Trial By Ordeal
Peter Leeson has an article on Medieval trial by ordeal that is getting a lot of attention.
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.
But a closer look suggests something very different: The ordeal system worked surprisingly well. It accurately determined who was guilty and who was innocent, sorting genuine criminals from those who had been wrongly accused. Stranger still, the ordeal system suggests that pervasive superstition can be good for society. Medieval legal systems leveraged citizens' superstitious beliefs through ordeals, making it possible to secure criminal justice where it would have otherwise been impossible to do so. Some superstitions, at least, may evolve and persist for a good reason: They help us accomplish goals we couldn't otherwise accomplish, or accomplish them more cheaply.
I guess I agree with the proposition that pervasive shared superstitions allow the populace to be more easily governed, or more rightly, make it easier for rulers to exercise power over the masses through leverage of shared superstition. Whether it improves our well-being is an entirely different matter, but for a certain type of intellectual (I have no idea if Leeson is among them) more government power = well-being. The author cites oath-swearing as a modern superstition that allows us to be governed more easily, but I am not sure that is correct as I think the power of oaths today are driven by peer-pressure and mass response to publicly broken oaths as well as perjury laws. A better example of modern superstitions that allow easier exercise of power include things like global warming catastrophism.
I am not a medievelist, except as a hobby, but I would offer a couple of rebuttals to specific points he makes:
- I think he overstates the cost savings of ordeals. There were prominent folks in the Catholic Church that had doubts about ordeals long before they were banned, and ordeals were typically used as a last result when fact-finding and other methods didn't work. We have to be careful comparing costs. One lord gathering evidence for a few days might be, as a percentage of the government's resources, as costly then as a 1-year OJ trial is today.
- Trials were not broken because they were too costly, they were broken because the law was bad. There was no such thing as a state prosecutor, so all criminal actions were basically private actions, and they tended to have a rough version of loser pays. For example, if one accused his neighbor of a capital offense, and the neighbor was acquitted, then the accuser suffered the punishment - ie death. As a result, the state was left without an effective tool to prosecute crime, and in fact most justice was private justice (ie vengeance of family and friends) and never saw a court, ordeal or other sort.
- I had a great Medievalist professor at Princeton that I am totally blanking on his name right now [update: William Jordan, now apparently department head at Princeton]. He used to argue, I think compellingly, that all ordeals had an element of discretion. Sure, you had to grab the rock in the boiling water, but the real test was that your wounds would be bound and then several days later inspected by the clergy to see if it was festering or not. This is obviously a judgment call, and thus 1. gave the priests the power to be the effective jury for these actions and 2. gave the priests a substantial amount of power (as well as money, since they made good coin charging for ordeals). [update: A better summary of Leeson's work says that Leeson is arguing the same thing. See here]
Update: Intriguingly, from a review of Jordan's book "the Great Famine," a story I also discuss in my climate videos
The early 1300s must have seemed like the end of the world to the unfortunate inhabitants of Europe: brutally severe winters gave way to lightning storms and torrential, crop-destroying rains in spring, followed by cold summers and then bitter winters again. "The whole world was troubled," wrote one Austrian chronicler; yet that was only the beginning. Princeton University historian William Chester Jordan reconstructs the terrible decades when climatological change led to famine, disease, rampant inflation, and social breakdown across the European continent, a time when every prayer for relief was met by even crueler turns of fate.
Damn those 14th century oil companies!
m:
"It accurately determined who was guilty and who was innocent, sorting genuine criminals from those who had been wrongly accused."
That, or it gave the guilty who healed quickly a free ticket to commit all the crime they wanted...
February 1, 2010, 10:21 pmMiss Breeziness:
I do not believe in making "How COULD they even say that?" comments, so I will not comment on the medievalist you mentioned.
However,
"Damn those 14th century oil companies!"
is the best. Line. Ever.
February 1, 2010, 10:42 pmHasdrubal:
I haven't read the whole paper, but have gotten to the point where he discusses the effects of superstition. His argument relies on a couple points:
1) It was generally the accused party's choice to take the ordeal.
2) The options were generally to confess to the crime and suffer a punishment or take the ordeal. If they failed the ordeal, they would suffer a more serious punishment than if they confessed, and no punishment at all if they succeeded.
3) Superstition was prevalent enough that everyone believed that the ordeal would reveal the truth of the matter.
4) The priests administering the ordeal had leeway to ensure that the participant passed.
So Leeson's conclusion that "it accurately determined who was guilty and who was innocent" was in large part due to self selection: People who knew they were guilty would be more likely to plead guilty instead of taking the ordeal and vice versa. Priests understood this, (and if they were neutral with regards to who won) had the ability to ensure that those who did take the ordeal in good faith would pass it without harm.
