Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

But inside love, you will be all right… Legal obligation and political legitimacy in Game of Thrones #GoT

Fire and Blood (Game of Thrones)
Fire and Blood (Game of Thrones) (Photo credit: Wikipedia)

I quite enjoy Game of Thrones and, as such, I can’t help but think far too much about it.  Adam Brereton has written a very interesting article over on ABC Religion & Ethics about the idea of the sacred within the socio-political/ethical dimension of the show’s characters, which I highly recommend you read.  Brereton concludes that the fantasy world presented by Martin is broken:

Even in the real War of the Roses, upon which the series is loosely based, the houses of Lancaster and York didn’t commit genocide. Much of Britain was left untouched during the feud, because in the real world perpetual violence doesn’t exist. Too much is at stake, and real people just aren’t that stupid, unlike the butchers who inhabit Martin’s world.

So why don’t the characters in Game of Thrones care if they murder each other? Why are the oaths they swear basically meaningless? Nobody wants to be a cheerleader for the divine right of kings, but it’s the right answer. The “Old Gods and the New” of Westeros are invoked like Puma and Adidas, and the only monotheistic religion is a human-sacrifice cult; nobody has a reason to expect others to keep their promises because there’s no divine guarantor underwriting the system. Nor can there be any consensus-based values – Westeros is very much a feudal world. Like Gormenghast, what system of governance does exist is brittle, but at least Mervyn Peake’s characters exhibit the very human trait of respecting things that are meaningless. Martin’s world is inhabited by beautiful fascists in breastplates. [Source: Brereton, ‘The Game of Thrones: Nobody wins, everybody dies’, ABC Religion & Ethics]

If we use a different set of lenses — the philosophical goggles of jurisprudence and political theory — it’s possible to construct a different interpretation of the fantasy world depicted, and an interesting critique of virtue ethics.  As I don’t think much of the books, I’m limiting discussion to consider only the show.  If you dislike spoilers, you should read this.

‘Law is law’, says Beard Guy during the first episode of Game of Thrones.  It feels tautological and, in that moment, it feels commonsensical.  In a show notable for little quips and maxims, Beard Guy’s ‘Law is law’ won’t make it on any clever memes; yet it is perhaps the most important piece of dialogue in the show.  Game of Thrones is going to test this assertion at its limits: why is law the law?

For now, we have a simple case in front of us.  A deserter from the Night’s Watch has been caught.  The penalty for desertion is death.  Here, the act of punishment is linked precisely and irrefutably to the act of desertion.   There’s an inevitability about it.  When the deserter chose to break his oath, he knew that he was deserving of punishment.  Still, he chose to flee.

For now, we have a simple case of virtue within law.  Ned Stark — the high lord of the region — has to embody a role which has been delegated to him: to ensure that justice is performed.  Ned, in a sense, is not Ned.  Instead, he is a performance of something larger and greater.  He embodies something larger and greater.  He aspires to reflect the virtues and qualities of those who are larger and greater.  This ‘larger and greater’ is an ultimate rationality within the legal structure of Westeros.

In law, we find the paramountcy of reason in its understanding of legitimate language and of legitimate authority.  Language first, for orthodox legal interpretation, assumes a series of related claims about the objective and logical nature of meaning: the claim that law is a logical structure of rules and regulations which provide determinate results to particular cases; that the words of those rules themselves have a core of unproblematic meaning in the application of which there is little role for judgment or discretion; and that judges shorn of personal prejudices and values can, should, and do apply this reason to this interpretative exercise. [Source: Manderson, Songs without Music: aesthetic dimensions of law and justice, p. 97]

The language that Ned uses allows us to understand Ned’s concept of duty and his understanding of legal obligation.  ‘The man who passes the sentence must swing the sword,’ he says.  It’s an odd sentence completely contrary to our modern understanding of justice where the person who passes the sentence is not the person who executes the sentence.  In Ned, there is both the judiciary and the executive powers.  While we might find this problematic in our own tradition, we can recognise the intuitions about the rationality of law.

