The Genderless Iron Throne and the Ephemeral Impact of The Great Council of 101 AC
In the show universe of Game Of Thrones, the question of whether it is possible for a woman to sit on the Iron Throne is well-settled. Cersei Lannister, First of Her Name, Queen of the Andals and the First Men, and Protector of the Realm, has sat the Iron Throne for almost 3 years of real-world time since King Tommen’s abdication. While plenty of Queen Cersei’s subjects are a little miffed about that, the realities of who currently wields power in Westeros make it possible, if not overwhelmingly likely, that Cersei’s successor will also be female. Thus, we can fairly say that in the show universe the (dragon?)glass ceiling has been thoroughly shattered.
But what of the book universe of A Song of Ice and Fire? In Book Westeros, Cersei has not (yet) had her ascendancy, Daenerys is still tangled in her Meereenese knot, and Sansa is just beginning to marshal her forces in the Vale. Is it legal for one of these capable rulers to declare #ForTheThrone? Most Westerosi believe it is illegal for a woman to rule.
Most Westerosi are wrong.
“In the eyes of many, the Great Council of 101 AC thereby established an iron precedent on matters of succession: regardless of seniority, the Iron Throne of Westeros could not pass to a woman, nor through a woman to her male descendants.”- WOIAF, Targaryen Kings, Jaehaerys I
Convened by order of King Jaehaerys the Conciliator in order to settle the matter of his own succession, The Great Council of 101 AC chose Prince Viserys over Prince Laenor as the heir to Jaehaerys I in part because Viserys descended from the male line whereas Laenor descended from a female line. The ultimate decision by this first Great Council has led many people, both in Westeros and in the fandom, to argue that the outcome of the Great Council conveyed a sort of legal precedent for the Iron Throne that the male line must ALWAYS inherit before the female line. However, this argument misapprehends several things about the Great Council and its decision, including but not necessarily limited to: the nature of the decision itself, the theory of law, and the nature of precedent both in Westeros and in the real world.
In this essay, I will show that:
1) The Great Council of 101 AC was a legislative, not a judicial assembly;
2) That because the decision the Great Council of 101 AC made was a legislative one, it conveys no power of precedent; and
3) That Westerosi application of law does not support a reading that the Great Council of 101 AC fundamentally altered the rules of inheritance for the Iron Throne.
- Relevant Factual Background
By 101 AC King Jaehaerys I was really really old. When Jaehaerys’ first son-and-heir, Aemon Targaryen, had died about 10 years before, the king named his third-born child Baelon as heir. In doing so he passed over his granddaughter Rhaenys, presumably (though not explicitly) because Rhaenys was a woman and Baelon was a man. Jaehaerys’ wife Queen Alysanne was righteously pissed because she believed Rhaenys’ sex should not prevent her from inheriting the Throne. Then, Baelon too tragically died, leaving the realm without an acknowledged heir.
By 101 AC Jaehaerys knew he didn’t have much time left. While most of his children had died at this point, many had left children of their own, and as a result he was in a bit of a pickle in terms of who should succeed him as monarch of the Seven Kingdoms.
For the sake of brevity I will skip most of the dozen or so possibilities out there but focus on the two primary candidates that Jaehaerys had to choose from:
1) Viserys Targaryen, his grandson (Age 24)
-Father: Baelon Targaryen (Jaehaerys and Alysanne’s third-born child)
-Mother: Alyssa Targaryen (Jaehaerys and Alysanne’s fifth-born child)
-Dragonrider? Hell yes he was.
2) Laenor Velaryon, his great-grandson (Age 7)
-Father: Corlys Velaryon
-Mother: Rhaenys Targaryen (the first-born child of Jaehaerys and Alysanne’s first-born child, Aemon)
-Dragonrider? Not yet
At the time of 101 AC, House Velaryon was one of the most rich and powerful houses in Westeros, and they began marshaling forces to press Laenor’s claim. To avoid a potential civil war between these factions, Jaehaerys decided to convene a Great Council of lords from throughout Westeros “to discuss, debate, and ultimately decide the matter of succession.” See Fire & Blood– Heirs of the Dragon, a Question of Succession. This was a wise political decision on Jaehaerys’ part. Delegating the decision allowed him to deflect any ramifications from rival factions of whoever the Council chose because he could blame the decision on the assembled Lords of Westeros. It also meant he would avoid making Alysanne mad by once again explicitly favoring his male line over his female line.
It is important to note that Jaehaerys’ task for the Great Council was to choose his heir. The task ordinarily would be one for the King himself, but he chose in this instance to delegate this power to the Great Council. What he did not do (and could not do) was to delegate to the Great Council the power to choose all heirs for all time.
