Pintler: 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.

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.

I’m dubious of anyone expecting someone to be submerged for ten minutes and survive.

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.

the article’s thesis would apply to boiling water trials, and probably not trials by weighing against a duck.

An African duck or a European duck?

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.

But that would only have been “poor judgment.”

karrde: sol vason: 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.

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.

Sergey: 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.

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.

How about something as simple as acquittal was simply a matter of bribing the priest or having some other connection.

Men of the cloth accepting bribes!?

Anyhow, I read Leeson’s pirate book, and he’s cute, but at the expense of making sense.

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.

Chris: 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?

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.

lgm: Leeson speculates that those who opted for trial by ordeal would mostly have been the innocent ones. He presents no evidence for this.

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.

BrianMac:
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.

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.

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.

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.

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.

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.

karrde:
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.

Because America, sir, is exceptional.

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.

Lisa: 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.

Oh, legal academia.

Chris: I, on the other hand, disagree with the author’s main argument.

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….

BrianMac: 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.

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.

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.

I thought the point was pretty clear — to win an argument, smother horseradish over a cat’s bum. Watch my scholarly stock rise…

This makes me like the story more.

BrianMac: 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.

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.

I am not sure I get much of a point from it, but I like that story.

I thought the point was pretty clear – to win an argument, smother horseradish over a cat’s bum. Watch my scholarly stock rise…

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.

JFK, DeGaulle, and Kruschev are arguing about leadership styles. They agree that whoever can make a cat eat horseradish wins the argument.

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!”

I like that story. I am not sure I get much of a point from it, but I like that story.

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.

(I’ve left out the apostrophe because I’m not sure whether their sign sports one, and, if so, where.)

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!”