Ned is authorised to act by an anterior authority.  ‘In the name of King Robert’, he begins.  There is a well defined legal order to the world.  Punishments are permitted by the existence of crime.  Authority to punish is delegated by the existence of a higher authority.

Is this higher authority enough?  Across the Narrow Sea, Illyrio raises a toast to the ‘rightful king’, by which he does not intend King Robert Baratheon, but Viserys Targaryen — the last surviving male heir of the former king, against whom Robert Baratheon led a rebellion.  Viserys wishes to raise an army to take back ‘his’ throne, which he believes is his by birthright.

Is Robert’s reign legitimate?  If not, was Ned’s performance of justice valid?  Could this problem ever happen in the real world?

The last question is the easiest to answer: Yes.  In 2011, the Full Federal Court handed down Kutlu v Director of [Professional Services Review]:

In Kutlu v Director of PSR [2011] FCAFC 94, the Full Federal Court considered whether a failure to follow a legislated consultation step prior to making a statutory appointment invalidated the appointment. The Court found that it did, and that the actions of the purported appointee were also invalid.

Section 84 of the Health Insurance Act 1973 required the Minister for Health and Ageing to consult with the Australian Medical Association (or AMA) before making appointments to the PSR Panel. The members of the PSR Panel are drawn upon to constitute to PSR committees to investigate inappropriate practice by medical practitioners. Kutlu concerned five separate PSR committees, each of which was constituted by members of the PSR Panel who were appointed by two successive Ministers without consulting the AMA.

The Court considered whether the requirement in the Health Insurance Act to consult was a mandatory requirement, or merely direction which would not result in invalidity if not followed. The Court found that it was a mandatory requirement – the requirements to consult

“are essential preliminaries to the Minister’s exercise of the power of appointment. They have a rule-like quality that is easily identified and applied. The sections do not direct the Minister to carry out his or her powers of appointment in accordance with matters of policy. Instead, the confer a discretion to appoint after the preconditions of consultation with, and advice by, the AMA have been fulfilled and the Minister has had regard to that advice.”

It followed that all the investigative steps carried out by the five PSR committees were also invalid. [Source: Carroll & Sibley, ‘Full Federal Court puts spotlight on PSR‘, Clayton Utz Insights

The Court decided that, because the authority was not appropriately conferred, the decisions made were invalid.  It wasn’t sufficient that the punishment was justified by the acts of the people being punished; the punishment had to be directed by somebody with the appropriate authority.

The Commonwealth in this case argued that the acts of the appointees were validated by a common law principle called the ‘de facto officer’ rule:

A public officer who is not validly appointed but has the reputation of being the officer he or she purports to be.  A purported decision of a tribunal or other administrator may be sustained even though the tribunal was improperly constituted, on the basis of its being the act of a de facto officer: Ellis v Bourke (1889) 15 VLR 163; 10 ALT 258. [Source: ‘De facto officer’ Butterworths Concise Australian Legal Dictionary]

What the fantasy world of Game of Thrones and the arguments of Kutlu v Director of PSR have in common is a difficulty with legal authority.  Ned believes that his act is lawful.  The PSR believed that it was acting with legal authority.

Despite Illyrio’s toast, it appears intuitively true that Robert Baratheon is the King of Westeros not just in a de facto sense, but in a de jure sense.  Philosophy time!

According to [Max Weber], that a political regime is legitimate means that its participants have certain beliefs or faith (“Legitimitätsglaube”) in regard to it: “the basis of every system of authority, and correspondingly of every kind of willingness to obey, is a belief, a belief by virtue of which persons exercising authority are lent prestige” (Weber 1964: 382). As is well known, Weber distinguishes among three main sources of legitimacy—understood as both the acceptance of authority and of the need to obey its commands. People may have faith in a particular political or social order because it has been there for a long time (tradition), because they have faith in the rulers (charisma), or because they trust its legality—specifically the rationality of the rule of law (Weber 1990 [1918]; 1964). Weber identifies legitimacy as an important explanatory category for social science, because faith in a particular social order produces social regularities that are more stable than those that result from the pursuit of self-interest or from habitual rule-following (Weber 1964: 124). [Source: ‘Political Legitimacy‘, Stanford Encyclopedia of Philosophy]

Using Weber’s account, we can see elements of all three sources of authority in Baratheon’s rule.  Baratheon has held the title for quite a while following the tradition of people leading rebellions against rulers, he was the charismatic leader of the rebellion, and because him being king has some kind of rationality (through the allegiance of the high lords who, in turn, demonstrate the three sources of authority in their domains).

