In evaluating these statements it is necessary to consider three areas of discussion. Broadly, these are the very nature of rationality, the extent to which Medieval people were irrational, and finally the ultimate fate of the ordeals themselves.
Twining extends this argument. He readily supports Damaska's contention that "our separation of fact and law &hellipsis; is more of a rationalist aspiration than a decision-making reality"[9], questioning whether we have indeed transcended the rational-irrational dichotomy. He suggests that the factors that determine the rationality or otherwise are necessarily subjective in relation to given culture. 'Stories' and 'generalisations' create a 'stock of knowledge' which will vary from culture to culture and epoch to epoch. This stock will determine what is epistemologically acceptable; what can be regarded as fact and what cannot. He suggests that generalisations act as a 'glue' holding different stages of inferential reasoning together, whilst stories provide the justification for the transition from one step to the next. In the case of ordeal by hot iron, the story would be derived from accounts of the miracles of the saints. The generalisation would be that God will protect those that He favours; He favours those that are innocent. These considerations arise from the shared experience of a given group of people, and are only true for that group. This would suggest that our predecessors think in a way that is both qualitatively and quantitatively different from our own. So even if Medieval people had our 'rational' modes of proof, would they have come to the same conclusions that we would? Twining would probably doubt it.
Such discourse about the culturally determined nature of evidence is not restricted to historical examples. The debate, however, has changed from epistemology to more structural considerations. Langbein provides a fascinating comparison between contemporary legal cultures in his refutation of Chase's article[10] [11]. Both authors agree that cultural factors affect legal process, but approach this issue from opposing sides. Chase's thesis is that for "individualistic Americans", German civil procedure would entail a "poor cultural fit". We find ourselves agreeing with Langbein's critique of Chase's article; too many of the cultural considerations he raises are not uniquely German, nor is culture as atomistic as Chase proposes.
Rebecca Colman concurs and asserts that it is "our own arrogance which hinders understanding" of past practices resulting in our perception of them being 'irrational'[15]. She states that a deeper look at evidence shows that there is a line to be taken contrary to the traditional approach described above by van Caenegem and Lupoi. She carries on "[b]ecause the modern imagination finds it difficult to conceive of transcendental appeals which allegedly produced physical results, there is a natural tendency to dismiss ordeals as incomprehensible superstition and to rationalise the other forms of proof to such an extent as to miss a crucial part of their significance."[16] Practices are condemned as irrational today because they are based on "values that we do not share"[17]. Colman, Diamond and Damaska all, therefore, draw the reader's attention to the proposition that Medieval people were more aware of the supernatural and religious visions than people in today's world are. It is submitted that modern society tries to rationalise using science and the laws of nature as ways of expressing known limitations in understanding, whereas, in the past, limitations were recognised in terms of the perceived parameters set by God.
Susan Reynolds also contests the traditional view on the 'irrationality' of practices in Medieval law[18]. Although she does not go as far as Diamond and Damaska to question what the terms 'rational' and 'irrational' mean, she does attribute the same socio-cultural relativist perspective to their definitions. She begins by asserting an alternative to the traditional view that "early law was rigid, formalist, and essentially irrational"[19] by articulating the more recent view that, "on the contrary, [early law] was often very flexible"[20]. Boundaries were blurred "between morality and law &hellipsis; principle [and] illustration, law [and] fact"[21]; whilst this may be viewed as irrational by legal historians, to non-legal historians it looks like everyday life which "may be quite rational, in the sense that it is conducted by people who are applying human intelligence to the solution of problems, arguing about right and wrong, citing precedents, and comparing cases"[22].
Reynolds asserts that although judgments were given determining the issues to be proved and the proof-finding method (e.g. ordeal) to be utilised, the judgment itself was sometimes definitive; thus dispensing with the need to resort to a supernatural proof-finding practice[23]. Also, even where proof-finding practices were used, the judgment which led to their use emerged from a rational deliberation on fact and law relevant to the case, for example, examination of witnesses, charters, or submitted pleas[24]. Furthermore, although "trial by battle and trial by ordeal were irrational"[25], and fact and law were confused, she maintains that "it is quite wrong to allow either these confusions &hellipsis; or the apparent irrationality of some of the methods of proof to cast a pall of irrationality over the whole procedure."[26] Colman adds that the proof-seeking methods in question have a rational basis simply due to the fact that contemporaries believed in their effectiveness. She submits, as evidence, that often individuals would offer to undergo an ordeal after a jury-type trial, when they felt that they had not been treated justly because of their strong belief in Divine justice[27].
