Trial By Ordeal
Trial by ordeal was a way of medieval trial. According to Kerr, Forsyth and Plyley (1992), traces of it date back to 1118, but had a much more widespread use during the span of 1166 to 1215 in England. Eidleberg (1979) even makes note of its use as early back as the year 500 in Roman and Greek law systems. Trial by ordeal is exactly what the name describes it as; a trial for someone who has committed a crime, that is put through a test, or an ordeal, to determine their guilt or innocence. As it was utilized elsewhere other than England for longer, I believe that it is important to make note that “[t]rial by ordeal was an essential part of the judicial system of the pagan Germanic peoples, and was preserved and further developed following the conversion of these peoples to Christianity” (Eidelberg, 1979, pg.106). The fact that it was refined and developed more once the Germanic peoples were converted to Christianity, easily explains its acceptance in England. An originally pagan judicial way, was embraced by the God fearing Christians of England. Kerr et. al make use of a quote from Morris saying “an instance in which God’s guidance was merely hoped for; it was required for the normal administration of justice. Men were convinced that they could not run a system of justice without securing specific rulings from God” (1992, pg.574-575). Trials were usually made very formal. Somewhat of a religious spectacle, complete with ceremonies (Eidelberg, 1979). Popular ordeals were of cold water, and hot iron. For cold water, a person would be submerged in water. If they floated, it was said that they were guilty, and innocent if they sank. Only some interpretations of this ordeal mentioned an innocent person actually being pulled from the water. Ordeal of hot iron was when a scalding piece of iron was placed into the accused’s hand. They had to hold it for a certain amount of time before being able to drop it. Their hand would then be wrapped up, for about three days. After the three days, if the hand was badly burnt/infected/pussing, then the person was deemed to be guilty (Kerr et. al, 1992).
In the 17th century, there were three largely famous witch related events in towns in Germany, France, and most well known to us in North America, Salem Massachusetts (Rapley, 2007). The practice of witchcraft was something seen as very serious, with a punishment of death (Goss, 2008). Everything with witchcraft at this time had to do with God and Satan. Witches were seen as people who called on satanic powers, and dark spirits in order to tell the future, or harm other people. These witches were seen as an enemy of the church (Goss, 2008). Very few of the people who were ever deemed to be a witch actually practised any form of witchcraft (Goss, 2008). Alongside that, Goss (2008) also makes note of the massive increase of executions from 1500 to 1700 in Europe. In the United States, the numbers weren’t as high. People would be accused of being a witch by their neighbours, or from what I have read, people that just plainly didn’t like or get along with the other person. These people would go to a trial, and luckily, not all were found guilty of witchcraft. There was even a case where the acquitted ‘witch’ was able to successfully counter sue her accuser (Goss, 2008). From all accounts though, it seems that witches were used to help keep people in line. I believe that the use of the witch was the medieval way of creating a moral panic, as a means to promote a solely Christian faith based society. The examples of burning witches at the stake was a way to allow the church to show people what would happen if they strayed from the church.
Max Weber categorizes legal thought into what is referred to as ideal types. He looks at the formal vs substantive law systems (rules and procedures vs external criteria), and how they are irrational or rational (Pavlich, 2011). This leads to the four types of ideals: substantively irrational/ration, and formally irrational/rational. As Pavlich (2011) notes, nothing will fit perfectly into one type. But for us, trial by ordeal and witch trials fit enough into one each. I believe that these two old practices fall under Weber’s formally irrational category of legal thought, and substantively irrational category of legal though, respectively. Let’s go through the criteria of the formally irrational type, and see what kind of matches can be made, before switching to the other (class handout, Larsen, 2013).
1. “Decision-making rests on magic, prophecy, or revelation. These means are inaccessible to the intellect.”
I think it is safe to say that this fits with a system of judgement that was entirely faith based.
2. “Formal in the sense that particular rules are to be followed – often in a complex ritualistic fashion.”
Each ordeal had set rules to be followed in how it was to be administered, as well as the religious rituals to go along with it. “A framework of religious ceremonies including celebration of mass and the reception of communion prior to the actual ordeal” was a standard thing (Eidleberg, 1979, pg.106).
3. “Outcomes of decisions are not predictable.”
Outcomes were wildly unpredictable in medieval times. Just the nature of the ordeal left too much up to chance, or even just the simple physics and nature of the ordeal. In modern science, Kerr et. al (1992) applied scientific tests to the ordeals, and only the ordeal of cold water is readily predictable. This was done by comparing a persons body density with that of water.
As stated, I believe that the criteria given for the substantively irrational type fit well for the witch trials (class handout, Larsen, 2013).
1. “Lawmakers and law discoverers refer to one or more external criteria, but do not follow general rules or norms.”
It could be argued that the prosecution and execution of people claimed to be witches turned into the norm, but I will argue that it was not. These people who were deciding that these witches were real, and needed to be dealt with, definitely were using external criteria, and not following general, or normal guidelines. Religious views, wild emotions go the better of people in power to create and enforce laws.
2. “Decisions are made on an ad hoc basis, with no formal efforts to maintain consistency.”
From what I gathered, there was no consistency. Claiming people were witches, charging people with witchcraft, and even holding them were all very inconsistent, and not much like legitimate judicial trials and arrests.
3. “Each concrete situation determines the decision.” & 4. “Outsiders cannot predict the outcome of like cases”
Each case was looked at independently, and because all the people were different, and being accused differently, there was a lack of uniformity which didn’t allow for any sort of consistent judgments from case to case.
Interestingly enough, Rapley (2007) relates witch hunts of then, to terrorist hunting of now, which can start a whole new conversation; what systems in place today, still fit into these almost barbaric way of deciding on how to enact a law?
Eidleberg, S. (1979). Trial by Ordeal in Medieval Jewish History: Laws, Customs and Attitudes. Proceedings of the American Academy for Jewish Research, 46/47, 105-120.
Goss, K. D. (2008). The Salem Witch Trials: A Reference Guide. Westport, Connecticut: Greenwood Press
Kerr, H.M., Forsyth, R. D., & Plyley, M. J. (1992). Cold Water and Hot Iron: Trial by Ordeal in England. The Journal of Interdisciplinary History, 22(4), 573-595
Pavlich, G. (2011). Law & Society: Redefined. Ontario, Canada: Oxford
Rapley, R. (2007). Witch Hunts: From Salem to Guantanamo Bay. Montreal, Canada: McGill-Queen’s University Press