But it’s not an easy account of legitimacy.  Is Baratheon king due to force?  Because the High Lords approve?  It is, in every sense of the word, a mystery.  There is an act of the unknowable which transformed Baratheon leader of the rebellion into Baratheon the king.

Also note the circularity: Ned’s acts are legitimate due to King Robert’s delegation, but Robert is only king due to Ned’s (with other’s) approval.

This question of legitimacy is not going to get easier to resolve.  The show continues to drop hints that not everything is a solid as it seems in the legal world of Westeros.  In the second episode, we hear the phrase ‘King’s Justice’ dropped for the first time.  It’s a phrase which will be used semi-frequently and almost ironically by the end of the first season.  But we also see other forms of punishment.  Jorah Mormont has been exiled from Westeros by Ned Stark due to his participation in the slave trade; Viserys states that Jorah wouldn’t be exiled under his rule.  Is a crime determined according to the whim of which king is in power?  In the case of the deserter in episode one, the guilt was obvious: he swore an oath to remain at his post or be executed if he desert.  But participating in the slave trade?  Do all the citizens of Westeros swear an oath not to trade slaves?  Instead of being a voluntary undertaking of legal obligation, this obligation to refrain from an act is imposed upon those who are ruled.  Analysis of this form of law is difficult: is the person being punished for committing the act simpliciter, or are they being punished for disobedience?

Imagine that the Crimes Act in my jurisdiction defines murder as a crime.  If I commit a murder, is my punishment grounded in the fact that I murdered somebody or in the fact that murder is defined as a crime in the Crimes Act?  In Westeros, was Jorah punished because he participated in the slave trade or is he punished because the legal authority outlawed the slave trade?

It’s here that we begin to grapple with the second big issue in Game of Thrones: the nature of crime.

The desertion of the Night’s Watch is the first crime explored in the show.  The next crime is performed off screen: the murder of Jon Arryn — hitherto the Hand of the King.  Jon Arryn’s widow is the sister of Ned’s wife, Catelyn.  The widow sends a message to Catelyn suggesting that the powerful Lannister family (Cersei Lannister is married to the King) is responsible.

But it is the final crime of the first episode that will prove to be the most important: Bran Stark, son of Ned and Catelyn, is pushed out of a tower window when he discovers Cersei Lannister engaging in an extramarital affair with her twin brother, Jamie.

The viewer is in a privileged position to the characters within the world of Westeros.  Although we know the all the relevant facts, the characters within the world do not.  The characters within the world cannot.  A smaller vision of this problem is revealed when Joffrey — son of Cersei and Jamie, but believed to be the heir of Robert — attacks a butcher’s boy with a sword while showing off to his fiancee (Stansa Stark).  Joffrey is disarmed by Stansa’s sister, Arya, and then attacked by Arya’s pet wolf.  Both Arya and the butcher’s son flee the scene.  When Joffrey lies about the version of events, his bodyguard is sent to strike down the butcher’s son.  When Stansa Stark is called to testify against Joffrey, she fails to do so.  From the perspective of the legal authorities within the world, they are behaving rationally and lawfully.  From the omniscient perspective, they aren’t.

It’s here that I depart from Brereton’s analysis of the issues.  Brereton believes that the characters are operating in some sort of Hobbesian state of nature.  Far from it, these characters are all operating from their limited perspective of events.

With the concepts of crime, punishment, and authority established in the first episode, Game of Thrones then sets about attacking these concepts.

Catelyn Stark wishes to find the person responsible for attacking her son.  Evidence is presented which suggests that Cersei’s brother, Tyrion, is responsible for the crime, and, in episode four, Catelyn authorises his arrest.

