Torture

Edward Peters

• Publisher: University of Pennsylvania Press
• Year: 2018
• ISBN:
  9781512821697
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

"Torture has ceased to exist, " Victor Hugo claimed, with some justification, in 1874. Yet more than a century later, torture is used routinely in one out of every three countries. This book is about torture in Western society from earliest times to the present.A landmark study since its original publication a decade ago, Torture is now available in an expanded and updated paperback edition. Included for the first time is a broad and disturbing selection of documents charting the historical practice of torture from the ancient Romans to the Khmer Rouge.

1

A Delicate and Dangerous Business

The emergence of torture in Greek law

Twentieth-century people, although they may easily recognize the existence of privilege- or status-distinctions in institutions which profess to operate democratically and impersonally, often know little about societies – or earlier periods in our own history – in which privilege and status were the only elements that determined social identity, nor about the processes in early European societies that transformed them from communities based upon status distinctions to communities based upon shared rights. Yet in terms of legal history alone, these processes were fundamental to the emergence of the idea of ‘law’ itself and to the role of law and its incidents in social, cultural and political history ever since.

For, once the Greeks had succeeded in inventing the idea of an abstract ‘law’ (nomos) and the Romans had followed by inventing the first legal science, an entirely new element entered the history of human social relations. Citizens and historians alike have disputed its importance and character ever since. Individual incidents of legal procedure – not only torture, but the concept of evidence, the character of witnesses, and the functions of advocates and magistrates – thus emerged from earlier unarticulated custom, closely attuned to the needs of new cultures, but also leading those cultures in distinct directions. It is in this context that we must look for the emergence of torture as a distinct phenomenon.

At the beginning of the history of torture among the early Greeks we find for the first time in western history the transition from an archaic and largely communal legal system to a complex one in which the problem of evidence and the distinction between the free man and the slave are particularly striking. The problem of evidence had emerged from archaic Greek custom, in which the ‘law’ had consisted of the conflict between two litigants exercising self-help in a contest, an agon, surrounded by family, friends and dependents, guided only by themis, custom, and epikeia, appropriate behaviour. Themis and epikeia, the ‘rules’ of particular legal conflicts, came to be pronounced first by voluntary arbitrators, whose decisions in favour of one or the other party were called dikai, ‘statements’. These accumulated over time into a recognized body of opinion, until the popular perception of their abstract moral quality made the term dike come to mean Justice itself. These early legal conflicts probably made little use of evidence, just as they reflected little or no notion of crime as distinct from personal injury. Their outcome depended rather upon the social standing of the litigants and the opinion of the community’s most substantial members. The first personal offence was tort (civil injury to person, property, or reputation) rather than crime, and the ambition of the injured party was to have that injury acknowledged and made good.

The transformation of Greek society from the eighth to the fifth centuries BC included the shift from feud, or agon, to trial. The poet Hesiod, himself a disgruntled litigant, argued that for the sake of fairness laws should be written, that standards of judgement be clearly stated, and that the most frequent causes of disagreement be surrounded by witnesses who will later testify to fact. The importance of membership in a polis, a city-republic, was that it placed each citizen within a much broader legal context in which ‘the law’ was abstracted from the earlier web of particular events, relationships and experiences and made autonomus. No longer was ‘the law’ the outcome of a series of household-feuds. The law of the city began to displace the laws of household at the same time as private ethics was conceptually separated from public behaviour. Written law emerged almost as soon as the first recognizable city-republics, and written law defined procedure and characterized those who had different kinds of access to it.

By the sixth century BC, free citizens of the Greek city-republics willingly submitted to many restrictions on their personal actions that would have outraged Homer’s aristocratic warriors. But they submitted willingly because they knew the laws, respected those who administered them, and accepted that even legal procedure was generally beneficial, rather than coercive, to those who were free – and citizens. Those who possessed no ascertainable honour or citizenship status – strangers, slaves, those in shameful occupations, or those whose shame (atimia) was publicly acknowledged – possessed no right, neither the right not to be coerced nor the right to litigate.

