inquisition and the birth of inquiry by vik kanwar

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INQUISITION AND THE BIRTH OF INQUIRY:

FRAGMENTS OF A GENEALOGY

(2000)

Vik Kanwar*

DIVINITY AND DOUBT:WAYS OF KNOWING

Consider two scenes. (1) Late in the 12th Century, a man is accused of a

crime, a debt, or a wrong. A hooded priest recites a prayer and throws aniron into a fire: O God, the just judge, who are the author of peace and givefair judgment, we humbly pray you to deign bless this fiery iron, which is

used in the just examination of doubtful issues. If this man is innocent of the

charge from which he seeks to clear himself, he will take this fiery iron in

his hand and appear unharmed. The accused will pick up the hot iron, walk

three paces, and put the iron down. If the priest recites his prayer quickly

enough, the iron will not get hot. If he reads it slowly and solemnly, the

guilt of the accused is certain. His hand will blister and everyone will acceptthat God has willed his punishment. (2) On 21 June 1633, the trial of

Galileo Galilee ends. For over twenty years the Inquisitors had sought to

examine his beliefs and intentions, under torture if necessary. The trial ofGalileo was concluded with this condemnation for heresy: We say,pronounce, sentence, and declare that you, the above-mentioned Galileo,

because of the things deduced in the trial and confessed by you as above,have rendered yourself according to this Holy Office vehemently suspected

of heresy, namely of having held and believed a doctrine which is false and

contrary to divine and Holy Scripture: that the sun is the center of the world

and does not move from east to west, and that the earth moves and is not thecenter of the world, and that one may hold and defend as probable an

opinion after it has been declared and defined contrary to Holy Scripture.[i]

John Milton found and visited the famous heretic imprisoned in his own

villa, grown old a prisoner to the Inquisition, for thinking astronomy otherthan the Franciscan and Dominican licensers thought. Even as outside hisvilla, mendicant monks moved about freely as pests, peddling false relics

and miracles; even as they continue to accuse and inquest. Here, where the

*Written in 2000. Author was an LLM Candidate at NYU School of Law.


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2 V. KANWAR [2000

name of Copernicus is equal to any heretics idol, Galileo would neveragain speak of the motion of the Earth or the stillness of the Sun.

What is described above is first an ordeal and second an inquisition. Tothe modern mind, these two events might not seem very different. Taken

together, they evoke a long dark epoch marked by blood and fire, bysuperstition, absolutism, and theocratic fanaticism. In this view, they serve

as bookends to a single irreclaimable chapter in Western legal history where

truth-seeking was formal but irrational, where trial meant error, and where

ritual was made the substance of the law. Today, we would perform acarnivalesque reversal of these condemnations. We confront these priests

and monks as distant monsters; their moral fervor only magnifies their

perversity. Yet, in Galileo, we can claim a protagonist, a brother to ourtimes, defiantly mapping the cosmologies of our present. We believe that

unlike the distant ordeals or the Inquisition, Galileos methods for diviningtruth give rise to familiar constellations of rationality. Indeed, the trial of

Galileo is precisely the event that, for historians of science, announces theradical division between superstition and modern science, between the

unreason of religious inquisition and the spirit of scientific inquiry. Still, the

historian must recognize the contingency and ambivalence of all claims to

morality and reason. The point of this paper is not to further any particularpolemic or make any apologies, but is quite simply to discover the historical

conditions that made possible this division between inquisition and inquiry.

In my view, it is possible to describe the Inquisition between the

thirteenth and seventeenth centuries as a model and a site ofexperimentation not only for subsequent forms of judicial and

administrative inquiry, but also for the methods of inquiry used in Galileossphere, the natural sciences.[ii] This is a history of practical attempts at

divining truth, ranging from ordeals and torture to the kinds of sophisticated

activities that finally earn the designation science. This means detectingcontinuity where others have seen only a break (between the Inquisition and

inquiry). It also means disentangling inquisition from the earlier ordeal.

Finally, it is worth steering clear of a colloquial use of the term

inquisition, which extends it as a name for every undesirable,

illegitimate, and distasteful form of inquiry.[iii] We must specify that inthe span of 400 years, there were at least three distinct institutional

ensembles identified as the Inquisition.[iv] These include (1) the

inquisition of Medieval France, manned by individual inquisitors, whowere special papal deputies; (2) the ecclesiastical Roman Inquisition, also

known as The Holy Office; and (3) the Spanish Inquisition, the infamoussecular-religious complex of the fifteenth and sixteenth centuries.


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2000] INQUISITION AND INQUIRY 3

In this paper, I will use the capitalized Inquisition to refer to the

accumulation of techniques of one or more of these three institutions; I will

use the lower-cased inquisition to include, in addition, all relatedtechniques in realms of adjudication and statecraft; and I will usually

reserve the term inquiry for investigations of a scientific character.Given the continuities between these forms, however, they are often

interchangeable. Perhaps the simplest observation that we can make here is

that even particularly terrifying instruments of coercion have led to the cool

dispassionate methods of knowledge we tend to value. Optimistically, thisis a story about a will to truth that paid off, jostling free of illegitimate

powers and alchemies. While we should be wary of progress narratives, it

should not surprise us if the Inquisition somehow made possible the spirit ofscientific discovery that we celebrate today as among the more legitimate

historical outcomes of Western history.

AMETHODOLOGICAL DIGRESSION:FOUCAULT/HISTORIOGRAPHY/GENEALOGY

I am concerned here primarily with historically situated patterns of

pursuing truth, which I will refer to generically as ways of knowing.Ways of knowing are not just grand epistemologies, but also humbler

methods of proof, modest efforts of local knowledge, arising from the

practical requirements of historical situations. To borrow a designation from

Michel Foucault, these are historical systems of thought. Of course, this

projects intellectual debt to Foucault should already be obvious. It isFoucault who leaves us with hints of a matrix of knowledge that includesboth the practices of Inquisition and the early methods of scientific inquiry.

It is Foucault who leaves me with the notion that a work of legal historyshould invite an exploration of broader epistemological currents, including

strategic excursions into the histories of science and religion. Although thispaper could have equally been written as a purely exegetical work on

Foucaults notions of power/knowledge", I will take care not to invoke

Foucaults language and theories at every turn, in an effort to delve into adifferent archive. Outside of the present methodological discussion, I will

relegate his presence to the subconscious of this paper (and of course thefootnotes).

