Economist Peter Leeson has an interesting article in the Boston Globe arguing that the Medieval practice of “trial by ordeal” may have been more effective at convicting the guilty and freeing the innocent than we are inclined to believe. I’m not convinced, but it’s an interesting article.
Sandy MacHoots says:
Many years ago there was an article in (I believe) the Liberian Law Review which reviewed the same sorts of practices in Africa in the 1970s. The article concluded that most of the witch doctors who administered the tests actually functioned as a kind of detective bureau. They would investigate the crime, decide who was guilty, and then manipulate the tests so that the gods selected the correct person.
January 31, 2010, 3:34 pmDaniel Chapman says:
I would like to see a more detailed study of this phenomenon, especially with some factual data regarding recidivism or other statistics that could show the “real” accuracy of such a method. We all know that our own system is not infallible when it comes to making sure the guilty are punished, and I bet OJ would rather have stuck his hand in boiling water than go through his public trial.
Not that I’m advocating a return to such a system, of course… as the author said, it depended on a superstitious culture that just doesn’t exist today, but I bet a deeper understanding of why (and if) it worked might help improve our own system.
January 31, 2010, 3:39 pmfrankcross says:
It seems there is one major stupidity in the article. It asserts that the accused had faith in the validity of the trial by ordeal but the priests who administered it did not, rigging it for the innocent accused. That seems unlikely.
January 31, 2010, 3:40 pms says:
It’s nice he doesn’t have any actual, ya’know , evidence that ordeals worked. I suppose there could be some in the academic version paper. Also, on the last page he cites the Barro and McCleatry “finding” that beliefs in the afterlife are associated with growth, but claiming they show a causal link is ridiculous, I don’t think any economist would take seriously the claim that Barro can show causality instead of just correlation.
January 31, 2010, 3:41 pmArthurKirkland says:
That article humiliates Peter Leeson and embarrasses the institutions that have hired or instructed him (unless they, too, champion superstition to the point of speaking kindly about trial by physical ordeal, in which circumstance the humiliation is theirs, too).
January 31, 2010, 3:42 pmArthurKirkland says:
You are a lenient grader, frankcross. Bless you for being kind even when it is not warranted.
January 31, 2010, 3:48 pmDaniel Chapman says:
I think AK’s post would be a good example of the sort of highbrow snark that slips past Orin Kerr’s moderation filter, but adds little more to the conversation than “What an idiot!”
Thanks for the effort, Arthur. We all appreciate it.
January 31, 2010, 3:48 pmOff Kilter says:
“as the author said, it depended on a superstitious culture that just doesn’t exist today”
Really?? How many believe lie detectors work?
January 31, 2010, 3:50 pmChris Travers says:
Having studied various trial by ordeal procedures in Scandinavia, I think it is likely that in many cases they may have worked. In particular, what is interesting are the number of findings of innocence that came out of practices that would seem likely to convict everyone (carrying the irons for example). The mother of Hakon Hakonarson is one example of such a finding.
A second thing that is worth noting is that there was a great deal of ritual and restrictions on the actual practice. Hence one sees that people who could not control their actions were more likely to be declared summarily guilty not from failing the ordeal itself but from not following all of the requirements. In some of the medieval literature, this is actually used to discuss false findings of guilt, but probably on balance would work against the guilty.
A third element to consider is the reliance on some cases of adversarial processes, such as trial by combat. I am not entirely sure that tourneys of this sort are less likely to create an unjust result in a civil matter than attorneys are.
A final matter is that a number of forms of trial by ordeal prevalent in Northern Europe seem unlikely to convict anyone. One really wonders to what extent something like hypnosis may have affected the process (and indeed perhaps all the ritual elements here may have contributed to such a level of suggestion).
The major exception seems to have been cases based on older principles of human sacrifice. The practice of floating a witch for example, was derived from older rituals of human sacrifice and the water was said to accept the innocent or worthy and reject the guilty. However, in these cases, it is likely that the goal was to kill the worthy in some sort of oferatory ritual.
January 31, 2010, 3:50 pmbyomtov says:
It seems there is one major stupidity in the article. It asserts that the accused had faith in the validity of the trial by ordeal but the priests who administered it did not, rigging it for the innocent accused. That seems unlikely.
Another major stupidity is the assumption that, even if the priests rigged the result, they would do so accurately and impartially.
Also, consider this:
Priests knew that only innocent defendants would be willing to plunge their hands in boiling water. So priests could simply rig trials to exonerate defendants who were willing to go through with the ordeal.
So was anyone actually convicted by ordeal? If so, wouldn’t that refute the theory?
January 31, 2010, 3:51 pmOff Kilter says:
I have heard Leeson speak, and he’s really quite impressive. I’d love to hear a debate between him and Arthur Kirkland. I suspect Kirkland would find it a trial by ordeal…
January 31, 2010, 3:53 pmOrin Kerr says:
Leeson:
There are a lot of assumptions going into this that I believe are false. First, I believe the punishment for felonies at the time was a quick execution. Sure, you could confess, but it was just giving yourself a death sentence. (So much for “settling with your accuser.”) Second, those charged with crimes were detained, not able to “free the realm.” That’s my understanding, at least.
