What Game of Thrones Tells Us About the Limited Value of the Rule of Law.

Petyr “Little Finger” Baelish: Knowledge is power.

Cersei Lannister (to her guards): Cut his throat. No wait! I’ve changed my mind. Let him go.

Cersei Lannister (to Little Finger): Power is power.

As most high borns of Westeros sooner or later find out to their own demise, when you play the game of thrones, you either win or you die. But winning cannot refer to an end-goal or some other sort of ultimate achievement when the game played is one of ruling and exercising power. Properly understood, winning the game of thrones merely means maintaining oneself as highly as possible in a social hierarchy – and, more practically, surviving your subjects who will, at some point, break their oath and try to kill you.

The game of thrones is indeed a risky business, and it confronts us with many of our preconceptions about power and authority. As Westerners accustomed to living under the rule of laws, watching the people of Westeros abide by the rule of oaths is a strange and fascinating thing. But is there any difference between the rule of laws and the rule of oaths? Aren’t both of those rules just fancy clothing for bare power? What is the rule of oaths and is it able to provide us with a better understanding of the rule of law?

I discussed in a previous blog post that the authority of the law essentially rests on a moral decision each of us makes to follow or not legal norms (What Taylor Swift’s Shake it off tells us about the authority of law?). This moral decision turns on the value we see in maintaining our personal relationship with the political community we live in. State sanctions certainly have a role in promoting the efficiency of the rule of law, but any state that made its system of legal norms rest exclusively on sanctions would almost instantly run out of resources.

As we also saw in this previous blog post, this relational account of the authority of legal norms applies to other kind of norms. We obey social constraints because they emanate from relationships we value. Constraints emanating from oaths we took are no different in this regard.

In Westeros, wardens, bannermen, and all sorts of minions align in a well-structured social pyramid culminating at the feet of the Iron Throne. The inhabitants of Westeros keep their oaths to their respective lords for various personal reasons, such as survival instinct, honour, or simply affection. But another important function of norms – under any form – is that they also provide social order and guidelines.

Norms provide order as they point to a clear ruler (or at least a clear source of authority) to resolve human conflicts. Norms ideally provide guidelines when they enable individuals to arrange their personal affairs in a way that will be sustained by society in case of a conflict with another individual. In a nutshell, norms are instruments used to regulate the messiness of human life and its inherent conflicts. Different types of norms embody different social techniques for subjecting human conduct to the governance of rules.

If the rules of oaths or of laws are mere instruments used to regulate human conflicts, it means that they do not accomplish anything of value in and of themselves. As John Gardner puts it in his book Law as a Leap of Faith, “the law is no more than a means and we should welcome reliance upon it only to the extent that reliance upon it serves some worthwhile end. Sometimes reliance on the law does serve such an end and sometimes it doesn’t.” In other words, he adds, “law’s inner morality is only the morality of how, not the morality of why. If there were no external morality applicable to law we wouldn’t have anything worthwhile to do with law in the first place and there wouldn’t be any intelligible role for an internal morality of law.”

So why do so many lawyers get up in arms whenever a journalist uses some hearsay evidence to nail down a corrupt politician, claiming that we are witnessing as a society the end of the rule of law? Maybe this is because we live in a society where laws are (generally) just and democratic, and this leads many to conflate law and morality. In those cases, their interpretation of what is the “rule of law” becomes so expansive that you cannot distinguish it from their interpretation of what is “justice”. And this is where Game of Thrones becomes useful.

When Game of Thrones shows us how the rule of oaths is flawed and inefficient at regulating human conflict in Westeros (remember the Red Wedding?), it gives us pause to reflect on how our very own rule of law can be flawed and inefficient at fostering justice. Chaos in the Seven Kingdoms can bring us to ask ourselves whether the system we chose to solve our conflicts always provide just and fair results. Take the following example.

When some hearsay evidence is introduced in public inquiry commissions to terminate the career of corrupt politicians, lawyers usually proclaim the end of the rule of law and the beginning of the rule of angry mobs. In their view, those kangaroo courts running roughshod over the rules of evidence, with the support of media trampling the presumption of innocence, are the signs of the moral decadence of our modern times.

A more charitable approach would however be that traditional legal systems are not well-adjusted to expose vast systems of corruption within some industries or political circles. Other regulating instruments, such as public inquiry commissions or the media, might be more helpful fora for achieving corrective justice.

The same logic is applicable to the #metoo movement. When abused women decide to turn their back to legal norms and the legal system and instead invoke social norms in public fora to remove their abusers from power, due process is often eschewed on the basis that powerful women abusers would exploit the shortcomings of the court system to exhaust their accusers’ more modest resources. In those instances, other ideals (such as political accountability and equality) are given priority over the ideal of the rule of law.

Does circumventing the rule of law carry some risk? Certainly. Can the power of the media be abused? Definitely. But what champions of the rule of law tend to forget is that any human-made instrument to regulate conflict carries a risk that it will not be properly used, because these instruments are operated by imperfect, flawed humans. Law is a leap of faith, as Gardner reminds us, and so too is the #metoo movement.

For this reason, the rule of law should not be an ideal that encompasses our whole morality. The value we place in the rule of law should always be limited to its efficiency at justly regulating our conflicts as flawed humans.

To be sure, a society is not paying enough attention to the value of its conflict-regulating instruments when a father takes his daughter’s wedding as an opportunity to assassinate a whole rival family. To this extent, Game of Thrones demonstrates that the rule of oaths is a flawed mode of regulating a society because it personalizes power to an unacceptable degree. But our fascination for Game of Thrones’ violence and plot twists should not blind us to the smaller, more subtle defaults of our own conflict-regulating instruments. If we sanctify the rule of law to a degree that we will reject from the outset any other non-legal mode of solving our conflicts as a society, we will do little to advance justice.