Throughout his lectures and essays in the early 1970s, Foucault gives

attention to historically specific conjunctions power and knowledge,

including measure, ordeal, inquiry, confession, and examination.[v] Putsimply, he (1) mines a historical archive to identify certain forms of power,


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(2) assigns to them corresponding kinds of knowledge, and (3) shows how

these together imply a kind of rationality that is important in the formation

of particular Western societies.[vi] For example, measure was a principle

of political control in the Greek city state (power), but also a principleunderlying mathematics (knowledge); the ordeal was a principle of legal

proof and adjudication in early medieval society (power), but also aprinciple underlying alchemy (knowledge); inquiry was a principle of

investigation by the late medieval church and state (power), but also a

principle underlying the natural sciences (knowledge); the confession was a

principle of medical control in early modern society (power), but also aprinciple underlying psychology (knowledge); the examination was a

principle of penal control (power) in industrial societies, but also a principle

underlying various social sciences (knowledge). Of course, the claims ofsymmetry between these disparate theaters of operation are probably

overdrawn, but as a point of departure, these categories promise to beanalytically revealing to the sociologist and at least intriguing to the

historian. Unfortunately, by the mid-1970s, Foucault abandoned the projectof specifying these forms historically, outside of examination and

confession, the so-called disciplinary forms he delineates in Discipline

and Punish. This is an exercise in using Foucaults methods to specify what

can and cannot be said about the neglected juridical ways of knowing: theordeal and the inquiry.

GAMES OF TRUTH:ORDEAL AND BATTLE

Compared to rational scientific methods, even formal judicialprocedures appear to us as truth games. Yet, upon closer examination, itis not altogether possible to discuss the role of the sciences in truth-seeking

without taking account of any number of these games. Here I will discuss

the epreuve (test or ordeal)[vii] as a way of knowing that emerged

forcefully across disparate realms of statecraft, adjudication, science, andpedagogy in the early Middle Ages. It is an attempt to avoid reasoning in a

contentious decision, leaving the decision to the supernatural. It guides

chance in formal and not rational ways, thus it may add predictability, but ithas no basis in truth as we see it today. The epreuve transposes war

symbolically into legal bodies, and literally in the case of regulated battle

called "judicial combat." Other epreuves have included social epreuves

(wager of law), verbal epreuves (fictions), magical epreuves (taking oath),

and physical epreuves (for which we will reserve the term ordeal). Theintroduction of testing can be seen as a formal move toward truth-

seeking, of being persuaded of a truth rather than merely asserting a will ordesire by force. Yet, it is not necessarily a rational move toward truth. At


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root, the ordeal does not reward the truth, but merely establishes that mightis right. Only with the later inquisition do we move towards a performance

of deliberation as much as the act of decision.

The first kind of epreuve, the judicial combat (trial by battle) must be

distinguished from unregulated warfare. In a war, one of two contestants isalways the stronger, but this does not raise the question of whether he is

right.[viii] Judicial combat was an early form of duel: in conflicting or

ambiguous claims of right, battle was declared under the imprimatur of law

to settle scores. The result was declared the judgment of God. Judicialregulation is limited to the introduction of witnesses, choice of weapons,

and status rules about who may challenge whom.[ix] Judicial combat is first

evident in Germanic peoples in the period 500-800 CE.[x] For centuriesafterwards, battle was used as a backup to oaths, to guard against

perjury.[xi]

Secondly, there were social epreuves ("wager of law") which attested tothe social importance of an individual. This test had a basis in trial by battle

(being backed up by others), but has no overt claim to divine intervention.

For example, person accused of murder could establish his innocence by

gathering twelve compurgators on his side. Compurgators are not properlyyet "witnesses," because they do not swear any personal knowledge of fact,

but merely belief in the person. Here again we have a measure of a certain

kind of strength over truth. This epreuve was an antecedent to both the trialwitness and the jury trial, but it is not based on the rationale of either

personal knowledge or fact-finding.[xii] Two related forms were types ofverbal epreuve, where the accused had to respond to that accusation byreciting a standard formula; and the magical epreuve of taking oath, where

the accused simply could not refuse or hesitate to take an oath.[xiii]

Finally, we have the physical epreuve, for which we reserve the term

ordeal. Here, a person is subjected to a test with his own body, such asholding a hot iron. If one accepted the following premises, the physical

ordeal was a perfect system: "god exists, god knows, god acts, god canchange natural properties of the physical world, and god intervenes in the

world to dispense justice."[xiv] Whereas judicial combat can first be traced

to Germanic peoples, the early history of ordeals can be found between 500

and 800 CE in Frankish law. It was fist seen in the Carolignian dynasty inthe mid-ninth century in the famous forms of ordeals of fire and water,

which spread as far as Saxony and Italy. Charlemagne himself ordered Let

all believe in the ordeal without any doubting, in an attempt to ward offearly skepticism.[xv] Later Carolignian emperors used the ordeal as part of


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their political gambits, subjecting their enemies to ordeals, preserving their

royal authority.[xvi] Between the tenth and twelfth centuries, the ordeals of

water and fire passed without any problems into Norman England for such

mundane crimes as murder, forgery, and theft. It is probable that throughoutthis period, the ordeal was not the primary method of judicial proof, and

was reserved for when other methods of discovering truth were unavailable.These other methods were probably early forms of witnessing, written

evidence, and inquest. One study of France between 10th and 13th century

shows that the ratio of ordeals to other witness testimony was 1 in 6.[xvii]

However, unlike the ordeals, these were not presented as infallible methods.The physical ordeal was a central apparatus of a particular way of knowing.

With its passing, as we'll discuss below, a whole kind of rationality seemed

to shift with it.

Foucault in his discussion of the ordeal (epreuve) in "Truth and JuridicalForms" emphasizes the diffused ordeal-like character of various truth-

seeking methods before the thirteenth century, notably in alchemy and thedispute-method of university argumentation. Alchemy, a procedure taking

on various levels of formality and rationality, nevertheless uses the ordeal

as a model for science: it is a confrontation between the alchemist and

nature, revealing the truth. Second, in medieval universities theauthentication of knowledge took place through determined rituals, such as

the disputatio, or the dispute-method. Here two adversaries using verbal

weapons would invoke truth with a battle of how many authors one couldinvoke as witnesses of authority. Like the wager of law, disputants did not

call on witnesses of the truth, but on witnesses of strength.

We can see the epreuve as a way of knowing, and we can see its decline

in the end of the physical ordeal. The ordeal was ubiquitous between the

ninth and twelfth centuries in Europe; by the thirteenth century it was

vestigial. Most importantly, in 1215, the Lateran Council IV after a centuryand a half of vigorous debate, ended priestly involvement in ordeals. The

theological grounds for this might have concerned differences between

ecclesiastical penance and secular punishment. In any case, since priestsacted as conduits to the will of god, they alone gave the ordeal foundational

legitimacy. Signs of a decline can be seen before this, in evidence of human

discretion in what was supposedly a divine science: there were increasing

acquittals toward the end of the ordeals.[xviii] Some of these wereattributed to priests who prayed quickly so the ordeal of the hot iron would

not work. This action, however subtle, cut out the "work of God" and

moved towards human mercy or deliberation. The Church also took thelessons of the ordeal lay the groundwork for the methods of


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Inquisition.[xix]. The transitions from private revenge to public prosecution,

from accusation to inquisition, from ordeals to torture, [xx] from testing to

documentation,[xxi] suggest a profound transformation in ways of knowing.