January 31, 2010, 4:00 pmyankee says:
I thought the ordeal was precisely equivalent to random chance. If being acquitted under the ordeal made it even 0.0001% more likely that you were actually innocent, that would be “surprisingly effective” by my lights.
But Leeson’s claim is far stronger: that trial by ordeal “accurately determined who was guilty and who was innocent.” Critically, he argues that “Priests knew that only innocent defendants would be willing to plunge their hands in boiling water. So priests could simply rig trials to exonerate defendants who were willing to go through with the ordeal.” This is an extraordinary and highly testable claim: that virtually nobody was ever convicted under trial by ordeal. Is there any evidence for it?
Leeson’s claim that the ordeals were rigged is also in some tension with his claim that the ordeals were widely believed in. How is it that everyone except the priests believed in the efficacy of trial by ordeal? If priests could infer that “only innocent defendants would be willing to plunge their hands in boiling water” through the force of logical reasoning, couldn’t everyone else employ the same logic? How could widespread fakery persist without being undermined by leaks and rumors? Did nobody notice that the water wasn’t really boiling or that the “exonerated” person’s arm hadn’t really healed?
January 31, 2010, 4:01 pmMonty says:
Thats a rather important question…
More generally, the logic presented, that you would rather confess then risk the superstition, would depend entirely on the potential punishment for the underlying offensive. If the choice is between sticking your hand into the boiling water, and paying a fine, or some less painful physical punishment, then sure, the only people who would do so were those who beleived fully in thier innocence. But if your talking about a capital offense even if you confess, what do you have to loose by going through with the ‘Trial’? (Paticularly in cases where the method of execution would be slow and painful)
January 31, 2010, 4:02 pmOrin Kerr says:
Daniel Chapman:
I think of highbrow snark as the equivalent of “This argument is really terrible,” which is not uncivil. On the other hand, sarcasm such as “Thanks for the effort, Arthur. We all appreciate it.” . . .
January 31, 2010, 4:04 pmOrin Kerr says:
Oh, and a question: Not having heard of Peter Leeson before , but seeing he has a lot of very libertarian credentials, is this part of that anarcho-libertarian agenda that tries to suggest that we don’t need governments to do criminal trials and the like?
I’m reminded of once going to an IHS event where someone at dinner argued that we don’t need a state to enforce contracts. The idea, as I recall it, was that armed mobs of local citizenry would instinctively be so offended by violations of contract law that the armed local community would effectively enforce contracts without the need for government courts. (Because armed mobs are generally deeply respectful of contract law? Oh well.) Just curious….
January 31, 2010, 4:09 pmyankee says:
Good point! Since the ordeal was used only when the authorities didn’t know who was guilty, that makes the accuracy of the priests’ judgment highly dubious, even leaving aside the impartiality issue. If the priests were better than chance, that’s better than I would have expected, but a far cry from saying the system “accurately determined who was guilty and who was innocent.”
January 31, 2010, 4:10 pmyankee says:
In this particular case, I think “what an idiot!” is an entirely appropriate response. You could send a fleet of a oil tankers through the holes in Leeson’s logic.
January 31, 2010, 4:17 pmChris Travers says:
Not at all.
Consider “carrying the irons” which involved carrying, over a set distance, a pair of red-hot pieces of iron, flat against the palms of one’s hands.
I seriously doubt that whether or not one has burn marks after three days has anything to do with random chance.
Such a remark suggests that the commenter doesn’t actually know what sorts of trial by ordeal practices were common in the Middle Ages.
January 31, 2010, 4:24 pmyankee says:
@Chris Travers: “dependent on factors completely unrelated to the guilt or innocence of the accused” would have been more precise.
January 31, 2010, 4:26 pmChris Travers says:
Ok. However, what I find fascinating is how many records we have in Northern Europe of people being acquitted because after carrying the irons (i.e. walking 30 feet at a normal, calm pace) with red hot bars of iron in their palms, they did not have burns on their hands 3 days later.
I am not entirely sure why these seem to be connected. One important possibility is the idea of some sort of hypnosis-like mechanism.
January 31, 2010, 4:29 pmArthurKirkland says:
If you discerned any logic in Leeson’s work, you are a better man than I am.
January 31, 2010, 4:35 pmArthurKirkland says:
I guess it depends on what counts are a “record,” what is unreliable, and what is pure fable
January 31, 2010, 4:37 pmgeorge weiss says:
classic modern armchair economics post freakonomics
A) find the craziest idea you can think of
January 31, 2010, 4:45 pmB) try to defend it using some econ 101 principals of rational incentives while also making wide swathing assumptions and having little empirical data.
C) suggest that anyone who disagrees is a acting in a kneegerk close-minded mannor and cannot get past his bias against the crazy idea
Chris Travers says:
I would think the biography of Hakon Hakonarson (a contemporary source) would be as reliable as things get from that time.
