1. Whitehead, Alfred North. Science and the Modern World 1 (Cambridge U. Press 1953) (criticizing this view)Google Scholar.

2. Robertson, William. The History of the Reign of the Emperor Charles V, vol. 1, 59 (Phillips, Sampson, & Co. 1859)Google Scholar. Vestiges of this view can still be found in recent writings. Plucknett said thai the ordeal “can only be described as irrational.” Plucknett, T.F.T.. Edward I and Criminal Law 69 (Cambridge U. Press 1960)Google Scholar and that “[t]here was nothing rational about it; merely the physical reactions of a material object …. How that result was reached nobody knew, and nobody very much cared.” Id. at 74. Similarly, Van Caenegem found the most striking feature of medieval methods of proof to be their “irrational character.” He noted that they involve:

recourse to invisible forces or to one or more deities, … [and the] renunciation of the reasoned investigation and of the critical examination of evidence and information that the judge could assemble and the rational mind could analyze.

Caenegem, R.C. Van, Methods of Proof in Western Medieval Law. in Legal Histoty: A European Perspective 71, 73 (Hambledon Press 1991)Google Scholar.

3. Leading proponents include Colman, Rebecca V.. Reason and Unreason in Early-Medieval Law, 4 J. Interdisciplinary Hist. 571 (1974)CrossRefGoogle Scholar; Brown, Peter. Society and the Supernatural: A Medieval Change, 104 Daedalus 133 (1975)Google Scholar; and Hyams, Paul R., Trial by Ordeal: The Key to Proof in the Early Common Law. in On the Laws and Customs of England—Essays in Honor of Samuel E. Thorne 90 (Arnold, Morris S.et al. eds., U.N.C. Press 1981)Google Scholar.

4. Han v. Lancashire & Yorkshire Railway Co., 21 L. Times Rep. 261, 263 (1869)Google Scholar.

5. As noted by Baker, J.H.. An Introduction to English Legal History 7 (3d ed.. Butterworths 1990)Google Scholar; and Pilarczyk, Ian C.. Between a Rock and a Hoi Place: Issues of Subjectivity and Rationality in the Medieval Ordeal by Hot Iron, 25 Anglo-Am. L. Rev. 87, 109 (1996)Google Scholar.

6. The significance of the differences is stressed by Palmer, Robert C.. Trial by Ordeal, 87 Mich. L. Rev. 1547, 1548 (1989)CrossRefGoogle Scholar.

7. Olson, Trisha. Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial, 50 Syracuse L. Rev. 109, 119–120 (2000)Google Scholar. Cf. Kirsch, J.P., Ordeals, in Catholic Ency. v. II. 276. 278 (Herbermann, Charles G.et al. eds., The Encyclopedia Press 1913)Google Scholar (suggesting that a trial by oath is “a means of establishing the truth, accompanied by a solemn calling upon God, but which is not in any sense a judgment of God”).

8. Hence the maxim ex facto oritur ins: “law is derived from a fact.” Radin, Max, Ex Facto lus: Ex lure Factum, in Interpretations of Modern Legal Philosophies—Essays in Honour of Roscoe Pound 578, 582 (Sayre, Paul ed., Oxford U. Press 1947)Google Scholar. Or, more accurately: per factum cognoscitur ius: “by means of a fact, we recognize (or we know) the law.” Id. at 583.

9. An example, much discussed by legal anthropologists, of a form of adjudication that is not fact-based is the Eskimo song contest. See e.g. Gluckman, Max, Politics, Law and Ritual in Tribal Society 303–313 (Aldine Pub. Co. 1965)Google Scholar.

10. See Rawls, John, Theoty of Justice 75 (Belknap Press 1999)Google Scholar.

11. Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam. 147, 203 (Eng. C.A.): “The law cannot say. ‘Heads I win, tails you lose.’” Much fun was made of Judge Bridlegoose's use of this method of deciding cases in François Rabelais' sixteenth century comic novel Gargantua and Pantagruel 354–355, 356–357 (Raffel, Burton trans., W.W. Norton & Co. 1990)Google Scholar. But this option is perhaps not as absurd as it seems: Duxbury, Neil, Random Justice—On Lotteries and Legal Decision-Making especially ch. 5 (Clarendon Press 1999)CrossRefGoogle Scholar.

12. Originally, the

Greeks and the Romans … regarded the world as partly determined by chance [but the] … situation was radically changed by Christianity. For the early fathers of the Church the finger of God was everywhere. Some causes were overt and some were hidden, but nothing happened without cause. In that sense nothing was random and there was no chance.

Kendall, M.G.. The Beginnings of a Probability Calculus, 43 Biometrika 1.11 (06 1956)CrossRefGoogle Scholar.

13. Damaška, Mirjan, Rational and Irrational Proof Revisited, 5 Cardozo J. Intl. & Comp. L. 25, 25–29 (1997)Google Scholar. Adjudication proceeded on the basis of “folklaw,” (Berman, Harold J., Law and Revolution—The Formation of the Western Legal Tradition ch. 1 (Harv. U. Press 1983)Google Scholar, of “custom and wise counsel.” Baker, supra n. 5. at 1; see Arnold, Morris S., Law and Fact in the Medieval Jury Trial: Out of Sight. Out of Mind, 18 Am. J. Legal Hist. 267. 278–280 (1974)CrossRefGoogle Scholar. and of broad ideas of right and wrong, of what conduct desen es punishment, Colman, supra n. 3, at 580; Vinogradoff, Paul, Villainage in England—Essays in English Mediaeval History 377 (Clarendon Press 1892)Google Scholar; and Milsom, S.F.C., Historical Foundations of the Common Law 39 (2d ed., Butterworths 1981)Google Scholar (“In the whole process the only substantive rules visibly at work are those implicit in the canon of acceptable claims.”). There was not then “Law” in the developed sense of a logical system of rules operating on clearly defined and categorized fact-situations. As Milsom argues, “legal development consists in the increasingly detailed consideration of facts” and “the limit at any time is the extent to which the legal process presents the facts for legal handling.” Milsom, S.F.C., Law and Fact in Legal Development, 27 U. Toronto L. J. I, 1 (1967)Google Scholar. On a similar theme see Strayer, Joseph R., The writ of Novel Disseisin in Normandy at the End of the Thirteenth Century, in Medieval Statecraft and The Perspectives of History 3 (Princeton U. Press 1971)Google Scholar.

