The adversarial system should be rethought, because this throwback to the medieval mode of trial by combat, also called wager of battle and judicial duel
, no longer can be justified in a time when the public interest and the general welfare must be served.
In Shakespeare's representation of the devolution of the judicial duel
to something like brawling, the verbal link he forges between guns and rapiers is intriguing.
Before applying Fuller's three tests for a legal fiction to judicial duels in Muscovy, this study first briefly surveys the origins and development of the judicial duel.
In the West the origins of the judicial duel are usually attributed to the Germanic tribes and particularly the Franks circa 600 CE.
In the later evolution of the judicial duel, the professional or hired champion became more common.
The opening chapter begins with definitions of the early modern duel of honor, identifying both its roots in and contrasts with earlier versions of individual fighting such as single combat between two opposed leaders, the more playful chivalric tradition of jousting, and the judicial duel
offering trial by combat.
The staged duel is an ideal form for embodying concepts of royal power, for it presents the intersection of language and violence, the moment when statecraft can no longer be contained in speech.(2) Staging the trial by combat (also known as the judicial duel) emphasizes its underlying rationale as a stylized performance of justice.
The judicial duel was not restricted to the sword--traditionally an aristocrat's weapon--and could even be fought with clubs and shields because in theory, at least, neither strength nor skill decided the outcome.
While the judicial duel was not the only form of State-sponsored violence, it was a particularly important one because God's favor was implied in the outcome.
Jennifer Low has explained that judicial duels had given way by Shakespeare's time to duels of personal honor.
Strictly considered, Prince Hal's and Hotspur's fight is single combat in battle, violence different from judicial duels and duels of honor.