We also have church records of trial by ordeals throughout medieval Christian Europe. The royal biographies are more believable to a sceptical mind though. After all the church records also include things like peoples’ eyeballs falling out when, after having committed some serious sin, they touch some relic of some saint or another….
Of course, if we remove all our sources from the time, we are free to populate our knowledge of the period entirely with modern prejudices….
January 31, 2010, 4:47 pmRoger the Shrubber says:
And then there’s that whole religion thing.
January 31, 2010, 4:59 pmmethodact says:
Milos Forman’s 2006 film, Goya’s Ghosts, gives a very good feel for the politics involved by those advancing the said notion that the accused be, “put to the test”.
As an aside, consider the quote from fourth century BCE poet, Menander: “Whom the gods love die young.”
January 31, 2010, 4:59 pmbyomtov says:
I don’t doubt that priests sometimes rigged the system. After all, crime labs sometimes do that today.
But what were their motives? In some cases they may have felt, quite reasonably, that since there was insufficient evidence to convict in court, the defendant should be let go. Notice that this would account for what Chris Travers claims are
“many records we have in Northern Europe of people being acquitted because after carrying the irons (i.e. walking 30 feet at a normal, calm pace) with red hot bars of iron in their palms, they did not have burns on their hands 3 days later.”
Of course, another possible explanation for this is bribery. Leeson himself says that there was room for a good bit of hocus-pocus in the ordeals.
In other cases, they may have used the process to help allies escape justice, or to convict enemies.
All this makes much more sense to me than Leeson’s explanation of why the ordeal was a good way to determine guilt.
January 31, 2010, 5:13 pmArthurKirkland says:
Stevie Wonder said it all in four words:
Superstition ain’t the way
The least George Mason could do for its students would be to bring Stevie to campus as a counterbalance. The faculty of Sesame Street beat ‘em to it, though.
January 31, 2010, 5:30 pmgasman says:
The modern lie detector, polygraph, is nothing more than trial by ordeal. The witch doctor, polygraph expert, must be in immediate proximity to the person being interviewed. Information can be determined from the process only when the objective scientist gets to watch the person on trial squirm. The data and interpretation is manipulated no less than by the priests of old.
January 31, 2010, 5:36 pmMike McDougal says:
I’d like to see a boiling pot of water try to convict a corporate entity.
January 31, 2010, 5:44 pmChris Travers says:
Pretty much. But at least they aren’t superstitious ;-)
I would like to see how MacDonalds can fail a lie detector test….
January 31, 2010, 5:49 pmTRE says:
not even accurate on theological grounds. The guilty accused could justify a belief of surviving the ordeal through any manner of theological method. (Say that someone really was a Witch and believed in Satan, why wouldn’t they believe Satan would protect them?) Furthermore the priests could easily think “kill them all and let God sort them out.”
January 31, 2010, 6:00 pmMike McDougal says:
Obviously it can’t. But polygraphs are used to gather evidence, not to generate legal conclusions.
January 31, 2010, 6:02 pmBama 1L says:
Leeson makes a significant factual error. He says that clerics judged the ordeals involving wounds and healing. This is not true. Narrative accounts of ordeals show that the assembled crowd judged whether the wound had healed properly and acclaimed him innocent or guilty. There was no expert or official who made this determination. Therefore the outcome of the ordeal was actually the judgment of the crowd, not the priest or someone else. It was a sort of referendum on the defendant’s guilt without formal presentation of evidence–a jury without a trial, if you like. So the attitudes or beliefs about individual defendants held by priests, who had to be present for the conceit of supernatural sanction to be plausible, could not have been as important as Leeson supposes.
Leeson simplifies somewhat the procedural choices available to defendants, but he makes an intriguing point when he says that, given the alternatives, only innocent defendants would submit to the ordeal. But this is about like saying that, in the modern American system, only innocent defendants go to trial, isn’t it? And we don’t think that’s true.
Peter Brown wrote a very important article on the ordeal back in 1975 which I heartily recommend. Peter Brown, “Society and the Supernatural: A Medieval Change,” Daedelus (1975): 133-151. Also worth reading is Robert Brown, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford, 1986).
For what it’s worth, I don’t think ordeal was any worse than the procedures that followed it on the Continent, which usually required confession and torture.
January 31, 2010, 6:18 pmSeaDrive says:
The little I have read convinces me the the lie detector test is misnamed. It’s not a test; it’s a coercive interrogation technique.
January 31, 2010, 6:41 pmarbitraryaardvark says:
Anthropologist Marvin Anderson has written about how this works (better than random, but imperfectly.) The witch doctor touches the tip of a heated knife to the suspect’s tongue. The guilty suspect screams in pain, the innocent accused bears it stoically. When you are nervous, your tongue gets dry. When you are calm, saliva turns into steam which makes a cushion. So innocent nervous people and sociopaths can produce false results. Trial by jury produced false positives 15% of the time, advised my lawyer. I read about trial by ordeal in a book called the Palladium of Liberty, a book about the evolution of the jury right. I was struck by how little things have changed. The modern system of plea bargains has a lot in common with trial by ordeal. One of my ancestors was jailed for witchcraft. The brother of another was hung for witchcraft. His widow was later pensioned, a kind of admission they’d got it wrong. Criminal justice isn’t much better today, probably worse.
