Torture - Edward Peters

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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

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