TORTURE AND KNOWING

Both functionally and historically, one can easily situate torture between

the procedures of the ordeal and the inquiry. Just as the ordeal tends to

disappear as a general way of knowing (in judicial practice as well as other

domains of knowledge), torture came back into vogue from Roman law, andinquisition was being developed as a general and transportable form of

knowledge. Of course, we must understand torture itself, as a technique for

pursuing knowledge.[xxii] It also represents a moment where a practicalproblem is presented; the end of the ordeal forced judges to deal with a gap

in enforcement. In addition, the exit of divine intervention both as ameans for reaching certainty and as a justification left a considerable

epistemological gap. As long as the Church was understood as a mediator toGod, the ordeal was a flawless system of knowledge. By withdrawing the

Churchs role in ordeals, Lateran IV had in effect destroyed the most viable

system of proof. Fortunately, academic and Canon lawyers were already at

work rediscovering and reviving the Roman-canon law of proof.[xxiii]

When the Church effectively announced that God would no longer be

available as a factfinder for human disputes, the most likely stand in was thehuman sovereign, and soon his delegatesprofessional judges. Still, for the

population to suddenly accept the judgment of human judges requiredmaneuvers to promote the reliability of their truth-seeking methods. In part,a system of statutory proofs made the system acceptable, setting palpable

standards for proof. However, the proofs were not enough for difficult cases

and the procedures of torture and confession gave the appearance of

verification.[xxiv] Torture also dramatized a systematic quest for certainty,and it yielded an answer almost as often as the ordeal.

In 1252, Pope Innocent IV issued a decretal approving the use of torturein canon procedure. Gandinus and other 13th century writers followed.

Formulations must have seemed very scientific and resonated with moral

purpose. Circumstantial evidence would not be used to decide the ultimate

issue of guilt, but simply to decide whether or not to torture.[xxv] When thestudy of Roman law came back into vogue with academic and canon

lawyers in the twelfth and thirteenth centuries, proponents of Roman law

took prescriptions for torture seriously: the wise men of ancient times heldit good to torture men to know from them the truth.[xxvi] Torture had been


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precedented in Roman times. Only now, it was being offered as a solution

for a particular problem posed at a particular point in history. The

rediscovery of torture supported the claim that knowledge that was located

in willing and unwilling bodies, and the truth could be released withdeliberate pressure, even without enlisting god.

METHODS OF THE INQUISITORS

With the proliferation of popular heresy and the end of the ordeals, the

Church faced a practical challenge and an epistemological dilemma. Thiswas a moment of experimentation for the Church, which led to the

development of inquisitorial procedure. The procedures combined four

kinds of innovations: (1) legal methods of proof, (2) investigation, (3)

techniques archiving and retrieval, and (4) a kind of empirical sociology

of heresy.

A. Legal Methods of Proof

In 1199, Pope Innocent III issued a decretal assimilating heresy to

treason under Roman law. Emperor Fredrick II, in turn, incorporated canon

law of heresy into Imperial law, and decreed that the punishment forheretics should be the stake. This punishment was applied throughout

Europe. The Church also played a leading role in developing the law and

methods of torture. By 1215, then, groundwork and experimentation wasalready underway for the next two secular systems of law: the jury trial (in

England) and judicial torture (on the Continent). The Church also took thelessons of the ordeal (also borrowing from local forms of witnessing,written evidence, and inquest, such as Spanish pesquisa) and applied it as a

point of departure in their challenge at hand: developing methods of proof

to discover heretics, and root out the phenomenon of popular heresy.

Among the traces left of the ordeal was a form of torture already linked tothe preoccupation with obtaining a confession, a kind of verification ordeal.

The use of fire was transfigured into a procedure to discover intent and

belief in Church efforts to fight popular heresy.[xxvii] Romanists andcanonists insisted that if only one eyewitness to a crime could be produced,

then only the suspects confession would count as legal proof.[xxviii]This magnified the importance of extracting a confession through torture.

The Roman-canon law of proof, standing alone, was adequate for overtcrimes, but not for covert ones. Such circumstances made the supplement of

torture seem necessary[xxix], and thus it became an attractive technique.


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B. Investigation

At this time, the Church was more advanced in its investigative

machinery than the secular authorities. Its own scholars had studied andrevived Roman law, and it also inherited earlier Merovingian and

Carolingian procedures, through major monastic orders. The procedureknown as Visitatio, the visit the bishop was required to make statutorily

throughout the diocese, instituted the inquisitio generalis -- the general

inquisition by questioning the elderly and the notable people who were

the most virtuous and knowledgeable. They were thought to know and be

familiar with what had happened during his absence, especially if there hadbeen a mistake, crime, etc. If this inquiry concluded with an affirmative

response, the bishop continued to the second stage, called the inquisitio

specialis, or special inquisition, which consisted of looking for who had

done what and truthfully determining the nature and the perpetrator of theact. Finally, a third element should be noted: the confession of the guilty

party could interrupt the inquisition at any stage of its general or special

forms. In the 13th century, as news of popular heresy reached the Pope, aspecial institution, the papal inquisition, charged local bishops with the task

of rooting out heretics. When the bishops did not succeed, the Church

recruited members from the new mendicant orders, the Dominicans andFranciscans, to become special papal inquisitors, answerable only to popes.Yet this medieval inquisition was not rigidly institutionalized: inquisitorial

tribunals exercised broad powers in small localities, and some bishops also

continued their activities against heresy.[xxx]. This investigation procedure

they would develop[xxxi] came to permeate the jurisprudence ofecclesiastical and lay courts starting in the thirteenth century.

C. Archiving and Retrieval

In the hands of inquisitors, the value of inquisitorial procedure went

beyond simply extracting a confession. It was also a technique of archivingknowledge by creating a "databank" (like modern police forces) where

information could be complied.[xxxii] By keeping meticulous records and

depositions from witnesses and suspects, the inquisitors had an institutional

memory even before common law and civil law systems developed their

methods of record-keeping. The focus of inquisitors was always regional,but some inquisitors such as Bernard Gui of Toulouse widely disseminated

techniques of identifying, prosecuting, and condemning heretics.[xxxiii]During this entire period, the most widely known manual for the practices

of Inquisition was the Practica inquisitionis heretice pravatis (The Conduct

of Inquiry Concerning Heretical Depravity) written by Gui in 1324.[xxxiv]


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Gui's manual (and later Nicolau Eymeric's Directorum Inquisitorium)

theorized the Inquisitions own functioning, as well as providing field-

guides to types of heretics for future inquisitors reference. This created a

systematic way of knowing that influenced the operations of the subsequentRoman and Spanish Inquisitions. The inquisitors moved toward more

coherent and more coercive forms of governance, and thus compliedknowledge of not just individual cases, but an entire social field. For

example, when the inquisitors from Languedoc Bernard deCaux and Jean de

St. Pierre cataloged heretical acts and opinions in the mid-1240s, 5,518

individuals appeared before them testifying or confessing.[xxxv] popularheresy a problem, institutional procedures were elaborated to catch up with

the problem. Thus, the available archive of the Inquisition includes both

programs and practices: inquisitorial manuals, interrogation techniques,record-keeping, and statistics. In addition, these are both discursive and

non-discursive. Importantly, Bernard Guis book on procedure and othermethodological reflections offer potentially transportable technologies:

particular ways of posing problems, theories of proof, methods of proof,

methods of marshaling evidence, and the analytical unit of thecase.[xxxvi] These materials had affinities with the developing empirical

sciences in that they topographically indexed materials, grouping them by

village as well as alphabetically. (Gui's register, Liber sententarium wasorganized this way.) This aided them in ready retrieval, which was

necessary for an analytical and activist use of the materials.