January 31, 2010, 6:43 pmAnonsters says:
LOL. Orin’s on a roll, folks.
January 31, 2010, 7:10 pmDilan Esper says:
I doubt trial by ordeal worked very well. But trial by duel and trial by oath are other matters entirely.
January 31, 2010, 7:11 pmAnonsters says:
I was just about to ask whether this Leeson dude thinks trial by battle actually worked.
January 31, 2010, 7:13 pmChris Travers says:
I just finished reading a fascinating book that perhaps sheds light on such a proposal: “Viking-Age Iceland” by Jesse Bjock. Great read. I highly recommend it.
Anyway, I think your friend has a good point in terms of how society would likely work without a state to enforce contracts. Such a state would seem to act like Republican Iceland, which had no executive branch whatsoever. Indeed, it only had courts and a legislature. But there was no official law enforcement.
The only problem with your friend’s proposal is that the Icelandic model used blood feuds, and settlements for blood feuds, as a legitimate way to approach law enforcement. Basically the parties were free to fight it out until they got tired of such and then could go to court or hire a lawyer to arbitrate a settlement.
So certainly such a society is possible. Whether or not it would be better than the current approach is perhaps a matter of taste.
January 31, 2010, 8:19 pmERH says:
My god is there anything economists can’t get completely wrong?
January 31, 2010, 9:05 pmA. Criminal says:
The article was interesting speculation.
The ordeal itself is punishment, akin to but probably far worse than being arrested but not necessarily convicted of anything, so people would try to avoid being subjected to ordeals by “following the rules.”
January 31, 2010, 9:06 pmA. Criminal says:
“Polygraph Testing Too Flawed for Security Screening”
January 31, 2010, 9:16 pmhttp://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=10420
(Though security polygraphs have different goals than forensic polygraphs).
George says:
@Orin Kerr “Not having heard of Peter Leeson before” – I believe Peter Leeson was a guest blogger on this blog last year discussing pirates.
There is a draft of the paper behind this article on Leeson’s website. Previous commenters have pointed out that if he is correct most people should be exonerated by the ordeal and he does provide some evidence that this was the case.
January 31, 2010, 9:17 pmERH says:
Under this theory I doubt very many people would have been convicted of witchcraft.
January 31, 2010, 9:47 pmjimM47 says:
@George: Thanks! Your post answered the precise question I’d just wandered into the comments section to ask.
January 31, 2010, 9:47 pmDaniel Chapman says:
Sorry for the sarcasm, Mr. Kerr. I think the comment I referenced is the sort of thing that drags down the conversation for everyone, and I see the same thing from him on just about every thread I read. If you want to promote it, however, I guess it’s your prerogative.
January 31, 2010, 9:54 pmArthurKirkland says:
Had anyone offered a parody alleging that conservatives would be extolling trial by ordeal, it would have been ridiculed — understandably and properly — by conservatives and anyone who believes in playing fair.
January 31, 2010, 10:22 pmMilhouse says:
The major flaw in the ordeal as it was practised in Europe is that it required a miracle to save the innocent, while the default result would be taken as proof of guilt. Contrast that with the sotah ordeal prescribed in the Bible (Numbers ch 5) for a woman accused of adultery: after a long ceremony designed to intimidate her into confessing if guilty, she is made to drink an unpleasant but harmless concoction — spring water into which has been dissolved some soil and ink. If she is guilty, she was warned, she will die a horrible death; if that doesn’t happen, then everyone, including her husband, is convinced of her innocence. Oh, and if she confesses rather than take the ordeal, she is divorced and leaves her husband’s home without a penny to her name, and is forbidden from marrying her alleged lover, but suffers no other penalty.
January 31, 2010, 10:28 pmArthurKirkland says:
Daniel:
My point was that this article — about the bright side of forcing hands into boiling water to adjudicate guilt or innocence — is daft.
Others have mentioned some of the reasoning flaws that make it less sensible to argue about holes in the article’s logic than it would be to observe that there are a few shreds of reason among the bales of silliness. Which is not entirely surprising, because the article appears aimed to support superstition, which is another word for silliness.
If you wish to defend the article, identify a few of the points you support and let’s debate the issues. If not, I do not understand your criticism, other than to infer that you would prefer an environment in which conservatism is free to bloom without interference, in which case there are several destinations you might prefer. In those environments, the debate is so pure no one pretends to be a libertarian.
Different strokes.
January 31, 2010, 11:02 pmHavoc Jack says:
Don’t be so sure the modern world has banished all superstitions. Rather than go with the easy examples like homeopathy or astrology, take diets. I remember a friend of mine was going on a ‘juice fast’ where the only thing she’d eat or drink for a weekend was fruits or vegetables rendered into juice. I read bits of the book she got the idea out of, pointing out exactly how unscientific it was and how the evidence they presented was anecdotal at best. Didn’t make a difference.
