4 von 4 Kunden fanden die folgende Rezension hilfreich
Peter S. Bradley
- Veröffentlicht auf Amazon.com
Format: Kindle Edition
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.