14. Berman, supra n. 13, at 59.

15. Bigelow, Melville Madison, History of Procedure in England from the Norman Conquest ch. VIII (MacMillan 1880)Google Scholar. The medial judgment determined “not only what the trial should be. but how it should be conducted and when, and what the consequences should be of this or that result.” See Thayer, James Bradley. A Preliminary Treatise on Evidence at the Common Law 9 (Rothman Reprints 1969) (originally published 1898)Google Scholar.

16. Holdsworth, William, A History of English Law vol. 1. 311 (Goodhart, A.L. & Hanbury, H.G. eds., 7th ed., Metheun & Co. 1971)Google Scholar.

17. Laughlin, J. Laurence, The Anglo-Saxon Legal Procedure, in Essays in Anglo-Saxon Law 183 (Little, Brown, & Co. 1876)Google Scholar; Maitland, F.W., The Forms of Action at Common Law—A Course of Lectures 15 (Cambridge U. Press 1936)Google Scholar; and Baker, supra n. 5, at 6.

18. See Pollock, Frederick, English Law Before the Norman Conquest, 14 L. Q. Rev. 291, 294 (1898)Google Scholar; Holdsworth. supra n. 16. at 300: and Lea, Henry C., Superstition and Force: Torture. Ordeal, and Trial by Combat in Medieval Law 81 (Barnes & Noble Books 1996) (originally published 1870)Google Scholar.

19. Whitelock, Dorothy, English Historical Documents: 500-1042 vol. 1, 335 (gen, David C. Douglas. ed., Oxford U. Press 1955)Google Scholar; Damaška, supra n. 13, at 26; Rheinstein, Max, Max Weber on Law in Economy and Society 227 (Harv. U. Press 1954)Google Scholar: and Lea, supra n. 18, at 55.

20. Olson, supra n. 7, at 123.

21. Thayer, supra n. 15. at 25; Helmholz, R.H., Crime. Compurgation and the Courts of the Medieval Church, 1 L. & Hist. Rev. 1. 13 (1983)Google Scholar.

22. Laughlin, supra n. 17, at 297. See Forsyth, William. History of Trial by Jury 62 (2d ed., Morgan, James Appleton ed., James Cockcroft & Co., 1875)Google Scholar; and Windeyer, W.J.V., Lectures on Legal History 12 (2d ed., Ambassador Press 1957)Google Scholar.

23. Van Caenegem, supra n. 2, at 77; and Rowley, Scott, The Competency of Witnesses, 24 Iowa L. Rev. 482, 485 (1939)Google Scholar.

24. Green, Richard Firth, A Crisis of Truth—Literature and Law in Ricardian England ch. 1. 101–102 (U. Pa. Press 1999)Google Scholar.

25. Milsom, Historical Foundations of the Common Law, supra n. 13, at 39.

26. Milsom, S.F.C., The Legal Framework of English Feudalism 76 (Cambridge U. Press 1976)CrossRefGoogle Scholar. The pre-battle procedure of accusal and denial is well captured in medieval literature. See e.g. Bloch, R. Howard, Medieval French Literature and Law ch. 1. especially at 29 (U. Ca. Press 1977)Google Scholar.

27. Bloch, supra n. 26, at 46.

28. See Hyams. supra n. 3. at 111: “God proclaims a man's guilt or innocence of a particular act in the course of a judgment on the whole man and his soul,” Id.

29. Green, supra n. 24, at 110:

[T]o those small-scale societies which favour the kind of flexible face-to-face justice in which honor and personal reputation are intimately bound up with innocence and guilt, the kind of dispassionate inquiry into fact which we believe to constitute a higher form of jurisprudence will often seem equally repugnant. Id.

30. Kirsch, supra n. 7, at 277 (“Only English books of ritual of the later Middle Ages contain a formula for the blessing of the shield and the sword for use in the judicial duel: otherwise, no medieval Ritual contains prayers for these ordeals, a proof that they were not looked upon favourably by the Church.”).

31. Southern, R.W., The Making of the Middle Ages 96 (Yale U. Press 1959)Google Scholar; and Rollason, D.W., Two Anglo-Saxon Rituals: Church Dedication and the Judicial Ordeal 14–15 (U. Leicester 1988)Google Scholar.

32. That the ordeal by fire and by water went into rapid decline is supported by Bartlett, Robert, Trial by Fire and Waler—The Medieval Judicial Ordeal 70, 100 (Clarendon Press 1986)Google Scholar; and Baldwin, John W.. The Crisis of the Ordeal: Literature, Law, and Religion Around 1200, 24 J. Medieval & Renaissance Stud. 327, 353 (1994)Google Scholar. But cf. Brown, supra n. 3, at 140 (suggesting that the decline of the ordeal was gradual rather than sudden). On the Church's effort to eradicate judicial duels see Neilson, George, Trial by Combat 12–15 (William Hodge 1890)Google Scholar. “Since the clergy did not participate in [a judicial duel] at all, or only in a very limited capacity, the prohibition of the Fourth Lateran Council did not affect it in the same way as it did the ordeals by fire and water.” Van Caenegem, supra n. 2, at 89. See Baldwin, supra n. 32. at 348. In England, the trial by combat lasted until 1819 (although, by the thirteenth century, the award of this mode of proof was very rare in civil cases, Galbraith, V.H., The Death of a Champion, in Kings and Chroniclers—Essays in English Medieval History 283, 283 (Hambledon Press 1982))Google Scholar, and the wager of law was abolished only in 1833. See Maitland, supra n. 17. at 17.

33. See Hoebel, E. Adamson, The Law of Primitive Man—A Study in Comparative Legal Dynamics 258 (Harv. U. Press 1954)Google Scholar (making the general point that religion was not the source of law, as such, in primitive societies even though it had great influence on law and within legal institutions).

