Just wanted to echo Jonathan’s recommendation of Peter Leeson’s Boston Globe article about the surprising effectiveness trial by ordeal. [UPDATE: Here’s the full paper by Leeson, on which the Globe piece is based.] To be fair, the article’s thesis would apply to boiling water trials, and probably not trials by weighing against a duck.
Of course, Russian children know this from the Elephant’s Birthday Party (search for the post labeled “- Sunday, April 04, 2004 at 03:39:36 (MSD)”). In the story, one of the birthday guests eats all of the elephant’s birthday cake, and the question is who. The marmot offers the following plan:
Here, folks, is a magic pot....
Stick your paws into it ...
Touch the bottom,
As soon as the thief touches the bottom,
The pot will scream.
After this is done, he has everyone show his paws, and nearly everyone says,
Look at our paws –
They are black as blackamoors!
But the cat’s paw is clean! Why? The marmot explains:
The pot, which I brought to you
Is not at all magical,
But entirely normal.
I did only one thing:
I poured some soot on the bottom.
You all touched the bottom
Because your conscience was clear –
All, except the cat.
By the way, if you’re curious about the “blackamoors” item, I take it that it’s there partly because “paws” (лапы) rhymes with арапы, which this dictionary translates as “blackamoors,” though I’m not sure that the term is quite as archaic sounding in Russian as the translation is in English.
Eric Rasmusen says:
A good and potentially quotable story.
Are marmots supposed to be clever, like foxes? Eric Rasmusen(Quote)
ArthurKirkland says:
An argument from the underlying article:
Emphasis added. ArthurKirkland(Quote)
Chris Travers says:
One thing I would like to point out is that trial by ordeal (at least in Germanic lands, and probably in Celtic areas as well) was based on a fairly complex and nuanced world view which included a lot of ideas about fate, law, and life.
Even the word “ordeal” in English derives from ancient Germanic words for “judgement” (via Old French, via Frankish).
To understand trial by ordeal, I think it is first necessary to reconstruct related concepts. Since “ordeal” is semantically linked to the most general Old Norse word for “fate” (Orlog, which is what the Norns were said to “speak” in Voluspa. Orlog means “primal law,” “primal lot,” or “primal layers” and all three of these meanings are tightly integrated in Old Norse cosmology) it is worth considering that there.
Personally, I think the older concepts of fate have a lot to offer the modern world even if we don’t conclude we currently need trial by ordeal. They are much more nuanced, complex, etc. than the typical dualism of free will vs fate. Chris Travers(Quote)
ys says:
Yes, it’s archaic to the exact same degree, i.e., the only non-stylization references are no later than 19th century. Kids might only know the word because they read Pushkin, and even then the word would sound too much like Arab to be immediately comprehensible for them. ys(Quote)
Mike McDougal says:
Eugene’s antifelinism must stop. Mike McDougal(Quote)
Uncle Pinky says:
Yeesh.
Cats get a bad rap in Russia, too? Uncle Pinky(Quote)
Christopher Cooke says:
I find it interesting to note that there are two postings on trial by ordeal and one on Volcker’s views on financial regulatory reform. Perhaps we can combine things: regulation by ordeal? If Lloyd Blankenfien can carry a hot iron 30 paces, he can trade hedge funds with abandon. Christopher Cooke(Quote)
Chris says:
Trial by ordeal still exists. Consider police interrogation techniques intended to fool the accused into confessing. Chris(Quote)
yankee says:
I would say an argument is not worth reading unless the logic and evidence presented are at least plausible. But the gaps in Leeson’s logic that I and other commenters pointed out were so big you could have sent an armada of Imperial star destroyers through them. In my view, the article was so bad that it was an embarrassment to Leeson, the University of Chicago, and the Boston Globe.
