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Introduction: Torture – Past and Present – and the Historian

What is torture? From the Roman jurists of the second and third centuries to the historians and lawyers of the present, those who have taken the most trouble to consider the question have come up with remarkably similar answers. Thus the third-century jurist Ulpian declared:

By quaestio [torture] we are to understand the torment and suffering of the body in order to elicit the truth. Neither interrogation by itself, nor lightly inspired fear correctly pertains to this edict. Since, therefore, quaestio is to be understood as force and torment, these are the things that determine its meaning.

In the thirteenth century, the Roman lawyer Azo gave this definition:

Torture is the inquiry after truth by means of torment.

And in the seventeenth century, the civil lawyer Bocer said that:

Torture is interrogation by torment of the body, concerning a crime known to have occurred, legitimately ordered by a judge for the purpose of eliciting the truth about the said crime.

In our own century, the legal historian John Langbein has written:

When we speak of judicial torture we are referring to the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings … In matters of state, torture was also used to extract information in circumstances not directly related to judicial proceedings.

Article 1 of the Declaration against Torture adopted by the General Assembly of the United Nations on 9 December 1975 reads thus:

For the Purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

Finally, there is a somewhat more elaborate definition by another twentieth-century legal historian, John Heath:

By torture I mean the infliction of physically founded suffering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensic proof and the motive is one of military, civil, or ecclesiastical interest.

The first three of these definitions applied to torture as a legal incident, first in Roman, then in European civil law systems until the nineteenth century. The fourth is a modern legal historian’s definition of torture during that long period. The fifth is the most recent diplomatic definition. The last is intended to apply to the historical circumstances, but with an eye toward the recent reappearance of torture and the concern it has generated since the end of the Second World War, creating a definition that is applicable to the present as well as to the past.

Yet it is likely that people using the term in the second half of the twentieth century may find these definitions too narrow. Is not the key to torture simply the physical or mental suffering deliberately inflicted upon a human being by any other human being? In many respects the meaning of the term in the common usage of most western languages might well support such a question. From the seventeenth century on, the purely legal definition of torture was slowly displaced by a moral definition; from the nineteenth century, the moral definition of torture has been supplanted largely by a sentimental definition, until ‘torture’ may finally mean whatever one wishes it to mean, a moral-sentimental term designating the infliction of suffering, however defined, upon anyone for any purpose – or for no purpose.

The capacity on the part of human beings to inflict pain on other human beings, in the name of the law, the state, or simply for personal gratification, is so widespread and enduring that to single out one aspect of it for discussion, and historical discussion at that, may seem invidious or pedantic. Yet, in spite of the moral and sentimental outrage that the word generates in the late twentieth century, its longest and surest definition is a legal – or at least a public – one. The lawyers and historians cited above all find one common element in torture: it is torment inflicted by a public authority for ostensibly public purposes. The semantic history of the term torture invariably possesses a public dimension, in much the same manner as do the terms execution and assassination. By analogy, it might be said that torture stands in the same relation to such private offences as trespass, battery or aggravated assault as a state execution stands in relation to murder. Torture is thus something that a public authority does or condones. From Ulpian to Heath its public dimension distinguishes torture from other kinds of coercion or brutality. Part of the argument of this book will consist of an account of the various kinds of meanings the term ‘torture’ has possessed, and it will attempt to relate these meanings to the reality of torture in the late twentieth century. One of the lesser-known functions of apparent invidiousness and pedantry may be their insistence upon clear definitions. As means of objectifying and therefore better understanding some of our most pressing but least considered ideas and terms, otherwise pedantic and invidious analyses may prove to be worth a little cognitive investment.

This approach to torture runs somewhat against the grain of a number of current considerations. A recent collection of essays published in the ongoing series Concilium: Religion in the Seventies was entitled The Death Penalty and Torture. Both institutions were discussed by the contributors in the light of the policies of recent state practices, and it has been in the light of concerns over modern state power that torture has generally been discussed. Although this approach is a valid one, it is not the approach of this book. I have attempted to single out the problem of torture alone for analytical treatment, perfectly aware that some very closely related ideas and practices will be neglected. Just as this book does not deal with the death penalty and other forms of state coercion, so it will not deal with other manifestations of public horror; there is not a word here about the Wars of Religion or the holocaust, and very little on the various inquisitions. By isolating the phenomenon of torture I have attempted to describe the history of a single practice; my failure to mention others is deliberate, but it reflects no indifference toward them. I have written the history of a subject that requires a detailed history. Narrowing down the focus may well intensify it; and torture needs all the intensity of attention it can get.

Just as this book will not consider torture in relation to the death penalty, neither will it, except incidentally, consider it in relation to aggravated forms of punishment, capital or other. The opening section of the last chapter will consider modern international concern with both torture and ‘cruel, inhuman, or degrading treatment or punishment’, including punitive mutilation, but the practice of modern legislators concerned with human rights distinguishes between the two, and this book will respect that distinction. It is true that a moral position may be taken concerning torture, the death penalty, and various other forms of statutory punishment considered together, and that a sentimental position may be taken as well. But our concern is with torture alone. Although this book will consider the historical connections between legal procedure and moral thought, it will do so in terms of torture and not of those aspects of public coercion that are often associated with it.