Want another one? Try prefixing any old crazy thing with “studies show” and see if people believe you. As long as there’s some fraction of a chance of a causal link people will believe you.
“Studies show that eating corn lowers your blood pressure.”
“Studies show that drinking half a cup of New England Sea Water each year helps you regenerate bone marrow.”
“Studies show that low levels of radiation actually make people healthier.”
Oh wait, that last one’s actually debated. http://en.wikipedia.org/wiki/Radiation_hormesis
But my point is that a more scientific society doesn’t actually quell people’s irrational beliefs. How much difference is there in telling an illiterate medieval peasant that such and such is true because the bible says so, and telling a sophisticated modern new yorker who’s never studied medicine that such and such is true because science says so?
February 1, 2010, 12:39 amSammy Finkelman says:
The current day equivalent is taking a lie detector test.
So a person who refuses a lie detector test is guilty and anyone who takes it is innocent.
I’m not sure this is 100% foolproof.
February 1, 2010, 12:55 amFub says:
Medieval ordeals were so, um, medieval. The African Bashinlange tribe had a much more sophisticated and effective ordeal to determine the truth of an accusation:
What’s not to like?
February 1, 2010, 1:11 amBama 1L says:
It would appoint a champion. They had this problem back then, you know.
February 1, 2010, 1:17 amRandy says:
Chris: “what I find fascinating is how many records we have in Northern Europe of people being acquitted because after carrying the irons (i.e. walking 30 feet at a normal, calm pace) with red hot bars of iron in their palms, they did not have burns on their hands 3 days later.”
So an innocent person carries a red hot iron a distance, and then when it heals okay, he’s proclaimed innocent? In other words, he’s punished with cruel but no-so-unusual punishment regardless of guilt.
Arbitrary: “The guilty suspect screams in pain, the innocent accused bears it stoically. When you are nervous, your tongue gets dry. When you are calm, saliva turns into steam which makes a cushion.”
Right, because whenever someone holds me down and tells me that they will touch a red hot iron to my tongue, I remain calm as a cucumber.
Havoc: ” As long as there’s some fraction of a chance of a causal link people will believe you.”
I’ll up you one. As long as you can claim that something can either lengthen your penis or help you to perform better, people (mostly men) will believe you. A fraction of a chance of a causal link isn’t even needed.
February 1, 2010, 2:35 amRandy says:
I have an idea for an experiment, which Mr. Leeson should surely approve of. Let’s accuse him of a crime. Doesn’t matter which one, just make up one. Convinced of his innocence, surely he will submit to trial by ordeal. (The believe in superstition is pretty obvious — if he truly believes in this harebrained theory, he knows that he will be “proved” innocent).
Then let’s plunge his hand in boiling water or carry two iron bands some distance. We can be generous and allow him the choice. Heck, we can even have the priest rig it so that the water isn’t really boiling hot.
Anyone guess if he has the courage of his convictions?
February 1, 2010, 2:44 amreadery says:
Are you suggesting that belief that if one simply follows a process one will get reliable results is limited to the Middle Ages?
A computer is a device that takes two wild guesses and creates an answer accurate to 10 places. It’s amazing how its mediation induces otherwise rational people to let slip their fortunes. Is faith in one any less superstitious than in the other?
February 1, 2010, 3:04 amGuy says:
Actually, this all goes to the point that faith in the judicial system is perhaps more socially important than the accuracy of the system itself, which is still relevant today (the guilty will plead guilty, the innocent will go to trial and get off on a technicality… also preventing riots and vigilanteism, and scaring people into obeying the law is arguably more important than having trials actually separate the guilty from the innocent)
But yeah, this doesn’t really make a case for trial by ordeal, it spends about one paragraph explaining why it might have worked, makes numerous bare, fact-free, assertions that it did work, and then says, assuming it worked, that it’s too bad we can’t go back to it because it’s cheap.
I’m picturing a large group of people, torches and pitchforks at the ready, carefully reading the terms and conditions of the contract, reviewing the factual record, paying due attention to the precedent of other unruly mobs, and then working themselves into a murderous frenzy at the idea of someone not properly applying the doctrine of promissory estoppel.
Of course, for national uniformity we must establish a Supreme Mob which can articulate important principles and decide close cases for the other mobs to follow.
February 1, 2010, 5:37 amPintler says:
If you believe the test to be infallible, though, isn’t your choice to be executed now, or suffer horrible burns and agony for three days, then be executed?
February 1, 2010, 9:10 amJonathan says:
I had a professor of medieval legal history, very well respected in his field, who had come to similar conclusions to Leeson concerning the ordeal. He didn’t reach it in quite the same way, but mentioned on one or two occasions thoughts of priestly manipulation of the ritual, etc.
February 1, 2010, 9:13 amHarry O says:
From what I have read of Medieval law (mainly Anglo-Saxon law in England), at the time, a conviction could only take place if there was a witness or if there was a confession. There was no such thing as conviction on circumstantial evidence. The problem is obvious.