I haven't gotten all the way through, so I don't know if he analyzes results numerically to determine whether there was an unusually high rate of people who managed to hold red hot iron or pull a coin from boiling water and come through unscathed in practice. (Just glanced through the second half of the paper: The prediction is that most probands (those taking the ordeal) were exonerated. Evidence was that in 308 cases, 100 were aborted before the ordeal due to settlement, 78 (37.5%) failed and 62.5 were exonerated. From the paper "Unless nearly two thirds of ordeal-o¢ ciating priests didn’t understand how to heat
iron, the data clearly evidence priestly rigging intended to exculpate probands. Ordeals exonerated the overwhelming majority of probands tried in the basilica of Nagyvárad.")
Linking Leeson with "certain type of intellectual (I have no idea if Leeson is among them) more government power = well-being" isn't really fair from what I've read. This paper is more of an analysis of game theory and dealing with asymmetric information than a rationalization for government power. Yes, the system gave priests a significant amount of power, but it also provided major incentives for defendants to reveal their private information on whether or not they were guilty.
Also from the paper:
Expecting to emerge from ordeals unscathed and exonerated, innocent persons found it cheaper to undergo ordeals than to decline them. Expecting to emerge from ordeals boiled, burned, or wet and naked and condemned, guilty persons found it cheaper to decline ordeals than to undergo them. Because of medieval personsÂ’superstition, ordeals caused defendants to sort themselves, implicitly revealing their guilt or innocence to the judicial system.
It's an interesting paper, you can find the pdf at http://www.peterleeson.com/Ordeals.pdf
February 1, 2010, 11:42 pmColin:
I'm currently reading Leeson's "The Invisible Hook" -- it's not that good. But he seems to be far from a statist.
February 2, 2010, 6:12 amNormD:
I give our ancestors a lot of credit for trying to do the right thing, They did not want to punish the innocent, but they lacked almost any resources to properly investigate crimes. They also lacked the luxury of Coyote's "better to release a thousand criminals than punish one innocent" approach. The criminal you released today would likely kill you tomorrow. Crime was a real threat. If someone stole your food or money, it might be the equivalent of a death sentence.
They used methods that we find appalling today, but the effect was to keep society together and working long enough for us to get richer and afford better methods.
We should not forget our roots. Nor should we think that we are so advanced that we would not adopt similar techniques if our society regressed to more desperate times.
February 2, 2010, 10:13 amroger the shrubber:
ohhhhh, i'd say we haven't left societal superstitions entirely behind us just yet. one of my personal faves is the myth - which seems to be a de facto codification in law - that all law enforcement personnel are telling the truth when testifying under oath, and that their words are both A)more accurate and B)outweigh the testimony of ordinary serfs like us. (that's pretty much an exact copy of the old english law code in which the testimony of, say, a knight, outweighed the testimony of a mere villein because - after all - one was of higher rank than the other.) followed closely by "we can trust federal and state crime laboratories to do routinely perfect forensic work" - a whopper that edward jay epstein just **destroyed** the other day in a WSJ column about the 9-11 anthrax "investigation" follies. (followed a few days later by a stinging rebuttal from a FBI honcho - director? dep. director? - which, paraphrased, said "huh-UHHHHH!!!", and offered no other details to back up that claim.)
the system we have now is not quite as brutal as trial by ordeal, but a LOT more expensive, and just as arbitrary. i wonder if the legal profession would be open to suggestions for change and improvement.
February 2, 2010, 12:24 pmDale:
Or the myth that a criminal, offered a reduced sentence (and possibly a reduced fine), and sheltered from perjury charges, will always tell the truth.
Some superstitions may hold some truth though. I read about an area in MOngolia where the a major source of income was furs. They would only shoot healthy animals, though and would not trap them. When new settlers moved in who didn't believe those superstitions moved in, an outbreak of the bubonic plaque occured. (Bubonic plaque is endemic among the rodents that were be hunted, so you DID NOT want to skin a sick animal, and you could not know if a trapped animal had been sick.)
February 2, 2010, 5:15 pmLogan:
"I have no idea if Leeson is among them"
Don't worry, Leeson is on the exact opposite end of the spectrum. He's an anarcho-capitalist with supply and demand curves tattooed on his right biceps.
http://1.bp.blogspot.com/_otfwl2zc6Qc/S0emMFmH46I/AAAAAAAAMZg/Aq19t_h0cRU/s1600-h/leeson.jpg
He's as libertarian as one can possibly get.
February 2, 2010, 5:16 pmTDK:
There appears to be a logical flaw in the theory.
If we assume that ordeals worked because people fully believed then logically that belief must extend to the priesthood as well. If the latter were rigging the trials then that implies that they didn't believe that God would protect the innocent. It suggests that the priests were therefore using the laity's credulity.
The priests were not true believers.
February 17, 2010, 8:16 am