34. See e.g. ch. 6 of the code issued by King Aethelred at Wantage (980-1016), ch. 23 of the dooms issued by King Aethelstan at Grately, Hampshire (924-939). and an anonymous decree, dating probably from the time of King Aethelstan. as translated, respectively, in Sources of English Constitutional Histoiy vol. 1, 21, 15, 16 (Stephenson, Carl & Marcham, Frederick George trans. & eds., rev. ed., Harper & Row 1972)Google Scholar.

35. The term “trial” is used loosely. Some prefer that the term “proof” be used rather than “trial” as the latter is a relatively modern concept. Thayer, supra n. 15, at 16; and Pollock, Frederick & Maitland, Frederic William, The History of English Law Before the Time of Edward I vol. 2, 596 (2d ed., Cambridge U. Press 1923)Google Scholar.

36. See e.g. Bloch, supra n. 26. at 46-47. describing the “preciseness of procedural detail surrounding the duel.”

37. Whitelock. supra n. 19, at 336.

38. Lea, supra n. 18, at 24. notes the “intense veneration with which relics were regarded.”

39. Hyams, supra n. 3, at 110.

40. Morris, Colin, Judicium Dei: The Social and Political Significance of the Ordeal in the Eleventh Century, 12 Stud. Church Hist. 95, 100 (1975)CrossRefGoogle Scholar.

41. Brown, supra n. 3, at 138. Useful discussion of the preparation process can also be found in Bigelow, supra n. 15, at 325-326; and The Laws of the Earliest English Kings 187–188 (Attenborough, F.L. trans. & ed., Russell & Russell 1963)Google Scholar. The procedure is specified in some medieval laws. See e.g. ch. 23 of the laws laid down by King Aethelstan at Grately (924-939);

If any one is obliged to [go to] the ordeal, he shall come three days in advance to the priest in charge of the consecration; and before he does so. he shall feed himself on bread, water, salt and herbs; and on each of the three days he shall attend mass; and on the day he undergoes the ordeal he shall make an offering and take communion: and then, before he goes to the ordeal, he shall swear an oath that, according to folkright. he is innocent of the charge made against him.

Stephenson & Marcham, supra n. 34, at 15.

42. On the technicalities in the computing of the number and size of oaths, see Whitelock. supra n. 19. at 335-336; and Lea, supra n. 18. at 38:

It would be endless to specify all the variations in the numbers required by the different codes in all imaginable cases of quarrel between every class of society …. Numerous elements entered into this: the nature of the crime or claim, the station of the parties, the rank of the compurgators, and the mode by which they were selected.

43. Rheinstein, supra n. 19, at 227. See Rowley, supra n. 23, at 485 (“Formalism had become so strongly entrenched that form was the all-in-all, the ne plus ultra.”).

44. Pollock & Maitland. supra n. 35. at 601.

45. Thayer, supra n. 15, at 8.

46. Davies, Wendy, Local Participation and Legal Ritual in Early Medieval Law Courts, in The Moral World of the Law 48, 54 (Coss, Peter ed., Cambridge U. Press 2000)Google Scholar.

47. Pollock, supra n. 18, at 294. Similarly, Bigelow, supra n. 15, at 304, observed “A single mistake in repeating the formula, whether made by the principal or by any of the compurgators, was fatal to the party's case.”

48. Lea. supra n. 18. at 69.

49. Neilson. supra n. 32, at 5 (“some of the oaths of the early middle ages are distinguished by an ingenuity of imprecation entitling them to high rank as works of imagination”).

50. See the Anglo-Saxon oath formulae in Yelle, Robert A.. Poetic Justice: Rhetoric in Hindu Ordeals and Legal Formulas, 32 Religion 259, 265 (2002)CrossRefGoogle Scholar; and Stephenson & Marcham. supra n. 34, at 25. See Berman, supra n. 13, at 58.

51. Drew, Katherine Fischer, The Laws of the Saltan Franks—Translated and with an Introduction by Katherine Fischer Drew 34 (U. Pa. Press 1991)Google Scholar.

52. Beckerman, John S., Procedural Innovation anil Institutional Change in Medieval English Manorial Courts, 10 L. & Hist. Rev. 197, 204 (1992)Google Scholar. See Green, supra n. 24, at 100-101.

53. Pollack & Maitland, supra n. 35, at 601; and Moore, Lloyd E., The Jury: Tool of Kings—Palladium of Liberty 28 (W.H. Anderson Co. 1973)Google Scholar.

54. Baldwin, John W., The Intellectual Preparation for the Canon of 1215 Against Ordeals, 36 Speculum 613, 629 (1961)CrossRefGoogle Scholar.

55. Colman, supra n. 3, at 589. Cf. Morris, supra n. 40, at 98: “It seems that there were conventions about how long the iron and the water should be heated, and although hot. they were not impossibly so.”

56. Brown, supra n. 3, at 139. But cf. Radding, Charles M., Superstition to Science: Nature, Fortune, and the Passing of the Medieval Ordeal, 84 Am. Hist. Rev. 945, 949 (1979)CrossRefGoogle Scholar (“Early medieval courts do not seem to have fallen into disagreement when pronouncing the judgment of God. or, if they did, the disputes have not come down to us.”).

57. For peoples unused to “hygiene and disinfectants,” a completely “clean” burn was perhaps inconceivable; “any bum must to an extent have been festering: the question was whether the suppuration was sufficient to show the accused's guilt, and that can only have been a human decision.” Rollason, supra n. 31, at 16.

58. Green, supra n. 24, at 108.

59. Colman, supra n. 3, at 573.

60. Lea, supra n. 18, at 34. See id. at 57.

61. Helmholz, supra n. 21. at 21-24 (making this point in the context of canonical purgation in Church courts).

62. This was true of both a “criminal” and a “civil” case. The former was treated as much as a private dispute as the latter. See Lea, supra n. 18, at 14-15. (“The idea that crime is an offence against society at large found little place in the conceptions of the barbarian law-givers …. The criminal was not responsible to the State, but to the injured party.”).

