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The Origins of Reasonable Doubt

by James Q. Whitman

Yale University Press, 288 pages, $40

The life of a culture is reflected by”and, in turn, reflects”its laws. The history of law, no less than ­political or intellectual history, is an essential ingredient of historical self-understanding. At least since the publication of Mirjan Damaska’s Faces of Justice and State Authority twenty years ago, the contrast between the Anglo-American common-law tradition and the continental system that evolved in Western Europe has become an important template for understanding the differences between Britain and the United States, on the one hand, and France and Germany, on the other.

James Q. Whitman of Yale Law School has contributed two highly original books to this literature. In Harsh Justice (2003), his subject is the severity of American punishment, which is greater than that found in France and Germany. ­Whitman ascribes the difference to America’s democratic heritage. In aristocratic Europe, upper-class ­prisoners enjoyed privileges customary to their status. With modernity, this leniency was extended downward to the inferior classes as well. America disdained special treatment for those better off. Consequently, it became a point of civic rectitude to punish equally and rigorously, or at least to try.

Whitman’s thesis in his new book, The Origins of Reasonable Doubt , is that the familiar Anglo-American concept of reasonable doubt is the outgrowth of medieval and early-modern theological problems that were solved differently by English common law and its continental counterparts. Moreover, the idea of reasonable doubt is, in his opinion, ill suited to the modern jury system.

According to Whitman, in the Middle Ages, the application of justice was impeded by fear on the part of judges that questionable punishment would leave them fully responsible for the wrongful outcome: The blood would be on their hands, as if they had shed it themselves. Sometimes they also feared revenge by the family of the criminal. For that matter, there was also an anxiety over divine retribution that contributed to a reluctance to punish. The early-modern doctrine of reasonable doubt is an attempt to provide “moral comfort” for judge or jury through the assurance that establishing guilt beyond reasonable doubt is sufficient to quiet these qualms.

Whitman’s thesis depends on the important presupposition that, in many cases, the judge was well informed about the guilt of the accused. He distinguishes sharply between the traditional rural society, where most people had fairly reliable knowledge of their neighbors, and modern urban society, where such knowledge cannot be assumed. In the modern courtroom, the truth is not known”the purpose of the trial is to uncover it. In the medieval world, fact-finding was not the ­primary purpose of adjudication. The goal, rather, was that of judging others and entering the verdict.

Anxiety about punishment would be alleviated if the judge could appeal to some indicator of guilt other than his own judgment. The criminal’s confession was the “queen of evidence.” Because it shifted responsibility for punishment from judge to criminal, the common law accepted confessions even when uncorroborated by other means of fact-finding.

Absent confession, other means were required, the most prominent of which was the ordeal. Mistakenly, according to Whitman, current opinion tends to follow the legal historian John Langbein in thinking of the ordeal as a kind of oracle, a not-very-reliable way of ascertaining truth in a world that lacked scientific methods. In fact, Whitman urges, the facts were often not in doubt; the ordeal was instead a way of obtaining certification for communal convictions about the defendant’s guilt. Contrary to modern assumptions, the ordeal did not usually lead to the conviction of innocent defendants; rather, it often helped acquit the insouciant guilty. Its primary use was to encourage the criminal to confess.

The Fourth Lateran Council, in 1215, prohibited priestly blessing of the ordeal because ordeals “tempted God,” requiring him to intervene in the natural order, and also entangled clergy in “judgments of blood.” As the ordeal slowly vanished”more rapidly in England than on the ­Continent”judges were faced with the problem of what to do with a criminal whose guilt was generally believed but against whom witnesses were reluctant to testify and for whose punishment judges were loath to be held spiritually accountable.

Eventually, as Whitman puts it, continental law replaced the voice of God with the voice of the bureaucracy, the inquisitorial fact-finding ­policy of the civil law, where success of the process depended on inducing witnesses to testify and the accused to confess (including judicial torture). England’s tradition of common law replaced vox Dei with vox populi , the system in which the responsibility for rendering the verdict was transferred directly from the judge to a jury of the accused’s peers.

Whitman goes on to trace the vicissitudes of jury trial under various English regimes. It is a story of gradual relaxation of governmental coercion on juries to convict against their conscience, accompanied by an overall liberalization of punishment. Thus juries were less tormented by moral anxiety about the verdicts they handed down. According to Whitman, this tendency was interrupted by the American Revolution, which, by preventing transportation to America as a resolution, raised the stakes in criminal trials. It was this last crisis that precipitated the mature formulation of the reasonable-doubt standard as one on which juries could, without disturbing their moral comfort, condemn a criminal.