These restrictions have not been adopted merely to suit the convenience of the author. Torture began as a legal practice and has always had as its essence its public character, whether as an incident in judicial procedure or as a practice of state officials outside the judiciary proper. In the Judaeo-Christian and Islamic worlds the term intermittently possessed a moral dimension, and since the eighteenth century it has also possessed a sentimental dimension. Thus, its meanings in the twentieth century may range from the technical and legal (as they do in various instruments of international law) to the sentimental (as they do in much popular, including journalistic) usage. The history of these different meanings will be touched upon in this book, but torture will always mean a public incident, however broadly ‘public’ may be interpreted.

Other kinds of people using the term might raise another objection. Is the modern revival of torture in the twentieth century to be regarded as the revival of an ancient though interrupted tradition, or as the child of a particular kind of modern state? After all, statutory abolition of torture in criminal law swept virtually all of Europe during the eighteenth and early nineteenth centuries, to the extent that Victor Hugo could announce in 1874 that ‘torture has ceased to exist.’ Is not twentieth-century torture, then, something new, unrelated to the ancient legal history of torture? All historians and readers of history must constantly make distinctions between that which is particular and discontinuous and that which is general and continuous; each technique is suitable for different purposes. Let us consider history in the long range first.

Although many ancient societies experienced the transition from primitive and domestic to sophisticated and public systems of law, not all of them came to use torture as distinctively as did the Egyptians, the Persians, the Greeks and the Romans. Some societies, notably those of the Babylonians, the Hindus and the Hebrews, seem to have developed a system of ordeals that never permitted torture to be introduced. These consisted of physical tests undergone by one contending party, assuming that success or failure depended upon divine intervention. In northern Europe before the twelfth century, early Germanic law also permitted a wide variety of ordeals but did not autonomously develop a doctrine of torture; nor, apparently, had Celtic laws done so earlier. Later, despite the introduction of torture into the legal practices of western Europe after the twelfth century, eastern Europe continued to cling to the ordeal until the beginning of modern times.

Thus, the history of torture in western Europe may be traced from the Greeks, through the Romans, through the Middle Ages, down to the legal reforms of the eighteenth century and the abolition of torture in criminal legal procedure virtually throughout western Europe by the first quarter of the nineteenth century. Removed from ordinary criminal law, however, torture was re-instituted in many parts of Europe and in its colonial empires from the late nineteenth century on, and its course was greatly accelerated by changing concepts of political crime during the twentieth century. The best recent evidence indicates that torture is used, formally or informally, in one country out of every three.

Such a history may seem at first perplexing, but it is a history. From the nineteenth century on, political crime has been conceived in much the same way as simple criminal law had been earlier, and a similar need for confessions troubles the officials and jurists of twentieth-century states who employ or permit torture as troubled the jurists of the Middle Ages or the ancien régime when faced by the procedural or tactical requirement of a confession from the accused.

A number of superficial surveys of the history of torture simply accept the idea that torture occurs in cycles of legalization and abolition; indeed, such a view easily presupposes the existence of torture as something with a natural history and makes the history of torture then an account of these cycles. But the notion of abstract entities that occur in cycles does not take our understanding very far. Moreover, it suggests a certain inevitability about the whole process, one that implicitly urges resignation in the face of something resembling a force of nature.

In fact the history of torture can be quite specific. It is not, for example, clear to what extent the Greeks owed their procedures of torture to Egyptians and Persians, so it is possible and plausible to begin with what we know of the Greeks – because some of their law does seem to have influenced that of Rome, and the law of Rome that of medieval and early modern Europe. The flurry of successful abolition movements during the eighteenth and early nineteenth centuries abolished torture chiefly as a part of criminal procedure only, and here those movements comprised not only rulers and legislatures, but the judicial profession itself, which remained procedurally liberal while often socially very conservative. But Bench and Bar alone had ceased to comprise the entire legal power of the state by the late nineteenth century. Then, particularly where the power of state agents escaped routine judicial control and review, and in areas that were relatively new, such as military information, espionage, police work and political supervision, new state powers were developed, particularly in those areas in which European states had always been especially sensitive – those that touched upon the safety and security of the state itself.

