Pour lire la version française de ce document de travail, cliquer sur le drapeau britannique
Référence générale : Frison-Roche, M.-A., Game of Thrones: a so classical Law. For the moment. Working paper, 2018, http://mafr.fr/en/article/game-of-thrones-un-droit-si-classique/
This working paper has been written to be the base for an article published in French, "Game of Thrones : un Droit si classique. Pour le moment", for a collective book Game of Thrones et le Droit.
Summary. In this series filled with grandiose surprises, epic characters, reversals, and all the more so as it began to run faster than the book it was born, we would find only what we know already of Law: it would be enough to raise the disguises, as one does in a fable. We then find the classic legal rules (I), the reproduction in decal of the feudal legal organization (II), sometimes contested in the name of exogenous principles (III). But it is remarkable that the series is not over yet. But what will happen does not refer to legal issues that we do not control ourselves? Unknown season in the full sense of the term, frozen legal terrain and uncertain soil of a Law that would take the form of "faceless" and "walking dead"? (IV).
Taken under the sole angle of the Law, there seems to be nothing either very mysterious or very upsetting in Game of Thrones, swirling and knotted stories filled with so many mysteries and upheavals. No doubt because the book and the series are just a reading of our society. The Law thus appears under the features that we know it. Familiar. As is.
This justifies the fact that its characters' comments now are cited as references in the opinions drafted by American judges in their decisions, a judge having thus expressly made a connection between the 1st Amendment to the American Constitution guaranteeing freedom of expression and a quote from a speech of Tyrion Lannister. If the series fits so easily in our daily and legal life, it is because it really does not really detach itself from it.
In this meticulous series where every detail is worked, the Law is described as all the elements of the decoration, it the rest. A pillar on which people lean back, an element so familiar and common that it barely attracts light, the frame of which we reproduce the reasons by malmentier somewhat but whose contours are kept, without erasing or breaking them. The Law is not reinvented. Nor does it seem to be a major issue.
Perhaps because, while the series borrows from all the histories of the different nations of the world
This English history was the theater of great fury unleashed to seize powers legally organized and not to question them. This period saw terrible strategies unfolding to sit on the throne and not to overthrow it. Nobody questioned the royal and feudal system, the property and the principle of organization of commerce. No more in Game of Thrones. We find in the series all that we know: institutions, rules, behaviors and characters. Classically. In the din of this bloody game, there is only one calm element, so calm that it remains mostly implicit: the Law.
If novelist and scriptwriters had planted their claws in the French Revolution, whose very project was not to kill the King to take his throne but to cut off the head of a royalty of divine right, to cut before all the feudal and royal Law, then there would have been legal intrigues and a legal epic. A legal terror. A carnage of rules, an institutional disembowelment. As in the epic French novel and series Les rois maudits - translated in English in The Accursed Kings - and source of inspiration for the author of Game of Thrones, legal dimension whose television series keeps track.
The trials would have been central, as is that of the Templars in this French series in its two forms. While at Cersei Lannister's, she is absent and prefers to exterminate the enemy by underground fire that in an instant ignites enemies, judges and trial. It is simpler and safer than a judicial deliberation. When Little Finger is defeated, it is after a mock trial before his own victims. The last sentence he hears is "there is no justice in this world". Or again, when Tyrion Lannister goes to trial in front of his father for a murder he did not commit, if he asks for proof of innocence by ordeal, it is to be washed of the fault of having killed his mother by his own birth and of being born a dwarf, double mischief that his leonin father wants to make him pay. When sentenced to death for parricide, we see almost nothing of the trial, the main issue is the difficulty of execution of the death sentence pronounced by Cersei while the stake of the pursuit is the change of camp of Tyrion.
To listen to historians
Allegories are only homage to reality: who has a fiery temperament will have the lion emblem, who lives in the woods will have the stag for totem and will be slaughtered with a knife in bloody marriage, who survives in the sand under the heat of the sun is recognized in the snake, who faces the cold with the wolf for companion, who is undulating like a cuttlefish in the water takes it for blazon and has for military strength the boats.