At any rate, the Great Council met for 13 days at Harrenhal. They discussed, and dismissed, 9 minor claimants for reasons as varied as:
“The tenuous claims of nine lesser competitors were considered and discarded (one such, a hedge knight who put himself forward as a natural son of King Jaehaerys himself, was seized and imprisoned when the king exposed him as a liar). Archmaester Vaegon was ruled out on account of his vows and Princess Rhaenys and her daughter on account of their sex…” –Fire & Blood– Heirs of the Dragon, a Question of Succession.
Note again that while some of these claimants were discounted by the Great Council because of their sex, it was not the Council’s only consideration. Vaegon, who would have had a very strong claim absent his maesterly vows, was discounted as a result of him taking the chain, showing that the Great Council valued the practicality of the choice not just whether the claimant was male or female.
With those minor claims disposed of, the Lords also considered the various strengths and weaknesses of the two main claimants.
“…leaving the two claimants with the most support: Viserys Targaryen, eldest son of Prince Baelon and Princess Alyssa, and Laenor Velaryon, the son of Princess Rhaenys and grandson of Prince Aemon. Viserys was the Old King’s grandson, Laenor his great-grandson. The principle of primogeniture favored Laenor, the principle of proximity Viserys. Viserys had also been the last Targaryen to ride Balerion…though after the death of the Black Dread in 94 AC he never mounted another dragon, whereas the boy Laenor had yet to take his first flight upon his young dragon, a splendid grey-and-white beast he named Seasmoke. But Viserys’s claim derived from his father, Laenor’s from his mother, and most lords felt that the male line must take precedence over the female. Moreover, Viserys was a man of twenty-four, Laenor a boy of seven. For all these reasons, Laenor’s claim was generally regarded as the weaker, but the boy’s mother and father were such powerful and influential figures that it could not be dismissed entirely.
Though Lord and Lady Velaryon were eloquent and open-handed in their efforts on behalf of their son, the decision of the Great Council was never truly in doubt. By a lopsided margin, the lords assembled chose Viserys Targaryen as the rightful heir to the Iron Throne. Though the maesters who tallied the votes never revealed the actual numbers, it was said afterward that the vote had been more than twenty to one.” –Fire & Blood– Heirs of the Dragon, a Question of Succession.
Does this decision by the Great Council of lords convey a lasting precedent or did it merely choose a convenient, practical heir? The text doesn’t mention any precedential intent on the part of the Council. By contrast the text stresses that while the fact that Viserys’s claim derived from the male line was one important consideration, it was not the only important consideration. Other considerations included: the age difference, proximity to Jaehaerys, and also the ability to dragonride so as to perpetuate the Dracocracy that the Targaryens had established in Westeros.
Nevertheless, the decision to choose Viserys over Laenor was made in a lopsided fashion by the Great Council. Furthermore, Jaehaerys ultimately ratified that decision by accepting it and naming Viserys his heir. Due to the Old King’s ratification of the decision, there can be no debate that the ultimate choice made by the Great Council of 101 AC had the force of law. But the question of whether it created a lasting precedent requires a study of what kind of law was made that year at Harrenhal. Was it a law that just affected Jaehaerys, Viserys, and poor Laenor? Or was it a precedential law that would bind future claimants for the Iron Throne for generations to come?
- Theory of Law/Standard of Review
In order to answer a question of law we first must define our terms. Recall that quote from Maester Yandel above: “In the eyes of many, the Great Council of 101 AC thereby established an iron precedent on matters of succession….”. See WOIAF, Targaryen Kings, Jaehaerys I. So what the heck is the legal definition of a precedent?
Thankfully, folks have been defining the term “precedent” for centuries. The first place most lawyers will look for a legal definition is “Black’s Law Dictionary”, a ponderous tome. Black’s defines “precedent” as:
“An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. A draught of a conveyance, settlement, will, pleading, bill, or other legal instrument, which is considered worthy to serve as a pattern for future instruments of the same nature.”
Note that under this definition in order for a decision to have precedential value it must 1) come from a court or other judicial entity, 2) have value as an example for future courts to use, and 3) concern a question of law that could happen again. (Note also that “bill” in this context does not mean a bill considered by a legislature in the “I’m just a bill sitting on Capitol Hill” sense; rather a legal “bill” is an old-timey way of saying “complaint”.) But what about other non-dictionary definitions?
U.S. Courts define precedent in similar ways. For example:
“A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy” Allegheny General Hospital v. NLRB, 608 F.2d 965, 969-970 (3rd Cir. 1979).
Once again, the same three features noted above exist: a judicial decision, that serves as an example, which furnishes the rule (aka the law) to determine future similar cases.