The “trial by ordeal” was an early attempt to conform to legal standards of the time when there was neither a confession or a witness. After it was outlawed from being done by church officials, the crown took over torture from the church, but circumstantial evidence slowly began to be allowed in court. Eventually, the crown stopped doing that except in crimes directed at the King or Queen. Even later, this was also dropped. By then, circumstantial evidence was allowed in court.
February 1, 2010, 9:28 amAeon J. Skoble says:
“what I find fascinating is how many records we have in Northern Europe of people being acquitted because after carrying the irons (i.e. walking 30 feet at a normal, calm pace) with red hot bars of iron in their palms, they did not have burns on their hands 3 days later.”
February 1, 2010, 9:40 amIs it not self-evident that any “records” of people carrying red-hot iron and not getting severe burns are faked?
Not buying it.
Daniel Chapman says:
I have no desire to defend the article or debate you on any point, AK. I’ll just say that your posts humiliate you and embarrass the institutions that have hired or instructed you.
February 1, 2010, 9:44 amChris Travers says:
One book worth reading for some additional perspective here is “Orality and Literacy” by Walter Ong. He cites some other books on the development of writing and the law which may make this make a lot more sense.
Even in the 12th century, written records were generally frowned upon as evidence in civil disputes and oral testimony was required. A lot of this makes sense if you think about the fact that the only people who could read and write were the clergy and they weren’t in charge of the court (the king was). Also the adoption of writing doesn’t just open up the possibility of using written records, but fundamentally changes the way people relate to other people, things, and events (as Ong discusses).
So originally, you had a system which was driven by exclusively oral testimony. As writing began to take more of a hold, other forms of evidence were allowed.
Again, if you look at republican Iceland, the difference between manslaughter and murder wasn’t a matter of intent. Manslaughter could be done in cold blood with a great deal of premeditation, and murder could be done spur of the moment. The difference instead was that manslaughter (a comparatively minor civil matter) was accompanied by the perpetrator announcing the deed in legally required ways, while if the individual tried to cover up (or simply failed to announce it properly) the killing, that was murder (and the most serious offence).
Once again, this makes a lot more sense when looking at the fact that Iceland was almost entirely oral at that point and it wasn’t really until the end of the Republic that writing became more common there.
February 1, 2010, 11:54 amChris Travers says:
Not always. Another form of ordeal practised in Northern Europe was crawling beneath a fairly unstable structure made of sod. If the structure collapsed on to the individual, he was seen as guilty.
However, this one is particularly interesting because what information we have of it suggests that the rules for undertaking it were strict, and that violating those rules resulted in a guilty verdict.
February 1, 2010, 12:01 pmChris Travers says:
Crawling under an unsupported a-frame-like structure made of turf and having it not collapse on you doesn’t seem to me like much of a punishment.
February 1, 2010, 12:03 pmzuch says:
Prof. Adler:
This is why you folks ought not be allowed to comment on AGW….
Didn’t Monty Python explain this already?
I note a distinct lack of evidence for the proposition asserted … much as it may be attractive (either because of political persuasion or because of fondness for a “good story” that can sell books/articles).
I’d note that torture was used in medieval times because of the requirement for either (sometimes multiple) eyewitness testimony or a confession in order to convict [remnants of this persist in the U.S. constitutional evidentiary bar to be cleared for treason conviction]. When the former was lacking (say, isolated murders), the latter was required. What I haven’t seen is any evidence that such methods were accurate (or more so that other methods).
Cheers,
February 1, 2010, 12:52 pmzuch says:
One might say the same about you to even greater veracity. Let’s say we flame you and let the “trial by ordeal” determine the truth.
Cheers,
February 1, 2010, 12:56 pmzuch says:
On second thought, Prof. Adler, you have been pretty consistent in being agnostic and demanding scientific evidence for the base factual claims there (on both sides), even if you’ve waded into the discussions for other reasons. So this is unfair of me, and I take it back. Sorry, and my apologies.
Cheers,
February 1, 2010, 1:20 pmDaniel Chapman says:
One might, but one would be wrong. “cheers”
February 1, 2010, 1:28 pmChris Travers says:
Some of the quasi-fictional literature from the period is interesting in this area too. For example, Grettir’s Saga (composed in the 14th century) has Grettir challenge his conviction of murder in absentia (the “murder” was actually a terrible accident, where Grettir accidently burned down a house with people in it—this sounds modern, doesn’t it?). He does this by volunteering to undergo a trial by ordeal whereby he would climb under two pieces of turf that are balanced against eachother. If they fall on him, he is guilty, and if they stand, he is innocent.
During the trial by ordeal, Grettir is mocked by a boy standing in the crowd. He loses his cool and strikes the boy. This is seen as proof of Grettir’s guilt and he loses the right to challenge his conviction and is therefore sentenced to full outlawry.