Whitman’s argument in The Origins of Reasonable Doubt relies on detailed research, but what makes the book fascinating is that its historical thesis goes beyond the facts to produce a bold imaginative reconstruction of intellectual causes and effects. For the nonspecialist, this theorizing about how legal approaches must have, or might have, evolved is both the most interesting and the most accessible aspect of the work.

At some points, Whitman’s explanation of details is not especially plausible. He connects the requirement of unanimity in common law with the jury’s need for validation, for instance, while continental tribunals are satisfied with a supermajority. But that can’t be the case, as Judge Posner objected in his review of the book for the New Republic , since unanimity makes each juror fully responsible for the result. It is for moral comfort that one member of a firing squad is equipped with blanks so that each one may imagine that it was not his shot that killed the criminal.

In his discussion of the medieval theology of ordeal, Whitman does not refer to the unique biblical source for the institution. This is the ceremony of the bitter water described in Numbers 5. The situation is one in which the wife, having been warned against being alone with a particular man, is witnessed with that man. The question to be resolved by drinking the water is whether she has committed adultery. If she has, the water will cause various physical symptoms; if not, she is vindicated. This example substantiates Whitman’s hypothesis about the function of the ordeal, insofar as substantial suspicion has already been established through independent testimony, and the ordeal is more likely than not to ­dissipate the suspicion and restore the marriage.

Whitman’s medieval jurists were not likely to know about postbiblical Jewish law. Yet the psychological assumptions so essential to his reconstruction would benefit from the comparison. Talmudic law encourages confession before execution, a practice that would give ­comfort to the community”even while Talmudic law totally disallows self-incriminating testimony. In ­general, the bar of evidence in blood cases is extraordinarily, almost impossibly high, permitting disqualification for minor discrepancies. Judges who have handed down a capital verdict in the face of these restrictions are required to fast. The death penalty requires more than a simple majority but less than a supermajority. This is explicitly justified as a bias in favor of leniency. Here we have a religious juridical system sensitive to the questions raised by Whitman but dealing with them in significantly different ways.

The medieval developments traced by Whitman are also contemporaneous with a little-investigated tendency of rabbis, particularly in France and Germany, to recuse themselves from judgment, claiming inability to reach a verdict. This ­phenomenon may reflect Jewish powerlessness; it may also represent an interesting parallel to the religious trepidations among Christian judges.

Examining Whitman’s conclusion that the standard of reasonable doubt is outmoded in contemporary law, I would distinguish two lines of thought. First, Whitman suggests that reasonable doubt emerged from theological concerns that are no longer pertinent today; we are not worried about the responsibility of judges and witnesses but about the rights of defendants. Even if we leave aside the survival into the twenty-first century of numerous religious individuals, this commits a version of the genetic fallacy: The fact that an institution evolved in one setting does not mean that it cannot serve a purpose in a different setting. As Posner argues, reasonable doubt, whatever its origins, functions to tilt the scales in criminal trials to the side of leniency. Moreover, if Whitman is right and we have moved to a procedure of justice whose primary aim is exhausted by the discovery of facts, this would be an argument for scrapping the jury system entirely in favor of investigative work”rather than an argument against reasonable doubt.

Whitman is also troubled by an epistemological problem. When exactly is a doubt reasonable? In the original context of the doctrine, judges and juries were anxious because even an unconvincing irrational doubt could cause them to fear for the safety of their souls. The ­standard of reasonable doubt assured them that such doubts could be ­dismissed.

In today’s secular context (where, Whitman believes, such anxieties are not integral to the legal-­justice system), jury members told to consider whether they are plagued by reasonable doubt about the defendant’s guilt are liable to be confounded by the instruction. For that matter, the judge whose job it is to explain the rule cannot make sense of it either. In effect, according to Whitman, the jury is required to employ a standard its members simply cannot ­understand.

To the extent that this point is valid, it has implications for areas outside the law. Whitman cites, in passing, intriguing scholarship on early-modern doubt that should give pause to philosophers who discuss the idea of doubt independent of its historical context in law and religion and science, as if Descartes and company operated in a social and intellectual vacuum.

A supporter of the legal status quo might say that the standard of ­reasonable doubt may succeed in forcing the jury to hesitate before it convicts, even though the jury is ­puzzled by the meaning of the ­doctrine. Nonetheless, there is reason to fear that such a rule would often be applied inconsistently and even ­arbitrarily. The desire for uniform verdicts would militate for a formula less deficient in lucidity.

Whatever one concludes about the historical theses championed by Whitman and their contemporary relevance, this exciting volume demonstrates beyond a reasonable doubt that the history of law is too important and too interesting to remain the exclusive province of specialists in the field.

Shalom Carmy is chair of Bible and Jewish Philosophy at Yeshiva College and editor of Tradition, the theological journal of the Rabbinical Council of America.

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