From: utzoo!decvax!yale-com!leichter
Newsgroups: net.religion
Title: Re: biblical laws - (nf)
Article-I.D.: yale-com.1135
Posted: Sun Mar 27 14:50:25 1983
Received: Mon Mar 28 02:23:01 1983
References: hogpd.26

Avi Gross's comments about the middle-age method of determining truth (hold a
witch under water; if she drowns, she was innocent...etc.) are an interesting
example of two things:  How simple, right-sounding ideas can lead you down some
very odd and cruel paths; and how difficult it can be to understand another
culture without knowing the background it arose from.  The origin of the
"drowning test" is quite simple.  The early Christian church forbade the use
of circumstancial evidence to prove a crime.  I don't know exactly when, how,
or why this position came to be taken, but I gather it was a reaction to exces-
ses, probably of the Roman courts.  This left prosecuters in a rather difficult
position.  Many crimes - and I'm not interested here in whether WE would con-
sider them crimes; I'm talking about things that social convention said had
to be punished - are difficult to get direct evidence for.  Adultery is one;
you'd actually have to catch the adulterers at just the right (wrong?) moment.
Witchcraft is certainly another; essentially ALL evidence for witchcraft has
to be circumstancial.  Over a period of time, prosecuters drew the obvious
conclusion:  If you can't get direct evidence, get a confession!  Since crimi-
nals are not likely to confess, you need to apply "persuasions".  Thus, the
evolution of torture as the legal "lie detector" began.  Dunking witches was
just a simpler route to the same end - no need for pain in the hope the
witch will confess; if she doesn't do so (by saving herself) it's all over
with quickly - and the now-known-innocent person is guaranteed a good after-
life anyway.  (I wonder, as I write this, whether the 4th Amendment's prohi-
bition against self-incrimination is ultimately explainable as a reaction to
just this legal theory.  Somewhere in this period - the whole period from, say,
1600-1750 is remarkably short and uniform when we look at it from a vantage of
200-odd years, isn't it? - circumstancial evidence came to be accepted, as did
all sorts of "new-fangled" ideas about "cruel and unusual punishment".
							-- Jerry
						decvax!yale-comix!leichter
							leichter@yale