In isolation this doesn’t tell us much but in combination with other sagas (most notably the Eyrbiggja Saga and Njal’s Saga) and in combination with surviving contemporary codes of laws (The Gragas and Ulfljotr’s Laws), we can see that Icelandic law was very formalistic and formulaic. To prevail in a claim one generally had to:
1) Obey a fairly complex set of procedural rules, which required also
2) Having the support of a competent attorney-judge (for odd reasons, usually called a “chieftain” in translation).
Trials were all about ritual and form.
Sort of like they are today!
February 1, 2010, 2:05 pmSandy MacHoots says:
How is it that everyone except the lawyers believes that judges are only “interpreting” the law, not “making” it? (Remember Sotomayor’s slightly embarrassed snicker when she caught herself giving the secret away on videotape?) As in the case of the African witch doctors — whose use of the process was shown, as I recall, to be reasonably accurate — the elite class does not need to share the beliefs of the common people in order to exploit them.
As funny as it is to see Arthur Kirkland siding with the One Holy Catholic and Apostolic Church against the long-standing civil judicial systems of France, Germany, and Britain, I suspect the author is right that ordeal had some value as a factfinding measure. Cultural practices usually become long-standing and spread to other countries because they work better than the existing system. It’s hard to believe that a system that worked no better than flipping a coin could have become so firmly entrenched in Northern European jurisprudence that it took five hundred years after conversion to Christianity for the religious authorities finally to stamp it out. That suggests to me that it worked better than a coin flip, whether because it exploited the supersititions of the people or because of manipulation by the judges.
February 1, 2010, 2:06 pmChris Travers says:
Interestingly, Professor John Gager makes a similar claim about sociological efficacy of Greek lead cursing tablets.
February 1, 2010, 2:18 pmChris Travers says:
Just some interesting facts about the word “Ordeal.”
While the word comes into English from Old French, it is of Germanic origin, coming from a common Germanic word meaning “the primal deal” (deal in the sense of what is dealt out). Etymonline suggests a meaning of “That which is dealt out by the gods” but I am not sure this is accurate.
In Old Norse, there is a similar word, “orlog” which means “primal lot” or “primal law.” Orlog however, is generally used as a word for “fate” (though it is distinct from urdh (barred d transliterated as dh here), which is related to the English word “weird” and seems to refer to fate as a matter of past turns of events).
I have argued at length in one of my recent papers (email me at chris at metatrontech dot com if you want it) that the concept here is similar to the Greek concept of fate (Moira) being dispensed by Lachesis (dispenser by lot) discussed by F. M. Cornford in “From Religion to Philosophy” (1914). The idea then is that one is granted a “lot in life” as a “loan” which is paid back through death when one steps outside it, either by exceeding quantity of allotted life, or by violating certain laws (either social or personal). At the point where this process is beginning, the sagas and Eddas suggest that things start falling out of place.
My point here is that trial by Ordeal, at least in Germanic lands, was a part of a much larger, very complex view of the world, of fate, of law, and of life. To reduce it to a bunch of superstitious nonsense is to do it injustice.
February 1, 2010, 2:34 pmwvufan says:
Maitland thought that trial by jury was an improvement over the ordeal, and that’s good enough for me (and all of you, because, he was Maitland, and we are not).
February 1, 2010, 3:00 pmOrin Kerr says:
Yikes, that’s embarrassing. I confess I sometimes don’t read the posts of guest bloggers, and I believe that was a time that (as far as I recall) I skimmed a post or two but never really focused on it.
February 1, 2010, 3:42 pmRandy says:
“Crawling under an unsupported a-frame-like structure made of turf and having it not collapse on you doesn’t seem to me like much of a punishment.”
I agree, Chris, but still — isn’t that a form of torture? When medical treatment was virtually nonexistent, the mere possibility of being injured by a collapsing structure would be sufficiently scary to make one poop in his pants. Facing such a ‘test’ would surely qualify as torture just as much as when you are told that unless you confess, we will inflict enormous pain upon you and here’s the dental drill revving up.
In today’s world, all of these ordeals would qualify as torture — whether it’s dunking you under water, grasping red hot irons, having a structure possibly collapse upon you — and one must undergo the torture in order to prove one’s innocence or guilt doesn’t seem fair in any sense of the word. And even threatening such torture, knowing full well that the authorities are capable of carrying out such a threat, is itself a form of torture.
Sandy: ” That suggests to me that it worked better than a coin flip.”
Perhaps, but we will never know, will we? One of the major flaws in the argument is the assumption that these trials did in fact accurately find out who was innocent and who was guilty. So what — there is some book out there that did all the fact finding and concludes — conclusively and without any doubt whatsoever — who committed all these crimes, and then compares these results with the results of the trial by ordeals?
No. There is no such book because even today, we cannot allows know who is really guilty and who is innocent. All proclaim their innocence, and so we have to figure out who is lying, which isn’t easy.
Couple that with the fact that confessions are often coerced, and there is even a theory that people will, in the face of intense police interrogation, begin to doubt their own memory, and become to believe that they indeed committed a crime that they in fact did not.
People believing that something works doesn’t mean that it does in fact work.
