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

used to extract confessions from anybody, regardless of guilt. In response, a complicated series of
safeguards were established to prescribe exactly how, for how long, and under what conditions torture
could be applied so as to minimize this unsettling possibility. Interestingly, these restrictions held out
the possibility of successful resistance for the captive – if they could hold out long enough, they might
establish their innocence in the eyes of the law, or at least prevent conviction. In a sense, this
conception of torture still relied heavily on the old Ordeals that it had replaced: God was expected to
provide the innocent with strength to hold out, while the image of eternal torment prefigured by the
rack would spur the guilty to a confession that would be good for the soul, if not the body. (Welling, p.
210) Consequently, this system actually saw relatively low (and falling) rates of confession through
the 17 th Century (although the proportion of false confessions is indeterminable). (Silverman, p. 182;
Soman, 1978)
One of many texts purporting to regularize the use of so-called judicial torture is the Tractatus
ad Defensam Inquisitorum ... published in 1612 by Italian jurist Sebastian Guazzini. 17 Torture was
restricted in terms of the rank of the person under question (again, we see the use of torture as a social
marker), when torture can be applied (only in the presence of corpus delicti, for high crimes punishable
by the death penalty or maiming, or when the truth cannot be known through any alternate means), the
length of questioning (“Torture cannot be repeated more than three times on the same subject”), and the
days on which torture can take place (never on a feast day). Most crucially, jurists were emphatic that
the judge cannot ask leading questions, or ask about crimes which have not yet been committed, or
demand the names of accomplices. That jurists often went far beyond these regulations is apparent
from the frequency with which they were set down: rules promulgated by Eymericus (Directorium
Inquisitorum, late 1300s), the Bambergensis (1507), and the constitutions of Charles V (the Carolina)
in 1532 and Maria Theresa (the Theresiana) in 1769 all reveal a similar concern with regulating and
standardizing torture in order to prevent its abuse. 18
One example is particularly instructive regarding the problems of regulating torture, even where
torture is not illegal. The ordinance of 1670 in France proposed to make the infliction of torture
standardized throughout the nation: to this effect, an attempt was made to describe precisely which
methods were to be used under which circumstances. This attempt was opposed, however, by a M.
Pussort, a member of the committee, who argued that “it would be difficult to make torture uniform ...
17 As quoted and analyzed in Welling, 1892.
18 Ruthven, 1978
15