Even from the viewer’s perspective, it is difficult to know whether Catelyn is authorised to arrest Tyrion.  Tyrion, we know, is innocent.  But Catelyn believes that she has evidence sufficient to accuse Tyrion.  The Lannister family does not believe that the arrest is lawful, and go to King Robert to order his release.  When this fails to succeed, Jamie Lannister seeks to punish Ned Stark for his family’s detention of Tyrion.

Thus far, we have encountered two acts which are incontrovertibly criminal.  The murder of Jon Arryn and the attempted assassination of Bran Stark.  With the exception of these two acts, everybody else’s behaviour has been consistent with that of people wishing to lead lawful lives.  This is the real puzzle of Game of Thrones.  When people have insufficient knowledge and an inability to ascertain the complete facts of the case, is it possible for people to be sure of their righteousness?  Can people be sure that they are morally excellent?  Is intent sufficient?

Catelyn takes Tyrion to her sister’s castle called the Eyrie.  Here, Tyrion is tortured to encourage him to confess.  When he maintains his innocence, he seeks a trial by combat.  When he wins the trial, you can see the disappointment in the faces of Catelyn and her sister: believing Tyrion to be guilty, they feel robbed of a just outcome.  Her sister even complains that Tyrion does not fight with honour.  Catelyn’s prepubescent nephew, the acting High Lord, was promised that Tyrion would be executed and feels disappointed that this outcome was denied.  This is not too inconsistent with the real world: how routinely people feel robbed of justice when legal technicalities result in a guilty person going free.  But Tyrion walks free.  This is not a lawless, free-for-all in Westeros.  People need to feel as if their activity is lawful.

Evidence is a curious point within Westeros.  Tyrion was arrested on the strength of the evidence: his knife was used in a secondary assassination attempt on Bran’s life.  Later, Ned Stark — now Hand of the King — is petitioned to bring justice to a menace that is roaming the countryside.  On the strength of the evidence, Ned sentences a man, Ser Gregor Clegane.  The evidence: a villager claimed that the menace sliced a horse in half — an act previously seen performed by Ser Gregor.

What we are seeing in the realm of Westeros is a sharp conflict between two powerful families about legal authority.  Far from being a Hobbesian state of nature, this is a conflict governed by conventions and rules.  Once tried, Catelyn can’t punish Tyrion.  Having attacked Ned, Jamie Lannister feels the need to flee.  When this conflict cannot be resolved by ordinary means, the conflict escalates to extraordinary means: war.

Episode six of the first season describes the problem in terms of lex talionis: there is a need to make the Lannisters pay, the Starks seek retribution, and blood is demanded.  But there is also a continuing question of honour.  The family who has been wronged feels duty-bound to go to war.  In this case, both sides of the conflict believe that they have been wronged and, therefore, both sides feel a duty to wage war against the other.

Amid the conflict between the two families, it is revealed that Joffrey is not the true heir to Robert Baratheon.  Robert has two brothers: Stannis is the elder and Renly the younger.  Ned reveals to the brothers that Joffrey is illegitimate.  If Robert’s reign is legitimate, then Stannis is next in line to the throne.  Renly believes this is unfair and seeks to be next in line to the throne.

Thus, when King Robert dies, there is a sharp disagreement about the legitimacy of crowning Joffrey.

There are a few puzzles here.  From our omniscient perspective, we know that Robert explicitly named Joffrey as his heir to Ned; Ned falsified the will to remove Joffrey’s name.  But we also know that Joffrey is not the legitimate child of Robert, making Stannis the ‘correct’ heir.  Does that matter?  With the information that Stannis has, he is justified in declaring war against Joffrey.  With the information that Joffrey has and with the secret information known only to the viewer regarding Robert’s intended will, Joffrey’s coronation is legitimate.  Renly, on the other hand, seems less justified.  On the other hand, the people he commands believes that Renly ought to be king, thus satisfying the charismatic ground of legitimacy.

