Positive Liberty

There are two obvious alternatives to asking God to …find facts in doubtful cases. Justiciars could ask accused persons if they’re guilty. Alternatively, they could threaten to torture accused persons to encourage them to tell the truth. The trouble with these approaches is that they produce significant mistakes. Every accused person asked about his guilt proclaims his innocence. Torture has the opposite problem: if it’s threat is ominous enough to prompt guilty persons to confess, it’s ominous enough to prompt innocent persons to confess too.

In contrast, ordeals could correctly identify defendants’ guilt or innocence because they imposed different expected costs on guilty and innocent defendants. Consider how a medieval citizen’s belief that ordeals were iudicia Dei influenced his incentive to undergo or decline an ordeal.

Suppose a medieval farmer accuses his neighbor, Frithogar, of stealing his beast. Frithogar denies it. The farmer has no witnesses but is well respected. Frithogar isn’t. The court doesn’t believe the farmer would accuse Frithogar for no reason. It orders Frithogar to the hot water ordeal.

Frithogar believes in iudicium Dei. He believes that by performing the appropriate rituals, priests can ask God to reveal his guilt or innocence through the hot water ordeal and that God will do so. To evidence his innocence, God will perform a miracle, preventing his arm from being harmed by the boiling water. To evidence his guilt, God will let the boiling water harm him…

What will Frithogar do? Suppose Frithogar stole the farmer’s beast. He knows this, but nobody else knows. In this case, if Frithogar undergoes the ordeal, he expects to burn his arm. What’s more, by doing so, he expects to reveal his guilt and thus to suffer the legal punishment for stealing beasts: a large …fine. Frithogar’s other option is to decline the ordeal. He can avoid the ordeal by confessing to the crime or settling with the farmer. Both alternatives “punish” him.

But neither is as punishing as the …fine for stealing beasts. By declining the ordeal, Frithogar suffers less punishment than if he undergoes it. He also saves his arm. Thus, if he’s guilty, Frithogar will choose to decline the ordeal.

Now suppose Frithogar is innocent. The farmer’s beast wandered off. Frithogar knows he didn’t steal it, but nobody else knows. In this case, if Frithogar undergoes the ordeal, he expects to deliver his arm from the boiling water unharmed. What’s more, by doing so, he expects to reveal his innocence and thus to avoid legal punishment. If Frithogar declines the ordeal and confesses or settles instead, he suffers a punishment for a crime he didn’t commit. Thus, if he’s innocent, Frithogar will choose to undergo the ordeal.

Naturally, priests had wide latitude to fix the results of the ordeal, and so justice (for want of a better word) was served.

Maybe I’m taking this ultra-contrarian law and economics stuff too literally, but…

Most people today seem to believe (a) that torture is efficacious at finding the truth, and (b) that if they personally have nothing to hide, they will not crack under, e.g., waterboarding.

Just like the ordeal, these procedures can also be fixed by our benevolent, all-knowing inquisitors. We can therefore presume that anyone who really believed himself innocent would (read should!) stick around and let the government torture him.

So… Should we not incorporate torture into our ordinary criminal justice system? And conclude that anyone who runs away must be guilty? This would be more economically efficient than just asking them, right?

“What wonderful delectation,” says the Academic.

“I always prefer efficiency over liberty,” says the Cynic.

But wait, there’s more…

“Every accused person asked about his guilt proclaims his innocence,” says Professor Leeson. Really? Not only does this fly in the face of all prosecutorial experience, ever, anywhere, but there’s a particular reason to believe that “asking about guilt” was very, very effective in the middle ages.

That’s because the accused were never simply asked. They were asked to swear to God, in public, on a Bible, in various procedures that, from the sacred standpoint, look a whole lot like an ordeal: May God strike me down if I tell a lie, may he afflict my family, may he cause me to choke on my next bite of bread, even. The “ordeal” that we think of as a discrete judicial procedure was rather the extreme end of a continuum that included “just asking,” and torture too. Famously, it was known as the question, and the first step in the procedure was often simply to show the implements of torture to the accused. And ask him again, under oath.

There simply weren’t the clear lines between asking, ordeal, and torture that Prof. Leeson wants us to use in our reasoning. Asking, ordeal, and torture were all part of the mix, and authorities commonly had wide discretion to apply whatever specific methods they had in mind. In each case, the matter was already in God’s hands, and the stakes were very real.

The medieval inquisitorial system wasn’t neatly separated out into different methods of inquiry, and exhausting one method didn’t mean that the others were off the list. The motto was, rather, if at first you don’t succeed… and inquisitors were rarely satisfied with failure. The idea of a regular, algorithmic process, which the whole argument seems to rest on, is a later creation.

At some point, and I do hate to say this, contrarian economics just runs away with itself. We only get to our delightful gee-whiz conclusions through a lot of glib assumptions, the very sort that rigorous social science ought to challenge. I worry that in doing work like this, economists only make economics look silly.