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56 - Torture and the Law of Proof

from PART VIII - Criminal Justice

Published online by Cambridge University Press:  05 December 2014

John Baker
Affiliation:
University of Cambridge
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Summary

When the Lateran Council stifled ordeals in 1215, there came to an end a system of proof which had been almost universal throughout Christendom. In solving the problem of how to end disputes by means of human judgment, the legal systems of Europe diverged. England adopted the jury, while the rest of Christendom (more or less) adopted the inquisition. Englishmen came to be very proud of their decision. The inquisition, which in the criminal sphere thrived on torture, was a system to be mentioned by free men only with a feeling of revulsion; and it was but a short step for the English to dismiss every aspect of Roman law as inhumane and unsuitable for a free people. Sir John Fortescue's fifteenth-century encomium on the laws of England is a well-known illustration of common-law sentiment. Eventually, of course, the European legal systems caught up with the English, and today there is probably not a Roman lawyer left who would defend torture. Torture as part of the legal process has for well over a century been as defunct as the ordeal, and is now generally remembered as nothing more than a manifestation of medieval man's callous nature.

This tourist's eye view of the past, as a world of demons and dragons and dungeons, must be a superficial picture, even if it is dimly reflected in some of the grislier physical remains of the past.

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Publisher: Cambridge University Press
Print publication year: 2013

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  • Torture and the Law of Proof
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.059
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  • Torture and the Law of Proof
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.059
Available formats
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  • Torture and the Law of Proof
  • John Baker, University of Cambridge
  • Book: Collected Papers on English Legal History
  • Online publication: 05 December 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781316090930.059
Available formats
×