Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.

American vs. Medieval Justice: Compare and Contrast

by danps Sat Aug 1st, 2009 at 05:10:26 AM EST

A history of the 14th century sketches out a judicial process that helps to illuminate some of our current practices.

For more on pruning back executive power see Pruning Shears.


No Associated Press content was harmed in the writing of this post

I started reading A Distant Mirror by Barbara W. Tuchman recently and was struck by this from page 43:

Philip bullied the first Avignon Pope, Clement V, into authorizing the trials of the Templars, and with this authority put them to atrocious tortures to extract confessions. Medieval justice was scrupulous about holding proper trials and careful not to sentence without proof of guilt, but it achieved proof by confession rather than evidence, and confession was routinely obtained by torture. The Templars, many of them old men, were racked, thumbscrewed, starved, hung with weights until joints were dislocated, had teeth and fingernails pulled one by one, bones broken by the wedge, feet held over flames, always with pauses in between and the "question" put again each day until confession was wrung out or the victim died. Thirty-six died under the treatment; some committed suicide. Broken by torture, the Grand Master, Jacques de Molay, and 122 others confessed to spitting on the cross or some other variation of crime put into their mouths by the Inquisitors. "And he would have confessed that he had slain God Himself if they had asked him that," acknowledged a chronicler.
How does America's treatment of detainees look next to that?

We do not know everything about our torture program so nothing can be ruled out with certainty.  But as Luke Mitchell writes (subscription required) "we worked to perfect a new form of 'no touch' interrogation that would achieve terror and compliance without leaving scars," so it seems likely that the rack, thumbscrews, breaking bones, burning and pulling out teeth/fingernails were not used.  This had more to do with not leaving marks than an aversion to cruelty, but the point remains.  However, while John Yoo's torture memo was in effect all of those would have been permitted because they did not produce "intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result."

On the other hand, there are reports of "joints dislocated from stress positions" at Abu Ghraib even after the pictures of abuse there came to light, and dislocation of limbs reported at Guantánamo through the end of last year.  Mitchell also reports on force feedings there, though in at least some cases it appears it is being done more to coerce compliance than as a response to starvation.  Also, there have been at least five suicides, but since Tuchman does not report on the number of suicides among the Templars a comparison is impossible.  America has already tripled (via) the body count of thirty-six Templars tortured to death, though.

The U.S. also compares poorly with respect to trials - after all, the Templars actually received them.  They were explicitly charged with something (heresy) whereas the inmates at Guantánamo are simply marking time while the government tries to figure out a system that 1) is guaranteed to work in its favor, 2) will not be public, and 3) does not require the production of evidence.  It looks like confessions obtained via torture will not be admissible in whatever proceedings end up happening, and if so then it is a clear improvement on the medieval system.  That, of course, is contingent on some sort of trial actually occurring.

The degree to which the Templar persecutions were public is unclear.  Tuchman does not specify whether observers were permitted during the trials, nor does she mention if any kind of transcript was made.  In the absence of any such evidence we should assume neither, and this is a case where the hoped-for process for detainees could be an improvement.  On the other hand, those who have extensively covered military commissions like Andy Worthington and Daphne Eviatar have not reported transcripts of the proceedings (such as they are) being made available.  Observers have obviously not been permitted either.  The score here is inconclusive.

As for lasting influence, Tuchman writes (also on page 43) "In Toulouse and Carcassonne during the next 35 years the Inquisition prosecuted 1,000 persons on such charges [of sorcery] and burned 600. French justice was corrupted and the pattern laid for the fanatic witchcraft persecutions of subsequent centuries."  We obviously cannot know right now what the impact will be over the next few decades, but it would not be a huge surprise to see these programs cited as precedent for similar activities.  Finally, over time there will almost certainly be more details on how we have treated foreign prisoners at other places such as Bagram and the CIA black sites.  This analysis is subject to revision, most likely downward, as they emerge.

Display:
by danps (dan at pruningshears (dot) us) on Sat Aug 1st, 2009 at 05:11:28 AM EST
The degree to which the Templar persecutions were public is unclear.  Tuchman does not specify whether observers were permitted during the trials, nor does she mention if any kind of transcript was made.  In the absence of any such evidence we should assume neither,

I would assume the opposite. Public trials being standard medieval practice and an important instrument for giving legitimacy to the proceedings. And transcripts was both important for legitimacy and such an important tool for historians, that if it is extensively written about you can assume there is some kind of transcript.