America and other common law countries, also use the snooty Latin term “stare decisis” to refer to the notion of precedent. The Ninth Circuit Court of Appeals (the Best Circuit) has this to say about the interaction between the two:
“Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — “to stand by and adhere to decisions and not disturb what is settled”. Consider the word “decisis”. The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the “what”, not for the “why”, and not for the “how”. Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts”- United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50, 185 (9th Cir. 1996)
Looking for a more Ironborn-y definition of precedent? Australia has you covered:
“[T]hat is the way of the common law, the judges preferring to go ‘from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science.” Perre v. Apand (1999) 198 CLR 180 (Justice McHugh)
The point is that by definition a precedent can only be rendered by a judicial body, and it can only be used to decide a question of law. Which leads to the next question: Was the Great Council of 101 AC a judicial body?
- Legal Analysis
The Great Council was not a judicial assembly, it was a legislative one. Legal theorists considering the difference between types of legal structures most often begin with Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (or Montesquieu for short). Montie (for even shorter) was a French legal scholar in the early 1700s who wrote what came to be a hugely influential text on law and government called “De l’esprit des loix”, or “Spirit of Laws”. In it, he argued that a separation of governmental powers between different people or bodies was essential to avoid tyranny. Moreover, the type of separation of the particular powers was crucial. Montesquieu wrote:
“In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law.
By virtue of the first [Ed- Legislative], the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second [Ed- Executive], he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third [Ed– Judicial], he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.” –Spirit of Laws, Book X.
As Montie describes above, the determination made by the Great Council of 101 AC shares much more in common with a legislative determination than a judicial one. The hallmarks of a judicial determination are generally that the decision it makes is impartial and based on the facts and the law of a particular matter. The decision is typically done by either a judge or a jury, sitting as judicial officers over a case or controversy. Another feature of a judicial determination is that it is ideally independent of popular will. Furthermore, judicial decisions generally do not turn solely on practical considerations, but should be guided first by the law and then by the facts.
The Great Council’s decision had none of these hallmarks. First, it was clearly not impartial, as many of the claimants themselves or their representative factions were allowed to vote. For example Corlys Velaryon, father of Laenor, voted. Second, the great Council was neither a judge nor a jury deciding which facts were true and which facts were not. Third, the Great Council was emphatically an expression of popular will.
By contrast, one essential nature of a legislative determination is the lack of precedential value. This is for good reason: lawmakers generally shouldn’t be able to bind future lawmakers from changing things if the laws they enact are bad. The changeable nature of a legislative determination is so crucial that Montesquieu mentioned it in his definition of legislative power. (“…the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted…”). Indeed, you see countless examples of legislatures passing or attempting to pass laws to repeal or replace laws passed by previous legislatures. The unsuccessful attempt by the recent Republican Congress to repeal the Affordable Care Act is one such prominent example.
Legislative determinations also must concern themselves with practical considerations. For example, a legislature passing a law must decide whether the treasury can bear the cost of the law. So, too, did the Great Council rely on excessively practical considerations in addition to the sex through which the claim derived. The text explicitly mentions that the Council considered several practical considerations: “Viserys had also been the last Targaryen to ride Balerion…though after the death of the Black Dread in 94 AC he never mounted another dragon, whereas the boy Laenor had yet to take his first flight upon his young dragon, a splendid grey-and-white beast he named Seasmoke. … Moreover, Viserys was a man of twenty-four, Laenor a boy of seven.” If he task of the Great Council was to make an Iron Precedent which ruled for all time that women could never sit the Iron Throne, none of the above considerations would be relevant at all. The fact that such practicalities were relevant gives weight to the conclusion that no such precedent was intended.
Given the type of determination made by the Great Council, the makeup of the Council, and how the Council made its determination, there is little doubt that the decision it made was legislative in nature, rather than judicial. But this does not end the inquiry as to whether the decision of the Great Council had precedential value because legislatures can and do pass laws that affect the future. For example, Congress may pass a law that says from now on, certain activities are unlawful. Some may colloquially refer to such a law as a “precedent” even if it doesn’t fit the strict definition. However, in order for Congress to pass a law that affects events in the future, it must intend and express that intent. Here, the Great Council did no such thing. The task it was given was simple, narrow, and finite: choose an heir for Jaehaerys. In making its decision, the Great Council did nothing other than choose an heir for Jaehaerys. There is absolutely no textual evidence for the notion that the Great Council of 101 AC actually voted for anything that said: 1) Viserys Targaryen is the true heir to Westeros, and 2) also by the way no woman or male by the female line may inherit the throne.”
But let us assume arguendo that the Great Council did, in fact, intend such a future precedent. If the Great Council had indeed intended the result that from now on only men and rulers who inherited from men would sit the Iron Throne, would that legislative act still have the force of law?
