Torture

Legal History of Torture

The term torture has been variously called quaestio, tortura, and tormentum in Latin and the vernacular. It historically refers to an act of questioning by the infliction of suffering to get the truth. The Greeks, according to Page Dubois, used the term basanos for torture, which meant testing the purity of gold. The meaning of the term was later extended to test whether a person was telling the truth in a trial.

In Western history, torture was used by the Greeks and later adopted by the Romans. From the 13th to the 18th century, torture was not just being extensively used, but actually became an integral part of the judicial system in western Europe. The law of proofs in 13th-century Europe depended either on the evidence by two eye witnesses or on confessions, and since the former was difficult to ensure, the emphasis shifted to confessions. Torture was used to gain confessions and was conducted with an elaborate set of protocols that were monitored by physicians and supervised by the judges, making it a process of judicial torture. The duration, mode, and severity of torture were predetermined to ensure the reliability of the confessions. The confession even had to be repeated in the court room for it to be accepted. Thus, as Edward Peters pointed out, torture became a part of the criminal procedure system. It is widely believed that interventions by 18th-and 19th-century Enlightenment philosophers such as Beccaria and Voltaire, with their focus on respect for the human body and human dignity, led to the abolition of torture. In contrast, historians such as John Langbein point out that the abolition of torture was not entirely due to the moral criticisms by these philosophers but rather due to the developments in the laws of proof. Unlike previous times, the judges could now use a variety of punishments for severe crimes and could mete out punishments based on guilt demonstrated through persuasion rather than ascertaining truth or certainty.

The significance of this legal history of torture is twofold: First, even in the most elaborate attempts to regulate the use of torture, it was not possible to do so, and its reliability as a form of gaining information or truth was always in doubt. Thus, when Alan Dershowitz suggests the use of torture warrants to regulate the use of torture in extraordinary circumstances in the United States, the legal history of torture reminds one of the unreliability of the act and the difficulty in actually regulating torture. Second, the legal history of torture is also a reminder that moral criticisms were not the sole reason for the abolition of torture, such that the absence of torture cannot be seen as synonymous with modern, civilized, democratic societies. In modern times, often the problem of torture has been seen as an issue in nondemocratic, authoritarian, or totalitarian societies. Thus, Nazi Germany and Stalinist Russia in the past and Egypt and Jordan in the present are often represented as countries associated with torture. That in turn distracts attention from the presence of torture in democratic countries historically and in contemporary times. For example, the use of torture as a colonial practice by the French in Algeria and the British in India is still not a prominent part of the Western narrative on torture.

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