All the more reason to break the accused with torture before the trial.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Sat Aug 1st, 2009 at 07:36:04 AM EST
I didn't want to assume any parts of the medieval trials were better.  The purpose of the essay is to put the US in roughly the same place as the Inquisition and I didn't want to be open to charges that I was assuming better processes for the latter or worse ones for the former.  I tried to go strictly by what was reported and not infer anything from it.
by danps (dan at pruningshears (dot) us) on Sat Aug 1st, 2009 at 08:12:05 AM EST
[ Parent ]
Ok, fair enough.

But I got curious on the particulars of the medieval inquisition, and checked some for myself. It was not as easy as I thought.

I did find quite some interesting details of interrogations by Jacques Fournier.

Jacques Fournier was a man who ascended from a humble birth (c. 1280) to appointments as Bishop of Pamiers (1317), Bishop of Mirepoix (1326), Cardinal (1327) and finally to election as Pope Benedict XII of Avignon (1334). He made a name for himself by his skill as administrator and inquisitor particuarly during the years 1318-1325 when he conducted an extensive campaign against the last remaining Cathar (Albigensian) heretics in the tiny village of Montaillou (in the Pyrenées, in the medieval region of the Comté de Foix, modern department of Ariège), as well as others who had lapsed from the faith.

Fournier's Inquisition Record is one of the most remarkable and comprehensive documents to survive from the Middle Ages. Fournier was a man of meticulous habits and carefully supervised the keeping of his records. As a result, the records of his inquisitions -- though primarily concerned with matters of faith -- have served as the foundation of one of the classics of modern social history, Emmanuel LeRoy Ladurie's magisterial work Montaillou: The Promised Land of Error. This work presents an entire portrait of medieval Occitan village life based on the extensive confessions made to Fournier. Only rarely do those who confessed to Fournier dispute with him over fine points of theology (the Jew Baruch is one noteworthy exception); usually those confessing give an intriguing portrait of themselves, their families and their everyday life.

This WebSite contains selected confessions, mostly by women, and is intended to make accessible these intriguing documents, which are not currently available in English. The manuscript of Jacques Fournier's Inquisition Record is currently found in the Vatican Library, Lat. MS. 4030. and modern editions are available in Latin and French. I have worked from both of these editions. For general historical background and a discussion of Occitan society at this time, see Bray's translation of Ladurie's Montaillou .


Notes on Fournier by Nancy P. Stork that also translated the interrogations.

It is clear from this that there were transcripts, one ending:

Written the same year and day as above, in the presence of my lord Germain de Castelnau, archdeacon of the church of Pamiers, of Brothers David, monk of Fontfroide, Bernard de Centelles, monk of the same order, and Arnaud du Carla of the order of Preachers of the convent of Pamiers, and of us Guillaume Peyre-Barthe and Barthélemy Adalbert, notaries, who have received the above mentioned. And I, Guillaume Peyre-Barthe, notary, have written all that precedes.

From that ending we can infer that this was not a public proceeding. However this was the interrogations, and wheter the trials and the interrogations was the same thing or seperate events is unclear to me. It is also unclear if the process was the same against the Templars.

So I guess it was prudent of you to err on the side of caution with respect to the point you were making.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Sat Aug 1st, 2009 at 09:09:54 AM EST
[ Parent ]
Thanks for those links.  I poked around a little while researching for this post and didn't find anything.  I'll have a look now.
by danps (dan at pruningshears (dot) us) on Sat Aug 1st, 2009 at 10:16:06 AM EST
[ Parent ]
If you want to read more Practica inquisitionis heretice pravitatis is apparently an instruction manual for inquisitors.

It is in Latin however, making it less then easily accessible.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Sat Aug 1st, 2009 at 11:04:21 AM EST
[ Parent ]
A very interesting book and history bestseller, Montaillou: Cathars and Catholics in a French village, 1294-1324, was written by famous historian Emmanuel Le Roy Ladurie from the interrogation proceedings. I don't remember any torture being mentioned. But the wealth of information that could be found shows an intense will to understand what happened in the village - and allowed Le Roy Ladurie to pretty much build a sociology of the community. I'm not sure American interrogators are close to being able and interested in actually understanding what happens to those they question.