It would not. We know this because, as Montesquieu said, all legislative decisions are subject to future lawmaking bodies “amend[ing] or abrogat[ing] those that were already enacted.” Here, even if the Great Council had ruled that there could be no future female monarch on the Iron Throne, a subsequent lawmaking body did in fact abrogate that ruling. In this case the subsequent lawmaking body was none other than Viserys himself:
“For King Viserys, the matter was long settled; Rhaenyra was his heir, and he did not wish to hear arguments otherwise—despite the decrees of the Great Council of 101, which always placed a man above a woman.”- WOIAF, Viserys I and the Dance of the Dragons.
In a monarchical system, the King’s word is a legislative decree. Therefore, to the extent that the Great Council of 101 AC ruled that women could no longer sit the Iron Throne, that legislative determination was overruled by King Viserys. Thus, the decision of the Great Council cannot have precedential value and bind future monarchs or lawmaking bodies should those lawmakers decide to amend or abrogate the decision. There is no Iron Precedent which prevents women from sitting the Iron Throne or men from inheriting the Throne through the rights of their mothers.
- Westerosi Law Does Not Support A Different Conclusion
One might argue that the laws of Westeros do not follow the theory and custom that has developed in modern common law or earthly law, and so Black’s Law Dictionary or Montesquieu can go kick rocks. But a fair reading of Westerosi law, such that it exists, does not support the notion that women were prohibited from inheriting rule either before or after the Great Council of 101 AC.
Prior to the Great Council of 101 AC there were several examples of monarchs who were either women themselves or derived their rule from the female line. Dorne is, of course, rife with such rulers, from Nymeria to Meria Martell. Indeed it can be argued that the Iron Throne itself passed to a ruler who derived his rule by virtue of his mother: Maegor was the son of Aegon the Conqueror, but pure agnatic primogeniture would have deemed his nephew Aegon the King. Instead, Maegor asserted his claim by right of his mother Visenya. Furthermore, contemporary accounts indicate that the question of female ascension was very much open at the time:
“While many still debated whether Prince Maegor or his niece, Rhaena, should have precedence in the order of succession, it seemed beyond question that Aegon would follow his father, Aenys, just as Aenys would follow Aegon.” –Fire & Blood– Sons of the Dragon
The fact that Maegor v. Rhaena was even a debate means that there was no necessary prohibition against female rulers. If the universal custom was to prohibit it, no one would care to argue about who would take precedence between Maegor and Rhaena. This indicates that Westeros follows Male-Preference Primogeniture, not strict Agnatic Primogeniture.
Events subsequent to the Great Council confirm this reading. Viserys’ chosen heir Rhaenyra did in fact ascend to the Iron Throne, albeit for a short time. We also know for sure that despite the Council’s ruling there is no legal prohibition against women serving as monarchs or lords in the North. See, e.g.:
“Young, and a king,” he said. “A king must have an heir. If I should die in my next battle, the kingdom must not die with me. By law Sansa is next in line of succession, so Winterfell and the north would pass to her.”…”So you pray. Have you considered your sisters? What of their rights? I agree that the north must not be permitted to pass to the Imp, but what of Arya? By law, she comes after Sansa . . . your own sister, trueborn . . .” –ASOS: Catelyn V
If there were an Iron Precedent against a woman inheriting any sort of throne, neither Sansa nor Arya Stark would be in the line of succession for the title of Queen in the North. And yet here they are. Furthermore, we know from ADWD Jon IX that trueborn daughters inherit before uncles because of Alys Karstark’s legal right to inherit the Karhold over her dickbag uncle Cregan.
“He is no lord,” Alys said scornfully. “My brother Harry is the rightful lord, and by law I am his heir. A daughter comes before an uncle. Uncle Arnolf is only castellan. He’s my great-uncle, actually, my father’s uncle. Cregan is his son. I suppose that makes him a cousin, but we always called him uncle.” ADWD, Jon IX
Lord Commander Snow then arranges a marriage between Alys and Sigorn to cement Alys’ claim to the Karhold. If women were prevented from inheriting entirely, her marriage would not have mattered and the Karhold would pass to her unclecousin Cregan.
While the application of legal custom in Westeros is a subject for another essay, my initial reading indicates that there is nothing which leads to the conclusion that pre-existing custom or the practice thereafter which renders the decision of the Great Council of 101 AC into a sort of higher law. Simply stated: the decision was about Viserys and Laenor only. Attempts to make it into an Iron Precedent are misguided and incorrect.
The Great Council of 101 AC did not create a legally binding precedent in Westeros. It was not intended to, and even if it had been that ruling of the Great Council was overruled by Viserys I. There is no law which prevents women from sitting the Iron Throne, or men from inheriting the Throne through their mothers.