On Monday morning (Australian time), the eighth and final season of HBO juggernaut Game of Thrones will commence. Debuting in 2011, it has been a ratings, promotional and financial behemoth for the cable network, in spite of (or, perhaps, aided by) record levels of piracy of the show across the globe.

The show is an adaptation of A Song of Ice and Fire, George R.R. Martin’s fantasy novels, which spans seven novels (two of which are as yet unpublished). The books – and subsequent HBO show – follow noble families at war for control of fictional continent Westeros, as well as the looming apocalyptic danger of the White Walkers: supernatural beings who reside north of the Wall, a barrier separating mankind from their enemies from millennia ago. Martin reportedly sought inspiration for his work from medieval history, including the Wars of the Roses, with two of the main families of ASOIAF – the Starks and the Lannisters – borne from the centuries-old rivalry between the English royal houses of York and Lancaster.

In the time since its exposure to the broader masses on television, Game of Thrones has become synonymous not only with gratuitous sex and violence (not to mention sexual violence), but also with intricate and interwoven story arcs that serve to challenge a viewer’s perceptions of good and evil. Since season one, our presuppositions of character longevity were thrown asunder, as scenes in the show’s early years brought new meaning to the idea of ‘shocking’.

Last December, I wrote a feature titled: What can lawyers learn from Harry Potter? In that piece, I submitted that the collective novels of J.K. Rowling had real potential to shape how the emerging generation of lawyers would view the world around them. For legal practitioners across Australia, Game of Thrones similarly offers lessons about the incontrovertible necessity of lawyers and the rule of law in day-to-day society, as well as parables for how said practitioners conduct themselves in the course of their chosen vocation.

(NB I am not an expert on Game of Thrones, and this feature is by no means an exhaustive study on legal issues raised by the show. Ultimately, these are the ramblings of an avid fan.) 

Society needs lawyers…for everything

While the social, political and sexual hierarchies of Westeros are rigidly defined, it is not clear – especially for those who have studied and practiced law – how and when law and order operates. In particular, the complete absence of legal advocates in the fictional and mythical society, and the consequences that arise from said absence – or, in some cases, don’t arise – undoubtedly amplifies the need for lawyers.

One does not have to look far to find a scene, or character, in need of a legal advocate. The most obvious example comes from the show’s fourth season, when Tyrion Lannister was unrepresented in his trial for allegedly murdering King Joffrey, leading him to demand a trial by combat, rather than be subjected to a deeply flawed hearing (more on that later).

There is a need for more than just criminal lawyers in the Game of Thrones universe. Here are just a few instances in which characters were in need of a learned friend:

• The remaining member of the Stark family could have had a personal injury lawyer file a wrongful death lawsuit against the Frey and Bolton families, for murdering their matriarch, eldest son and his pregnant wife. Given the brutality of those deaths, a hypothetical payout could have been substantial;
• Sansa Stark would do well to have a divorce lawyer on speed-dial, whom she could call on to bail her out of the two forced marriages she entered into. Or, at the very least, her lawyer could have had her marriage to Tyrion annulled, on the grounds of non-consummation;
• Both Sansa and Daenerys Targaryen (and possibly Cersei Lannister, depending on your interpretation of her encounter with twin brother Jaime at the foot of Joffrey’s tomb) – as well as countless other female characters – would want a public prosecutor on side to lay charges for rape;
• Still on the Starks, Arya may have a worker’s compensation claim to make against the Faceless Men, both for the ongoing physical abuse she suffered at the hands of The Waif, and for being blinded by Jaqen H’ghar for disobedience;
• Westeros as a whole might benefit from an advocacy group to champion animal rights, in light of the barbaric treatment of beloved direwolves, such as Sansa’s Lady, Robb’s Grey Wind, and Rickon’s Shaggy Dog;
• King’s Landing – or at least the Crown – could do with a decent insurance policy and a team of lawyers to enforce it, after the blowing up of the Great Sept of Baelor (nevermind that it was Queen Cersei who actually oversaw that destruction);
• The many children of King’s Landing who operate as spies for the likes of Petyr Baelish, Lord Varys and Qyburn appear to receive little to no reward for their efforts (save for sweets). Unable to competently represent themselves by virtue of age, the “little birds” could do with human rights lawyers who can enforce child labour laws; and
• The Children of the Forest could have had their sacred trees better protected from being cut down if Westeros boasted environmental practitioners among its numbers. Plus, the presence and action of such advocates could have also ensured that The Children didn’t ultimately create the first White Walker.

There are probably dozens of plot points, big and small, that I’ve neglected to include here. But this list of instances – while entertaining for us as viewers – also underline just how crucial lawyers are in our modern democratic society.

I am a huge proponent of the idea that lawyers are wholly necessary for the successful functioning of our society. We need both lawyers and the rule of law; without it, we would be – literally and metaphorically – lawless.

By virtue of having a robust legal system in place, with well-trained and educated practitioners at the helm to uphold that system, we are able – to the best of our ability – to ensure that vulnerable persons and beings are protected, that those who suffer injury or harm are adequately compensated for their loss, and that those who would inflict said harm be prevented from doing so again or that their punishments may act as a deterrent to others.