February 1, 2010, 7:03 pmRandy says:
Chris: “My point here is that trial by Ordeal, at least in Germanic lands, was a part of a much larger, very complex view of the world, of fate, of law, and of life. To reduce it to a bunch of superstitious nonsense is to do it injustice.
”
And it’s good to be reminded of that. The medieval period is a fascinating one, and just because we don’t understand it very well doesn’t mean they were a bunch of idiots, and assume that we are far superior.
I remember being told by a prof that written records were always suspect because anyone could forge them, so they relied upon memory, which was viewed as far more reliable. (One will note that in almost all of Shakespeare’s play, written letters or documents are either false, misleading, and reliance upon them almost always lead to bad outcomes). The medieval mind was capable of astounding feats of memory that we can only dream of.
February 1, 2010, 7:13 pmChris Travers says:
It’s not a big structure. I doubt injury was common. Certainly for men who spent a lot of time engaging in blood feuds (as was common in Iceland, but also common among the nobility elsewhere in Scandinavia, for example see the Orkneyingja Saga), I doubt it would be scary at all.
There have been some studies on this, actually. In general, it took a long time for written records to be admissible as evidence for a number of reasons. In the earlier period, it was not true that anyone could forge the writing, but few people could read either. Written records didn’t cover too much, and when they were applicable, you had to decide whether or not the person reading it was lying to you or not.
So instead, even earlier forms of ensuring contracts and other legal proceedings were followed which were designed to try to make the most of memory. Requirements tended to be rather formal (i.e. contract must be witnessed by x number of people, which survives in marriage requirements today), and the contracts and proceedings themselves were fairly formulaic, ensuring that it would be most likely that the observers would remember.
For example, re-read this post by EV and note the formulaic construction. This oath was meant to be specifically memorized.
An interesting book to read in this area is “Orality and Literacy” by Walter Ong.
Also, isn’t it interesting that it took until 1990 for anyone to investigate the dynamics of flat world vs round world theories in the Middle Ages?
(What Rudolf Simek found was that round world theories were confined in the 8th century to certain monastic groups but that one could document a spread from there and into popular literature by the 13th century so that by the late 13th century, the idea that the world was flat was seen as superstitious even in popular literature. This is well before Dante even, and further developed this thesis and provided more data points.)
In how many more areas do we just assume we know the mind of the ancients and will later be proven wrong when someone looks at it?
February 2, 2010, 12:26 pmohwilleke says:
Some 5th century accounts that I’ve read by Romans (translated from the Latin) contain very modern sounding complaints about the high costs and delays associated with litigation, and one account of someone who had spent time among the barbarians seemed to prefer the trial by ordeal procedure.
But, it isn’t clear to me that the Roman writer was any less skeptical of the trial by ordeal’s accuracy or superstitious basis than we would be. The focus seemed to be more on expediency and certainty.
Accounts of modern witch trials (there are places in Africa where they happen) and those in Salem have focused on the social standing in the community of the accused, and the desire to maintain the authority of the person administering the system, as a major factor in how cases arise and are resolved. But, where they happen, they do seem to be popular, and ordinary people do seem to believe them to a significant extent.
Also, it is worth noting the divide between Roman Catholic Canon law procedure, which was handled mostly through written evidence, and Norman common law procedure, which was mostly oral and relied to a great extent on discerning and applying customary law.
Oaths, which are on the the vestigal survivors of the trial by ordeal superstitution system, are in my view virtually dead as an effective truth inducing device.
All other things being equal, a statement made under oath is less likely to be true than one that is not, because an oath calls attention to the consequences of the words said in the judicial system (and hence promotes outcome driven statements) and because the speakers are more likely to have conferred with counsel before making a statement (often merely affirming statements drafted in the first instance by counsel). Notably, while witness preparation is simply considered good lawyers in the U.S., contact with a witness prior to giving testimony in civil law countries is considered to be a major ethical breach.
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February 3, 2010, 5:26 amrandom guy says:
This reminds me of an incident long ago where cops told a suspect they were hooking him up to a lie detector. They put jumper-cables or similar wires on him and a copy machine, and they’d pre-set a piece of paper in the copier saying “he’s lying.” After a question or 2, he confessed.
I think I’ve seen a few such stories, but there was at least one that I checked out and seems to have been true.
Same idea, right? As long as the subject thinks it works . . .
February 3, 2010, 11:05 amanon says:
Other than the records of the trials and their outcomes, what other kind of evidence could there possibly be at this time?
February 3, 2010, 9:08 pmCristobal DeLicia says:
So, according to Leeson’s theory, those people in colonial Salem, Massachusetts really were witches?
March 19, 2010, 7:45 pmMementoOfLaw says:
Well, the question doesn’t seem to be whether ordeals actually “worked”, but whether they work better or worse than what we have now. This article seems to suggest that not even science can help us when it comes to something truly unknowable.
How much “certainty” we need to prosecute someone is a fundamental question of any judicial system. Certainly, some medieval cultural beliefs were better than modern cynicism at illuminating the unseen.
March 23, 2010, 12:51 pm