combat scenario. I'll get into the nitty-gritty of the events leading up to the fight in the movie after the break, so I guess there are some minor spoiler alerts for those who didn't watch the trailers and put two and two together.
Banner's summary of historic trial by combat is a broad-stroke treatment, but is generally correct -- in instances of trial by combat in medieval England, the theory was that the victor in the combat was the one favored by God (an outcome made all the more likely by both participants taking oaths against sorcery or witchcraft). Banner does not mention the fact that trial by combat in medieval England typically involved a combat between champions selected by parties to a dispute, although he references Game of Thrones several times which employed a similar approach.
An important element of trial by combat is that it was typically employed as a method of dispute resolution. If arbitration between the parties or the court's involvement left the dispute unresolved, trial by combat remained as a last resort to settle the matter.
With that in mind, consider the background leading up to the fight between Thor and the Hulk. Thor is thrown through space and crashes onto the planet, Sakaar, which has a brutal system of quasi-government in which the Grandmaster (Jeff Goldblum) oversees a series of gladiatorial matches in his arena. Roving bands of scavengers roam the surface of the planet and either eat stragglers or, in the case of Thor, capture them so that they become
Thor is captured and forced to fight in the arena. The Grandmaster tells Thor that if he defeats the reigning Champion, Thor will be freed. This Champion turns out to be the Hulk, and after some initial attempts to amiably avert a fight, battle ensues.
This is not an example of trial by combat because, despite Banner's claim that there is a dispute, there is no underlying argument that the combat is designed to resolve. Hulk and Thor are not champions for parties disagreeing with each other, and the guilt or innocence of the parties for some crime is not an issue to be resolved in the combat. At best, Banner might claim that there is a dispute between Thor and the Grandmaster as to whether Thor should be freed, with Thor's victory assuring his freedom, and his defeat ensuring that he becomes another Doug. But this is not so much a dispute to be resolved as an incentive to goad Thor into participating in the fights. Thor is never on equal footing or able to present any sort of case against the Grandmaster, and is instead just a prisoner fighting for freedom, rather than a party fighting for a side of a case. While this could be an interesting metaphor for whether defendants (and especially prisoners) in the US criminal justice system have any sort of fair shot in proving their innocence or in seeking habeas relief, this gets us off of the subject of trial by combat (although it leaves us with some interesting ideas for future thinkpieces on the film).
As much as I love to see attention drawn to quirky areas of the law like trial by combat, Thor: Ragnarok is not an accurate example of the practice. Banner's oversimplification of the practice and failure to address the background of the Thor vs. Hulk fight unfortunately lead him to the wrong conclusion. I can only hope, for my sake, that if Banner ends up reading this post, it doesn't end up making him angry. READ MORE - Thor: Ragnarok Does Not Exemplify Trial By Combat
Labels: criminal law , criticism , history , humor