63. Bloomfield, Morton W., Beowulf, Byrhtnoth, and the Judgment of God: Trial by Combat in Anglo-Saxon England, 44 Speculum 545, 551 (1969)CrossRefGoogle Scholar. “[S]evere fines were levied for false accusation.” Lyon, Bryce, A Constitutional and Legal Historv of Medieval England 100 (2d ed., W.W. Norton & Co. 1980)Google Scholar.

64. Hyams, supra n. 3, at 96.

65. Windeyer, supra n. 22, at 13.

66. Caenegem, R.C. Van. The Birth of the English Common Law 66 (Cambridge U. Press 1973)Google Scholar.

67. See supra text accompanying nn. 47-52.

68. Berman, supra n. 13. at 61.

69. Many were disqualified from being an oath-helper, including a “person who had been excommunicated, who was a fugitive from justice, who had sworn a false oath, who had suffered any shameful corporal punishment. … who was under age, deaf, mute, a leper exiled from the community, or notorious in any other way.” Beckerman, supra n. 52, at 205.

70. Pollock & Maitland, supra n. 35, at 600.

71. An instance of failure is discussed in Lea, supra n. 18, at 35.

72. Whitelock, supra n. 19. at 335.

73. Bigelow. supra n. 15, at 322.

74. Baker, supra n. 5, at 5.

75. Diamond, A.S., Primitive Law—Past and Present 299–300 (Methuen & Co. 1971)Google Scholar; Bigelow, supra n. 15, at 322; and Bartlett, supra n. 32, at 33.

76. Thayer, supra n. 15, at 36.

77. That ordeals were used only as a last resort, see Laughlin. supra n. 17, at 188; Bartlett. supra n. 32, at 25-27. 28, 29; Lea, supra n. 18. at 583: and Watson, Alan, Curses, Oaths, Ordeals and Trials of Animals, 1 Edinburgh L. Rev. 420 (1997)CrossRefGoogle Scholar.

78. See Miller, William Ian, Ordeal In Iceland, 60 Scan. Stud. 189, 211 (1988)Google Scholar (“a party might demand the ordeal simply to have a public display of the other party acting humbly”)

79. Robertson, supra n. 2. at 48; and Brown, supra n. 3. at 138.

80. As a matter of fact, the rate of settlement was high. Milsom. supra n. 13. at 39: and Van Caenegem, supra n. 2, at 76.

81. White, Stephen D.. Proposing the Ordeal and Avoiding It: Strategy and Power in Western French Litigation 1050-1110. in Cultures of Power: Lordship, Status, and Process in Twelfth Century Europe 89 (Bisson, Thomas N. ed., U. Pa. Press 1995)Google Scholar.

82. Id. at 113.

83. Rollason, supra n. 31, at 16.

84. “Judicial ordeals are … structurally equivalent to the practice of bringing in an outsider, or manipulating a specialist, to put forward a solution for which the existing decision-makers feel unable publicly to take responsibility.” Tonkin, Elizabeth, Autonomous Judges: African Ordeals as Dramas of Power, 65 Ethnos 366, 377 (2000)CrossRefGoogle Scholar.

85. See Roberts, John M., Oaths, Autonomic Ordeals, and Power, 67 Am. Anthropologist 186, 209 (1965)Google Scholar. But cf. White, supra n. 81. at 96 (arguing that a trial by ordeal, instead of “injecting certainty into an otherwise unpredictable disputing process by insuring that the case would be decided by God's judgment.” “might only intensify the uncertainties of litigation”).

86. Brown, supra n. 3. at 138.

87. Id.

88. Van Caenegem. supra n. 2, at 75-76 (1990). See Holdsworth, supra n. 16. at 310-311 (“Between 1201 and 1219 Maitland has found only one case in which [the fire ordeal] did not acquit the accused”); and Kerr, Margaret H., Forsyth, Richard D. & Plyley, Michael J., Cold Water and Hot Iron: Trial by Ordeal in England, 22 J. Interdisciplinary Hist. 573, 589 (1992)Google Scholar (in each of the three cases the authors found in the English court rolls the proband was successful).

89. According to Pollock & Maitland. supra n. 35. at 599; “Such evidence as we have seems to show that the ordeal of hot iron was so arranged as to give the accused a considerable chance of escape.” See Scott, George Riley, A History of Torture 228 (Bracken Books 1994) (1940)Google Scholar (“The fact that so many people proved their innocence by appealing to this form of ordeal and escaping without burns, suggests either knowledge of some method of protecting the skin … or collusion between the accused and the officiating priest.”).

90. Baker, supra n. 5, at 6. See Pilarczyk, supra n. 5, at 109 (“The historical evidence of verdicts being returned against impossible odds and the frequency of judicial tampering show that the community could ensure that the desired result occurred.”).

91. Kerr. Forsyth & Plyley. supra n. 88. at 586-587.

92. Id. at 580-581.

93. Id. at 594.

94. Id. at 588.

95. Id. at 594.

96. ld. at 594-595. The ordeal could equally be used as an instrument of oppression. See e.g. the incident recorded in Ephraim ben Jacob (1132 to around 1200). A Book of Historical Records. reproduced in Marcus, Jacob R, The Jew in the Medieval World, a Source Book 315-1791, at 127–128 (Union Am. Hebrew Congregations 1938)Google Scholar. In 1171, the ordeal was used to test the truth of the witness's accusation against an innocent Jew but the “Christians arranged it in accordance with their wish so that the [accuser] floated, and they took him out and thus they declared the wicked innocent and the righteous guilty.” id. at 128.

97. The King reportedly said “What is this? God a just judge? Perish the man who afler this believes so. For the future, by this and that I swear it, answer shall be made to my judgment, not to God's, which inclines to one side or the other in answer to each man's prayer.” Eadmer's History of Recent Events in England 106 (Bosanquet, Geoffrey trans., The Cresset Press 1964)Google Scholar.