D. An Empirical Sociology of Heresy

On another level, What the early inquisitors were developing wasnothing less than an empirical "sociology" of heresy. They refined the

methods of interrogation and coercion and a familiarity with the nature of

the people and the deviancy with which they dealt. inquisition as a

general a means of establishing facts, events, beliefs, properties, and rights.Inquisitors attended to the particularity of facts before them, but also

abstracted and generalized types and sects. With popular field-guides to

"types" of heretics, correlative categories such as beliefs, actions, and

sincerity became kinds of social facts to be documented and inquired into.The inquisitors could diagnose and manipulate social reality through their

control of the written and recorded word. Their knowledge was empirical,

analytical, and useful. This was already distant from the ordeal, disputatio,or alchemy. They claimed knowledge of what has been said as well as the

nature of the subject spoken about; they verified what the authors said by

observing; using the authors not as authority, but rather as witnesses: thiswould constitute one of the great revolutions in the form of transmitting


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knowledge.

THE BRUTALITY OF FACT:OTHER INQUISITIONS

It is not difficult to establish a link between ecclesiastical and secular

inquisitions. The church took up and developed inquisition at a crucialmoment, in response to particular problems of heresy and proof. Indeed, the

end of the ordeals brought jury trials to England and judicial torture to the

continent, but this also marked a departure of the church from secular

justice.[xxxvii] Therefore, by the time it was introduced into other systemsof law, it was impregnated with religious categories and took up methods

developed for particular uses, such as rooting out heresy. In church and

state alike, inquisition displaced the epreuve not through a sudden orgradual progress of rationality, but through the practical requirements

before particular actors in a historical period. In order to determine theguilty party and the circumstances of the act, accusations became central to

the proceedings. Secret proceedings, secrecy of witnesses, an allowance ofotherwise inadmissible evidence, and the denial assistance of attorneys and

notaries resulted in an elimination of liability (risk) for the accuser and

increased latitude of the power of the courts. This shift in power anchored

an entire political transformation, a new political structure that rendered notonly possible but also necessary the use of this procedure in the judicial

domain. Inquiry in Medieval Europe is above all a process of government, a

technique of administration, or a mode of management; in other words, theinquiry is a determined way of exercising power.

By the 16th century, Secular law courts, civil law systems in particular,started to codify the Roman-canon law of proof wholesale, including the

law of torture. Such codifications included a criminal procedure code for the

German Empire in 1532, and Joost Damhouders Praxis Rerum Criminalum

(1554) appeared in Latin, Dutch, French, and German editions, and had apervasive effect on generations of European magistrates.[xxxviii] The law

of torture underwent a civilizing process by being restricted to capitalcrimes and last resort. However, the number of capital crimes werenumerous (and included permissible maiming), and "available as a last

resort" meant that one and not two eyewitnesses were available. The

manner of torture was rarely, if ever, regulated by the codes, and varied

locally. As we might remember, the end of the ordeals, the beginnings oftorture were rooted in an anxiety over and judicial authority and

competence against the seemingly insurmountable obstacle of replacing

God as adjudicators of innocence or guilt. This led to the paramount value

of certainty, which could only be guaranteed (it was thought) with torture.


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By the 18th century, however, the legitimization of the professional

judiciary was well established and their competence was taken for granted.

Therefore, the efficacy of the law of proof was no longer seen as contingent

on the certainty torture produced.[xxxix]

One could look at these secular correlates of Inquisition (entry of thestate, judgment upon proof, and the evidentiary report) and ask how and

whether these technologies provide the conditions for the emergence for the

pure form of inquiry. These measures were accompanied by

transformations in the political structure, the reorganization of states. Thus,thanks to inquiries concerning the population, the level of wealth, the

quality of money and resources, royal agents insured, established, and

augmented royal power. In this way, a comprehensive knowledge ofeconomic administration of states was accumulated at the end of the Middle

Ages and during the seventeenth and eighteenth centuries. From that timeforward, a regular form of state administration, transmission, and continuity

of political power was established, as well as sciences such as politicaleconomy and statistics. These techniques of inquiry were equally diffused

throughout domains not directly linked to exercising political power. From

the fourteenth and fifteenth centuries on, there appear types of inquiry that

attempt to establish the truth empirical sciences. However, theirpersistence in the politico-juridical context makes it even harder to

recognize what model they provided for scientific inquiry. Whatever their

contribution to scientific method, it was not a linear and completetransformation into rational science, and it is further disguised because these

techniques never lost their influence on political and judicial procedures,continuing in some ways into modern criminal procedure.

A. Fashioning Scientific Inquiry

So far, it has not been difficult: (1) to conceive of an continuity betweenjudicial ordeals and alchemical knowledge; (2) to imagine that torture arose

as a response to problems of knowledge and certainty; (3) to characterize

the work of the early medieval inquisitors as a kind of dogged empiricism

and archival elaboration of certain kinds of social facts; and (4) torecognize a confluence between Church procedures and the practices of the

medieval state, extending inquisition as a general means of establishing

relevant facts, events, beliefs, and properties. It is much more difficult to

follow up Foucaults suggestion and historicize inquisition as a matrix ofempirical knowledge and natural sciences. This hypothesis is obscured by

ambiguous circumstances and multiple possibilities. In his various writings,Foucault casts Sir Francis Bacon as a possible liminal figure, bringing


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together the history of scientific inquiry with the methods of juridical

inquisition and statecraft.[xl] Provisionally taking Bacon's work as a test

case, I will explore three possible ways of making that link. First, the thesis

of particular social-political relations of the day, particularly a "courtlyethos" of self-fashioning that established links between major scientific

thinkers (Bacon but also Galileo) and secular or religious inquisitions.Second, the thesis that Bacon developed his scientific method through a

juridical language, including analogies to the techniques of torture. The

third and most promising thesis locates a nexus between Bacon's abortive

codifications of science and common law and the much earlier methods ofthe medieval inquisitors, through a common attention to innovating archival

technologies.

B. Science and Courtly Self-Fashioning.

If, as Foucault suggests, inquiry left behind its apparently inquisitorial

beginnings,[xli] its displacement into scientific purposes would have toaccompany the beginnings of a self-understanding of science as science.

