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Women on the Rack: Torture and Gender in the Ius commune
By Kenneth Pennington
Recto ordine procedit magister. Liber amicorum E.C. Coppens, edited by Jan Hallebeek et al. (Brussels: Royal Flemish Academy of Arts and Sciences, 2012).
Introduction: The Middle Ages is a Distant Mirror. It is a mirror in which we see ourselves only dimly or rarely. Serious scholars have warned us that what we see can be misleading. These warnings have merit. In 2008 Gabrielle Spiegel was president of the American Historical Association and came to that office as a distinguished medievalist. In the Association’s Perspectives on History she pointed out that the authors of the torture memos produced by the Department of Justice used medieval analogies to support their arguments. Borrowing dialogue from Quentin Tarantino’s Pulp Fiction she called their efforts “getting medieval.” In Tarantino’s script “getting medieval” meant getting downright nasty. Spiegel argued that the neo-cons who used medieval examples and medievalists who use analogies to confront modern problems “without demonstrating the validity of the transference” are guilty of betraying their sources. So, the reader of this essay has been properly warned. Nonetheless, I think that looking into the mirror is worth the effort. We should not reject the images we see as just being untrustworthy phantoms from a strange and alien place. The story that I will tell in this essay is of four women. All four were summoned to court, and all four were tortured.
There is nothing particularly unusual about being tortured in a medieval or early modern courtroom. It is very much part of the Distant Mirror — and not alien to the present. Human beings have tortured other human beings for several millennia. Ancient Roman jurists gave torture a place in their legal system and created a jurisprudence that described and circumscribed torture. Medieval courts included torture in their arsenal of procedural steps through which information was gathered and the “truth” was established. However, Roman, medieval, and early modern jurists believed that torture was a flawed instrument. It had to be used carefully. It did not always deliver the truth. Eventually torture was abolished in the eighteenth century for two reasons: Torture did not work, and it was barbaric. In spite of that historical record and the Enlightenment’s rejection of torture, we have reintroduced torture in the early twenty-first century as being acceptable, even admirable, in fact and fiction. The American Central Intelligence Agency and a television character, Jack Bauer, bravely used torture and justified its use by fear: fear of the dangerously unknowable. The torturers were praised, supported and applauded by many in government, academia, and the American public. The same fear permeates the stories of two of these women. They were tortured because their crimes were considered to be dangerous threats to society and public order. The third was tortured for an entirely different reason: she wanted to be believed. Like the CIA agents and their enablers among us she was convinced that torture could produce reliable evidence that would sway the judges who tortured her.