Professor argues Medieval trials by ordeal were effective

Feb 1st, 2010 by Mark Cohen

Jury trials are expensive, so they have been becoming rarer and rarer in our system. In the criminal context, most cases end with a plea bargain. In the civil context, most cases end in a settlement. Even so, the small percentage of cases that do require a jury are hugely expensive and time-consuming to the system. If only there were another, cheaper system …

Enter a University of Chicago economics professor arguing in favor of a golden oldie — trial by ordeal — in the Sunday edition of the Boston Globe (“Justice, Medieval Style.”) Trials by ordeal — held chiefly in Medieval times — involved subjecting alleged wrongdoers to an ordeal, such as sticking their hand in boiling cauldron of water or submerging them in water to see if they float. The idea was that God would protect the innocent, so if the accused fails the test, he/she must be guilty, right?

The economics professor, Peter T. Leeson, makes the argument that the system actually was both effective and inexpensive. Because the guilty(due to the widely held superstitions of the time) actually believed they’d be injured in the ordeal, they would confess their wrongdoing to avoid the ordeal, he contends. Because the priests or others administering the tests would know those who subjected themselves to the ordeal were likely innocent, they would skew the results in the accused’s favor by making sure they were not too hurt, he further explains. Thus, trial by ordeal was both effective and economical (no lawyers!), he concludes. (By the way, since those superstitions no longer exist today, Leeson is not making an argument in favor of adopting the practice now.)

There is, of course, more to life than a cost-benefit analysis — a lesson that was completely lost on the those who drafted the infamous Pinto Memo. I hope it’s not a fact lost on the Minnesota Legislature, as it once again looks at court funding this session. There are good reasons that the Founding Fathers in their wisdom placed the right to a trial by jury in our Constitution — and those reasons had nothing to do with providing justice on the cheap.

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5 Responses to “Professor argues Medieval trials by ordeal were effective”

Who Am Us Anyway says:

February 1, 2010 at 1:14 pm

And if I recall my medieval metaphysics correctly and why wouldn’t I, witchcraft “trials by water” were also one of the first implementations of the only recently discovered Catch-22, viz.: if the accused sank and drowned, she was not a witch and must be declared innocent, but if she survived and floated, she was a witch and must be killed. Of course all of this was before Sir Bedevere’s invention of the Giant Duck Scale.
John Murphy says:

February 1, 2010 at 1:20 pm

“Well, I got better.”
Anonymous says:

February 1, 2010 at 3:11 pm

Who cares?
Mark Cohen says:

February 1, 2010 at 5:13 pm

Kudos on the appropos “Holy Grail” references. One of the great funny movies of all time by my reckoning.

Of course, it’s not the only time humor has been used to treat comically the tricky and sometimes deadly serious interplay of concepts of “justice” with purportedly religiously inspired ideas. As a case in point, I give you Mel Brooks’ “Spanish Inquisition.”
http://www.youtube.com/watch?v=X5McSEU48Y8
Thomas Gallagher says:

February 3, 2010 at 1:29 pm

Another example of the diminishment of jury trials is the shifting of the consequences of a criminal conviction over to a “civil” administrative law process. The highest volume example of this is in the area of DWI, where now there are proposals to extend this even further by putting up higher barriers even to a hearing before a judge (in an “implied consent” license revocation). Another common example is asset forfeiture laws – almost all are now “administrative” takings before any hearing before a neutral magistrate takes place.

This is a troubling trend.