This brings us to the sixteenth and seventeenth centuries, to a period where

various natural philosophies are beginning to be recast as empirical

systems or sciences. This is not yet "science" confined narrowly tomathematical and experimental sciences, but also the most empirical and

naturalist of sciences (what we might term ""Baconian sciences"). These

sciences were marked by contingency and a kind of "gentlemen'samateurism"-- meteorology, geological theory, magnetism, natural history,

geography, taxonomy, cladistics, and Goethes formenslehre, but latercharacterized biology, medicine, botany, astronomy, and zoology, among

others. Bacons New Atlantis describes the inauguration of both science asscience, and science as a profession.[xlii] Through all his efforts, Bacon did

more to create a status for natural philosophies and scientific method than

he did contribute to the linear progress of scientific ideas in his day.[xliii]In his ambitious theories and in his lifestyle, he contributed to the

promiscuity characteristic of Renaissance knowledge, which is to say he

linked them horizontally.

Like Bacon, Galileo also had a courtly role in a monarchic state and was

intimate with the Church. At least one interpretation (offered by Mario

Biagioli), offered is that Galileo fashioned both his career and his scienceto the requirements of patronage in the court of the Medicis and in the

Vatican, and negotiated with its complex systems of political and academic

power. Galileos courtly role was integral to his science the questions he

chose to examine, his methods, even his conclusions. Biagioli describes


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14 V. KANWAR [2000

Galileos trial as an elaborate system of courtly games. Galileo understoodand acceded to the rules of these games. Should we say that these games of

truth, like any juridical formations, merely postpone the real, scientific

progression of truth? Revisiting the trial of Galileo, perhaps what we see inthis confrontation not simply a secularization from outside, but a

reconstitution of an existing field.[xliv] To the inquisitors, the break ofscientific inquiry might have been seen as a exercise in purification against

simply another heresy, a methodological heresy, a moderate modification,

which had to be denounced nonetheless. In this case, each had a sense of the

game; each was, to the other, an intimate enemy.

Biagioli posits a courtly ethos that crucially informed the work of

scientist-courtiers such as Bacon and Galileo, and reads "idols" as evidenceof a courtly disdain for systems.[xlv] The influence of the "courtly ethos"

on development of scientific methods is ambiguous at best. What is moreinteresting than the notion of Bacon and Galileo as privileged social actors

exerting their idiosyncrasies on their era, is their proximity to technologiessuch as statecraft, adjudication, and science.[xlvi] While a discussion of

"courtly games" might be a productive way to explain certain conjunctions

of power and scientific thought (and certainly with Galileo, we can view his

trial as much as a "family squabble" as a revolution in thought), it iscontroversial at best to ascribe to these thinkers an aversion to "systems"

based in a courtly ethos. Bacon's efforts in common law and scientific

method-- while sometimes failed-- certainly take on a "systemic" character.

C. Science and Juridical Models

On a superficial level, the language of scientific method and that of law

are often homologous: laws, trials, inquiries, and the discovery of facts.

This is probably more evident in the Bacon's work than most because of his

two major careers. It has been argued that he uses the equity maxim as themodel for more general unwritten" natural laws, or apothegms. Analogies

could also be made between the "individual case" that came before

Chancery (Court of Equity) and Bacon's inductive method: the minuteobservation of individual phenomena and prudent generalization

therefrom. These readings are suggestive but not usually very productive.On the other hand, I would imagine Bacon's development of scientific

method sprung from more mundane sources than from analogies to rape andtorture as modern feminists Harding, Merchant, and Keller have read in

Bacon.[xlvii] Actually, as a young lawyer, Bacon participated in the closest

juridical structure England has had to inquisitorial torture. This was not"judicial torture" a kind of state torture ordered by the Privy Council, in 81


15/27


cases between 1540 and 1640, for religious crimes and treason, an extension

of a longstanding tradition in Europe connecting traitors and heretics.

[xlviii] Bacon, as a young lawyer participated in five of these 81 torture

warrants.[xlix] In the end though, none of these connections are veryconvincing. The use of juridical (or even inquisitorial) language in the

sphere of science may be interesting in itself, but to focus on analogicallanguage between two domains might miss the point, especially if the uses

of these terms shifts between these fields of operation and does not reflect a

common "way of thinking." This leads me to a focus on mundane archival

technologies, which do more to reflect Bacon's actual programs andpractices.

D. Science and Archival Technologies.

I suggest we find the link to the inquiry not in torture or other overtaspects of the inquisitorial procedure, but in the aforementioned archiving

innovations of the Inquisitors. What unified Bacon's contributions to thecommon law and to scientific method was his obsession with archival

methods and what truths they could unleash. After Greek philosophy and

Roman positive law, he called his scientific empiricism the third revolution

in thought. The first two also rested upon revolutions in archivalfunctions."[l] Bacon touted the potential of archival technologies to unlock

the unwritten laws of both society and nature. He created a new archival

technology made possible when arcane scroll and codex repositories ofknowledge became widely accessible through printing. What was

happening in the pre

Gutenberg archives of the common law was alsospreading to the other scroll and codex repositories of knowledge, which

were all just as chaotic as were the common law reports.

Building on and departing from the meticulous archiving of the

"antiquarian researchers" (including his rival Edward Coke), Bacon wanted

new archival technology to go beyond the mere restatement characteristic ofthe old Roman Law type of codification, the code civile. He desired this

level of hidden law to possess a universal application. Printing provided

archival resources about society and nature similar to those the law scribes

preserved of case rulings of common law judges. Evidences of the law

could be extracted from archives of common law rulings. Hence, the samemethod would yield laws of science when applied to archives of natural

history (similar to what "Shepardizing" does in law today). Baconvisualized an organization of maxims, and of rule of law classifications. He

invented this system of inquiry, designed for the conduct of an "inquisition"

of using cases as searchable and retrievable repositories of unwritten law.


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16 V. KANWAR [2000

Centuries before, the medieval inquisitors had already struggled with

chaotic and messy empiricism through flexible and innovative archiving

systems. What the inquisitors had already done with topography extended toproperly empirical sciences. The point was to diagnose and manipulate what

you encounter, without recourse to superstition. Unlike the ordeals, whichwere undertaken to ascertain the will of god, the inquisitors had a priori

notions of the will of god and applied diverse fact situations to these

doctrines. However, their real innovation was in the activities that might

seem more "mundane" today: documentation and creation of a searchableand retrievable archive. While the system was not as meticulous as their

contemporaries', it was designed to absorb and digest ever-changing

empirical data, and to be put to a "use" at any time. This allowed theinquisitors to search contradictory testimony and make use of the archive

during interrogations. This was knowledge "made useful."

Another way to pursue this question is to separate what we know aboutthe nascent scientific inquiry from ordeal-based ways of knowing. Foucault

says, "The inquiry is connected with experimentation and is opposed to

authority, social status, strength, and symbolism, as methods of persuasion."

