Abolition of Judicial Torture in Early Modern Europe

Rachel Friddle

October 8, 2015

Abolition of Judicial Torture in Early Modern Europe

        Judicial torture was a vital criminal procedure in Europe throughout the eighteenth century. This was partly due to the fact that the law of proof in use was absolutely dependent upon judicial torture as a tool to coarse confessions out of suspects in a court of law. However, by the mid eighteenth century the majority of European states had abolished the practice of judicial torture in less than a century. Torture had gone from a principal procedure within courts all around Europe to being authoritatively abolished by leaders in Prussia, Saxony, Poland, and France (Langbein, 26). The cause for this rapid abolition movement is discussed in John Langbein’s Torture and the Law of Proof, Europe and England in the Ancien Regime. Langbein argues that what he refers to as the “fairy tale” perspective, regarding the abolition of judicial torture, in fact undermines the transformative and dynamic history of criminal procedure in the eighteenth century. The “fairy tale” describes a moment in history when “a series of able publicists, most notably Beccaria and Voltaire, revealed the incurable deficiencies of the jurisprudence of torture, and these writers shocked the conscience of Europe, and alone inspired the great monarchs of the Enlightenment to abolish torture” (Langbein, 27). The “fairy tale” perspective does not provide an adequate understanding of the way judicial torture was abolished in Europe. The argument made by historians using the “fairy tale” perspective is that the abolition of judicial torture was the primary reason that early modern judicial courts abandoned the Roman-canon law of proof. However Langbein’s argument suggests that the Roman-canon law of proof had already begun its decline in the sixteenth and seventeenth centuries and judicial torture, as a result, became less crucial to the judicial proceedings. A new system of proof was developed in the legal science and legal practice in the sixteenth and seventeenth centuries, which in turn confirmed and reinforced torture abolishment legislation by the middle of the eighteenth century.

        Langbein describes two fundamental reasons why this “fairy tale” perspective should be critiqued. First, it suggests that the moral outrage that surrounded the practice of torture was initiated primarily by the writings of Beccaria and Voltaire; however these eighteenth century thinkers were simply expanding upon arguments that had been made against judicial torture for centuries. Therefore, the publicists were not the initiators of Europe’s discontent for torture, as the “fairy tale” would imply. Second, the “fairy tale would have it that the abolition of torture preceded the abolition of the Roman-canon system of proof” (Langbein, 28). This is highly unlikely and near impossible since the Roman-canon system was unfeasible without the institution of torture. Hence the “fairy tale” nature of this historical perspective that Langbein coins is laid forth.

In the Roman-canon system, in order to convict a suspect of any given crime the evidence presented would have to be ‘full proof’. This most likely meant that there was two reputable witnesses that both swore that the accused was in fact guilty. Cases that provided full proof evidence were somewhat rare and this requirement to convict with absolute certainty created the need for torture in the judicial court procedure. If cases were brought to the court with only one witness in addition to some circumstantial evidence this would be considered ‘half proof’ and a conviction could not be made (Bernstein, Lecture 10/1/2015). In the instance of half proof in the Roman-canon system, torture was necessary. Torture allowed the judges of a court to obtain absolute proof in the form of a confession or in the form of a non-confession torture session which both fulfilled the necessary degree of certainty in order to convict a suspect (Bernstein, Lecture 10/1/2015). The argument made by Langbein in regards to the “fairy tale” perspective is that in the Roman-canon system torture could not be abolished before the proceedings within the system itself had been altered.