Un roi sans divertissement est un homme plein de misères
by linca (antonin POINT lucas AROBASE gmail.com) on Sun Aug 2nd, 2009 at 08:54:45 AM EST
[ Parent ]
I understand and share your discontent with the deviations from acceptable and lawful practice within the American justice system, particularly with regard to the "detainees."  However to compare or contrast these deviations, horrible as they appear today in western society, with the situation that prevailed during medieval times stretches the point beyond exaggeration.  If you insist on pursuing this line of thought, I suggest engaging in far more research into what was widely practiced as "justice" during human history prior to say, the 19th century.  

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Sat Aug 1st, 2009 at 10:44:25 AM EST
But that's the rub, isn't it? The Bush regime can say with complete confidence that they weren't any worse than the Belgians in Congo or the Spanish Inquisition. But can they say with equal confidence that they were any better?

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Aug 1st, 2009 at 01:35:17 PM EST
[ Parent ]
I don't see any "rub" or justification for anyone or anything, just a nonsensical comparison.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Sat Aug 1st, 2009 at 02:45:24 PM EST
[ Parent ]
Why is it nonsensical?

On the face of it, what's happening in Guantanamo, Abu Ghraib and elsewhere looks pretty medieval to me.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Aug 1st, 2009 at 05:20:59 PM EST
[ Parent ]
I'm not sure why the medieval period was picked as a reference for torture and prisoner of war treatment.  I suppose everyone thinks of that period as epitomizing the term torture, however some would strongly disagree with that characterization. As noted in the above article torture was more prevalent in later periods beginning with the Reformation. Perhaps the Templar case seemed to fit the characterization.

Beyond that likely error in characterization, the contexts are completely different in terms of prevailing societal norms, systems of justice and expectations, and relative levels of personal freedom especially in the geographical area on which this diary focuses. (Europe and the US).  For example, during the Middle Ages, conquering armies often massacred surviving combatants as well as entire civilian populations.

From Wikipedia:

In Christian Europe, the extermination of the heretics or "non-believers" was considered desirable. Examples include the 13th century Albigensian Crusade and the Northern Crusades.[1] Likewise the inhabitants of conquered cities were frequently massacred during the Crusades against the Muslims in the 11th century and the 12th century.

In addition, as acknowledged in the diary the Templar trials were based on confessions obtained by torture. Although it is stated, editorially, that the lack of trials for US detainees compares poorly with Templar trails, I don't believe the diarist meant to say that. The fact that many detainees have been able to receive hearings before US courts (and have in fact been ordered released) is an example of differing times and circumstances.  

Likewise, the US's behavior is subject to open criticism and redress only because some members of modern society have gained the absolute freedom to voice disapproval of this behavior and are strongly and emotionally conscious of human rights, dignity and the rule of law.  

No, the torturous acts authorized or facilitated by US Government officials, and approved of by many of its citizens, should be considered as a discrete case. Comparison with other cases, especially those that took place in bygone eras may serve a political and emotional purpose, but beyond that the comparison has no validity.  


I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sat Aug 1st, 2009 at 11:48:04 PM EST
[ Parent ]
Gringo,
The fact that many detainees have been able to receive hearings before US courts (and have in fact been ordered released) is an example of differing times and circumstances.
An order of release is not the same as actual release, and with Obama now talking about indefinite detention this is not a trivial distinction.  And yes, the torture program should be "considered as a discrete case," but so should the Templar persecutions.  The fact that I specifically chose them suggested (I thought) I did not think "that period as epitomizing the term torture."  So to be explicit: In medieval times they had their exigent circumstances that they believed required exceptional measures, and the US makes the same claim now.  We look back in horror at the former, how can we expect history to regard the latter?
by danps (dan at pruningshears (dot) us) on Sun Aug 2nd, 2009 at 05:02:39 AM EST
[ Parent ]
I have no problem with the US situation taking its place along side the numerous other cases of institutional torture, past and present.  Torture is torture regardless of the justification, but each situation should stand on its own merits as you state. Courts of law will most assuredly not introduce evidence from the medieval era should redress of detainee claims be considered in that venue.