With Bacon, it was used in scientific practices, theorized in methodologicalreflections, and codified in maxims. In the time of the ordeal, the appeal to

authority was more pervasive, with law waging and appeal to privileged

authorities. The rolls containing reports of court rulings in common lawcases were in widely scattered archives. The antiquarian researchers only

partially rectified this. Bacon proposed an archival and technologicalsolution for breaking the authorities of opinions, oaths, and magic. In hisinquiry of nature as well as the development of law, evidence would

necessarily be "material evidence" and verified with documentary support.

Bacon's approach to authority and nature was markedly inquisitorial in that

it was opposed to ordeal, disputatio, and alchemy. [li]

As we have seen, Inquisition had a kind of empirical character going

back to its formation in the thirteenth century. This third thesis, focusing onarchiving methods, is the most promising because it attends to practical

expressions of a particular way of thinking. These archival technologies are

similar innovation addressing different problems, but they also share

another characteristic: a sharp disjunction with "ordeal-based" appeals toauthority. These methods also demonstrate a strong continuity with the

emergence of empirical methods in administration and the sciences.


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CONCLUSION

This exploration has been preliminary, and as the title suggests

fragmentary, and because of the modest goals of this project, fraught withgeneralizations. I hope to revisit the details of this exploration so I can

better recognize the ambiguities and multiple possibilities embedded in theaccount. Foucault, in his genealogical work, routinely leaves us at the front

door of the present. In some sense, it seems a genealogy should lead not

only to an historical but also to a critical appraisal of our present situation. I

cannot exactly claim to have accomplished this. What started as a kind ofprefatory tangent to Discipline and Punish, has unexpectedly ended up

looking more like throwback to the concerns of one of Foucault's earlier

works: The Order of Things. The thesis in relation to Discipline and Punishis that just as the human sciences had their basis in techniques of discipline,

the natural sciences had their basis in the techniques of inquisition. Yet wefind a clear resonance between the inquisitorial archives of the thirteenth

century and the emergent systems of classification in the Classical Age.Additionally, in the techniques of the inquisitors, we see methods that are

unexpectedly similar to the disciplinary techniques of much later human

sciences. Taken together, these observations complicate Foucaults

assumption that the natural sciences made a complete epistemological breakfrom their precarious nativity in the Inquisition. It seems here that

continuities persisted, hidden in archival technologies.


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18 V. KANWAR [2000

footnotes

[I]MAURICE A. FINOCCHARIO, THE GALILEO AFFAIR: ADOCUMENTARYHISTORY(1989)291.

[II]M. FOUCAULT, DISCIPLINE AND PUNISH (1975) 226:...THE GREAT EMPIRICAL KNOWLEDGE THAT COVERED THE THINGS OFTHE WORLD AND TRANSCRIBED THEM INTO THE ORDERING OF AN

INDEFINITE DISCOURSE THAT OBSERVES, DESCRIBES AND ESTABLISHES

THE FACTS...HAD ITS OPERATING MODEL NO DOUBT IN THEINQUISITION THAT IMMENSE INVENTION THAT OUR RECENT

MILDNESS HAS PLACED INTO THE DARK RECESSES OF OUR MEMORY.

[III]WHAT ORWELL SAID OF FASCISM,EDWARD PETERS EXTENDSTO INQUISITION: THE TERM NOW HAS LITTLE MEANING EXCEPT

SOMETHING NOT DESIRABLE. PETERS, INQUISITION (1989) AT347. THIS IS NOT A COMPARATIVE OR ANALOGICAL HISTORY.EXAMPLES OF THIS KIND OF WORK INCLUDE THOMAS SZASZS

REDUCTIONIST THE MANUFACTURE OF MADNESS: ACOMPARATIVE STUDY OF THE INQUISITION AND THEMENTAL HEALTH MOVEMENT; AND THE LENGTHILY TITLED ASHORTHISTORYOFTHEINQUISITION:WHATITWASANDWHAT IT DID (TO WHICH IS APPENDED AN ACCOUNT OFPERSECUTIONS BY PROTESTANTS, PERSECUTIONS OFWITCHES, THE WAR BETWEEN RELIGION AND SCIENCEAND THE ATTITUDE OF AMERICAN CHURCHES TOWARDAMERICANSLAVERY)(1926).

[IV]SEE GIVEN, INQUISITION AND MEDIEVAL SOCIETY(1997);PETERS,INQUISITION;GUIRAUD;HENRY CHARLES LEAS 4

VOLUME A HISTORY OF THE INQUISITION IN THE MIDDLEAGES(1888).THE BEST OVERVIEW OF THE PRIMARY ARCHIVES AND

HISTORIOGRAPHY OF THE MEDIEVAL INQUISITION IS HENNINGTON

AND TEDESCHI, THE INQUISITION IN EARLY MODERN


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EUROPE; HAUBEN, THE SPANISH INQUISITION IS A

BIBLIOGRAAPHICAL SUMMARY OF PRIMARY AND SECONDARY

SOURCES;) INQUISITIONAND LIBERTY; LONGHURST, LUTHER

ANDTHESPANISHINQUISITION;B.NETANYAHU,ORIGINSOFTHE INQUISITION IN 15TH CENTURY SPAIN; CECIL ROTH,THE SPANISH INQUISITION. ON POPULAR CULTURE AND THE

SHAPING OF POPULAR HERESY, SEE GINZBURG,CHEESEANDTHEWORMS, HALICZER INQUISITION AND SOCIETY IN EARLYMODERNEUROPE.

[V]MICHEL FOUCAULT, PENAL THEORIES AND INSTITUTIONS INETHICS: SUBJECTIVITY AND TRUTH (ESSENTIAL WORKSOFFOUCAULT1954-1984)(1997)ACCORDING TO FOUCAULT, NOKNOWLEDGE IS POSSIBLE WITHOUT A SYSTEM OF COMMUNICATION,

REGISTRATION, ACCUMULATION AND DISPLACEMENT WHICH IS ITSELFA FORM OF POWER. AND THAT NO POWER IS POSSIBLE WITHOUT[EXTRACTION, APPROPRIATION, DISTRIBUTION, OR RESTRAINT] OF A

KNOWLEDGE.

[VI]MICHEL FOUCAULT, TRUTH AND JURIDICAL FORMS, INPOWER (ESSENTIAL WORKS OF FOUCAULT 1954-1984)(2000) AT 50. SOCIAL IDENTITIES; OCTOBER 1, 1996 TRUTH ANDJURIDICAL FORMS FOUCAULT, M. (1994) 'LA VERITE ET LESFORMES JURIDIQUES,' IN D. DEFERT AND F. EWALD (EDS) DITS ET

ECRITS 19541988, VOL. II, 19701975, PP. 538- 646, PARIS:

GALLIMARD. THIS WAS TRANSLATED FROM THE ORIGINALPUBLICATION IN PORTUGUESE, M. FOUCAULT (1974) 'A VERDADE E

AS FORMAS JURIDICAS', TRAD.J.W. PRADO JR,CADERNOS DA PUC,

1974:16, PP.5133. (DISCUSSION WITH M.T.AMARAL,R.O.CRUZ,

C.KATZ,L.C.LIMA,R.MACHADO,R.MURARO,H.PELEGRINO,M.J.PINTO, A.R. DE SANT'ANNA, AT CONFERENCES AT THE PONTIFICAL

CATHOLIC UNIVERSITY OF RIO DE JANEIRO,2125MAY 1973.)

