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Torture and the Law of Proof: Europe and England in the Ancien Régime
 
 

Torture and the Law of Proof: Europe and England in the Ancien Régime [Kindle Edition]

John H. Langbein

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Produktbeschreibungen

Pressestimmen

"Like all good monographs, "Torture and the Law of Proof" not only does what it sets out to do well but points to new directions. It is a concise scholarly work that compares two legal systems with graceful ease and has provocative implications extending far beyond the sleazy world of rack, strappado, and thumb screw."--Charles Carlton "American Historical Review "

Kurzbeschreibung

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.

Produktinformation

  • Format: Kindle Edition
  • Dateigröße: 1943 KB
  • Seitenzahl der Print-Ausgabe: 240 Seiten
  • Verlag: University of Chicago Press (24. April 2012)
  • Verkauf durch: Amazon Media EU S.à r.l.
  • Sprache: Englisch
  • ASIN: B00DQMWSRW
  • Text-to-Speech (Vorlesemodus): Aktiviert
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  • Amazon Bestseller-Rang: #311.976 Bezahlt in Kindle-Shop (Siehe Top 100 Bezahlt in Kindle-Shop)

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3 von 3 Kunden fanden die folgende Rezension hilfreich
5.0 von 5 Sternen A skeleton key for understanding the dark side of our not so distant ancestors. 21. Februar 2014
Von Peter S. Bradley - Veröffentlicht auf Amazon.com
Format:Kindle Edition|Verifizierter Kauf
This book is like a skeleton key that unlocks a number of puzzles I've noticed concerning the use of torture in the Spanish Inquisition. In my review of Inquisitorial Inquiries: Brief Lives of Secret Jews and Other Heretics, I noted that I was surprised when torture wasn't used, and how often it seemed that the Inquisitors already knew the information they were seeking. Also, the bizarre procedure whereby the defendant had to confirm their confession outside of torture just seemed like a cruel farce. Similarly, in one description of torture, a poor woman begged to be told what to confess to, but the Inquisitors offered no hints on that subject. I sketched the following theory:

//This leads to several observations, mostly drawn from Charles Rembar's The Law of the Land: The Evolution of Our Legal System. With reference to the evolution of the English legal system, Rembar argued that the trial practices that we consider "cruel and unusual" probably were more in the nature of punishment, because by the time that the accused got to "trial," the grand jury had already canvassed testimony from neighbors - who would have known everything about the accused in the small, tight-knit communities of Henrician England - and guilt had already been established. So, by all means, hold that hot rock and let's see if blisters form.//

It seems that I was both right and wrong.

Langborn's book explains that the "jurisprudence of torture" formed out the problem of proof in criminal trial procedures. Prior to the Fourth Lateran Council in 1215 abolished the proof of criminal wrongdoing through the traditional Germanic "ordeals," whereby the guild or innocence of a criminal defendant would be immediately decided by God - if the defendant survived an ordeal:

//This curious system of proof developed in the thirteenth century, although it has some roots in the twelfth century. The Roman-canon law of proof was the successor to the ordeals, the nonrational proofs of Germanic antiquity. When the Fourth Lateran Council of 1215 abolished the ordeals, it destroyed an entire system of proof.The ordeals were means of provoking the judgment of God. God revealed the innocence of an accused whose hand withstood infection from the hot iron; God pronounced the guilt of one who floated when subjected to the water ordeal.//

Langbein, John H. (2012-04-24). Torture and the Law of Proof: Europe and England in the Ancien Régime (Kindle Locations 230-234). University of Chicago Press. Kindle Edition.

These non-rational "proofs" were replaced by a system intended to hedge defendants against a judge's merely discretionary powers. Thus, the rule of proof required either two eye-witnesses or the confession of the defendant. No decision based on mere circumstantial evidence was permitted.

Obviously, this led to situations where the judge might really know if person was guilty but if there was no second eye-witness or a confession the defendant would walk.

It was in that kind of circumstance that torture was permitted to elicit a confession, but there were rules designed to make the confession a truthful confession. Thus, torture was not permitted unless there was a "half proof" - such as substantial circumstantial evidence and an eyewitness. What this meant, of course, is that torture could go forward only where there was evidence of the person's guilt that would probably pass contemporary standards of legal proof. Without that evidence, torture was not permitted.