Do you really think Leeson’s argument is credible? If so, what is your response to the multiplicity of criticisms raised in the comments to Jonathan’s post? yankee(Quote)
Chris says:
I was going to add that while EV’s story is pretty awesome, the Leeson bit was beyond stupid. Seems others have beaten me to it. Chris(Quote)
Michael S. says:
A similar story is told about the 16th century mathematician John Napier, and apparently versions go back to Song China. See, e.g., http://books.google.com/books?id=qCehlw21nwgC&pg=PA269 Michael S.(Quote)
ArthurKirkland says:
I hope Leeson’s argument would be graded a failure at any reputable law school, unless the student’s assignment were “select an indefensible position and, without regard to logic, reason or evidence, craft the best available argument on behalf of that position’s proponent, relying on superstition if necessary.” ArthurKirkland(Quote)
ys says:
A classic example is found in “Roman Holiday” where Gregory Peck dares Audrey Hepburn to put her hand into the Bocca della Verita. A liar’s hand would be bitten off by the stone lion. Both of them lied, but Peck does not believe in the myth and sticks his hand in just pretending that he is hurt. Hepburn is not sure and does not risk her hand. ys(Quote)
Chris says:
Leeson’s argument doesn’t seem so bad in the context of coming up with a clever explanation for unexpected data. The problem is that he doesn’t provide a compelling case that trial be ordeal produced better results than the alternative. I can come up with a hypothesis of why trial by ordeal might be better than the alternative: the alternative was summary justice. Perhaps the point of trial by ordeal wasn’t to separate the innocent from the guilty but rather the questionably guilty from a mob or an axe happy noble. Thus, trial by ordeal is a way for the clergy to give the crowd some bIood while keeping favorites out of trouble. I have no clue what I’m talking about but it makes as much sense as Leeson. Chris(Quote)
Mikee says:
Another reason “blackamoors” makes sense to use in translating a Russian story is that the non-white and non-asian persons most likely to be seen in 18th century Russia (there, I got around deciding whether to write Black, African, Negro, or dark-skinned) would be Moors, many of whom are from non-white populations.
Here in America we might say African American for the same reason. And look just as PC doing it. Mikee(Quote)
byomtov says:
I have no clue what I’m talking about but it makes as much sense as Leeson.
More, actually. byomtov(Quote)
Sergey says:
Mike, there was exactly ONE person in 18th century Russia to whom this term applied: Pushkin’s grandfather, known as Arap of Peter the Great. This is the title of Pushkin’s memoir: he was not a Negro, he was not a Moor, but an Abissinian. Even to Pushkin, the word was already archaic, that is why he used it. Sergey(Quote)
Chris Travers says:
Well, at least Reid used “Negro” instead of “Blackamoor.” Though in the latter, everyone would have had to go to the dictionary before deciding to be offended.... Chris Travers(Quote)
John S says:
Would it really be too much to ask for you all to link to the paper? Not the version for the Globe, but, you know, the article?
Its not like it isn’t completely free on his personal website... John S(Quote)
sol vason says:
In the good old days a judge would listen to the two parties and then decide which party got to prove its claim. The legal term was “awarded proof”. The way to prove its claim was to survive the ordeal.
Normally the accuser would withdraw his suit if he was awarded proof. The defendant could either plead guilty or undergo the ordeal and hope for the best.
During the Salem Witch Trials the dunking stool was used. The person awarded proof was strapped in the stool and dunked under water for ten minutes. If she survived, she was innocent. When the defendant was awarded proof, she normally chose dunking because pleading guilty meant she would be burned at the stake. Most women in Salem preferred drowning to burning when given their druthers.
The secret to getting guilty pleas is to make the punishment preferable to interogation. sol vason(Quote)
Lisa says:
There’s a forthcoming paper on the confrontation clause and judicial dueling that’s been making the rounds. I saw it workshopped at Georgetown and it touches on similar themes. Will look forward to seeing it when it hits. Lisa(Quote)
Chris Travers says:
EV:
Since you seem to be a fan of etymologies, you might find my comment on the etymology of ordeal interesting on Orin’s thread. It is currently near the end.
