Law, Economics, and Superstition Part 1: "Ordeals"

As some of you know and have heard me talk about over the past year, my current project examines what I call the "law and economics of superstition." I'm pleased to present the first paper in what, as in my previous project on pirates, I expect will be a 3-part series: "Ordeals."

Abstract:

For 400 years the most sophisticated persons in Europe decided difficult criminal cases by asking the defendant to thrust his arm into a cauldron of boiling water and fish out a ring. If his arm was unharmed, he was exonerated. If not, he was convicted. Alternatively, a priest dunked the defendant in a pool. Sinking proved his innocence; floating proved his guilt. People called these trials ordeals. No one alive today believes ordeals were a good way to decide defendants' guilt. But maybe they should. This paper investigates the law and economics of ordeals. I argue that ordeals assigned accused criminals' guilt and innocence accurately. They did this by leveraging a medieval superstition called iudicium Dei. According to this superstition, God condemned the guilty and exonerated the innocent through clergy conducted physical tests.

Enjoy.

Comments

[William Bruntrager]

This theory was also used in an episode of "Homicide: Life on the Street" (and again later on "The Wire") in which the detectives use a photocopier as a "lie detector" on some ignorant suspect.

They even claim that the radiation from the photocopier causes permanent harm to the test subject. When the suspect lies, they say that he has failed the test, but they threaten to keep asking and performing the test over and over, causing significant harm, as long as the test continues to show that the suspect is lying.

[Will Luther]

Where can I pre-order the book?

[Mario Rizzo]

I look forward to reading this: the latest installment in your Hegelian project. More or less stated as "The rational is real and the real is rational."

[Roger Koppl]

@ Mario:
:-D
OTOH there's rational and then there's ration. Here's what I mean:

The context here is a local justice system pretty much run by the local baron or lord of the manor. This local war lord is a stationary bandit with an interest in rooting out thieves and others who reduce the output he then plunders. In this context, the existence of ordeals is a puzzle. Why would a wealth maximizing tyrant abide such an irrational system of justice? Pete shows that you could leverage local superstitions with ordeals, which therefore had the potential to reduce the error rate of the judicial system. In this sense, then, the use of ordeals was perfectly "rational." The system nevertheless had a high error rate, as Pete chronicles in his discussion of why the priests would sometimes let a proband fail the ordeal. It also depended on local discretionary judgements, lacked transparency, and did not scale to larger political units. In these ways, the system lacked Weberian rationality and was replaced over time by a more rational and bureaucratic system of justice as the modern nation-state emerged.

I'm doing some interpretting, so Pete L. can correct me if I've said anything he doesn't agree with.

[Will Luther]

With respect to the failures, there might also be reason to believe that--to the extent these communities were small and close nit--clerics had a decent idea who was guilty and innocent regardless of what evidence was available. So they may have been able to persuade the skeptics (by failing a positive number of probands taking the ordeal) without convicting as many innocent men as Leeson accepts in his working paper by disproportionately failing those they *thought* were more likely to be guilty (as opposed to randomly failing some positive number of probands).

[Mario Rizzo]

Roger,

I have no problem with Hegel's "cunning of reason." I'd just like to see people discuss spontaneously-evolved institutions the "irrationality" of which is revealed by the tools of economics. While it is true that in one sense everything is "rational" in its own way, in another, more important sense, there are errors in the development of institutions (as Hayek admits). We get a perverse picture of the world when we are exposed only to those cases of success or when even failure (error) is cast as a relative success. I well see the temptation. But in my old discussions of the efficiency of the common law I tried to show that the early Posnerian claim that common law doctrines were all efficient was the result of applying simplistic notions of efficiency to a complex system of rules. Subsequently, as more economists got into the game, it was shown that efficiency actually required rules that looked much different from the traditional common law rules. Therefore, you can see why I am suspicious of this kind of research program. I feel as if I have been through it all before and know the outcome.

That being said, Leeson's paper is worth reading which I shall do.

[Roger Koppl]

Mario,

Boyd and Richerson (I think) give examples of dysfunctional dietary norms that have evolved and persist. That always seems a good example to me, because it seems rather unambiguous. Sorry I don't have a more precise cite at hand.

[Peter Boettke]

Mario and Roger,

Isn't the mystery to identify institutions that had rational reasons for their existence (functionalist explanation) due to context and constraints, but persist when that context changes or the constraints shift so that what was once rational now appears to be irrational and yet it persists?

As I argue in my paper on Tullock in Public Choice, there is both a "bright" side and a "dark" side to spontaneous order type theorizing. Some theorists emphasize the "bright side" -- e.g., Hayek; while other emphasize the "dark side" -- e.g., Schelling, but the style of reasoning in economics is the same.