98. King Henry II made this proclamation in article 14 of the Assize of Clarendon (1166) and article 1 of the Assize of Northampton (1176). See Greenaway, George W., English Historical Documents 1042-1189 vol. 2, 409–410, 411 respectively (Douglas, David C. gen. ed., Oxford U. Press 1953)Google Scholar.

99. Of this view are Colman, supra n. 3, at 576-577: Lyon, supra n. 63, at 101: Van Caenegem, supra n. 66, at 66; Damaška, supra n. 13, at 30: and Fouracre, Paul, Conclusion, in The Settlement of Disputes in Early Medieval Europe 222 (Davies, Wendy & Fouracre, Paul eds., Cambridge U. Press 1986)Google Scholar.

100. Jillings, Lewis, Ordeal by Combat and the Rejection of Chivalry in Diu Crône, 51 Speculum 262, 264 (1976)CrossRefGoogle Scholar.

101. Roberts, supra n. 85, at 206.

102. Id. at 205: Colman, supra n. 3, at 588: and Pilarczyk. supra n. 5, at 110.

103. Robertson, supra n. 2, at 56.

104. Hyams. supra n. 3, at 110.

105. Id. at 111. Cf. White, supra n. 81, at 107-110 (suggesting that ordeal was often proposed merely as a bargaining ploy and that the “real” reason why il was abandoned was often thai the strategy failed).

106. Hyams, supra n. 3. at 11. See Van Caenegem, supra n. 66, at 66-67; and Thomas, Keith, Religion and the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth Centuiy England 260 (Penguin Books 1978)Google Scholar (“As often as not, the guilty part will break down before undergoing the test. His nerve will crack and he confesses …. [T]he system worked to some extent by sheer intimidation.”).

107. Damaška, supra n. 13, at 31.

108. See Thomas, supra n. 106, at 260.

[W]hereas some ordeals were very difficult to get through—notably the hot iron—others, like the cold water test, were almost impossible to fail. It does not seem improbable that the choice of method was often determined according to whether or not the accused was already believed to be guilty.

Many historians agree that there was considerable tampering with the procedure and ingenuity in the interpretation of the outcome. See e.g. Brown, supra n. 3, at 139-140; Colman, supra n. 3. at 589-590; Pilarczyk, supra n. 5. at 96-102: and Baldwin, supra n. 54, at 629.

109. Miller, supra n. 78, at 203.

110. Id. at 204.

111. Radding, supra n. 56, at 968.

112. Olson, supra n. 7. at 114.

113. As is observed by Colman, supra n. 3, at 586: “Faith in divine justice was a lively reality in medieval communities as public attitudes and private actions constantly attest.”

114. According to Plucknett “Where modern public opinion would insist upon a trial which was substantially fair, the mediaeval public looked rather at the procedure and inquired whether all the steps in it were properly carried out.” Plucknett, Theodore F.T., A Concise History of the Common Law 380 (5th ed., Little, Brown, & Co. 1956)Google Scholar.

115. Cf. Yelle, supra n. 50.

116. See Morris, supra n. 40, at 102; and Bloomfield, supra n. 63, at 551 (“the religious ceremonies in connection with most ordeal procedures were methods used to defeat the devil”; and “a kind of exorcistic and apopotraic element is present in all ordeal ceremonies”). According to an anthropological study:

The belief that the ritual must be carried out precisely right in order to achieve results is … a cardinal belief of the Indigenes techniques for controlling nature …. In order to have magical power, the symbolic act must be carried out precisely as it had been when effective previously.

Lidz, R.W., Lidz, T. & Burton-Bradley, B.C., Culture, Personality, and Social Structure: Cargo-Cultism—A Psychological Study of Melanesian Millenarianism, 157 J. Nervous & Mental Diseases 370, 383 (1973)Google Scholar. quoted by Radding. supra n. 56, at 955.

117. Bloch, supra n. 26, at 24-25.

118. van Engen, John, The Christian Middle Ages As An Hisioriographical Problem, 91 Am. Hist. Rev. 519. 519 (1986)CrossRefGoogle Scholar.

119. As pointed out by Kieckhefer, Richard, The Specific Rationality of Medieval Magic, 99 Am. Hist. Rev. 813, 832–833 (1994)CrossRefGoogle ScholarPubMed.

120. Murray, Alexander, Nature and Man in Middle Ages, in The Concept of Nature—The Herbert Spencer Lectures 25. 32 (Torrance, John ed., Clarendon Press 1992)Google Scholar. See Murray, Alexander, Missionaries and Magic in Dark-Age Europe, 136 Past & Present 186, 197 (08 1992)CrossRefGoogle Scholar.

121. Bartlett, supra n. 32, at 72: “early indications of scepticism are an important warning against constructing too uniform and homogeneous a picture of the mental world of the early Middle Ages. There was always doubt and dispute.”

122. Berman, supra n. 13, at 57, 59.

123. Flint, Valerie I.J., The Rise of Magic in the Early Medieval Europe 398 (Princeton U. Press 1991)Google Scholar. The process of Christianization is discussed, id. at 283-286, 397-398.

124. Bartlett, supra n. 32, at 156 (“from the sixth century until the twelfth the ordeal was Christian, for Christianity countenanced and blessed the practice, despite occasional dissentient voices”).

125. On the interpretation of the ordeal as a miracle, see Ward, Benedicta, Miracles and the Medieval Mind—Theoiy. Record and Event 1000-1215, at 18–19 (U. Pa. Press 1987)Google Scholar.

126. Van Caenegem, supra n. 2. at 74.

127. See Stephen, James Fitzjames, The Indian Evidence Act. With an Introduction on the Principles of Judicial Evidence 9 (Thacker. Spink & Co. 1872)Google Scholar.

128. On this difficulty, see Zuckerman, Adrian A. S., Law, Fad Or Justice?, 66 Boston U. L. Rev. 487, 487–494 (1986)Google Scholar. Although the orthodox view is that legal adjudication involves the application of legal rules (broadly conceived to include legal principles and standards) to facts, the detervninacy of legal rules and facts, and the degree to which legal rules “dictate” the adjudicatory outcome are questioned by modern jurisprudential writers, particularly the American Legal Realists and Critical Legal Scholars.