Meanwhile, the Starks have declared a different kind of war against Joffrey.  Joffrey has had Ned imprisoned as a traitor for opposing his coronation.  As such, the Starks and the other families in the North wish to break away from Westeros and form their own nation.  Theirs is a battle of independence.

Finally, one of the lords under the rule of the Starks, Balon Greyjoy, has decided that he seeks independence from both the Starks and Westeros.  Balon, like the Starks, seeks independence.

This is the complicated world of political legitimacy and legal obligation.  There can be competing versions of events.  From the perspective of everybody involved, they are entitled to act the way that they do.  Even the horrible Joffrey believes that his position as king entitles him to behave in particularly antisocial ways.

When it comes time to punish Ned Stark for his treason, we see Joffrey attempt to embody the virtues of a strong and mighty leader.  In this first episode, Beard Guy used the phrase ‘Law is law.’  In the eighth episode, we were told that ‘Treason is treason.’  In the ninth episode, instead of showing mercy — a characteristic he thinks indicative of the ‘weak hearts of women’ — Joffrey decides to have Ned executed.   The phrase used here: ‘King’s Justice’.

Meanwhile, the Starks struggle with a similar problem of trying to emulate moral exemplars.  Ned’s eldest son, Robb, is leading the war effort against the Lannisters.  His moral exemplar is his father, and he struggles to fulfill his function in that role.  Far from seeing mercy as a weak strategy, Robb sees it as a necessary part of strength of character.

Renly also tries to fulfill the function of being a loved and admired leader.  Amongst his men, he holds court in what could be mistaken for a circus.  He relies on the loyalty of his followers for legitimacy, and it’s this loyalty that he believes justifies his conduct against Joffrey as false king.

Tywin Lannister — leading the campaign against the Starks — is motivated by a deep sense of family pride.  His moral exemplars — his father and grandfather — motivate his actions.

This is clearly not a lawless, violent anarchy.  Each agent is justified in their actions and yet the outcome is not peace.  Something has gone fundamentally wrong in the concept of legal authority to allow this to happen, but we are still a long way away from a society governed by rough music.

Indeed, it’s only when we understand that the majority of the characters are trying to be virtuous does anything make much sense in this world.  Why does Tywin keep Tyrion in the family when they clearly loathe each other?  Why do grown men follow the command of a young lord?  Why does a kingdom obey an adolescent?  Why do the men of the Night’s Watch stay on the Wall?  And so on and so forth.

Far from Brereton’s interpretation of Westeros as a world of perpetual violence, this is a world of jus bellum.  The ultimate problem is legal authority; when the theory of legitimacy favours everybody, it favours nobody.

Across the Narrow Sea, we see an interesting reversal of the problem of Westeros.  There, the theory of legal authority is being challenged by the philosophical musings of a privileged white girl.  She’s born to power with supernatural abilities.  In the course of events, she even comes into possession of three dragons.  Her goal is to take the kingdom of Westeros which she believes is her birthright.  In the meantime, she is amassing a following by challenging the existing political regimes.  There is something obscene about Daenerys being the voice for liberation in the show (Brereton notes this conflict between her being the ‘the radical left-emancipatory figure’ and her ‘motivation to reclaim the Iron Throne’): a sea of ethnically diverse former-slaves calling the blonde girl ‘Mother’ is a queasy moment in television (it was similarly uncomfortable when Daenerys sentences a woman to death by fire: a woman who was brutalised by Khal Drogo’s men and found a way to seek some form of vengeance against him).  But Daenerys is attempting to fulfill two visions of the moral exemplar: the powerful queen and the champion of the oppressed.  It is only through the distanced perspective of the omniscient viewer that we can understand she has no legitimate claim to the throne, and that she’s a deluded narcissist.

Even characters whom we see to be vile or somehow morally repugnant stand in an interesting relation to their understanding of moral exemplars.  Theon Greyjoy desires to fulfill the role of the good son both to his biological father, Balon Greyjoy, and to Ned Stark.  What we see in him is a childish entitlement complex which results in akrasia.  By attacking Winterfell, he rebels against both fathers in an attempt to be impressive and masculine.

