Trial by Combat?

 

With God On Our Side

Through many a dark hour
I've been thinkin' about this
That Jesus Christ was
Betrayed by a kiss
But I can't think for you
You'll have to decide
Whether Judas Iscariot
Had God on his side.

Are you certain that God is on your side?

“Trial by combat” is not forbidden in the United States. However dueling, assault, battery, manslaughter, murder, etc. are illegal, so presumably trial by combat is also illegal. However the matter has never been adjudicated and in same rare instances, “trial by combat” is called upon to decide disputes ( e.g. a custody case in Iowa, a case by Staten Island lawyer,  Rudy Giuliani’s  famous call to settle the election dispute of 2022 by “trial by combat” at the rally before the January 6^th insurrection at the US Capitol).

Despite the familiarity with deciding battles in war by champions (e.g. David vs. Goliath, Achilles vs. Hector), trial by combat is NOT part of the code of Hammurabi, the Law of Moses, Roman Law, etc. Its origin can be traced to Germanic Tribal Law. The purpose of a trial is to achieve certainty. A “trial by combat” can not achieve certainty unless one also assumes that the victor is supported by God and is thus certain. But because trial by combat can only assure the dominance of the victor, it does not achieve the certainty of his position, “trial  by combat” is NOT how disputes are settled in the civilized world. (Which is perhaps still another reason to disbar Rudy Giuliani?)  Dominance is NOT certainty.

Which calls into question the way in which Supreme Court decisions are rendered. A 5-4 decision might seem to indicate certainty, but it could also only indicate dominance. Scientific certainty is a function of the Standard Deviation, the square root of the variance, σ, the Greek letter Sigma. Scientific certainty is 3 (times) Sigma, reflecting 99.97% certainty. Particle physics demands even higher levels of certainty, 5 Sigma, 99.9994%. But both of these are only attainable with a very large number observations. A smaller sample panel will achieve less certainty. Also a smaller panel presents the possibility of a hung panel, no certainty, or only the lowest acceptable certainty to a single dissenter. To prevent a hung panel or a least offensive decision, it is suggested that at least 2 panel members be allowed to dissent from any decision. On a 9 member bench, this would mean  a 7-2 decision which is 97.72% certain or a 6-3 decision which is 96.68% certain. A 5-4 decision can not be differentiated from a decision by dominance and should not be considered binding. An 8-1 decisions would be 98.88% certain and a 9-0 decision would of course be 100 % certain. Both should be allowed, but neither should not be required because they give too much power to a single dissenter and might thus represent the lowest acceptable decision, not a certain decision. A 5-4 decision is thus only a sight more civilized version of  “trial by combat”.