[VII]HERE I WILL USE THE FRENCH TERM EPREUVE TO

DISTINGUISH IT FROM THE MORE SPECIFIC CONNOTATIONS OF THE

ORDEAL, AND MORE GENERAL USE OF TEST.

[VIII]TRUTH AND JURIDICAL FORMS38-39.

[IX]BARTLETT,TRIALBYFIREANDBYWATER,109

[X].ID.103-104.


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20 V. KANWAR [2000

[XI]ID.105.

[XII] J.H.BAKER,ANINTRODUCTIONTOENGLISHLEGALHISTORY(1990).WAGING LAW IS A VARIATION BEING BACKED UPBY OTHERS. ) TRIAL BY WAGER OF BATTLE: TRIAL BY WAGER OF

LAW: DEFENDANT ONE ACCUSED MAKES OATH THAT NOT OWE THE

CLAIM UPON HIM. 11 OF HIS NEIGHBORS (COMPURGATORS) SWORE

THEY BELIEVED HIM.(NOT PERSONAL KNOWLEDGE OF THE FACT, BUTBELIEF IN PERSON). TWELVE MEN (ACTIVE JURY) CALLED FROM THE

LOCALITY TO MAKE RECOGNITION (ANSWER QUESTIONS) VERDICT

JURY SWORN TO GIVE TRUE ANSWER NOT ORIGINALLY OBJECTIVE

FACT FINDERS WERE SUPPOSED TO KNOW OR BE FAMILIAR WITH THE

FACTS OF THE CASEDRAWN FROM THE LOCALITY EARLY JURIES

OFTEN CONDUCTED THEIR OWN INVESTIGATIONS BUT NOT MUCH ISKNOWN ABOUT THE EARLY JURIES B/C THEIR REASONING ETC WASNOT PART OF THE RECORD (BAKER) TRIAL BY JURY IN THE 14THCENTURY BY THE MID 14TH CENTURY, JURORS SEEM TO RELY MORE

ON SWORN OATHS BEFORE THEM

[XIII]J.H. BAKER, AN INTTRODUCTION TO ENGLISHLEGAL HISTORY (1990) A HYBRID BETWEEN THE VERBAL AND

MAGICAL TEST WAS THE NECK VERSE, IN ENGLAND, A FICTITIOUSBENEFIT OF CLERGY IN ENGLAND, WHEREBY A PERSON CONVICTED

OF A CAPITAL CRIME WOULD READ A PSALM TESTIFYING HE WAS

CLERGY. THE COURT WOULD NOT TRAVERSE THE CLAIM, ALLOWINGIT TO MAGICALLY STAND.

[XIV]BARTLETT,TRIALBYFIREANDBYWATER.

[XV] BARTLETT, TRIAL BY FIRE AND BY WATER,

GENERALLY.

[XVI]BARTLETT 15.

[XVII]BONGERT,RECHERCHES216

[XVIII]ACCORDING TO J.H. BAKER. THE ORDEAL WAS NOT

REALLY USED IN CIVIL CASES (AND NOT FORMALLY ABOLISHED

UNTIL 1833). IN CRIMINAL LAW, THE LATERAN END TO ORDEALSFORCED JUDGES TO DEAL WITH A GAP IN ENFORCEMENT, A PRACTICAL

PROBLEM. WOMEN COULD NOT BATTLE, AND IN OTHER APPEALS,


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BATTLE WAS INAPPROPRIATE.1219, SOME PRISONERS WERE ALLOWED

TO ABJURE; MORE SERIOUS SUSPECTS WERE REMANDED TO PRISON, ASAN INTERIM MEASURE. RATHER THAN TORTURE, DEVELOPED THE

JURY TRIAL (PANEL OF MEN FROM LOCALITY OATH TO SPEAK TRUTHON ISSUE OF GUILT).

[XIX]BARTLETT 22.

[XX]TRUTH AND JURIDICAL FORMS AT 50-51....ALCHEMISTICKNOWLEDGE IS ESSENTIALLY SOMETHING ACQUIRED THROUGH THE

FACT THAT IT IS ABSOLUTELY NOT TRANSMITTED OR ACCUMULATED

AS THE RESULT OF INQUIRIES THAT WOULD HAVE UNCOVERED THE

TRUTH. ALCHEMY ESSENTIALLY CONSTITUTES A BODY OF JUDICIAL

RULES AND PROCEDURES. ALL KNOWLEDGE FROM INQUIRY

NATURALISTIC, BOTANICAL, MINERALOGICAL, AND PHILOLOGICAL

IS ABSOLUTELY FOREIGN TO ALCHEMISTIC KNOWLEDGE WHICH

RESPECTS THE JUDICIAL MODEL OF EPREUVE.

[XXI]DISCIPLINEANDPUNISH AT 225.

[XXII] DUBOIS, TORTURE AND TRUTH (1991). ( ON

JURIDICAL PRACTICE IN ANCIENT ATHENS OF SUBMITTING THE BODIESOF SLAVES TO TORTURE. HAVING NO RIGHTS TO TRUTH, NOR

RATIONAL POSSESSION OF THE LOGOS, UNLIKE FREE ATHENIAN

CITIZENS, SLAVES WERE PARADOXICALLY HELD TO BE INDUBITABLE

VERIFIERS OF THE TRUTH UNDER CONDITIONS OF PHYSICAL TORTURE.THE POSSESSOR OF TRUTH, OR RATIONAL ENQUIRER AFTER IT,

CANNOT BE TRUSTED TO SPEAK OR TO SUPPLY THE TRUTH; THE SLAVE,WHO HAS NO ACCESS TO TRUTH, IS BY THIS VERY TOKEN ITS MOST

RELIABLE VEHICLE.)

[XXIII] JOHN LANGBEIN, TORTURE AND THE LAW OFPROOF(1977) AT 6.

[XXIV]LANGBEIN AT 3.

[XXV]LANGBEIN 8

[XXVI]BARTLETT 140.