129. See Lewis, A.D.E., The Background 10 Bentham on Evidence, 2 Utilitas 195, 197 (1990)CrossRefGoogle Scholar.

130. “The age,” Olson observes, “depended upon its god to see beyond facts and even legal rights, and to judge according to some other, perhaps incomprehensible, measure.” Olson, supra n. 7, at 127.

131. Van Caenegem. supra n. 66. at 69 (“in the twelfth century some authors interpreted the successful ordeal of a known criminal as a measure of grace: God wanted to give the criminal another chance or to reward those who had confessed their sins to a priest and were then ‘salvati per confessionis virtutem’”).

132. See Radding, supra n. 56, at 946 (“a proband could be struck down for sins nol related to the case at issue”). A similar interpretation is made of ordeals generally by Olson, supra n. 7, at 141-142, and of judicial duel in particular by Bloomfield, supra n. 63, at 553. In a mid-eleventh century case discussed by Bartlett, supra n. 32, at 78, a man failed an ordeal even though innocent of the charge of horse-stealing because “he had shaved like a cleric rather than letting his beard grow as a layman should.”

133. Radding, supra n. 56, at 946.

134. Rom 11:33-34 (All Biblical citations are taken from the King James version.). See Job 36:26 (“God is great, and we know him not.”).

135. Bartlett, supra n. 32. at 78.

136. Van Caenegem. supra n. 2, at 84 n. 35.

137. Bartlett, supra n. 32, at 79.

138. This criticism is also made by Palmer, supra n. 6, at 1550-1552.

139. Cf. While, supra n. 81. at 96-97. suggesting an ordeal could be used for this range of purposes:

to prove a statement of “fact,” on which the judges could then base their judgment: to prove concurrently a factual statement and a normative conclusion based on that statement; to lest a disputed claim about the legal implications of an uncontested fact; and finally, to establish in more general terms which litigant had “right” on his side.

140. Cf. Olson, supra n. 7, at 174 (the ordeal is interpreted “as a penitential act of purgalion”).

141. Radding, Charles M, Evolution of Medieval Mentalities: A Cognitive-Structural Approach, 83 Am. Hist. Rev. 577, 593 (1978)CrossRefGoogle ScholarPubMed.

142. See Bartlett, supra n. 32, at 78:

[It] seems to have been increasingly prevalent in the eleventh and twelfth centuries … to claim that the guilty had been cleared because they had confessed or because God wished to give them one more chance, and that the innocent, though not guilty of the specific charge brought against them, were condemned on some other count. Id.

143. Whelan, Frederick G, Justice—Classical and Christian, 10 Political Theory 435, 449 (1982)CrossRefGoogle Scholar.

144. This opposition is noted and challenged by Johnson, Carla, Seasoning Justice, 99 Ethics 553 (1989)CrossRefGoogle Scholar.

145. Rom 3:23-24.

146. Rom 4:4-5 (“Now to him that worketh is the reward not reckoned of grace, but of debt. But to him that worketh not, but believeth on him that justifieth the ungodly, his faith is counted for righteousness.”).

147. Exod 33:19: and Rom 9:14-18.

148. Rom 8:33.

149. Anselm, Saint, Proslogion, in The Prayers and Meditations of St. Anselm 238, 249–252 (Ward, Benedicta trans., Penguin Books 1973)Google Scholar.

150. Id. at 252.

151. Saint Thomas Aquinas, Summa Theologiea. First Part, Question 21, Art. 2, in Nature and Grace—Selections from the Summa Theologica of Thomas Aquinas vol. 11, 89 (Fairweather, A.M. trans. & ed., Westminster Press 1954)Google Scholar.

152. Whelan, supra n. 143, at 450.

153. Id. at 449.

154. McCune, Pat, Justice, Mercy and Late Medieval Governance, 89 Mich. L. Rev. 1661, 1672 (1991)CrossRefGoogle Scholar.

155. Coulton, G.G., Life in the Middle Ages vol. 1, 58 (Cambridge U. Press 1928)Google Scholar.

156. Caesarius record of this event is reproduced in Coulton. id. at 73-74.

157. Id. at 73.

158. Id.

159. Galbert of Bruges. The Murder of Charles the Good, Count of Flanders 66 (Ross, James Bruce trans., Torchbooks, Harpers rev. ed. 1967) (1891)Google Scholar.

160. Id. at 282.

161. Id. at 289.

162. Id. at 288.

163. Id. at 289.

164. Id. at 288.

165. Id. at 289.

166. Id. at 71.

167. Id. at 72.

168. See Baldwin, supra n. 32. at 343-344, 351-353: Bartlett, supra n. 32, at 163-165: and Hyams, supra n. 3, at 125.

169. Baldwin, supra n. 32, at 329.

170. von Strassburg, Gottfried, Tristan, With Surviving Fragments of the Trislran of Thomas 8 (Hatto, A.T. trans., Penguin Books 1960)Google Scholar.

171. These dates are from Baldwin, supra n. 32. at 330.

172. Von Strassburg, supra n. 170, at 246.

173. As interpreted by Olson, supra n. 7, at 155.

174. Von Strassburg, supra n. 170, at 247.

175. Id. at 247.

176. Id. at 247.

177. The mercy and forgiveness bestowed on Isolde has a Biblical analogy in the famous story of Christ forgiving the adulterous woman in John 8:1-11.

178. Von Strassburg, supra n. 170, at 248.

179. Id. at 248. See York, Ernest C., Isolt's Ordeal: English Legal Customs in Medieval Tristan Legend, 68 Stud. in Philology 1 (1971)Google Scholar (historical analysis of the procedure narrated in this tale).

