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Torture. Edward Peters
Читать онлайн.Название Torture
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isbn 9781512821697
Автор произведения Edward Peters
Издательство Ingram
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