Torture Research

Explanations of Formal Abolition

There are four theories of why torture was legally abolished in the West in the modern era: humanitarian progress, changes in the standards of legal proof (Langbein 1977), cultural changes about the value and meaning of pain (Silverman 2001), and the replacement of punishment with discipline (Foucault 1995).

Humanitarian reform:
    The traditional explanation for the abolition of torture dominated the legal and historical scholarship of the nineteenth and early twentieth century. According to this view, the first step in the process leading to the abolition of torture took place when rulers began to standardize and rationalize local codes into a system of national laws. With the publication of comprehensive codes of law, jurists and scholars realized for the first time how extensively torture was being used in criminal trials. Legal reformers criticized torture for being inhumane, and argued in favor of gentler methods of punishment, such as imprisonment. They also argued that torture was unjust, as it amounted to punishment being inflicted before guilt was determined. Finally, reformers argued that torture was ineffective, since innocent people were likely to give out false confessions in order to escape the pain of torture, while hardened criminals might be able to resist the pain of torture and be exonerated. As Enlightenment ideas about rationality and the value of human life gained influence, and as legal reformers made increasingly persuasive arguments, European sovereigns were gradually convinced to abolish torture (Ruthven 1978; Peters 1996).
Peters, Edward. 1996. Torture: Expanded Edition. Philadelphia: University of Pennsylvania Press.
Ruthven, Malise. 1978. Torture: The Grand Conspiracy. London: Weidenfeld and Nicolson.

Standards of proof: Langbein (1977) argues that torture was not abolished due to the spread of Enlightenment ideas, but due to a change in the standards of proof required for a conviction. During the early modern period, the requirement of two eyewitnesses or a confession was relaxed, so that circumstantial evidence or the testimony of one witness was adequate to bring a conviction. Once confessions became unnecessary, torture was abandoned. In Langbein’s view, these practical concerns are the main explanation for the abolition of torture, and the reformers’ efforts were only of marginal importance.
Langbein, John H. 1977. Torture and the Law of Proof: Europe and England in the Ancien Regime. Chicago: University of Chicago Press.

Changes in perceptions of pain: Silverman (2001) states that during the medieval and early modern period, pain was seen as having value, as it helped bring about spiritual growth. Many people belonged to penitential spiritual movements, in which practitioners beat themselves with whips and undertook other painful self-punishments as a way of expiating sin. In a society that considered pain to have spiritual value, torture was seen to be not only a means of forcing a confession, but also a way to bring about penitence and spiritual renewal in the criminal. During the eighteenth century, the medical profession began to perceive pain as exclusively negative, and the medical view of pain as negative became influential in the wider culture. As this view of pain as negative spread throughout society, people came to view torture as a spiritually and morally valueless practice, and this change of views eventually caused torture’s abolition.
Silverman, Lisa. 2001. Tortured Subjects: Pain, Truth, and the Body in Early Modern France. Chicago: University of Chicago Press.

Discipline over punishment: Foucault (1995) states that in pre-modern systems of rule, punishments emphasized the power of the sovereign over the subject’s body. Torture and corporal punishments, often carried out in public, symbolized and demonstrated the sovereign’s power and control. During the modern period, governments realized that a more effective type of control could be obtained through more subtle methods. The new system relied upon surveillance and discipline, particularly self-surveillance and self-discipline, to guarantee the people’s loyalty to the sovereign. New forms of control and punishment, such as the workhouse and the penitentiary, better fit the new methods of surveillance and control, and were adopted to replace torture and corporal punishment.
Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison, translated by Alan Sheridan. New York: Vintage Books.


Written by tortureresearch

January 27, 2010 at 7:53 pm

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