Concepts of honour and status thus stratified Greek urban society. In the fourth century Aristotle summed up the development that he perceived over the preceding two centuries in the matter of legal protection. He observed that, in the early sixth-century reforms of Solon, no citizen could be made a slave for personal debt; certain acts could properly be prosecuted by the public; citizens might appeal from the decisions of magistrates to those of popular courts. These protections greatly strengthened citizenship status. They emphasized the citizen’s unique access to the law, the importance of his knowledge of it and its procedures, his obligation to plead his case in person, and his necessary experience of sitting in the assembly as a juryman himself. Such a citizen clearly possessed honour (time), and there were limits to the degree of coercion to which he might be subjected, as well as to the nature of evidence that might be used against him, or by him against another free citizen.

The honour of the citizen lent great importance to his sworn word. The doctrine of evidence itself may be said to have been defined by the importance of a citizen’s testimony. Therefore, one possessing no such citizen-status could not provide ‘evidence’ as the Greeks understood that term. The legal procedural protection of the free citizen and his sharp differentiation from other, far less privileged, classes of people led the Greeks to the conclusion that those without legal privilege had to be coerced into a special status in which their testimony became acceptable. Their testimony became equal to that of citizens by means of physical coercion. The origins of this notion are obscure, although they may lie in the power of a head of household over slaves and dependents. Originally, then, the importance of the honour of a citizen created a classification of evidence that distinguished between a ‘natural’ kind of evidence that might be obtained readily from the word of a citizen and a coerced kind of evidence that had to be extracted by force from everyone else.

This argument for the honour of the citizen may be illustrated by an event that took place in 415 BC. In that year a number of statues of the god Hermes were desecrated, outraging Athenian popular opinion and precipitating a large number of accusations against citizens. One of the accused citizens, Andocides, accused his own accusers of wanting ‘to abrogate the decree voted during the archontate of Skamandrios and to put to the torture those whom Dioclides has accused [of desecrating the Herms]’. Although nothing else is known of the ‘decree of Skamandrios’, it seems to have served as the charter of the citizen’s exemption from general legal disabilities, particularly torture, respected sufficiently to be cited in a case where there was great pressure to discover the culprits and, evidently, an explicit suggestion that some citizens’ exemption from torture be abrogated.

In the fifteenth chapter of his Rhetoric, Aristotle gives a list of five ‘extrinsic’ proofs that may be used in a legal process, besides the figures of rhetoric which may also be used: the laws, witnesses, custom, torture and oaths. Aristotle’s term for torture, and the general Greek term, is basanos, which is philologically related to the idea of putting something metallic to a touchstone in order to verify its content. Thucydides uses a very similar word to describe the work of the historian: the historian must work with a critical spirit and he must not simply accumulate all sorts of records without a critical principle, but must test them with a touchstone to be sure of their truth; he must inquire critically about them. ‘Judging from the evidence which I am able to trust after most careful inquiry …’ (Peloponnesian War, I.1) is Thucydides’ formulaic description of the historian’s task. Basanos, torture, evidently connoted a kind of necessary critical inquiry, but it was not the kind of inquiry that could be made of a free man. Put in slightly different terms, Aristotle’s basanos is a kind of inquiry whose results may serve as evidence in a sub-procedure within a larger legal procedure that is essentially adversarial but whose citizen-litigants may not be subjected to the sub-procedure of basanos.

