THE FORGOTTEN MERITS OF TRIAL BY ORDEAL

I think we might have been too quick getting rid of some features of medieval jurisprudence. How so? Well, Derek Chauvin’s defence is claiming it wasn’t Chauvin’s knee on his neck that killed George Floyd, it was the drugs in his system. Well, let’s test it. There are no drugs in Chauvin’s system. Let’s handcuff Chauvin, put him in precisely the position on the ground in which Floyd had been put, and then get someone the same weight as Chauvin to put his weight on Chauvin’s neck for nine and half minutes. If he survives he’s innocent and walks away a free man. If he doesn’t – and though the punishment may be a tad over the top – at least we’ll know he was guilty. 

I know, I know. You’re going to claim the number of variables make it impossible to replicate them all. So even if Chauvin survives what I’m suggesting, he still could have murdered Floyd. But if a man like Chauvin – a man without any underlying conditions – doesn’t survive nine and half minutes with someone’s knee on his neck, it’s unlikely anyone would survive it, in which case it would not be unreasonable for the jury to conclude that it was Chauvin’s knee on his neck that killed Floyd.

Should we worry that bringing back trial by ordeal in this case will lead to implementing similar tests for witches? For people accused of harbouring unconscious racial biases? The list could go on and on. Well, let’s cross those bridges when we come to them.



Categories: Editorials, Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask

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2 replies

  1. I hadn’t wanted to comment until after the verdict. I’m glad to see that the jury was able to arrive at the conclusion it did using only the evidence obtained and presented to it in the normal way.
    A while back I rather glibly stated that it’s not murder until a jury says it is. Well, they did and so it is. For my own purposes, I was waiting to hear how the evidence about the “ordeal”, let’s call it, stood up to attempts to refute it. Not that what I think matters, but it was indeed every bit as bad as it looked on the news. Evil may or may not live in us all, but it sure lived in Derek Chauvin. Maybe it flowered into capacity for murder for only some portion of those 9+ minutes as you suggest perceptively in a later post, but that’s all it takes to end a life.

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    • Needless to say I share Leslie’s sentiments. But I’m just a tad uncomfortable with the notion of evil. In his Fourth Meditation Descartes argued that no one knowingly believes a falsehood. Some commentators have extended this to the claim that no one knowingly does what he thinks to be wrong. This has always given me pause, not because I think that’s true, but because it strikes me as odd that someone would do what he believes to be wrong. But that’s beside my point here. My worry is that ‘evil’ bears too much theological baggage. It’s what the devil is, and I worry that reifying and personifying evil this way runs the risk of offloading it to some ‘other’ agent.

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