Quotable Torture

‘A first example is the practice of torture in medieval European legal procedure. To enlightened modern eyes, torture is such a ridiculous method of truth determination that it is hard to imagine it might seriously have been so conceived. However, a brief review of its history, based on a treatment by John Langbein (1980), suggests precisely this. In 1215 the Roman Church effectively destroyed the older modes of legal proof such as trial by battle or by ordeal. The new law of proof, however, aspired to achieve the same level of certainty as had been accorded to the earlier methods. The Italian Glossators who designed the system entrenched the rule that conviction for serious crimes had to be based upon the testimony of two unimpeachable eyewitnesses. Alternatively, an accused could be convicted if he voluntarily confessed to the offense. The trouble with the early thirteenth-century proof system, however, was that the standard of proof was so high that it was difficult to obtain convictions of the guilty. That is one way to “miss” the truth. Bound by the weight of tradition, how could the standard be adjusted? The confession rule invited a subterfuge. When there was already strong evidence against a suspect, although less than two eyewitnesses, torture was authorized in order to obtain a confession. Torture was permitted when a so-called “half proof” was established against the suspect, meaning either one eyewitness or circumstantial evidence of substantial gravity. If a suspect was caught with a bloody dagger and stolen loot from a murdered man’s house, each of those “indicia” would be a quarter proof, which together constituted half proof, and this was sufficient for torture. Confession under torture was not grounds for conviction since it was considered involuntary. The suspect was convicted only if he (“voluntarily”) repeated the confession at a hearing held a day or so later. In this fashion the prohibition against circumstantial evidence was overcome, and the authorities found a way which, by their lights, did a better job at obtaining accurate judgments. Bizarre as we now find it, the method of torture seems to have been motivated by a concern for truth, constrained by the requirement that new procedures comply with tradition.’

Goldman, Alvin, ‘Knowledge in a Social World,’ OUP, 1999, p. 31