On a more radical note, Damaska calls into question the rationality of modern practices in the law of evidence. He asserts that 'imaginary facts' should not be allowed to enter objective proof-finding methods, and suggests that modern practices such as psycho-analytical findings "may someday soon be accorded a 'fantasist' status"[28]. "Today's truths, tomorrow's superstitions"[29], he concludes on the point. Such practices give the same outward signs of truth that the ordeals gave to peoples in earlier times. Whilst this may be true of psycho-analytical findings, being based, as they are on an inexact science, one would assume that the same charge could not be levelled at DNA evidence which is altogether more exact. Colman highlights the practice, of oath-swearing, or compurgation, where little attempt was made to investigate facts and circumstances in cases, but the evidence of those having close-knit ties to 'defendants' was used in an authoritative and deliberative sense to resolve the case. Such practices were only possible because of the rigid social structure of Medieval communities; the weight accorded to an oath in a case depended upon the ranking of the person giving it. To further Damaska's argument, it is submitted that psycho-analytical findings and the like used today are analogous to oaths given by persons who would not have been present at the time of a crime or a civil wrong; as analysts make subsequent value-based judgments on events.
In concluding this section, it is suggested that the approaches taken by Damaska, Diamond, Reynolds and Colman give a fuller picture by challenging the traditional notions of rational and irrational. To omit this discussion may "lead to superficial judgments"[30] and conclusions.
Van Caenegem writes that the systems in place in the later Middle Ages are distinctly different from the earlier period, although with the qualification that "irrational methods of proof did not disappear from one day to the next without leaving traces in the era of more highly developed law"[33]. This can clearly be seen in England where 'ducking' or the ordeal by cold water were still being used in witchcraft trials in the sixteenth century. Although stating this, he adds that the earlier and later proof-finding systems can be examined distinctly, rather than as an 'indecipherable jumble' of methods used at the same time. However, perhaps van Caenegem should take into account the viewpoint of Reynolds. For, although she agrees with him that traditional practices were still present within modern jurisprudence, she looks at the inversion of this stance. That is, 'rationality' already existed in the Medieval system, for "there was plenty of serious argument in tenth- and eleventh-century litigation"[34]. Also, in rejecting Ruffini's[35] depiction of Medieval reluctance to count votes for the election of town governments as "reverence for some 'myth of unanimity' &hellip"[36], and instead explaining this reluctance as "[acknowledgement of] the same need for consensus that, in certain circumstances, besets modern councils and committees"[37], she illustrates her argument that there was "no rational room, or the need for a concept of corporations in thirteenth-century jurisprudence"[38].
Furthermore, although we submit that van Caenegem's examination of the proof-finding systems in a distinct manner would be a more straight-forward approach, to do so would be an over-simplification and would take the methods out of their context in time. A more plausible and accurate analysis could perhaps be attained by using the 'organic' or 'evolutionary' growth model as expounded by Berman[39]. He suggests that it is the Roman Catholic Church which holds the key to the change over a period of time. However, we are faced with a problem. Van Caenegem's method of analysis takes the events out of their legal-historical context but examines a variety of causal reasons for the demise of the ordeal. Berman's 'evolutionary' analysis concentrates too greatly on a single factor and indeed we submit that it is somewhat naïaut;ve to believe that the influence of the Church was the sole or even main reason behind the change in Medieval Europe. The synthesis of the two then, as used by Diamond and Colman, examines the ecclesiastical, the socio-economic and the cultural reasons for the development. Colman believes that to give as complete a picture as possible, one has to consider all elements in Medieval judicial procedures as "a sustaining tension between cognitive and effective process … which form constituent parts of one [single] system"[40] evidence of which, she adds, can still be determined in modern practices, not only in the legal field, but in many aspects of life.