As appropriate, the tale includes some moral precepts of good conduct. For example: who fights alone is exhausted while the one who unites with others yet different from him advances; who is disloyal ends up being unmasked. Law also often takes up these values of commitment and loyalty, we find these points of contact between Law, Morality and Utility, which we read so often in law textbooks. No need for Bentham.
From then on, in this series filled with grandiose surprises, epic characters, reversals, and all the more so as it began to run faster than the book it was born, one would find only what the we already know of the Law: it would be enough to raise the disguises, as one does in a fable. We then find the classic legal rules (I), recognizes in decal the feudal legal system (II), challenged sometimes by exogenous legal principles (III). But it is remarkable that the series is not over yet. But what will happen does not refer to legal issues that we do not control? Unknown season in the full sense of the term, unknown legal terrain, uncertain soil of a Law that would take the form of "faceless" and "walking dead"? (IV).
I THE MULTITUDE OF CLASSIC LEGAL RULES, REPRODUCED AND RESPECTED
If we take the legal rules that appear in Game of Thrones, they are still pretty classically stated while they are always respected. We look at what we learn about the rules governing incest (A), which organize the property and the commercial organization (B), the devolution of the titles (C) or the engagement by the given word ( D).
A. The classic application of the legal rules governing incest
The Family Law represented in Game of Thrones is classic. At least on the side of Law. Because on the side of fact, in the center of the epic the fusional relationship between Cersei and Jaimie Lannister causes a lot of emotions. Brother and sister, father and mother of many children dying dramatically one after the other, more and more openly incestuous, loving more than anything and anyone in the world, the couple has everything to shock. The comments were overwhelming, especially with regard to the subsequent relationship between Jon Snow and the Mother of Dragons
Indeed, incest is a practice not prohibited by Law as such, as long as the interested parties do not require the legal system to recognize the consequence, that is to say a marriage and/or a relationship between the two authors and the child that can result.
The legal prohibition is not about having sex with ascendants or descendants or collaterals. This is sometimes presented as it is otherwise prohibited by the Criminal Law to coerce sexual intercourse, which constitutes the crime of rape. This constraint can take the form of an abuse of authority. However, this crime of rape by abuse of authority is often de facto committed by adults on their own minor child which sometimes leads to the crime of rape being confused with incest, but it does not exist as such in Criminal Law, even if the relation of descent characterizes the authority of which the abuse is constituted
Par exemple sur une mise en perspective avec l’Histoire romaine, notamment l’architecture : https://www.facebook.com/RomaAeterna753/videos/1462797680480421/UzpfSTEwMDAwNDY3ODU5MTI2Mjo4ODY3NjQzOTgxNTYxNzI/?source=promotion_feed_story&story_id=886587161507229
Cela a pu être présenté comme une opposition entre un "mauvais inceste" et un "bon inceste". Pris du point de vue du Droit de la bioéthique, cette opposition ainsi proposée est intéressante si on la confronte avec l'affirmation du Comité d'éthique allemand qui affirma en 2016 que lorsqu'il y a inceste entre un frère et une soeur commis à une époque où ils ignoraient leur lien de parenté biologique, il conviendrait que le Droit ne contrarie pas leur désir de se marier.
Ainsi la loi du 3 août 2018, par son article 2 a modifié une nouvelle fois l'article 222-31-1 du Code pénal pour établir la liste des adultes dans cette position d'autorité "de droit ou de fait" , en ces termes :
Les viols et les agressions sexuelles sont qualifiés d'incestueux lorsqu'ils sont commis par :
1° Un ascendant ;
2° Un frère, une sœur, un oncle, une tante, un neveu ou une nièce ;
3° Le conjoint, le concubin d'une des personnes mentionnées aux 1° et 2° ou le partenaire lié par un pacte civil de solidarité avec l'une des personnes mentionnées aux mêmes 1° et 2°, s'il a sur la victime une autorité de droit ou de fait.".