180. Von Strassburg, supra n. 170. at 248. Cf. Olson, supra n. 7, at 156-157.

181. Baldwin, supra n. 32, at 340.

182. Bartlett, supra n. 32. at 81. Unlike the case of the ordeals, no theological battle was fought over the Church's positions on the trial by oath and that by battle: the first was endorsed and the second not. That an oath should put “an end to all strife” would appear, from Heb 6:16. to be part of Christian teaching: “For men verily swear by the greater: and an oath for confirmation is to them an end of all strife.” As Van Caenegem notes, “the purgatory oath … was not the object of any opposition or condemnation from the Church, which had included it in its modernized legal system.” Van Caenegem, supra n. 2, at 93. The procedural similarity between the canonical purgation practiced by the Church courts and the wager of law practiced in the secular courts is noted by Helmholz, supra n. 21, at 13. The duel, on the other hand, was considered “barbarous and anti-Christian, as well as the very negation of law. and was denounced by Christian thinkers from a date coeval with the first record of its existence.” Galbraith, supra n. 32, at 287. “It is … likely that to the best medieval minds the duel was something to be ashamed of, but something from which they were unable to escape.” Id. at 288.

183. Bartlett, supra n. 32, at 88-89.

184. See the Germanic liturgical formula for the consecration to be said over the proband in the test of the cold water as translated and reproduced in Henderson, Ernest F., Select Historical Documents of the Middle Ages 314–317 (George Bell & Sons 1910) (excerpt available at <http://www.fordham.edu/halsall/source/ordealsl.html>) (accessed Oct. 14, 2004)Google Scholar (“May omnipotent God, who did order baptism to be made by water, and did grant remission of sins to men through baptism: may He. through His mercy, decree a right judgment through that water.”).

185. Kline, Meredith G., Oath and Ordeal Signs, 27 Westminster Theological J. 115, 132 (1965)Google Scholar. “The main features of the subsequent divine-river trials were all found in the judgment of the Flood: the direct revelation of divine verdict, the use of water as the ordeal element, the overpowering of the condemned and the deliverance of the justified.” Id.

186. Id. at 133.

187. ld. at 138. See Kline, Meredith G., Oath and Ordeal Signs—Second Article, 28 Westminster Theological J. I, 1–23 (1965)Google Scholar.

188. This process is traced in Bartlett. supra n. 32, at 81-90; and Baldwin, supra n. 54.

189. For “who hath first given to him, and it shall be recompensed unto him again?” Rom 11:35.

190. The most explicit reference is in Num 5:11-31.

191. Such as the drawing of lots to expose the guilty, Jonah 1:7.

192. Bartlett, supra n. 32, at 83-86.

193. Id. at 86.

194. See Deut 6:16 (“Ye shall not tempt the Lord your God”): Matt 4:7 (“Thou shalt not tempt the Lord thy God”): Luke 4:12 (“Thou shalt not tempt the Lord thy God”); and Acts 15:10 (“Now therefore why tempt ye God, to put a yoke upon the neck of the disciples, which neither our fathers nor we were able to bear?”).

195. Bloomfield, supra n. 63, at 547.

196. Eccl 3:16-17.

197. Stokes, Myra, Justice and Mercy in Piers Plowman: A Reading of the B Text Visio 35 (Croom Helm 1984)Google Scholar.

198. Bloch, Marc, Feudal Society 72–3. 82–83 (Manyon, L.A. trans., Routledge & Kegan Paul 1961)Google Scholar.

199. Morris, supra n. 40, at 110.

200. Bloomfield, supra n. 63, at 551.

201. Brown, supra n. 3, at 144. “The fate our times,” as Weber once commented, “is characterized by rationalization and intellectualization and, above all, by the ‘disenchantment of the world.’” Weber, Max, From Max Weber: Essays in Sociology 155 (Gerth, H.H. & Mills, C. Wright trans. & eds.: Oxford U. Press 1946)Google Scholar.

202. Murray, Alexander, Reason and Society in the Middle Ages 10 (Clarendon Press 1978)Google Scholar.

203. Ward, supra n. 125, at 6.

204. Id. at 7.

205. Grant, Edward, God and Reason in the Middle Ages 51–68 (Cambridge U. Press 2001)CrossRefGoogle Scholar.

206. See sources cited supra n. 168.

207. Hacking, Ian, The Taming of Chance 4 (Cambridge U. Press 1990)CrossRefGoogle Scholar.

208. The history of modern concept of probability did not clearly begin before the later half of the seventeenth century. It was, apparently, in the correspondence between Pascal and Fermat (hat the problem was first put in mathematical form. See Daston, Lorraine, Classical Probability in the Enlightenment 3 (Princeton U. Press 1988)Google Scholar.

209. Hacking, Ian, The Emergence of Probability 22 (Cambridge U. Press 1975)Google Scholar. For discussion on Hacking's thesis, see Schum, David A., The Evidential Foundations of Probabilistic Reasoning 13–14 (John Wiley & Sons 1994)Google Scholar; Kantola, Ilkka, Probability and Moral Uncertainty in Late Medieval and Early Modern Times (Luther Agricola Socy. 1994)Google Scholar; and Daston, Lorraine, Marvelous Fads and Miraculous Evidence in Early Modern Europe, in Questions of Evidence—Proof, Practice, and Persuasion Across the Disciplines 243–274 (Chandler, James, Davidson, Arnold J. & Harootunian, Harry eds., U. Chi. Press 1994)Google Scholar.

210. Hacking, supra n. 209, at 32 (emphasis in original).

211. Id. at 32, referring to and quoting Austin, J.L., Sense and Sensibilia 115 (Clarendon Press 1962)Google Scholar.

212. Id. (emphasis in original).

213. Hacking, supra n. 209, at 37.

214. See Welsh, Alexander, Strong Representations—Narrative and Circumstantial Evidence in England 12 (Johns Hopkins U. Press 1992)Google Scholar.

215. Hacking, supra n. 209, at 34.

216. Garber, Daniel & Zabell, Sandy, On the Emergence of Probability, 21 Archive for Hist. Exact Sciences 33 (1979)CrossRefGoogle Scholar; Damaška, Mirjan, Hearsay in Cinquecento Italy, in Studi in Onore di Vittorio Denti vol. 1, 63 n. 63 (Faruffo, Michele ed., CEDAM 1994)Google Scholar; Damaška, Mirjan, Of Hearsay and Its Analogues, 76 Minn L. Rev. 425, 435 n. 24 (1992)Google Scholar: and Ullmann, W., Medieval Principles of Evidence, 62 L. Q. Rev. 77, 86–87 (1946)Google Scholar.

