Is it? Functionalism is probably more discredited now among anthropologists than among realist lawyers, for whom it is an unarticulated assumption. For the historian, as for the interpretive anthropologist, the ambition is to understand what people thought they were doing, why they thought they were doing it, and what those thoughts tell us about what it means to have been the people they were.

Expand, briefly. Not so much to explain William the Red, as to provide an illustration supporting interpretation of what skepticism (as opposed to unbelief) involved.

This isn't really an "account," just a statement of a familiar proposition.

The text would work better for the education of non-specialist readers if its diction were simpler: the choice of words such as "medial" or "proband" may be appropriate to specialist monographs, but can be improved for general readers. Similarly, the hermaneutic uncertainties and side-remarks on the methodological choices made, while valuable, do not make the article more accessible by a student who wants to know what ordeals were, and how they were used. Some factual material on the specific gravities of male and female bodies might also be useful, if only for the purpose of putting to question the generalizations of fast-moving under-informed economists.

Possibly the most enigmatic custom/institution of medieval English law is the trial by ordeal. What function did this institution play in medieval English society, if that is the right framework for analyzing it?

History and Operation of the Ordeal in England

The ordeals of fire and water in England likely have their origin in Frankish tradition, as the earliest mention of the ordeal of the cauldron is in the first recension of the Salic Law in 510. (Bartlett 4-7). Trial by cauldron was an ancient Frankish custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused was made to plunge his right hand into a boiling cauldron and pull out a ring. (Bartlett 4, 9). As Frankish influence spread throughout Europe, ordeal by cauldron spread to neighboring societies. (Bartlett 9). The earliest references of ordeal by cauldron in the British Isles occurs in in Irish law in the seventh century, but it is unlikely that this tradition shares roots with the Frankish tradition that is likely the source of trial by fire and water among the Anglo-Saxons and later the Normans in England. (Bartlett 5). The laws of Ine, king of the West Saxons, produced around 690, contains the earliest reference to ordeal in Anglo-Saxon law; however, this is the last and only mention of ordeal in Anglo-Saxon England until the tenth century. (Bartlett 7).

After the Conquest of 1066, the Old English customs of proof were repeated anew and in more detailed fashion by the Normans, but the only notable innovation of the ordeal by the conquerors was the introduction of the trial by battle. (Hyams 111). There were, however, minor conflicts between the customs of the Anglo-Saxons and the customs Normans that were unsurprisingly resolved in ways that favored the Normans. (Hyams 112). William Rufus was skeptical of the ordeal. (Expand or delete). (Give fuller account of the pre-Assize of Clarendon history of the ordeal)

Prior to and for some time after the Assize of Clarendon there was a distinction between those accused fama publica and those accused on the basis of specific facts. (Hurnard). Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts were made to undergo the ordeal. (Hurnard).

After the development of the hundred juries and vills, these groups made what were, in effect, medial adjudications of accusations. In other words, these groups opined on the accuracy of the accusation, and this adjudication decided whether the defendant would face the more final decision of the ordeal. These bodies rendered “verdicts” of either suspected or not suspected. In cases where the defendant was accused on the basis of one or more inculpatory facts, the defendant was sent to the ordeal upon the verdict of the hundred jury alone. In cases where the defendant was accused fama publica, the accord of the hundred jurors and the vills as to the defendant’s suspicion was required to send him to the ordeal. (Groot).

The English plea rolls contain no cases of trial by ordeal after 1219. (Bartlett 128).

Explanations for the persistence and disappearance of the ordeal

Peter Brown gives both a functional and phenomenological account of the persistence and eventual withering of the ordeal.

Functional account: In a society where the coercive power of the state is weak and people live in small, isolated, and densely packed communities, and where one of the greatest dangers to the well-functioning of the community is feud, the ordeal was an instrument of consensus. The ordeal helped contain and resolve conflict.

Phenomenological account: In the society of the ordeal, the sacred penetrated the profane and vice-versa.

Kerr et al. argue that the ordeal was an instrument of mercy, contrary to its apparent cruelty. It was one of several devices created to protect people guilty of crimes from rigors of secular law, and all of them linked in some way to the English church: sanctuary, king’s pardon, and benefit of clergy.

Three big pieces of circumstantial evidence are given to support this conclusion. First, probands had a very high success rate in the ordeals. Second, probands who had to undertake the ordeal of cold water were made to do things prior to the ritual that would increase their chances of success. Third, despite the lack of a taboo against women undergoing the ordeal of cold water, women were always made to undergo the ordeal of hot iron (not including the later recrudescent “ordeal” of witch swimming). Women would have had a much lower success rate in the ordeal of cold water than men, because of specific gravity, and they had high success rates in the ordeal of hot iron.

Leeson analyzes the ordeal from a law and economics perspective. He argues that ordeals assigned guilt or innocence with some accuracy, because the superstitious beliefs of those who underwent ordeals caused those people to unwittingly reveal information about their guilt or innocence. “Ordeal outcomes were miraculous, but they were miracles of mechanism design.”

References

Bartlett, Robert (1986). Trial by Fire and Water. Oxford: Oxford University Press.

Brown, Peter (Spring, 1975). "Society and the Supernatural: A Medieval Change". Daedalus 104 (2): 133-151.

Groot, Roger D. (Jan. 1982). "The Jury of Presentment before 1215". The American Journal of Legal History 26 (1): 1-24.

Hurnard, Nancy (1941). "The Jury of Presentment and the Assize of Clarendon". The English Historical Review 56 (223): 374-410.

Hyams, Paul (1981). "Trial by Ordeal: The Key to Proof in the Early Common Law". In Morris S. Arnold et al., eds, On the Laws and Customs of England. Essay in Honor of Samuel E. Thorne. Chapel Hill: University of North Carolina Press.

Kerr, Margaret H.; Forsyth, Richard D.; Plyley, Michael J. (1992). "Cold Water and Hot Iron: Trial by Ordeal in England". Journal of Interdisciplinary History 22 (4): 573-595.

Leeson, Peter T. (Aug. 2012). "Ordeals". Journal of Law and Economics 55 (3): 691-714.

-- AlexanderGerten - 20 Nov 2014

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