One thing to keep in mind is that the older cultures don’t seem to have accepted either “fatalism” or “free will” as complete world view. The concepts of fate and free will were fairly nuanced and trial by ordeal was a proxy measure, at least in Germanic lands (including the areas which were dominated by the Goths, Franks, Anglo-Saxons, Norse, etc) for other matters of legal guilt or innocence. Chris Travers(Quote)
lgm says:
The article raises interesting questions:
1. Why would a trained economist think it professionally acceptable to publish a paper with zero statistical evidence for his thesis?
2. Why would said economist think defining variables with Greek names adds anything to his entirely qualitative argument? (As a professional mathematician, I find this the most curious.)
3. Why would a newspaper publish a long article with detailed factual claims without any evidence for any of them?
4. Is there some aspect of the conservative lawyers’ worldview that is reinforced by the suggestion in Leeson’s paper? Are they attracted to a claim that denigrates the role of rights and evidence in criminal trials? lgm(Quote)
jnheath says:
Like another Russian story where the cat gets it in the end:
JFK, DeGaulle, and Kruschev are arguing about leadership styles. They agree that whoever can make a cat eat horseradish wins the argument.
JFK picks up a spoonful of horseradish and tries to jam it down the cat’s throat, with predictable results. He gets scratched to hell and no success.
DeGaulle makes a horseradish bon-bon, tuna on top, smothered in cream, etc. The cat sniffs it and walks away.
Kruschev picks up a spoonful of horseradish, lifts the cat’s tail, and slaps the hot stuff on the cat’s anus. The cat howls in pain and frantically licks it off. At which NK says: “See, he’s not only eating it, he *likes* it!” jnheath(Quote)
dearieme says:
The Blackamoors Head is a pub near us.
(I’ve left out the apostrophe because I’m not sure whether their sign sports one, and, if so, where.) dearieme(Quote)
Chris Travers says:
lgm:
Actually I think the article gets a couple of things wrong, at least in the cultures where I have looked at it.
First, most of the trial by ordeals seem to have started prior to the conversion. They were pagan holdovers. Remember that it took several centuries in most of Europe between when the area was officially converted and when the last vestiges of the old religions disappeared. This was particularly true in remote places like Iceland (sufficiently so that during the times when Iceland was Roman Catholic, they had priests, but they never had celibate priests). At least in these areas, and at least prior to major changes in language (for example, the Franks giving up Frankish and adopting French), the mechanism would more likely have been a pervasive culturo-linguistic system which made ordeals meaningful in context.
Secondly, in some parts of Scandinavia (particularly Iceland), the lawyers were the priests. In Iceland, this wasn’t a matter of priests using their robe of religion to become lawyers, but lawyers, using their traditional powers to become priests. (In Iceland this was because only the lawyers had the right to collect temple-taxes.) I suspect in Norway though it went the other way around.
Because of the overlap between lawyers and priests, it is worth noting that ordeal-type trials, at least in Scandinavia, were subject to fairly heavy formalistic requirements, and that the judgement was as much about the ability to fill those requirements as the ordeal itself. Indeed all trials in Scandinavia even from pagan times were deeply steeped in religious elements (as they are in the US today– for example we name our highest tier of judges after a Roman pagan goddess).
Scandinavia is the interesting area to study in this regard because so much of our common-law system is of Scandinavian (and in particular Danish) origins. Indeed our word “law” comes from Old Norse.....
I would further note that the article got one thing very, very wrong. The same cultures that gave us trial by ordeal (in terms of Anglo-Scandinavian and Anglo-French traditions) also gave us trials by jury. Indeed our own system of trial by jury is Scandinavian in origin and entered late Saxon legal approaches via the Danelaw. Chris Travers(Quote)
ArthurKirkland says:
I like that story. I am not sure I get much of a point from it, but I like that story. ArthurKirkland(Quote)
BrianMac says:
Arthur, yankee, Chris and others:
The article on Leeson’s website addresses most of the criticisms that have been levelled at it, and has a pretty lengthy discussion of the evidence in support of his specific predictions. BrianMac(Quote)
BrianMac says:
I thought the point was pretty clear — to win an argument, smother horseradish over a cat’s bum. Watch my scholarly stock rise... BrianMac(Quote)
Chris Travers says:
I probably wasn’t clear.
