Sunday, January 31, 2010

Trial by Ordeal

Today's Boston Globe includes a provocative article entitled, "Justice, medieval style." As history, it is extremely interesting; as public policy, it is questionable. During the medieval era, "Europe's legal systems decided difficult criminal cases in a most peculiar way. When judges were uncertain about an accused criminal's guilt, they ordered a cauldron of water to be boiled, a ring to be thrown in, and the defendant to plunge in his naked hand and pluck the object out. The defendant's hand was wrapped in bandages and revisited three days later. If it survived the bubbling cauldon unharmed, the defendant was declared innocent. If it didn't, he was convicted.

These trials were called 'ordeals.' They reached their height between the 9th and 13th centuries, and the methods varied. ...
Modern observers have roundly condemned ordeals for being cruel and arbitrary. Ordeals seem to reflect everything that was wrong with the Dark Ages. They're an icon of medieval barbarism and backwardness."

The author of the article, Peter T. Leeson, visiting professor of economics at the University of Chicago's Becker Center on Chicago Price Theory, disagrees with this assesssment. Professor Leeson, who has written extensively about pirates, also wrote an article entitled, "Ordeals," in which he further develops the argument he puts forth in the Globe piece. Professor Leeson believes that the "ordeal system worked surprisingly well" at sorting out the guilty from the innocent. Furthermore, "the ordeal system suggests that pervasive superstition can be good for society."

Ordeals were based on a medieval superstition called "iudicium Dei"--the judgment of God. ... God helped man resolve judicial matters through trials of fire and water. The superstitious "logic" that underlay ordeals was based on divine intervention. God ... saved innocent defendants from being burned in hot ordeals and allowed guiltless men to sink in water "over which He hath thundered: in cold ones. The ordeal, then, offered a way for God to render judgment.

The system would not have worked if people had not believed in it. Because the guilty would have expected to have their guilt revealed through the ordeal, they were eager to avoid it "by confessing their crimes, settling with their accusers, or fleeing the realm." The innocent expected to be exonerated, and willingly underwent the trial by ordeal. Knowing that only the innocent would submit to the ordeal, the priests, who administered the system, manipulated the process and the outcome. They could see to it that the water wasn't boiling or the iron wasn't burning, or make whatever other adjustments were needed to make sure the innocent were not convicted. Ordeals were ended in the 13th century by Pope Innocent III who felt that they were "antithetical to Christian doctrine." This is where Professor Leeson lost me.

He writes that ordeals "improved criminal justice. Ordeals are inferior to modern trial methods because modern defendants don't believe in iudicium Dei, not because trial by jury is inherently superior. If modern citizens did have the superstitious belief required for ordeals to work, it might make sense to bring back the cauldrons of boiling water." Why is the ordeal superior? Jury trials cost a lot of money, take a lot of jurors' time, and require lawyers. Wouldn't it be more efficient to bring back a system that requires only that people "believe[] that an invisible, omniscient, and omnipotent being would severely punish them and their families, not just in an afterlife, but in this one as well, for cheating, stealing, and dishonesty." Professor Leeson discusses the role of superstition in modern societies, and concludes that some superstitions are "socially productive." It seems to me that his theories could be used to justify torture; waterboarding, after all, was used to determine the guilt of women accused of witchcraft. No one ever claimed that jury trials were cheap or efficient, but they do seem to guarantee the best opportunity for a defendant to make his or her case.

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