"THE LEGITIMACY OF MEDIEVAL PROOF"
In the v. 6, no. 33 of the Social Science Research Network under New and forthcoming articles is an article "Legitimacy of Medieval Proof" by H.L. Ho in Journal of Law and Religion, vol. 19, pp 259-298. 2004. Following is the abstract:
ABSTRACT:
It is tempting to criticize the trial by ordeal, wager of law
and judicial combat for their apparent irrationality and
cruelty. But these institutions cannot be dismissed simply as
the appalling products of ignorant, superstitious and brutal
societies. It is now recognized that these modes of proof
reflected the circumstances faced by early medieval communities,
they were valuable as socio-political tools, and, their
rationality as fact-finding or epistemic devices has been
defended on naturalistic grounds. While studies on these fronts
are valuable, we cannot get a full grasp of the modes of proof
unless we seek to understand them from within, through the eyes
of the believing participants. We can see what medieval Western
Europeans saw, however mistakenly, as worthy and good in those
practices, especially of the trial by ordeal, only if we adopt
their religious outlook. The animating aim was not justice in
the formal positive sense; facts were not found to which the law
was precisely and rigorously applied. Adjudication was
approached holistically. Central to the process was the seeking
of divine justice, through faith and the grace of God, and
within which mercy and truth had their intrinsic places.
Intertwined with this spiritual aspect was an ethical concern,
as displayed in the discernible effort to formulate fair
procedure. The medieval modes of proof had, in the eyes of the
faithful, profound spiritual meaning, and one can detect in the
effort to achieve procedural fairness some elements of humanity.
ABSTRACT:
It is tempting to criticize the trial by ordeal, wager of law
and judicial combat for their apparent irrationality and
cruelty. But these institutions cannot be dismissed simply as
the appalling products of ignorant, superstitious and brutal
societies. It is now recognized that these modes of proof
reflected the circumstances faced by early medieval communities,
they were valuable as socio-political tools, and, their
rationality as fact-finding or epistemic devices has been
defended on naturalistic grounds. While studies on these fronts
are valuable, we cannot get a full grasp of the modes of proof
unless we seek to understand them from within, through the eyes
of the believing participants. We can see what medieval Western
Europeans saw, however mistakenly, as worthy and good in those
practices, especially of the trial by ordeal, only if we adopt
their religious outlook. The animating aim was not justice in
the formal positive sense; facts were not found to which the law
was precisely and rigorously applied. Adjudication was
approached holistically. Central to the process was the seeking
of divine justice, through faith and the grace of God, and
within which mercy and truth had their intrinsic places.
Intertwined with this spiritual aspect was an ethical concern,
as displayed in the discernible effort to formulate fair
procedure. The medieval modes of proof had, in the eyes of the
faithful, profound spiritual meaning, and one can detect in the
effort to achieve procedural fairness some elements of humanity.
posted by Ethel Fiderer at 5:30 AM
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