Further, leading questions were not permitted. The idea was that the defendant would supply evidence of his or her own guilt. If the defendant didn't provide that evidence - such as by saying where the murder weapon was hidden - the conclusion might be that the person was innocent. Hence, the piteous spectacle of the hard-hearted Inquisitors ignoring the converso's pleas to be told what to say was precisely the point - they apparently had substantial evidence of her heresy but perhaps not the "full proof" and they might never get it.

The different levels of proof also explain why we see that Galileo was not convicted of heresy, but of "vehement suspicion of heresy." Being suspected of heresy was itself a crime, but it was a crime based on the fact that there might not be the "full proof" required for conviction of heresy.

Langbein confirms Charles Rembar's observations about the uniqueness of the English legal system being in its use of a jury system. According to Langbein, England avoid implementing torture as a regular part of its criminal justice system because it went in a different direction from Continental Europe in dealing with the issue of judicial discretion. Where Continental Europe went with fixed forms of proof, England went to the jury system, where everyone basically knew about the issue, and members of the jury might be witnesses themselves. Langbein explains:

//The notion that jury trial was a consensual proceeding that the defendant had a right to decline was a remnant of the peculiar circumstances through which jury trial became the predominant determinative procedure in English law, the successor to the ordeals. When the Fourth Lateran Council of 1215 destroyed the ordeals, a different mode of proof had to be devised. Jury trial was already in use in English criminal procedure in some exceptional situations, as an option available to a defendant who wished to avoid the ordeals. The path of inclination for the English was thus to extend jury procedure to fill the enormous gap left by the abolition of the ordeals. But although trial by jury lost its exceptional character and became the regular mode of proof in cases of serious crime, it retained its consensual element. Because the criminal defendant had always had the right to choose jury trial, the right to refuse it was difficult to withdraw from him.

Langbein, John H. (2012-04-24). Torture and the Law of Proof: Europe and England in the Ancien Régime (Kindle Locations 1410-1417). University of Chicago Press. Kindle Edition.

It was in the exception to jury trial that torture retained some lasting effect, because while torture was not used to get the proof of criminal wrongdoing, it could be used to motivate the defendant to consent to jury trial.

//Custom settled it that the defendant who was put to peine forte et dure was laid over with weights that would crush him to death unless he relented. The practice came to be called "pressing." In the seventeenth century the defendant could be pressed to death in a few minutes. 17 Pressing was not inevitably administered with such dispatch, however. If the crown had some interest in conducting a trial, it could protract the defendant's suffering in order to coerce a plea. When in 1615 Richard Weston, one of the Overbury murderers, initially refused at his trial to plead, Sir Edward Coke threatened him from the bench:

For the first, he was ... to be extended, and then to have weights laid upon him, no more than he was able to bear, which were by little and little to be increased.

For the second, that he was to be exposed in an open place, near to the prison, in the open air, being naked.

And lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out, so that oftentimes men lived in that extremity eight or nine days. 18

Weston reconsidered and entered his plea. 19

Langbein, John H. (2012-04-24). Torture and the Law of Proof: Europe and England in the Ancien Régime (Kindle Locations 1426-1438). University of Chicago Press. Kindle Edition.

In a lot of the books I've read on the Inquisition, the use of torture is never placed in historic context. In God's Jury: The Inquisition and the Making of the Modern World, for example, the author presents the use of torture as if it was an arbitrary system intended to discover secrets - he equates the use of torture in the Inquisition to the use of torture in the NSA. Obviously, the legal systems are completely different and have different purposes for the use of torture. The use of torture was an unfortunate product of a system that set a very high standard of proof. Langbein makes a rather stunning comparison of the different systems:

//By contrast, the British Isles and some peripheral parts of the Continent remained free from judicial torture throughout the later Middle Ages, 29 because the jury system rather than the Roman-canon law of proof replaced the ordeals. And, to this day, an English jury can convict an accused criminal on mere circumstantial evidence. It can convict on less evidence than the Glossators and their successors stipulated as a bare prerequisite for further investigation under torture. 30

Langbein, John H. (2012-04-24). Torture and the Law of Proof: Europe and England in the Ancien Régime (Kindle Locations 307-310). University of Chicago Press. Kindle Edition.