Our sources for the history of evidence and procedure in Greece are unanimous on the question of who can be subjected to basanos: it is the slave and, under certain circumstances, the foreigner. The Greeks, however, left no works on civil or criminal procedure, and our chief sources for the torture of slaves are the legal orators and the comic playwrights. The former, in a series of written speeches to be delivered by their clients or to serve as models for forensic rhetoric, and the latter, in dramas that touch upon daily life, are not the lawyer’s nor the historian’s ideal sources, and there has been much scholarly dispute concerning the Athenian attitudes towards evidence derived from the torture of slaves and the frequency of their use of it. A well-known collection of speeches by the fifth-century orator Antiphon illustrates the general idea concisely: a choregus (one who was responsible for the civic duty of paying the chorus at religious festivals, and later at dramatic festivals as well), accused of murdering one of the boys who was trying out for a place in the chorus, describes the terms of investigation:

[My accuser] may take as many witnesses as he likes, examine them, examine witnesses who are freemen, as becomes the examination of freemen, and who, out of self-respect and justice are naturally disposed to speak the truth about the facts. In the case of slaves, he may interrogate them if their statements seem truthful to him. If their statements do not, I am prepared to deliver all my own slaves to him so that he may have them put to the torture. If he requires the testimony of slaves that do not belong to me, I promise, after having obtained the permission of their owner, to deliver them also to him so that he may put them, too, to the torture in whatever manner suits him.

There are a number of legal problems about this passage, one being that the choregus seems to be referring to an informal investigation designed to avoid a trial. In any case, the right of a citizen in a criminal (or indeed a civil) suit to demand the torture of slaves seems to have been generally accepted, whether in an informal exchange of investigations or in a trial proper. In another speech, Antiphon offers one reason for the practice of torturing slaves: a perjured slave cannot suffer the penalties of a perjured free man, that is, he cannot be declared legally infamous (atimos), with the attendant disabilities of that status, nor can he be fined. That slaves could be tortured is also clear from some papyrus evidence from Greek Egypt, which states that if judges cannot form an opinion after all the evidence is in, they may apply corporal torture to slaves after their testimony has been given in the presence of both parties to the case. That this was a general Greek practice is evident from the fact that the Roman emperor Hadrian cites it in a rescript (Digest 48.8.1.1) evidently derived independently from other Greek practice.

The modes of torture are described offhandedly in a scene from Aristophanes’ The Frogs. Dionysius, having changed places and dress with his slave Xanthias, has forgotten the right of a master to prove his own innocence by offering his slaves for torture. Shortly after they have changed places, Xanthias is accused of theft, and he sees a way out; he tells his accuser:

I’ll make you a fair offer;

Arrest my slave and put him to the torture,

and if you get your proof, put me to death.

Aiacos. What kind of torture?

Xanthias. Any kind you wish.

Tie him to a ladder, suspend or, whip him.

Pile rocks upon him, put vinegar in his nose,

Whip him with bristles: but not with leeks or onions.

But it is also possible that the speech reflects a considerable degree of exaggeration and that the very details of Xanthias’ panta tropon suggest that such a variety of tortures may have been more encyclopaedic in a comic sense than a description of actual practice.

It is also necessary to point out that the power of masters to punish slaves corporally was generally accepted among the Greeks, slaves sometimes being referred to as andrapoda – ‘human-footed stock’ – in contrast to tetrapoda – ‘four-footed stock’. Although Greek attitudes toward the proper treatment of slaves improved between the sixth and the third centuries, such a power on the part of masters suggests that it was not a long step to permit the judicial torture of slaves, since they were routinely subject to physical coercion of the most severe kind even outside the sphere of the law.

Although at least one scholar has claimed that torture of slaves was the survival of a type of ordeal that was only later worked into the Athenian rules of evidence, our earliest sources, the fifth-century Greek orators, refer to the interrogatory torture of slaves as if it were a commonplace. A well-known example of this literature is the following passage from the orator Isaeus:

Both personally and officially you regard torture as the surest test. Whenever freemen and slaves appear as witnesses, and it is necessary that fact in the case be discovered, you do not employ the testimony of freemen, but by torture of the slaves you seek to find the truth of the circumstances. And that is natural, men of the jury, for you know that some of the witnesses have appeared to give false evidence, but none of the slaves has ever been proved to make untrue statements as a result of their torture.