Even the most despicable of characters, Ramsay Snow and Walder Frey, are able to be understood in these terms.  Ramsay Snow is punishing Theon Greyjoy for the crimes against Winterfell (even Theon understands that he is deserving of punishment).  What we struggle to understand in Ramsay is the sheer delight he expresses in punishing another person.  It’s pure sadism.  At the same time, he is not acting outside of his remit within the legal universe of Westeros.  Theon has committed treason.  He is believed to be something of a war criminal.  In the world of lex talionis, which punishments are not justified?  From our perspective, we would argue that those punishments which are degrading are not justified (and, indeed, that forms part of my argument against life imprisonment).  But Theon is an exceptional case in Westeros…

Walder Frey falls into a similar gap.  Robb Stark broke an oath to him and dishonoured his family.  In our real world, many treaties of this kind are governed by a rule of reciprocity.  Walder Frey has therefore joined with the Lannisters, sets a trap, and executes Robb and his family.  From the omniscient outside perspective, this seems barbaric — a breach of the xenia/hospitium which seems to bind Westeros.  From the limited perspective of the characters involved, this is justice for declaring war against the Iron Throne, for breaking vows, and for the unlawful arrest of Tyrion Lannister.  Given that the act resulted in the abrupt end of the Rebellion of the North, it can easily be seen as a particularly moral act: bringing the war to a swift and decisive end.  Where we struggle in the real world is the use of force against unarmed combatants.  We fail to see the Starks as being in the theatre of war at the time of their execution.  On this thread, the use of force is excessive and immoral.

‘It felt like justice,’ said Jamie Lannister in the third episode of the first season, describing the act that would cause him to be known as the ‘Kingslayer’.  Jamie broke an oath to protect the Mad King Targaryen from Robert Baratheon’s forces by sticking a sword into the Targaryen’s neck.  Walder Frey is cast in the same terms: he was wronged and he sought justice.  Unlike the Mad King, Robb grants medical access to prisoners of war and demonstrates mercy.  But he’s leading a rebellion against the king who has all the trappings of legitimacy and he’s breaking his oaths.  Is it really treachery?

So what does Game of Thrones teach us about legal authority and political legitimacy?  It reveals the problems which arise when there is not an agreed set of facts for one.  People attempting to be morally excellent are trapped in a world of limited information and, thus, commit atrocities which we struggle to reconcile.  Perhaps intersubjectivity is enough: if sufficient numbers of people affirm a particular set of facts, they are the facts for all social purposes.  But it also shows us how wrong we were to think that simple acts of justice were unproblematic.  Ned Stark executing the deserter of the Night’s Watch seemed to simple and straightforward.  By the end of season two, we wonder how simple and straightforward that act was.

Game of Thrones also encourages us to look at the legal and political structures of our own world.  Why does the Constitution of Australia have force?  If the Constitution were incorrectly passed by the UK Parliament (as some lunatics claim), would it still have legal authority?  Can we confidently apply the idea of de facto authority?  During a fundamental dispute about competing accounts of legal authority, which authority is the de facto authority?  Can the northerners who believe they are justified in following the Starks be punished by the Lannisters for rebelling against the Iron Throne?  If the Constitution of Australia is invalid, can we punish the tax officers for incorrectly taking away our salaries? And on it goes.

But it’s a mistake to think that this is a nihilistic world bereft of law, ethics, and morality.  If anything, this is a world deeply concerned with virtuous behaviour.  It’s the concepts of virtue that are in competition.  Should we manipulate others for the sake of the realm (as the anti-Kantian Varys does)?  Should we be motivated by our will to power, and ambitiously seek undying glory (as Randian Baelish does)?  Or do we honour the debts to our ancestors by protecting the established glory of the family (as the clearly Burkean Tywin Lannister does)?

The game of thrones isn’t about winning or dying: the game of thrones is about understanding the rigid power structures which keeps the game going.  ‘Law is law’, said Beard Guy, bowing out of the game.  He couldn’t understand that the game was to find out why the law was the law, and what to do when there were many laws claiming to be the law.

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