Although we think of torture as something backwards and barbaric, in some respects the legal debate over torture, which took place somewhere in the middle of the middle ages, can be seen as an advance in legal thinking. Those Medieval legal scholars probably recognized that torture was painful, but they also knew that the system that torture replaced was equally if not more painful. Torture represented an advance in the sense that it was a way of taking the administration of justice out of God's hands, and placing it in human hands. As Murphy explains:
Torture as a tool of jurisprudence was little known in the darkest part of the Dark Ages. The ability of human beings to discover the truth was thought to be limited. Thus the reliance not on judges or juries but on iudicium Dei—the judgment of an all-knowing God—to determine guilt or innocence. This often took the form of trial by ordeal. The accused would be submerged in water, or made to walk on red-hot coals, or forced to plunge an arm into boiling water. If he or she suffered no harm, or if the wounds healed sufficiently within a certain period of time, then it was the judgment of God that the accused was innocent. This regime was common in Europe for many centuries. It was unquestionably primitive and certainly barbaric. In its favor, it was devoid of hubris about what mere mortals can ever really know.Maybe the people who devised these ordeals lacked hubris about their own ability to determine the truth, but at some point they might have realized that it takes a bit of hubris to imagine that God will step in and cure people whose limbs we place in boiling water, just to prove to us that the victim is innocent. The use of torture can be seen as an advance in legal thinking because it proposed that people could actually ascertain the truth without God's help, by various familiar methods of obtaining a confession from the accused. What is striking in Murphy's article is how similar are the descriptions, and the justifications, for using torture during the Inquisition, to our recent unfortunate resort to these unsavory methods during the so-called war on terror.
It seems that our methods of extracting information have not progressed much since the Inquisition. And even putting aside the most physically abusive forms of torture, which are generally forbidden in most places in the world, though of course they still occur, we can describe our ordinary court system as heavily reliant on various "enhanced" forms of interrogation. (Think for example of our reliance on imprisoning witnesses for contempt, or prosecuting them for perjury, as forms of coerced interrogation.) Anyone who thinks that sitting for a deposition in a civil case is not akin to torture either hasn't participated in enough depositions, or is merely quibbling about definitions. The ultimate purpose--forcing information from the subjects in an effort to ascertain truth--has not changed all that much since the Inquisition, and our methods of extracting such information are only slightly more civilized.
Murphy's conclusion is also striking: he suggests that the use of torture proceeds from a "sense of moral certainty." This way of thinking also leads governments to imprison or kill political enemies, and to impose particular values or rules on the population. The antidote to that way of thinking is represented by liberal thinkers such as John Locke, who believed that we can never be too sure of ultimate truths, and therefore advocated tolerance and free expression.
Nowadays, we are filled with skepticism about our justice system's ability to ascertain truth. Judges are known to be fallible. Studies have cast substantial doubt on the reliability of eyewitness testimony, which our legal system nevertheless treats as the most reliable form of evidence. Experts are often seen as paid advocates for each side. And our understanding of human psychology has progressed to the point where we know that juries can also be fooled. And even when we can be fairly confident in ascertaining the facts, we often don't agree on what rules to apply. On issues ranging from abortion, to drug use, to the rules of copyright protection, and even to the enforcement of debts, our society is deeply divided on deciding what those rules should be, and how to apply them.
If our sense of moral certainty is leaving us, how do we administer justice? We're not about to turn the job back over to God. What we seem to be reaching for is an alternative to using the standards of truth and moral certainty. That means that we are increasingly resolving conflicts by trying to ascertain and satisfy the various interests held by the parties. We're willing to admit that truth may be impossible to ascertain. And we're willing to leave decisions about justice and morality to the parties involved. Murphy's article says this about John Locke:
He made the case for freedom of thought and expression—and a certain humility regarding one’s own cherished beliefs—on the grounds that, no matter how much certainty is in our hearts, human beings cannot know for sure which truths are true, and that believing we can leads us down a terrible path.We can make the case for mediation and other forms of alternative dispute resolution, based on the same kind of acknowledgement of our limited ability to ascertain and apply ultimate truths. Our justice system may need to recover that sense of humility about our ability to ascertain the truth, a sense that we lost when we moved from ordeal to torture. If we admit that our system has limited ability to find truth and administer justice, we are more likely to accept the legitimacy of resolving conflict by negotiated agreement.