Such a statement implies an Athenian view of the reliability of torture that contrasts sharply with other aspects of Athenian culture. Indeed, this and similar statements in other orators have been dismissed as fictions, chiefly because there is also no evidence as to widespread or even customary torture of slaves in Athenian law. The same orators upon whose evidence for the torture of slaves we are forced to rely also imply that threats to torture slaves were part of the rhetorical display of the court and that some orators could also give perfectly plausible arguments against the truthworthiness of slave testimony. In short, the fifth and fourth centuries provide some ambiguous evidence that the judicial torture of slaves was acceptable in theory, but very little evidence either that many slaves were tortured or that Athenians thought very highly of such testimony.

But Greek law had two facets: on the one hand, a body of civil law was slowly built up possessing its own rules and procedures; on the other, the law was often in danger of being exploited for political reasons, and there is much more evidence that in political cases torture may have been more frequent than in routine civil or criminal litigation.

After the Athenian defeat at Syracuse in 413 BC, the Syracusans put the Athenian leader Nicias to death because, as Thucydides says, ‘certain Syracusans … were afraid … that on some suspicion of their guilt he might be put to torture and bring trouble on them in the hour of their prosperity.’ (Peloponnesian War, VII.86) The possibility that Nicias might have been tortured by the Lacaedemonians appears to have been a justified expectation of the Syracusans, perhaps because interrogatory torture under the extenuating circumstances of battle or capture by an enemy power was not part of the routine law of the Greeks and offered freer opportunities for torture and aggravated punishment.

The exceptional character of political life, whether in the hands of the enemy or in those of one’s political enemies at home, suggests that whatever the facts of slave torture, the torture of freemen proved to be exceptionally difficult, even in a period of general unrest such as had been the case in the desecration of the Herms. But the fear of the Syracusans over the possible incriminating testimony of Nicias was not unfounded in the political atmosphere of the fifth century. In 411, Phrynichus, a leading member of the oligarchy of the Four Hundred in Athens, was assassinated, and although the assassin, a soldier, escaped, an accomplice was taken and, as Thucydides says (Peloponnesian War, VIII.92), was tortured by order of the Four Hundred, although he revealed very little information under torture. Such irregular torture of freemen (although the victim of the Four Hundred was not an Athenian, but an Argive) seems to have been rare in Greece, perhaps the best-known case having occurred a century before in the torture of Aristogiton in 514 for his part in the assassination of the Peisistratid Hipparchus.

Torture in Roman law

Since Roman law, shaped by some Greek influences, constituted the greatest body of learned jurisprudence known to western tradition, its doctrine of torture influenced strongly the two revivals of torture that the western world has experienced – those of the thirteenth and twentieth centuries.

Briefly put, in the earliest Roman law, as in Greek law, only slaves might be tortured, and then only when they have been accused of a crime. Later, they might be tortured as witnesses, although with severe restrictions. Originally only a criminal accusation against a slave could elicit slave testimony, but by the second century, slaves could be tortured in pecuniary cases as well. Freemen, originally preserved from torture (and from the forms of capital punishment reserved for slaves), come under its shadow in cases of treason under the Empire, and then in a broader and broader spectrum of cases determined by imperial order. The division of Roman society into the classes of honestiores and humiliores after the second century AD made the humilioris class liable to the means of interrogation and punishment once appropriate only for slaves. And even the honestiores could be tortured in cases of treason and other specified crimes, as defendants and witnesses.

As in Greece, Roman slave-owners under the Republic had the absolute r...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface to the Expanded Edition
• Acknowledgements
• Introduction: Torture – Past and Present – and the Historian
• 1 A Delicate and Dangerous Business
• 2 The Queen of Proofs and the Queen of Torments
• 3 The Sleep of Reason
• 4 ‘Engines of the State, not of Law’
• 5 ‘To become, or to remain, human …’
• A Bibliographical Essay
• Bibliographical Addendum: Torture—History and Practice, 1985–1995
• Appendix: Judicial Torture—Documents and Commentary
• Index