I agree with the author’s main argument. I disagree on some details at least as regards some parts of Europe for some parts of history. A lot of this has to do with different disciplines relied upon. For example he looks at economics and historical records, while I tend to look more at historical linguistics and textual studies.
In particular, I think the label of “superstition” isn’t necessarily a useful label in this sort of argument unless the beliefs relied upon are outdated at that time, and a holdover from an earlier culture. Chris Travers(Quote)
ArthurKirkland says:
This makes me like the story more. ArthurKirkland(Quote)
byomtov says:
BrianMac,
Thanks for the link. I read the paper and didn’t find it convincing, though the discussion of ordeals was interesting.
The data Leeson cites certainly suggest that priests manipulated ordeals, but that’s obvious when you think about it anyway. Honestly conducted ordeals would always have convicted. I doubt the procedure would have been used very long, or ever been agreed to, once it was clear that the conviction rate was 100%.
The more interesting question is who the priests favored and who they didn’t. It would be surprising if there were a single answer. As I commented in the other thread, it is plausible that in many cases the priests simply decided that, given inconclusive evidence, it was best to acquit. There were probably others where the results were political, and still others where the priests relied on the accused’s general reputation, or tye one way or the other.
I don’t claim to have any particular expertise on this subject. My opinion is conjecture. But, Greek letters notwithstanding, I don’t see why it’s a worse explanation of the observed data, such as it is, than Leeson’s. byomtov(Quote)
Chris says:
I, on the other hand, disagree with the author’s main argument. I am not saying he is wrong. Frankly, he came up with a pretty clever take on things. Furthermore, I don’t think anyone is disagreeing that you can trick people into telling the truth by subterfuge (including taking advantage of information asymmetry.) My problem with Leeson is that he (a) asserts trial by ordeal is an effective way to ascertain guilt/innocence without providing anything close to a metric; (b) sets up the evidence for his hypothesis as predictions rather than data; and (c) doesn’t convincingly show how his data refutes the alternative hypotheses he mentions. Still, I give him props for coming up with a neat idea. Chris(Quote)
Chris Travers says:
one area where I think he is definitely wrong is in proposing an economic model of superstition to explain a deeply embedded cultural phenominon. There are a number of inherent problems with this.... Chris Travers(Quote)
Anonsters says:
Oh, legal academia. Anonsters(Quote)
karrde says:
sol vason:
Your story sounds good, except no one was burned at the stake for witch-craft, ever, in North America.
Those executed at Salem were hung, and one died while being “pressed” for evidence.
He was a man, and they piled large stones upon his chest while encouraging him to give evidence. He kept shouting for more stones, and eventually died of asphyxiation.
I wouldn’t be surprised to learn that dunking was used in Europe, but I also wouldn’t be surprised to learn that the dunking practice is more folk-tale than actual practice.
Fun fact: fewer than 30 people were convicted of witch-craft at Salem, and all were hung. Hundreds (possibly thousands) were convicted of witch-craft in Europe during the same decade, and many of them were burned at the stake.
Almost no one laments the many who died in Europe, but nearly every mention of witch-trials includes a reference to people being burned at the stake in on small township in Massachusetts. karrde(Quote)
Anonsters says:
Because America, sir, is exceptional. Anonsters(Quote)
BrianMac says:
Those are plausible explanations, but given that the bias is skewed towards acquital, Leeson’s explanation seems more plausible, at least to me. That is, I don’t see why “politics” would favour acquitals as a general rule. The same goes for relying on reputation as a heuristic. Obviously a tendency to acquit in the face of inconclusive evidence would explain this outcome — but I’m unclear whether that this was an established legal principle at the time.