My reaction to this comparison, between the current US cases and the medieval/Templar cases, is that it was written to infer that the situation in the US is the same as or worse than that during medieval times (as in really bad) and nothing has changed.  Well, I just don't see the logical, and necessary, in my opinion, link.

Why did you, in fact, choose the medieval Templar situation to compare? Why not more recent cases in Cambodia, Burma, China, S. and Middle America, most any Middle Eastern country, WW II Germany or Japan, the Soviet Union, No. Ireland, etc, etc?  The Templars were a religious order and their final downfall was mostly due to a domestic power struggle related to their accumulation of wealth, special privileges that inspired mistrust by the nobility, and the fact the French King was indebted to them.  They were not involved in or accused of attacking or plotting against any host State or population.  It seems they were just considered a threat due to their wealth and privilege, and their demise was an easy way for the King to relieve himself of debt. So, beyond the bare bones, no pun intended, similarities between the mechanics of torture, its severity and effects (common throughout history), I don't see any real basis for comparison.  That's my point.

Having said all of that, I absolutely do not want to give the impression that I find the diary of no value.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sun Aug 2nd, 2009 at 11:06:41 AM EST
[ Parent ]
Courts of law will most assuredly not introduce evidence from the medieval era should redress of detainee claims be considered in that venue.

If they do their jobs, they will quote precedents from Nürnberg.

But that's not a whole lot better.

I think this line of discussion can perhaps be summarised as danps saying "we're allowing people to beat their kids. That's a medieval practise and should stop," while you're saying "yes, but look at the bright side: People aren't allowed to beat their servants or spouses anymore. Clearly, that is progress." Which it is. Only, one should think that we could do a little bit better than that.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sun Aug 2nd, 2009 at 12:39:45 PM EST
[ Parent ]
I agree in essence with your analysis of the discussion and your remark about Nurnburg (especially as introspection).  I would add that the US behavior/torture is a source of considerable personal embarrassment to me having spent much of my career in the US Government engaged in activities designed to prevent or redress this very kind of behavior (war and other crimes against humanity). So, I don't find the US's resort to torture particularly comforting. The institutions, laws and precedents carefully crafted over the centuries in the US and other countries to prevent torture and abuse are a source of pride and comfort. The fact that so many countries and militant groups are still willing to embrace torture and other barbarous acts for any reason is extremely disappointing.  

While I understand and support the need to continually remind Americans of their responsibility to ensure their government operates in a manner consistent with international law and treaty,and ensure the prosecution of those responsible for deviations, I believe the best way to do this is to focus on the matters/crimes at hand and resist the temptation to diverge from the facts and circumstances, for whatever purpose.  Some may find it appealing to compare the current state of American law and justice with that of previous eras, but I am certain many Americans, including myself, will fail to see the reasoning or the necessity.  

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sun Aug 2nd, 2009 at 08:55:29 PM EST
[ Parent ]
I just caught this diary and regret I wasn't around to comment before. The case of the Templars and torture afflicted by Philip was against standard procedure, as brutal as it may sound. Philip violated inquisitorial practice in order to exact confessions and put the matter before the pope as an accomplished fact. Torture as a legal process of inquisition was far more "articulated" by papal guidelines. The Templars would never have been pushed to the extremes Philip sought. When the Pope was able to cross-examine some of the Templars his court dismissed Philip's evidence. There's torture and torture. Papal torture had some guarantees.

As for transcripts of the Templar trials there is an exceptional wealth of material. It is an on-going process in which many valiant historians are involved. Literally decades of work.

A book has just been published in Italy by the eminent scholar, Barbara Frale which addresses the issues of the Templars and the Turin Shroud. She produces a great deal of evidence and solid arguments that the Shroud was one of their best kept secrets. References to the shroud surface occasionally in the trial transcripts. However, Philip's inquisitors preferred more spectacular charges of heresy to influence the public mind and did not focus their accusations on the mysterious shroud.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Wed Aug 5th, 2009 at 01:09:56 PM EST


Display:
Go to: [ European Tribune Homepage : Top of page : Top of comments ]