Torture and the Law of Proof: Europe and England in the Ancien Régime
You have 91 highlighted passages
You have 82 notes
Last annotated on June 14, 2016
Alas, the circumstances that have renewed the book’s readership are quite troubling. A book about how the Western legal tradition rid itself of its centuries-long dependence on tortured confessions is again in demand, because questions about the legality of torture have surfaced anew in contemporary affairs. The terrorist attacks on the United States in September 2001 led to wars in Afghanistan and Iraq.Read more at location 74
American forces serving in those operations had been using techniques of coercive interrogation of detainees, techniques amounting to torture.Read more at location 78
Relatedly, the media were reporting that American intelligence agencies had been evading applicable prohibitions against torture by engaging in a practice known as “renditionRead more at location 81
The U.S. is among more than 130 signatory nations to the 1984 United Nations-sponsored Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,Read more at location 87
Torture and the Law of Proof tells the story of (1) how and why European criminal procedure in the Middle Ages developed a demanding law of proof, meant as a safeguard against judicial error or corruption,Read more at location 90
how this system of judicial torture undertook to reconcile coerced confessions with principles of safeguard;Read more at location 93
why European criminal procedure failed at its centuries-long effort to devise rules and procedures that would make tortured confessions reliable;Read more at location 93
how the European legal systems ultimately liberated themselves from their dependence upon tortured confessions, by reworking their law of proof and their criminal sanctions.Read more at location 94
The movement in the sixteenth, seventeenth, and eighteenth centuries that steadily replaced capital punishment with various forms of imprisonment created an opportunity to restrict the use of torture to cases of capital crime.Read more at location 97
The book explains how the jury system spared England from the European law of torture.Read more at location 102
Frederic William Maitland observed, torture “came to the relief of a law of evidence which made conviction well-nigh impossible ….”Read more at location 103
In England, by contrast, “neither the stringent rules of legal proof nor the cruel and stupid subterfuge [of torture] became endemic ….”Read more at location 104
This is a book about law—about the long effort of European criminal justice systems to devise a truth-seeking law of torture, based on reasoned principles telling the authorities whom they could torture, when, and how. By contrast, when guards or others mistreat prisoners, they act not with the purpose of disclosing that activity in subsequent judicial proceedings, but rather on the expectation that the courts will never know.Read more at location 121
The American government lawyers of the twenty-first century, working with a legal tradition that forbids torture, were contending that that prohibition still left room for certain techniques of coercive interrogation.Read more at location 128
Finally, I should mention that the European law of torture as depicted in this book has figured in another American policy discussion, regarding the dangers of the contemporary American system of plea bargaining.Read more at location 131
many remarkable and alarming parallels between the European law of torture and the modern American practice of plea bargaining.Read more at location 135
Plea bargaining does not involve the physical coercion of torture, but is nonetheless coercive, because it threatens to impose a much harsher criminal sentence upon a defendant who refuses to confess and is thereafter convicted.Read more at location 136
The abiding lesson is that coercion is the enemy of truth, and that efforts to tolerate and regulate coercion in the service of truth have routinely failed across the ages.Read more at location 141