That’s not to imply that Leeson’s thesis is definitively supported — but I do think that it’s an original one, which has a reasonable basis in logic and evidence. BrianMac(Quote)
lgm says:
I think most of us read that article too. It is longer and more detailed but not any more convincing. His main claim is that trial by ordeal “worked” because most defendants who opted for it were found innocent. Actual evidence is provided for this, though I would prefer an expert historian review it before I accept it as correct. We have no way of knowing the relation between those found innocent and those actually innocent. Leeson speculates that those who opted for trial by ordeal would mostly have been the innocent ones. He presents no evidence for this. lgm(Quote)
Chris says:
How about something as simple as acquittal was simply a matter of bribing the priest or having some other connection. If this were true, one would expect acquittal in most cases (priests setting a good price) but not all since:
some defendants might not be able to come up with the cash
priests might have other agendas
defendants might not follow directions
priests might be incompetent.
This wouldn’t require any superstition on the part of the defendants since the priest would tell them what to do and why. Chris(Quote)
Chris says:
This does raise an interesting epistemological question. How do you compare ancient sketchy assertions with modern well supported assertions. What can an interesting theory about limited ancient data tell us. How valuable can history be? Chris(Quote)
yankee says:
He doesn’t provide much by way of evidence of how much ability accused criminals had to “opt” into the ordeal. This is a critical point of his argument and he offers no evidence that the accused was responsible for making the choice. (Were you really better off confessing than being found guilty through the ordeal, or would you be executed either way?)
Some of his “predictions” are also underwhelming. The “prediction” that “most” people are found not guilty is exceptionally weak: it could have been satisfied by any percentage of not guilty verdicts over 50%. The stuff about cold vs. hot ordeals is more interesting. I’m also unimpressed by the prediction that a highly ritualized practice run by the church would stop when the church stopped running it and started denouncing it.
But ultimately, most of what he’s got is evidence that most people were found not guilty, from which we can infer that the rituals were rigged or otherwise not nearly as bad as we might have thought. The inference that people who did not “opt” for the ordeal were guilty and those who did were innocent is mostly speculation. yankee(Quote)
Chris Travers says:
I actually think many of the old ideas can provide some valuable compliments to the modern worldview.
Take the old (pagan) Germanic approach to trial by ordeal, for example.
This fits into a large, complex framework of ideas about life and fate which echo modern ideas, but are often more developed and more nuanced. The overall framework is (as far as I can tell, and referring to names in Old Norse since most mythological sources occur in that language):
1) One is loaned a primal lot of life (Old Norse “orlog”). Orlog is deeply connected to “Urdh” or The Layers of Past Events. In essence, what is past is also fated to be future. This lot of life forms a debt (Old Norse Skuld, related to Modern English “Should”) which is repaid on death.
2) That lot of life (usually translated as “fate”) is bounded both in quantity (i.e. we don’t live forever no matter how well we live) and law (we can do things that lead to our deaths either because they violate social or personal laws). Within those boundaries we have general free will.
This is not so different from the pagan Greek view that F. M. Cornford argued was the antecedent of Anaximander’s earliest philosophical theories. It is not quite the same, however.
The idea of free will being bounded by fate, and that we should try to maximize what we can be within those confines provides a very different and, I think very wholesome way of looking at life.
Now, the idea of trial by ordeal, or combat, or any of these other means was that someone who is either on the edge of or who has crossed the barriers of law that circumscribe fate will find the world working against him, and things will fall out of place. One way to look at this is the relationship between the Greek “moira” and “nemesis,” where stepping outside one’s allotment brings on divine punishment. The Norse view is fairly similar but showing this requires more space than I want to use here. Chris Travers(Quote)
byomtov says:
BrianMac,
That is, I don’t see why “politics” would favour acquitals as a general rule. The same goes for relying on reputation as a heuristic. Obviously a tendency to acquit in the face of inconclusive evidence would explain this outcome — but I’m unclear whether that this was an established legal principle at the time.