Van Caenegem regards, in some detail the 'critical age' for 'irrational' methods of proof; the rising agitation felt towards them by the public, the lawyers and the many exemptions awarded to townspeople to unilateral ordeals. Indeed, van Caenegem finds it impossible to attribute the change to a single causal factor. A similar picture is also painted by Diamond although using the different method of analysis.
Diamond's analysis, in fact, adds the argument that as the Middle Ages progressed, so did the level of literacy and understanding amongst the general population. This led to a rediscovery of Roman legal practices where trials by ordeal were not recognised until the subsuming of the Germanic tribes in the latter stages of the Roman Empire. The increasing levels of literacy and the 'joining-up' of legal systems within respective nations, we submit, sounded the death-knell for the various 'irrational' methods of proof. Such views are shared by Lupoi, who recognises that ecclesiasts realised that even in oath-swearing, there was room for fraud through the form of perjury as well as the practice of tempting God, rather than simply asking Him to make a divine intervention[41]. Van Caenegem notes that, as the understanding of the workings of the human body increased during the period, criticism could be levelled towards the unilateral trials; an individual with calloused hands of feet would be more likely to be successful in an ordeal involving the hot iron or hot coals than a person without[42].
In the same way that Diamond acknowledges a growth in literacy and understanding, Reynolds asserts a growth in intellectualism. For "the academic study of law lifted the whole subject to a new intellectual plane"[43]. However, in contrast to Diamond, who views the growth of literacy and understanding as the means by which "irrational" methods of proof were superseded, Reynolds perceives the growth of intellectualism as the means by which "the old supremacy of unlearned, collective judgment"[44] (i.e. not 'irrational' judgment) was threatened. Furthermore, unlike Berman who focuses on the ecclesiastical influence on the change from old to new legal procedure, Reynolds asserts that these changes "may have come as much, or more, from the demand of governments"[45], than from new intellectual thought, including that of the Church. For, when Kings employed lawyers to argue their cases, and clerks to record the results, "products of literacy, lists and accounts, and the habits of mind they engendered had a more immediate impact on lay society"[46]. It is rather bizarre that Reynolds seems to forget the huge impact that the prohibition issued by the Fourth Lateran Council had on the transition from old legal methods to new legal methods.
We submit that although one can disagree with van Caenegem's method of analysis, his conclusions are very cogently argued and one finds it hard to disagree with them on the most part. He points out that although the practices in question were common throughout Europe, the pace of development was very different from nation to nation. Indeed, he states "… European history … is fundamentally a whole but extremely varied in detail."[47] The reasons he attributes for the divergence in timing are the personal whims of monarchs, principalities and cities in the larger states of Europe. Diamond concurs with this and adds, to a much greater extent than van Caenegem, the role of the Church and its subsequent refusal to recognise the legitimacy of the 'irrational' methods of proof. It is submitted that Berman's view that the Church was the key player in development of proof systems is insufficient.
Given the three-pillared system of feudal society, the other entity that could have effected the development of proof systems would be the nobility in general and the rulers in particular. Evans-Jones suggests that Germanic customary, ordeal-based law is to the benefit of small, geographically distinct principalities, such as those found in the early Medieval times[48]. As societies grow, it becomes harder to enforce such culturally-relative standards of justice. One therefore requires an absolute standard: spreading outwards from Bologna and the various Italian city states came Roman law. Ewald stresses the almost-timeless quality of Roman law; he emphasises "the extraordinary persistence, into the present day, of rules that were first struck upon by a leisured class of slave-holding Italian aristocrats—men … who have been dead for nearly two thousand years"[49]; that "the very same rules of contract can operate in the worlds of Julius Caesar … and of the twentieth-century welfare state". This legal tool-set is optimised not for petty princes, but for kingdoms and empires. Although he does not address the question directly, one suspects that Evans-Jones would regard the decline of ordeal-based justice as linked with the resurgence and rediscovery of Roman law.
The only real conclusion that one can draw from our research in this area is somewhat unsatisfying; that numerous factors were involved, some with more prominence than others. One suspects that the point at which trial by ordeal truly died out is an essentially contested fact.