Many of the scenes in Game of Thrones that demonstrate the need for lawyers are, without question, outside the realms of what we might reasonably expect in a real-life client matter. But, perhaps, we sometimes need such theatricality to drive home the importance of a vocation in law.

Due process is paramount

“I know I’ll get no justice here, so I will let the gods decide my fate. I demand a trial by combat.”

Towards the end of season four, Tyrion Lannister lost his patience with the kangaroo court trying him for regicide and thundered the above pronouncement. It was just one moving part in arguably the most prominent plot for the show’s fourth season, but also spoke volumes about the legal system of Westeros and its lack of due process.

Wrongly accused of murdering his nephew, King Joffrey (in the now-infamous Purple Wedding episode), Tyrion finds himself on trial in front of a three-pronged bench populated by lords of the noble Westerosi houses. Two of those lords serving as judges – Mace Tyrell and Oberyn Martell – theoretically constitute enemies of House Lannister (or, at least, they are not entirely objective about the fate of a Lannister such as Tyrion). But the third empaneled judge is none other than Lord Tywin Lannister, Tyrion’s father and former Hand of the King to the slain Joffrey.

The notion of being tried for murder before a panel of judges that includes one’s parent is utterly ludicrous (although, it did make for gripping television). That gross conflict of interest was further highlighted by the personal history and animosity between Tywin and Tyrion, whereby the former hates the latter both for being a dwarf – thus besmirching the family name – and for supposedly causing the death of the Lannister matriarch, Joanna, who succumbed during childbirth.

And this is all before Oberyn volunteers to represent Tyrion as his champion in the subsequent trial by combat.

That Tyrion did not have a legal advocate, adding to his woes, has already been fleshed out above. But that his criminal trial was overseen by three so blatantly-conflicted judicial officers is telling about due process, or the lack thereof, within Game of Thrones.

The vast majority of legal practitioners in Australia understand, and appreciate, the need for due process in the administration of justice. Indeed, lawyers watching the show would muse about the absurdity of trials such as Tyrion’s, as they would have done while watching the trials of Sandor Clegane by the Brotherhood without Banners and Ser Loras Tyrell by the Faith of the Seven.

But, as the recent initial public hearings for the Victorian Royal Commission into the Management of Police Informants have highlighted, the importance of due process cannot be understated.

In those hearings, current and former members of Victoria Police gave evidence in which they admitted that the position of former criminal barrister Nicola Gobbo (otherwise known as Lawyer X) as a lawyer did not prevent her from being registered as a human source.

In the words of Detective Senior Sergeant Tim Argall: “I am not aware of any concerns ever being raised by anyone within or outside Victoria Police in relation to the use of a legal practitioner as a human source.”

Speaking to Lawyers Weekly earlier this year about the Lawyer X scandal, Victorian Bar president Dr Matt Collins said: “The community is best served by maintaining a strong, independent and fearless legal profession whose members honour their paramount duty to the administration of justice, including by assiduously discharging their duties to courts and clients.”

“Fundamental to those duties is the sanctity of confidentiality in privileged communications between lawyers and clients,” he added.

National Criminal Lawyers principal solicitor Michael Moussa was direct in his summation at that time: “She [Ms Gobbo] has – in my view – placed justice, the rule of law and due process into doubt, leaving hundreds of other convictions now in jeopardy and ensuring lengthy and costly legal action will follow.”

Not even the Lawyer X royal commission, and the allegations arising from it, come close to the absurdity of Tyrion Lannister’s regicide trial in Game of Thrones. But those allegations, and the show, provide real wake-up calls to lawyers across Australia about the immovability of due process.

International war tribunals must function and flourish

Earlier this week, Australian Red Cross published a most excellent report outlining the violations of and compliance with international humanitarian laws by the main characters in Game of Thrones.

International humanitarian law (IHL), Red Cross wrote, is a “set of rules that seek to limit the effects of armed conflict”.

“It protects people who are not or are no longer participating in hostilities and restricts the means and methods of warfare. There are consequences if the rules of war are broken. War crimes are documented and investigated by states and international courts, and individuals can be prosecuted for war crimes,” it said. 

The worst offender in the Game of Thrones universe, according to Red Cross, is Ramsay Bolton, who notched up 17 IHL violations, including: six counts of torture, cruel or inhuman treatment (most notably, his prolonged torture and mutilation of Theon Greyjoy), four counts of perfidy and two counts of sexual violence (such as rape, sexual slavery, enforced prostitution or enforced pregnancy).

He is closely followed, Red Cross continued, by fan favourite (although, no favourite of mine) Daenerys Targaryen, with 15 IHL violations, including six counts of use of means or methods of warfare that inflict superfluous injury or unnecessary suffering (via the use of her dragons), six counts of passing judicial sentence or execution without previous judgment of a regularly constituted court (for example, the mass crucifixion of the Masters of Meereen), and other counts of torture, making civilian objects the target of attack and declaring no quarter.

