Weber’s ideal-typical categorization of legal thought is a conceptual tool that allows the understanding of how the formulation of laws and the application of rules and decisions had been established in pre-modern times. Primarily, Weber divides these typologies into four distinctive groups that are based on the principles of rationality and formality. The degrees of formality appertain to whether the systems of law either utilize internal rules and procedures [formal] or external criteria’s (e.g., religious, political, ethical values) [substantive] to reflect the creation and adjudication of law. Additionally, the degrees of rationality indicate whether the systems are rule-governed, systematic, logical, and intellectually framed [rational] or not [irrational]. Our main focus will be analyzing both Formally Irrational and Substantively Irrational ideal types of legal thought. The institutions of the trial by ordeal and witch trial are two illustrations that exemplify the Irrational typologies of Law-making and law finding.
A trial by ordeal is fundamentally an atavistic-like, barbaric implement and/or practice used during the twelfth and thirteenth centuries in order to resolve disputes: “a device for dealing with situations in which certain knowledge was impossible but uncertainty was intolerable” (Palmer, 1550). Generally, an individual(s) who was accused or suspected of committing a crime would be subjected to do something unbearable, displeasing, and hazardous. Survival, escaped injury, or if the injuries healed are the key factors that help differentiate whether the party was either guilty or innocent.
There were various judicial forms of verification that were utilized in order to discern the truth. One process was called the ordeal of cold water and another was the ordeal of hot iron. In 1177, a very noble and rich citizen of London called ”John the Old Man” was accused of being an accomplice to poaching (Kerr and Forsyth, 579). Dating from 1067 to 1150, any person(s) who was accused and had denied committing theft were demanded to the ‘ritual’ ordeal of cold water. Essentially, there would be a pool filled to the brim with water approximately twelve feet deep and 20 feet wide. The hands and feet of the accused would often be tied together making him unable to move. However, there were a variety of approaches to this particular ordeal but more importantly, if the suspect had sank he would be considered innocent but if he were to float, he would be deemed guilty and would be dragged for punishment; usually hanging. It is surprising to note that the majority of woman who committed similar crimes were instructed to the ordeal of hot iron rather than cold water; “The reason may have been that a woman was much less likely than a man to pass the ordeal of water” (Kerr and Forsyth, 582).
An alternative process in distinguishing if the suspect was honest is the ordeal to hot iron. Dated from 1067 to 1210, after a three-day period of complete fasting and prayer, a priest would place a rod of iron into a fire in order for it to reach an intolerable temperature. Next, the accused would then need to hold the iron rod for a certain number of paces (steps). After three days, the hand, which held the iron rod, was then inspected. If the “diseased discharge” was found in the mark of the iron, s/he would be found guilty and unclean; on the other hand, if the burn was clean and/or healing the suspect would then be innocent: “let praise and glory be given to God” (Kerr and Forsyth, 588). Overall, trial by ordeal was a common practice during medieval Europe up until it gradually “withered away because society changed” (Palmer, 1550).
The institution of witch trials have been examined by many who have been seeking for the social, political, and psychological determinants that had led to a perversion of justice and deaths of numerous innocent Puritans. The Salem village witch trials are an example that involved many inquisitions and accusations of individuals who were unreasonably litigated for witchcraft.
In 1691, 8 girls were burdened with “unknown distempers of disorderly speech, odd postures, and convulsive fits” (Woolf, 458). Rumors had spread throughout Salem thus creating a moral panic in regard to witchcraft. Until the Court of Oyer and Terminer in 1692, approximately 20 suspected witches were convicted, sentenced, and executed. “Witches” who were executed for witchcraft was either hung, burned alive, or drowned while Giles Corey, an accused “wizard,” was crushed with massive rocks. Eventually, the witch trials were discontinued when several historians proposed that the girls were afflicted from ergotism (food poisoning) rather than witchcraft. There were various ways/methods of proving whether an individual(s) was a “witch/wizard.” A couple critical tests that determined if a person was bewitched were through spectral evidence or critical touch. Spectral evidence is when victims would see a spirit of the accused inflicting pain onto them or committing the devil’s commands in their dreams while on the other hand, critical touch test was basically when the spasms or tantrums of the victim(s) would suddenly diminish once they were touched by the accused. The witch trials of Salem demonstrate that their methods of proving innocence were not very plausible.
These two institutions both associate with Weber’s Irrational ideal types of legal thought. First, the institution of trial by ordeal is an example of Webers’ Formally Irrational ideal typology. Weber claims that the primitive procedures to deduce whether someone was guilty were not simply foreseeable but were fully dependent on magical techniques, prophecy, and/or revelation. In the trials by ordeal, the accused relied on revelation or God to aid them during their ordeals. Moreover, these practices for resolving disputes required a formulation of fixed rules in order to comprehend what the magic, prophecy, or revelation meant: “These means are inaccessible to the intellect.” Secondly, the institution of the Salem witch trials is an example of Webers’ Substantively Irrational ideal type. Here, Weber asserts that the law making follows a ‘khadi-justice’ approach meaning that each case is purely decided on ad hoc basis (substantive); each case is observed and considered differently with a legal, ethical, emotional, political, and etc. perspective (external criteria). In correlation to the Salem witch trials, each accused were judged using a variety of distinctive techniques to justify that they were in fact not a “witch.” By analyzing what is and what should a bureaucracy be, Weber was able to formulate the pure types as a way to “formulate type concepts and general uniformities of empirical process” (Pavlich, 105).
Kerr, M. H., & Forsyth, R. D. (1992). Cold water and hot iron: Trial by ordeal in England. Journal Of Interdisciplinary History, 22(4), 573.
Palmer, R. (1989). Trial by Fire and Water: The Medieval Judicial Ordeal. Michigan Law Review, 87(6), 1547-1556
Palvich, G. (2011). Law & Society Redefined. (pp. 103-116). Toronto: Oxford University Press.
Woolf, A. (2000). Witchcraft or Mycotoxin? The Salem Witch Trials. Journal Of Toxicology — Clinical Toxicology, 38(4), 457-460