Langbein correlates the connection between torture and the law of proof with the disappearance of torture in Europe. Torture began to disappear as a practical matter in the 17 and 18th Centuries as states became comfortable with the notion that convicting people on circumstantial evidence could work. So, according to Langbein, while Voltaire and other critics of torture claim credit for the abolition of torture, the real force for abolition came from the changing law of proof.

This is a fascinating and short foray into legal history. It probably deserves to be read by anyone with an interest in legal history, or the history of the High Middle Ages and Early Modernity, or in the history of the Inquisition.
3 von 3 Kunden fanden die folgende Rezension hilfreich
3.0 von 5 Sternen Scholarly look at legal justifications for use of torture in early European history 13. März 2013
Von E. Jaksetic - Veröffentlicht auf Amazon.com
Format:Taschenbuch
The author, a Professor of law and legal history: (1) discusses the rationale and justifications for the use of torture in early European legal systems; (2) highlights similarities and differences between the English legal system and Continental European legal systems in their handling of the issue of torture; (3) contends that the conventional wisdom is wrong about the reasons why torture was abolished as a lawful procedure in European legal systems; and (4) argues that the rationale and justifications for judicially sanctioned torture became outmoded as the law of evidence and proof evolved, not because of any specific efforts during the Enlightenment to portray torture as cruel, inhumane, and ineffective.

The author does a good job of explaining how the use of torture by judicial officials was based on generally accepted premises of the law of evidence and proof in felony criminal cases in early European history. The author's arguments and contentions about how the law of evidence and proof in criminal cases evolved and undermined the rationale and justifications for judicially sanctioned torture are thoughtful and interesting, but some readers may find them to be insufficient to warrant rejection of the conventional wisdom about how torture was abolished from European legal systems.

The book is somewhat dry and technical at times, and is not likely to be of interest to casual readers. But, the book could be of interest to readers looking for a scholarly perspective on European legal history, the history of European criminal law, or the history of torture.
2 von 2 Kunden fanden die folgende Rezension hilfreich
5.0 von 5 Sternen Langbein focuses on micro-studies of societal impacts of law in England in this wonderfully packed book 12. Juli 2014
Von James Berlin - Veröffentlicht auf Amazon.com
Format:Kindle Edition|Verifizierter Kauf
Dr. J. Langbein focuses on micro-studies of societal impacts of law in England in this wonderfully packed book; it's a good read for any law student, early modern historian, or even the layman who wants to know about how centralized state law came to be. The emergence of centralization of power toward the crown and the ensuing duty of the crown to enforce laws required a historical background that was conducive in a progressive direction. While torture and law were intimately linked, the subtle observation remains that torture, honor, and law were all intrinsically bound in a society that sought order and peace. The trials themselves were gruesome, but Langbein casts doubt on the fact that these practices were merely 'barbaric'; his studies suggest a much more sophisticated society that ultimately set the foundation for the evolution of law. Cheaply obtained on Amazon, this rich book is sure to add knowledge and give a deeper appreciation of early modern English law!
4.0 von 5 Sternen Torture and the Law of Proof is a very good book overall 21. Juli 2014
Von Marissa D. - Veröffentlicht auf Amazon.com
Format:Taschenbuch|Verifizierter Kauf
I had to read this book for a business law class. Torture and the Law of Proof is a very good book overall, although at times it can be dry, especially if you aren't really into scholarly literature/history. Because this is a book about torture, there are a few sections of the book that illustrate the various torture methods used in Europe and England at the time, and does so in such as way as to leave the most gruesome of details up to the reader's imagination. However, some of the descriptions of torture can be pretty disturbing at times, so buy this book with your personal discretion in mind.
4 von 6 Kunden fanden die folgende Rezension hilfreich
5.0 von 5 Sternen Very good for a Legal History about Torture 25. Juni 1999
Von Ein Kunde - Veröffentlicht auf Amazon.com
Format:Gebundene Ausgabe
It's a very interesting book for specialist in legal history. I'm makig a research about torture in the Spanish history and it help me a lot. I'd like to contact people who is making somethig like that.
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