I wasn’t clear. I didn’t mean that politics would lead to acquittal, but that it would, in some cases, determine the outcome. Remember that a fair number of people were convicted — 37.5% in one sample and 15% in another. Leeson recognizes that there had to be some convictions. Rather than having them be chosen randomly, it would be handy to convict those who were seen as enemies of the Church, or of the local bosses.
Similarly, someone with a bad reputation was a candidate for conviction. The logic of, “If he’s not guilty of this, he’s guilty of something else, so who cares,” is not unknown even today. Further, I doubt that the priests were punctilious about excluding evidence of past behavior from their deliberations. byomtov(Quote)
HarryEagar says:
It’s been a long time since I read H.C. Lea, but as I recall, trial by ordeal was usually a last resort, if a defendant couldn’t come up with enough oath-helpers.
Anyhow, I read Leeson’s pirate book, and he’s cute, but at the expense of making sense. HarryEagar(Quote)
BrianMac says:
Men of the cloth accepting bribes!? BrianMac(Quote)
Colin says:
Hugh Barnes’s “Gannibal: The Moor of Petersburg” has an extensive discussion of the term “blackamoor” in English translation, as part of his explanation of why he chose to use “moor” instead. I’d provide details if my copy weren’t at home. It might be worth checking a copy out if you’re interested. (It’s also an interesting biography, although disorganized and painted in pretty broad strokes.) Colin(Quote)
Colin says:
Incidentally, Barnes’s biography also makes a thorough and–to me–quite persuasive case that Gannibal was not Ethiopian. Barnes argues that the accepted history began with Russian racial attitudes of the time, which encouraged writers of the day to characterize the man as being from the most Slavic of African nations. He makes an interesting but less persuasive case for Gannibal being from west Africa, but I forget where. Colin(Quote)
Dennis N says:
I seem to remember reading of the municipal code in some English town requiring the town warder to keep a ducking stool in good order, and admonishing him to secure it with a lock, lest the children play on it.
I don’t know if it was accurate, but it does indicate common use of ducking stools and illustrates the commonality of children’s mischief.
I’m dubious of anyone expecting someone to be submerged for ten minutes and survive. As was demonstrated in the Water Boarding arguments [Making warding gestures], half-drowning is a pretty powerful way of extracting confessions. Dennis N(Quote)
Anderson says:
Just think, had this article been around in 2003, John Yoo could’ve cited it in an OLC memo.
But that would only have been “poor judgment.” Anderson(Quote)
ArthurKirkland says:
Brilliant!!! The obvious next step in certain circles:
Trial by ordeal for anyone accused by anyone else (well, maybe we could rethink bounty hunters) of being “against us” in the War On Terror.
We already have several law schools preparing personnel for the Office Of Faith-Based Prosecutions. Someone should accelerate the accreditation process for Liberty, as a matter of national security. ArthurKirkland(Quote)
Michael Drake says:
An African duck or a European duck? Michael Drake(Quote)
Pintler says:
Indeed, but if one accepts the idea that the trials were rigged surely the immersion interval might be pretty variable; no one had a stopwatch.
I am completely ignorant: could the average medieval peasant even count one-potato,
two-potato? If you’re not counting in some manner, sixty seconds can seem like a very long time. Pintler(Quote)
arch1 says:
Any cat able to eat all of an elephant’s birthday cake without obvious ill effects would benefit from this fact being widely known. arch1(Quote)
Chris Travers says:
Many of the Medieval mechanisms of keeping track of short intervals involved chanting pater nosters, and the like. There is also some suspicion that many of the recipes in the Lacnunga that include incantations may have used the incantation as a timekeeping device. Chris Travers(Quote)
February 3 roundup says:
Tweets that mention The Volokh Conspiracy » Blog Archive » “Who Are You Who Are So Wise in the Ways of Science?” -- Topsy.com says:
markm says:
Chris Travers: There are far more modern examples than that of using songs to time something. In the 1991 film Hudson Hawk, Bruce Willis and Danny Aiello synchronize their parts of a museum burglary by singing “would you like to swing on a star”. markm(Quote)