Max Weber’s (1864- 1920) ideal-typical categorizations of legal thought is a great tool that gives us a broad understanding of pre- modern rules and decisions that were established and how they were implemented in medieval times. Weber notes two fundamental activities in the field of law: creating law and finding law once it is created (adjudication). Both activities operate either in formal systems of law (self- sufficient and use internally specified rules and procedures to make decisions), and substantive systems of law (referring to external criteria [e.g., religious, political, ethical values]—that either make or adjudicate laws). In addition for laws to be either formal or substantive, legal systems are either rational or irrational. “Systems are to be rational if they are rule- governed, systematic, ‘use logical interpretations of meaning’, and are intellectually framed” (Pavlich, p.109), and irrational systems are exact opposite of this. My main focus will be to analyze both formally irrational and substantively irrational ideal types of legal thought which correlate to trial by ordeal, and witch trials in pre- modern Europe.
Trial by ordeal
The institution of “trial by ordeal”, as practiced in England was a system of justice used between the 12th and 13thcentury. It was a system based on the medieval superstition ‘Iudicium Dei’, meaning ‘The Judgment of God’. This system was used to prove a person’s innocence or guilt. If a person committed a crime, even the smallest offence, most of the time they had to go through a ‘trial by ordeal’. Very few people were ever executed straight away. This system of justice was not very accurate or fair but some scholars believe it worked because the people of the day really believed in it, they believed the innocent would be saved and the guilty would be punished. Because of this thought, many people who were guilty and knew they would be punished confessed to their crimes so they did not have to undergo the ordeal. The innocent were self-assured that God would save them so they agreed to endure the ordeal. The authorities knew that only an innocent man would keenly undergo the ordeal, so they worked it in their favor, to prove that person was indeed innocent. For example, they could make sure the red hot iron bar that they had to hold in their hand was not too hot. The whole concept was actually quite effective in some ways, the guilty would confess or leave town but many who were actually innocent were killed because of the barbaric tests they had to endure.
“Anyone, who shall be found, on the oath of the aforesaid [jury], to be accused or notoriously suspect of having been a robber or murderer or thief, or a receiver of them … be taken and put to the ordeal of water”(Douglas, p.441). This is one type of test people had to go through during this period to be proven innocent or guilty. Overall, there were three main types of ordeals, Ordeal by Fire, Ordeal by Water and Ordeal by Combat. The type of ‘ordeal’ you were put through depended on your status as well. It was usually only noblemen who got the opportunity to be a part of the Ordeal by Combat which was the only ordeal where you could win by your own skill.
Ordeal by Fire involved either putting your arm into a boiling cauldron and removing a stone or holding a red hot iron bar and walking three paces. The wound was then bandaged and if it had started to heal after three days then you were innocent, “a priest, who would pronounce that God had intervened to heal it, or that it was merely festering—in which case the suspect would be exiled or executed” (Boyce, Mary). If it was clear that the wound was not healing you were guilty.
Ordeal by Water involved being strapped to a chair and thrown in a lake, if you sank you were proven innocent, if you floated you were believed to have been guilty and would have been executed soon after. Either way, the person would die. If innocent, he or she believed that they were going to God.
Ordeal by Combat if a noblemen was accused of a crime he would have to fight his accuser. Whoever won the battle was thought to be right, the person that lost was wrong and they were usually deceased at the end of the fight.
The institution of witch trials, as practiced in medieval Europe between the thirteenth and nineteenth centuries, as many as one million individuals in Europe were executed for the crime of witchcraft. The majority of the trials and executions took place during the sixteenth and seventeenth centuries. During this period, the speed and volume of executions were astonishing: “in one German town, as many as 400 people were killed in a single day” (Midelfort, 1972). The victims were primarily women, mostly poor and disproportionately widows. The belief in the existence of witches goes back at least as far as the Old Testament of the Bible, which forbids the practice of witchcraft. For example, the book of Exodus (22:18) says: “Thou shalt not suffer a witch to live.” Pre-Christian cultures in Greece, Rome and Iceland, among other places, believed in the power of witches (Ankarloo and Clark, 1999). The history of systematic witch hunting, however, is primarily associated with the Christian church.
Starting in the mid-thirteenth century, however, it became widely accepted that witches existed, were capable of causing physical harm to others and could control natural forces. The ﬁrst trials for witchcraft “emerged from the actions of the Catholic Inquisition” (Oster, p.217). During this period, witchcraft accusations made mainly by orthodox religious doctrine were accusations of prostration to the devil, than to criminal behaviour. The largest period of witch persecutions, lasted from the mid-sixteenth century to the end of the eighteenth. It is during this period that the majority of the executions (witch hunts) took place, and the trials spread throughout Europe and Scandinavia. These later trials were “conducted by both Catholics and Protestants, in both ecclesiastical and secular courts” (Oster, p.217).
A common witch-hunting method was “swimming” or “ducking” (based on the ordeal by water) whereby the accused was tied by their hands and feet and dipped in deep water. If the accused witch floated, the water (God’s creature) had rejected her and she was deemed guilty, and if she sank (and drowned), she was deemed innocent. The accused could also be pricked all over with a sharp instrument (known as ‘pricking’) in the search for insensitive spots where the Devil had visibly or invisibly marked them. Other, more traditional, tortures were also used to elicit confessions and accusations against accomplices, including thumbscrews, leg vices, whipping stocks with iron spikes, scalding lime baths, prayer stools furnished with sharp pegs, racks, and the strappado (hoisting on a pulley to pull the arms from the sockets). The witch trials of Salem demonstrate that their methods of proving innocence were not very plausible.
I believe that these two old practices fall under Weber’s formally irrational ideal types of legal thought, and substantively irrational ideal types of legal thought. In Pavlich’s text, Weber states “those lawmakers and adjudicators, with formally irrational understandings, include those endorsing prophetic revelations and oracular verdicts” (Pavlich, p.110). Making them irrational because they rely on magic and prophecies, rather than reason- based thought. This definition relates to both, trial by ordeal and witch trials. The judgments made, and the acts practiced during those times were based on the belief that witches were the main cause of physical harm or natural disasters, and needed to be killed to release the devil inside them. “When lawmakers and law discovers do not follow general rules or norms, and proceed in an ad hoc way, leaping to conclusions based on emotional evaluations that differ widely from case to case” (Pavlich, p.110), they operate Substantively but in irrational ways. An example of this would be ‘ordeal by fire’ described above. Weber, himself says this type of adjudication of law is irrational as it does not follow clearly articulated rules, and make no effort to link decisions to general percepts. It is substantive because they do not distinguish thoroughly between legal and extra- legal ways (e.g., ethics, religion) of grounding decisions.
To conclude this topic, I say that Weber’s definitions of formal irrational types and substantive irrational types fall under the categories of what lawmakers and practitioners were performing during the medieval times. The examples listed above depict the harsh realities people were enduring by the beliefs that lawmakers had at that time.
Boyce, Mary. “ĀTAŠ”. Encyclopædia Iranica. Retrieved 2013-10-29.
The Assize of Clarendon, as published in English Historical Documents v ii 1042—1189, D C Douglas editor, Oxford University Press, London 1981, p 441.
Ankarloo, Bengt, and Stuart Clark. The eighteenth and nineteenth centuries. Philadelphia: University of Pennsylvania Press, 1999. Print.
Oster, Emily. “Witchcraft, Weather And Economic Growth In Renaissance Europe.” Journal of Economic Perspectives 18.1 (2004): 215-228. Print.