Torture and the Law of Proof: Europe and England in the Ancien Régime: Europe And England in the Ancient Regime - Softcover

Langbein, John H.

Softcover

ISBN 10: 0226468941 ISBN 13: 9780226468945

Verlag: University of Chicago Press, 2006

Inhaltsangabe

In Torture and the Law of Proof John H. Langbein explores the world of the thumbscrew and the rack, engines of torture authorized for investigating crime in European legal systems from medieval times until well into the eighteenth century. Drawing on juristic literature and legal records, Langbein's book, first published in 1977, remains the definitive account of how European legal systems became dependent on the use of torture in their routine criminal procedures, and how they eventually worked themselves free of it.

The book has recently taken on an eerie relevance as a consequence of controversial American and British interrogation practices in the Iraq and Afghanistan wars. In a new introduction, Langbein contrasts the "new" law of torture with the older European law and offers some pointed lessons about the difficulty of reconciling coercion with accurate investigation. Embellished with fascinating illustrations of torture devices taken from an eighteenth-century criminal code, this crisply written account will engage all those interested in torture's remarkable grip on European legal history.

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Über die Autorin bzw. den Autor

John H. Langbein is the Sterling Professor of Law and Legal History at Yale University. He is the editor or author of several books, including, most recently, The Origins of Adversary Criminal Trial.

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Torture and the Law of Proof

Europe and England in the Ancien RégimeBy John H. Langbein

The University of Chicago Press

Copyright © 2006 The University of Chicago
All right reserved.
ISBN: 978-0-226-46894-5

Contents

Preface to the Paperback Edition...............................ixPreface........................................................xv1 Torture and the Law of Proof.................................32 The Transformation of Criminal Sanctions.....................273 The Revolution in the Law of Proof...........................454 The Abolition of Judicial Torture............................615 The Torture-Free Law of Proof................................736 The Torture Warrants 1540–1640.........................817 The Theory of Torture........................................129Abbreviations..................................................141Notes..........................................................145Index..........................................................215

Chapter One

Torture and the Law of Proof

From the late Middle Ages and throughout the ancien régime, torture was an incident of the legal systems of all the great states of continental Europe. Torture was part of the ordinary criminal procedure, regularly employed to investigate and prosecute routine crime before the ordinary courts. The system was one of judicial torture.

There was in fact a jurisprudence of torture, with its own rules, treatises, and learned doctors of law. This law of torture developed in northern Italy in the thirteenth century within the Roman-canon inquisitorial tradition, and it spread through Europe in the movement that is called the reception of Roman law. By the sixteenth century a substantially similar law of torture was in force from the Kingdom of Sicily north to Scandinavia, from Iberia across France and the German Empire to the Slavic East. Well into the eighteenth century the law of torture was still current everywhere, and it survived into the nineteenth century in some corners of central Europe.

We shall have a good deal to say in this book about the history both of punishment and of torture, but the two must not be confounded. When we speak of "judicial torture," we are referring to the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings. The law of torture regulated this form of judicial investigation. In matters of state, torture was also used to extract information in circumstances not directly related to judicial proceedings. Torture has to be kept separate from the various painful modes of punishment used as sanctions against persons already convicted and condemned. No punishment, no matter how gruesome, should be called torture.

It is universally acknowledged that judicial torture as it existed in the national legal systems of western Europe in early modern times was the creature of the so-called statutory system of proofs—the Roman-canon law of evidence. But historians have generally pointed to factors other than the law of proof as having brought about the abolition of torture. They have especially emphasized the forceful writing of publicists like Beccaria and Voltaire and the political wisdom of Enlightenment rulers like Frederick the Great and the emperor Joseph II.

A principal thesis of this book is that the conventional account of the abolition of torture in the eighteenth century is wrong. In Chapter 3 it will be contended that the explanation for the disappearance of judicial torture is neither publicistic nor political, but juristic. In the two centuries preceding the abolition of torture, there occurred a revolution in the law of proof in Europe. The Roman-canon law remained formally in force, but with its power eroded away. The true explanation for the abolition of torture is that by the age of abolition torture was no longer needed. The system of proof which had required the use of torture was dead.

The Jurisprudence of Torture

The Roman-canon law of proof governed judicial procedure in cases of serious crime, cases where blood sanctions (death or severe physical maiming) could be imposed. In brief, there were three fundamental rules.

First, the court could convict and condemn an accused upon the testimony of two eyewitnesses to the gravamen of the crime.

Second, if there were not two eyewitnesses, the court could convict and condemn the accused only upon the basis of his own confession.

Third, circumstantial evidence, so-called indicia, was not an adequate basis for conviction and condemnation, no matter how compelling. It does not matter, for example, that the suspect is seen running away from the murdered man's house and that the bloody dagger and the stolen loot are found in his possession. The court cannot convict him of the crime.

At least, the court cannot convict him without his confession, and that is where torture fitted into the system. In certain cases where there was neither the voluntary confession nor the testimony of the two eyewitnesses, the court could order that the suspect be examined about the crime under torture in order to secure his confession.

However, examination under torture was permitted only when there was a so-called half proof against the suspect. That meant either (1) one eyewitness, or (2) circumstantial evidence of sufficient gravity, according to a fairly elaborate tariff of gravity worked out by the later jurists. So, in the example where the suspect is caught with the dagger and the loot, each of those indicia would be a quarter proof. Together they cumulate to a half proof, and he could therefore be dispatched to a session in the local torture chamber.

Now what was the logic of creating a system of safeguards, followed by a system of coercion to overcome the safeguards? Manifestly, under sufficient coercion nearly anyone can be made to confess to anything. To the extent that the explanation is to be found in logic, it is that the system did not allow indiscriminate coercion. The coercion was carefully limited by rule in two important respects.

First, there was the threshold requirement of half proof. It amounted to what Anglo-American lawyers would call a rule of probable cause. It was designed to assure that only those persons highly likely to be guilty would be examined under torture.

Second, the use of torture was surrounded by various rules designed to enhance the reliability of the confession. Torture was not supposed to be used to secure what Anglo-American lawyers call a guilty plea, that is, an abject confession of guilt. Rather, torture was supposed to be employed in such a way that the accused would also confess to details of the crime—information which, in the words of the German Constitutio Criminalis Carolina of 1532, "no innocent person can know."

To this end the Carolina forbids so-called suggestive questioning, in which the examiner supplies the accused with the details he wishes to hear from him. Further, the Carolina directs that the information admitted under torture be investigated and verified to the extent feasible. If the accused confesses to the slaying, he is supposed to be asked where he put the dagger. If he says he buried it under the old oak tree, the examining magistrate is supposed to send someone out to dig it up. (The rules regulating the use of judicial torture are set forth in greater detail in Note I at the end of this chapter.)

The Origins of Judicial Torture

This curious system of proof developed in the thirteenth century,...

Details zur Ausgabe

• Verlag: University of Chicago Press
• Erscheinungsdatum: 2006
• Sprache: Englisch
• ISBN 10: 0226468941
• ISBN 13: 9780226468945
• Einband: Taschenbuch
• Anzahl der Seiten: 246
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Buchbär; info@buchbaer.de; ; Weberstr. 67; Osnabrück; 49084; Deutschland