Cersei Lannister, somewhat surprisingly, only racked up three violations, for taking hostages, willful killing and perfidy. Her use of wildfire to inflict mass casualties and destroy the Great Sept of Baelor did not count as an IHL violation, Red Cross asserted, for it did not occur in the course of armed conflict.

The myriad violations of IHL by even our favourite characters in Game of Thrones, as painstakingly outlined by Red Cross, does more than simply challenge our pre-existing notions of good and evil in popular culture and entertainment. It serves as a stark reminder (no pun intended) that regardless of our political leanings, personal preferences or otherwise idiosyncratic viewpoints, the rule of law is fundamental, if not inextricably linked, to the successful functioning of our society.

Lawyers, therefore, have an irrefutable duty to uphold the rule of law, in accordance with our professional obligations. As much as it may pain us to send Daenerys to the Hague (well, not me…maybe you), legal professionals cannot separate themselves from their ethical duties.

The innumerate humanitarian law violations – and the immeasurable suffering that manifests as a result – also says much about the need for meaningful legislative frameworks, domestically and internationally, that curb the ability of governments and other groups from engaging in conduct that is contrary to human rights.

Lawyers can and should, to the best of their ability, advocate for human rights and adherence to prescribed duties as dictated by conventions signed by nation states, through ongoing pressure on state and federal governments including public statements and policy papers all the way through to court challenges where necessary.

In our modern democratic society, social progress and improvements to legislative frameworks is very much possible. But such frameworks appear unlikely to appear in Westeros any time soon, if ever, particularly in light of its barely existent focus on restorative justice.

The perils of retributive justice

In an essay published by Indonesian-based Institute of Research & Community Outreach, Rohani et al opined that the brand of justice employed in Game of Thrones does more to exacerbate cyclical violence and social disharmony than it does deter individuals or groups from certain behaviour.

“The world of Westeros heavily follows a non-restorative system of justice with no tolerance for any form of crime, an attitude which does not help reduce the damage done by the criminals, but it will also help further the damage by punishing all crimes with extreme severity,” the authors write in Mending Wall: A Study of Restorative Justice in George R. R. Martin’s A Song of Ice and Fire and Tales of Dunk and Egg.

Such retributive justice – and the severity with which punishments are doled out in the Game of Thrones universe, such as Ned Stark beheading a Night’s Watch deserter in the pilot, or Ned Stark’s own beheading later in the first season for supposed treason – appears contrary to the direction of our modern legal system, in which restorative justice (whereby offenders can be rehabilitated rather than simply punished) is increasingly being recognised by the Australian Institute of Criminology as being effective on more prolific offenders.

Extrapolating the most successful methodology for reducing rates of recidivism is an ongoing conversation for state and federal law enforcement officials, but if Game of Thrones teaches us anything about law and order, it is that retributive justice spawns monumental consequences. In other words: violence begets violence.

The closest that Game of Thrones comes to any semblance of restorative justice, Rohani et al continue, is with the Night’s Watch: a brotherhood of men dedicated to the aforementioned Wall which separates the realm of men from the terrors residing north of it. The Watch is populated primarily by criminals – with notable exceptions, such as Jon Snow and Samwell Tarly – whose transgressions have earned them a lifetime of penal servitude, of sorts, by dedicating themselves to the protection of Westeros.

But while the Night’s Watch undertake a form of community service, rather than be subject to capital punishment, it fails to provide those who have transgressed the opportunity to re-enter Westerosi society. Reducing rates of recidivism is immaterial in the Game of Thrones world, for no individual charged or convicted of a crime has the opportunity to re-offend even if they wanted to.

Experts, commentators and citizens across the sociopolitical spectrum of Australia, including legal professionals, have diverse views on the severity of punishments to be handed down in our justice system. Some, most active on social media platforms, would welcome a return of capital punishment for offenses such as rape or terrorism. But most agree that such barbarism – utilised and sometimes glorified in Game of Thrones – has no place in modern Australia.

It does, however, offer some level of perspective for how we can continually improve our own justice system. Lawyers and legal professionals can and should be at the forefront of such conversations and must continue to use their expertise to advocate for legislative improvements that serve to breed lower rates of recidivism, better educate the broader public about the ills of criminal or civil misconduct and ensure greater social cohesion.

Conclusion

Game of Thrones comes to an end in just over six weeks. It has been a popular culture tour de force and may remain so for some time to come. And while it has, undoubtedly, served as escapist entertainment for lawyers and law students at the end of long days, or provided creative inspiration for practitioners seeking work/life balance, it has also – whether we’ve been conscious of it or not – been a vehicle through which the vitality of legal processes, and the lawyers who enforce them, are made abundantly plain.

Legal advocacy is paramount for the successful functioning of our increasingly globalised world through to the protection of vulnerable persons. Whether the justice system is retributive or restorative may also serve to influence societal and cultural norms. But, most significantly, the necessary presence of lawyers in our collective navigation of life, and the communities in which we live those lives, must be better appreciated.

Game of Thrones – with all of its shock, gore and horror – understands this.

This feature follows Jerome Doraisamy’s December 2018 feature, titled: What can lawyers learn from Harry Potter? To read that feature, click here.