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!