From the thirteenth century at the latest, European lawyers had developed a category of the exceptional crime – the crimen exceptum – one so dangerous to society and outrageous to God that its prosecution procedure was permitted enormous latitude. Once torture had been abolished from ordinary criminal law, the possibility of a new kind of crimen exceptum permitted the reintroduction of torture in order to deal with ‘extraordinary situations’. Much of modern political history consists of the variety of extraordinary situations that twentieth-century governments have imagined themselves to face and the extraordinary measures they have taken to protect themselves. Paradoxically, in an age of vast state strength, ability to mobilize resources, and possession of virtually infinite means of coercion, much of state policy has been based upon the concept of extreme state vulnerability to enemies, external or internal. This unsettling combination of vast power and infinite vulnerability has made many twentieth-century states, if not neurotic, then at least extremely ambiguous in their approach to such things as human rights and their own willingness (the states would call it ‘necessity’) to employ procedures that they would otherwise ostensibly never dream of. It is in this sense that torture may be considered as having a history, and its history is part of legal procedure as well as later governmental exercises of power, whether officially or unofficially. The purpose of a long-ranging history of torture is to emphasize its public dimension and permit the reader to see both the twentieth century in a wider context and earlier European history from an unaccustomed point of view. By focusing upon the public character of torture – whether in strict legal procedure or in the hands of sub-legal or paralegal agencies – we may be able to regard torture in the twentieth century no longer in the simplistic terms of personality disorder, ethnic or racial brutality, residual primitivism, or the secularization of ecclesiastical theories of coercion, but as an incident of some forms of twentieth-century public life, no longer, as in the past, restricted to formal criminal legal procedure, but occurring in other areas under state authority less regulated than legal procedure, less observed, but no less essential to the state’s notion of order.

This book will deal with the historical dimension of what Ulpian, Bocer, Langbein and Heath, implicitly or explicitly, call judicial torture, but it will not use that adjective. It will argue instead that judicial torture is the only kind of torture, whether administered by an official judiciary or by other instruments of the state. It will also argue that other things sentimentally called ‘torture’ had better be called something else. The juxtaposition of familiar terms from one area of meaning to another for dramatic effect is a device of rhetoric, not historical or social analysis. And semantic entropy does not clarify understanding. Although I am under no illusions about the capacity of one book to effect a semantic revolution, I do hope that the argument in the following chapters will make as strong a case as possible for verbal precision, particularly in matters as pressing as the one under consideration. Moral outrage and sympathy require no historical understanding, but historical understanding may sharpen both. And both need to be sharpened.

And so we begin with history. The first chapter gives an account of the emergence of torture in western culture in Greece and Rome; the second deals with the long age of torture in early European legal procedure to the end of the eighteenth century. Chapter 3 considers the statutory abolition of torture and the emergence of a moral dimension to the term in the polemics of Enlightenment reformers; chapter 4 traces those circumstances in the nineteenth and twentieth centuries when torture reappeared, to use the phrase of the eighteenth-century English jurist William Blackstone, as an ‘engine of the state, not of law’ (Commentaries on the Laws of England, 4 vols, Oxford, 1765–9, IV:321). The final chapter looks at the recent past and present, from the United Nations Declaration of Human Rights in 1948 to the publication of Amnesty International’s report, Torture in the Eighties, in March 1984.

For purposes of accuracy and reference, I have kept a number of words and phrases in their original language, but I have consistently provided English equivalents. Since one purpose of this book is to point out the differences between a professional technical vocabulary such as that of the law and wider moral and sentimental vocabularies, verbal precision remains important throughout, and this includes precision in describing the often deliberately misleading euphemisms frequently employed to designate torture in the twentieth century.

A few modern studies of torture in the twentieth century offer passing glances at its history in early Europe, but because these are remote and seem to occur in different circumstances from torture in the twentieth century, such historical accounts are often too brief, too superficial, or even wrong. The most reliable accounts, those of John Langbein, Torture and the Law of Proof (Chicago, 1977), and Piero Fiorelli, La tortura giudiziaria nel diritto comune (Milan, 1953–4), gain much of their effectiveness from their specific and technical detail. In his excellent study, Langbein remarks upon this aspect of his work, and he then notes that he has ‘left it for others to draw the implications for European political, administrative, and intellectual history’. The present book is an attempt to take up the history of torture at that point. If it succeeds at all that will be because it owes much to the work of scholars like Langbein and Fiorelli as well as to those colleagues cited in the acknowledgements above.

Scholars who must write without footnotes are like workers who must make bricks without straw. The bibliographical essay at the end of this book combines notices of the most useful scholarship with an essential set of references to passages cited in the text. Although there are few individual references, every passage cited in the following chapters will be found in a work cited in the text itself or in the bibliography. I have included a considerable number of these, many in translation, because they offer important documentary and critical evidence which should not be entirely paraphrased.

Two of the main themes of this book are the public character of torture in both its earlier and later forms and the differences among its legal, moral, and sentimental conceptualizations at different periods in its history. There is a third: the place of legal history itself in such an account. It is remarkable that, with a few stunning exceptions, legal history is the kind of history least integrated with other kinds, and therefore generally the least well understood. Yet it is crucial in the history of torture to understand certain technical procedural aspects concerning the early history of torture as an incident in European criminal law, and it is equally important to understand the place of the law in modern states that deliberately and philosophically subordinate law to other public interests and institutions. The last two chapters of this book take up the implications of this theme again, but at its outset it is proper to regard the law neither as an independent, beneficial institution, nor, in a structuralist-reductionist mode, simply as one more instrument of a ruling class. E. P. Thompson, in one of these few stunning studies, Whigs and Hunters (New York, 1979, p.266), makes an observation to which I wholeheartedly subscribe:

There is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all intrusive claims, seems to me an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.

In this most dangerous of centuries, any fresh perspective on its chief instruments, even a historical one, may not be entirely without interest – or use.