The Torturer's Dilemma: Analyzing the Logic of Torture for Information

ineffective. Something must prevent (or make unlikely) the possibility that the person under torture
will lie to stop the pain.
Judicial Torture
The use of torture was a constant under Greek and Roman rule in the West until the coming of
the dark ages. From the fall of Rome until around 1215, other judicial processes replaced the reliance
on the Basanos, in particular compurgation (where the defendant is 'proven' innocent if he can round up
enough people to swear his innocence, the number required determined by the severity of the crime)
and the trials by ordeal (where the hand of God would reveal the innocent by protecting them from
harm). 14 With the rediscovery of Roman law by the northern Italian city-states around 1070 a system
of legal proofs was established that regulated when a conviction might be obtained, and on the basis of
what evidence – this system would eventually supplant trials by ordeal after the promulgation of the
18 th canon during the fourth Lateran Council in 1215. (Baldwin, p. 613) For capital crimes, the judge
had to have a full-proof: the sworn testimony of two eye-witnesses, or a free confession from the
accused. (Langbein, 1978, 2004) Because eye-witnesses were scarce (especially in cases of murder),
judges came to rely more heavily on confessions, and this for the most part meant utilizing torture.
This reliance on torture for confessions did not stem from any necessarily sadistic impulse on the part
of the lawyers: rather it derived quite naturally from the inability to condemn a person on the basis of
circumstantial evidence. 15 This latter point is most easily verified from the fact that the English system
then in use, based not on the Roman law but on trial by jury, did allow for conviction through
circumstantial evidence; and in this system torture was neither necessary nor often utilized. 16
Confession was seen not merely as a way of securing the truth, but also as a means of reforming
the captive before execution – of getting the condemned right with God. (Ruthven, 1978) Because of
this religious emphasis on the truth, this system was embedded within a constantly evolving system of
regulations intended to prevent false confessions: forcing the innocent to perjure themselves would not
only mean the destruction of innocent life but also the eternal damnation of the captive, who had
committed the sin of lying under oath. It very quickly became apparent, however, that torture could be
14 Ruthven, 1978
15 Langbein 1978, 2004
16 It is for this reason that Blackstone could credibly argue that the rack in England was “an engine of state, not of law.”
(Blackstone “Commentaries on the Laws of England” vol. iv, p. 321). Furthermore, Lowell (1898) argues that the trial
by jury strongly discouraged the use of torture on a judicial basis – a tortured man could easily renounce his confession
in open court, where a jury of his neighbors would be unlikely to send him back for more, “for a jury would be very
differently affected by such a scene than a body of magistrates hardened by dealing constantly with criminals.” (p.292)
14