217. Whitelock, supra n. 19, at 335. Similarly, see Holdsworth, supra n. 16, at 300.

218. Green, supra n. 24, at 87. They also relied on evidence in the form of writing, as in a charter. Wormald, Patrick, Charters, Law and the Settlement of Disputes in Anglo-Saxon England, in The Settlement of Disputes in Early Medieval Europe 149 (Davies, Wendy & Fouracre, Paul eds., Cambridge U. Press 1986)CrossRefGoogle Scholar.

219. Laughlin, supra n. 17, at 188.

220. Id. at 186-187.

221. For example, by Pollock & Maitland, supra n. 35, at 601.

222. See Bigelow, supra n. 15. at 308:

Trial by witnesses to the fact was very common both in the pre-Norman and in the Norman periods. Unlike compurgators who swore to their principal's credibility, witnesses to the fact swore to matters de visu el auditu. They differed, however, essentially from the inquisitors and recognitors of the time, and from modern witnesses. They gave their testimony in ordinary cases in accordance with the narrow formula of the medial judgment; they were not examined as to the facts.

223. Thayer, supra n. 15, at 17. See Holdsworth, supra n. 16, at 302.

224. See Laughlin, supra n. 17, at 297-298.

225. Id. at 188.

226. Or, to put it in another way, the medieval idea of “probability” “suggests approbation with regard to the proposition accepted and probity with regard to the authorities who accept it.” with little emphasis on “the arguments which are presented in favor of the opinion in question.” Byrne, Edmund F., Probability and Opinion: A Study in the Medieval Presuppositions of Post-Medieval Tlieories of Probability 188 (Martinus Nijhoff 1968) (emphasis in original)CrossRefGoogle Scholar.

227. Huizinga, J., Homo Ludens: A Study of the Play-Element in Culture 79 (Beacon Press 1955)Google Scholar.

228. As Yelle seems to think, supra n. 50, at 270.

229. Rawls; supra n. 10, at 75.

230. For this reason, Bloch is only partly right in saying this of the trial by battle (Bloch, supra n. 26, at 51):

That which corresponds not to the facts but to the rules of procedure is just, and any departure from the precepts belonging to the community constitutes an abrogation of justice. Barring abrogation, there is. in effect, no way for the court to judge falsely and, hence, no principle exterior to itself by which it may judge truly. In this it is the opposite of the modern court, for which the uniform application of objective standards and the abstract principle of equity define the parameters of judicial truth.

231. Bodenhamer, David J., Fair Trial—Rights of the Accused in American History 11–12 (Oxford U. Press 1992)Google Scholar. The public nature of the entire proceedings is also highlighted by Thayer, supra n. 15, at 8-9.

232. This is provided in ch. 38 of the charter, an English translation of which appears in Rothwell, Harry, English Historical Documents 1189-1327, vol. 3, 316, 320 (Douglas, David C. gen. ed., Oxford U. Press 1975)Google Scholar. This clause “probably … applied both to civil and criminal cases, and meant that no one could be made to prove his innocence by any of the recognized forms of proof unless there was a sufficient prima facie case made out against him.” Holdsworth. supra n. 16. at 300.

233. Forsyth, supra n. 22, at 67.

234. Southern, supra n. 31, at 96.

235. See Franklin, James, The Science of Conjecture: Evidence and Probability before Pascal 25–26 (Johns Hopkins U. Press 2001)Google Scholar; and Holdsworth, supra n. 16, at 300.

236. Swords and lances were used in the Court of Chivalry. At trials in the ordinary courts of law, special and less deadly weapons “made of wood and horn, and look … like short pick-axes” were employed. Goitein, H., Primitive Ordeal and Modern Law 65 (Turnbull & Spears 1923)Google Scholar; and Windeyer, supra n. 22, at 44.

237. This requirement is stated in the Frisian laws of the eleventh century, but Bloomfield believes that the principle equality of weapons is of even older origins. Bloomfield, supra n. 63, at 551.

238. Lea, supra n. 18, at 120.

239. An anonymous Anglo-Saxon decree, dating probably from the time of King Aethelstan (925-940), states that “when the ordeal is ready two men shall go in from either party, and they shall be agreed that it is as hot as” is required at law. Attenborough. supra n. 41, at 171. See Rollason, supra n. 31, at 16: in a water ordeal, equal representatives from both sides were asked to witness the submersion. This was so that the judgment of whether the proband had sunk sufficiently, a subjective matter, could be seen as “just or at least fair.”

240. Pollock & Maitland, supra n. 35, at 603. See Whitelock, supra n. 19, at 336:

Just as the size of oath required for compurgation increased in proportion to the seriousness of the charge, so also the ordeal could be simple or threefold: in the latter case, the hand must be plunged into the cauldron up to the elbow, instead of the wrist, in the ordeal of hot water, while the weight of iron was three pounds instead of one in the ordeal of iron.

Bigelow, supra n. 15, at 326 (“if the party were accused of an inferior crime, he plunged his arm into the water as far as the wrist …: if he were accused of a great crime … [he had] to plunge his arm into the water as far as his elbow”): Laughlin, supra n. 17, at 303 (“Whether a single or a threefold ordeal was taken depended on the gravity of the offence”): and Moore, supra n. 53, at 29 (“For the mildest crimes, three compurgators sufficed: for more severe matters, six were required; to the most atrocious charges, the defendant had to produce 11 compurgators, with his own oath making the twelfth.”).

241. See Bartlett. supra n. 32. at 31: Hyams, supra n. 3. at 107-10: and Moore, supra n. 53. at 29.31.

242. Holdsworth, supra n. 16, at 307.

243. See Laughlin, supra n. 17, at 298.

244. See Helmholz, supra n. 21, at 16-17.

245. Lea, supra n. 18, at 40. See id. at 50.