[XXVII]ACCORDING TO FOUCAULT, THERE WAS A PRIOR PRACTICE

OF INQUIRY IN THE CHURCH OF THE EARLY MIDDLE AGES THE


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22 V. KANWAR [2000

MEROVINGIAN AND CAROLINGIAN CHURCH. THIS METHOD WAS

CALLED VISITATIO AND CONSISTED OF THE VISIT THE BISHOP WAS

REQUIRED TO MAKE STATUTORILYBY GOING EVERYWHERE IN THE

DIOCESE. THIS METHOD WAS THEN ADOPTED BY THE MAJORMONASTIC ORDERS. UPON ARRIVING AT A DETERMINED PLACE, THE

BISHOP FIRST INSTITUTED THE INQUISITIO GENERALIS THE

GENERAL INQUISITION BY QUESTIONING THE ELDERLY AND THE

NOTABLE PEOPLE WHO WERE THE MOST VIRTUOUS AND

KNOWLEDGEABLE.THEY WERE SUPPOSED TO KNOW AND BE FAMILIARWITH WHAT HAD HAPPENED DURING HIS ABSENCE, ESPECIALLY IF

THERE HAD BEEN A MISTAKE, CRIME, ETC. IF THIS INQUIRY

CONCLUDED WITH AN AFFIRMATIVE RESPONSE, THE BISHOPCONTINUED TO THE SECOND STAGE, CALLED THE INQUISITIO

SPECIALIS, OR SPECIAL INQUISITION, WHICH CONSISTED OF LOOKING

FOR WHO HAD DONE WHAT AND TRUTHFULLY DETERMINING THE

NATURE AND THE PERPETRATOR OF THE ACT. FINALLY, A THIRDELEMENT SHOULD BE NOTED: THE CONFESSION OF THE GUILTY PARTY

COULD INTERRUPT THE INQUISITION AT ANY STAGE OF ITS GENERAL

OR SPECIAL FORMS.

[XXVIII]141BARTLETT.

[XXIX]LANGBEIN 7, BARTLETT 141.

[XXX](GIVEN 14)

[XXXI]IT IS A MODEL OF INQUIRY THAT HAD EXISTED AT THE TIME

OF THE CAROLINGIAN EMPIRE. WHEN REPRESENTATIVES OF THE

SOVEREIGN HAD TO RESOLVE A PROBLEM OF LAW, POWER, OR A

MATTER OF TAXES, MORES, LANDED WEALTH, OR PROPERTY, ONEPROCEEDED TO SOMETHING PERFECTLY RITUALISED OR REGULATED:

THE INQUISITIO OR INQUIRY.THE REPRESENTATIVE OF POWER CALLED

THE PERSONS CONSIDERED APT TO BE FAMILIAR WITH MORES, THE

LAW, OR TITLES OF PROPERTY. HE GATHERED THESE PERSONS

MAKING THEM SWEAR TO TELL THE TRUTH, WHAT THEY KNEW, WHATTHEY HAD SEEN, OR WHAT THEY KNEW FROM HAVING HEARD IT SAID.

THEN, LEFT ALONE, THESE PERSONS DELIBERATED. AT THE END OFTHEIR DELIBERATIONS, THEY WERE ASKED FOR THE SOLUTION TO THEPROBLEM. THIS WAS A METHOD OF ADMINISTRATIVE MANAGEMENT,

WHICH THE EMPLOYEES OF THE CAROLINGIAN EMPIRE PRACTISED

REGULARLY.IT WAS STILL USED AFTER ITS DISSOLUTION BY WILLIAM

THE CONQUEROR IN ENGLAND.IN 1066, THE NORMAN CONQUERORS


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OCCUPIED ENGLAND; THEY SEIZED ANGLOSAXON GOODS AND

ENTERED INTO LITIGATION WITH THE NATIVE POPULATION AND

AMONG THEMSELVES CONCERNING THE POSSESSION OF THOSE GOODS.

WILLIAM THE CONQUEROR, IN ORDER TO PUT EVERYTHING IN ORDERAND INTEGRATE THE NEW NORMAN POPULATION WITH THE OLD

ANGLOSAXON POPULATION, HAD A LARGE INQUIRY INTO THE STATE

OF PROPERTY, TAXES, LAND INCOME, ETC. HENCE, THE FAMOUSDOMESDAY BOOK.

[XXXII]THE RECORD WAS INTENDED TO GIVE FINALITY AND

PERMANENCE TO DECISIONS, END DISPUTES IT ALSO GAVE THE COURTMEMORY (DATABASE) WHICH LED TO THE CONCEPT OFPRECEDENT AN UNINTENDED CONSEQUENCE WHICH OCCURRED

EARLY ON. RECORDS, HOWEVER, WERE LIKE THE MINUTES OF A

MEETING, ONLY SHOWED WHAT HAPPENED AND WERE NOT THERATIONALE.INCLUDED AS LITTLE AS POSSIBLE.

[XXXIII]IN HIS HISTORICAL WORKS, FOUCAULT OFTEN USEDMANUALS OR PROGRAMS AS SURROGATES FOR ACTUAL PRACTICES.TO THE EXTENT NECESSARY,I WILL DO THE SAME,

[XXXIV]REGRETTABLY, BEST KNOWN TODAY AS ECOSBOGEYMAN IN THE NOVEL AND FILM THENAMEOFTHEROSE.

[XXXV]GIVEN, INQUISITION AND MEDIEVAL SOCIETY

(1997)1-4

[XXXVI] ILL ALSO LOOK AT SUGGESTIONS BY SOME RECENTAUTHORS THAT THE TECHNIQUES OF THE INQUISITORS WERE MORE

LIKE THE DISCIPLINARY TECHNIQUES OF LATER CENTURIES THAN

FOUCAULT WOULD ADMIT. WHAT IS NEW ABOUT DISCIPLINARY

ECHNOLOGIES: A LEVEL AT WHICH FORMATION OF KNOWLEDGE AND

THE INCREASE OF POWER REGULARLY REINFORCE ONE ANOTHER IN A

CIRCULAR PROCESS.(SEEL IAN HACKING ON STATISTICS).DESCRIPTION OF DISCIPLINES CLEARLY IN EVIDENCE IN THIS EARLIER

PERIOD. GIVEN ON GUI: MULTIPLICITY OF THE EFFECTS OF POWER

THROUGH THE FORMATION AND ACCUMULATION OF NEW FORMS OFKNOWLEDGE. THAT PRE-DISCIPLINARY TECHNIQUES ARE SEEN AS

LESS NUANCED, IS PERHAPS DUE ONLY TO A POVERTY OF THEARCHIVE.

[XXXVII]BY THE TIME OF DISCIPLINE AND PUNISH, THE FOCUS IS


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24 V. KANWAR [2000

LAST DAYS OF SOVEREIGN TORTURE, WHICH IS AGAIN ACCUSATION-

CENTERED.IT IS BESIDE THE POINT HERE WHETHER FOUCAULT ERREDIN CLAIMING THAT THE SHIFT AWAY FROM THE PRACTICE OF PUBLIC

TORTURE AND EXECUTION OCCURRED ABRUPTLY BETWEEN 1750 AND1820 OR SPIERENBURG ARGUES THAT THE REDUCTION IN THE USE OFPUBLIC TORTURE BEGAN AROUND 1600.

[XXXVIII]LANGBEIN AT 12

[XXXIX]LANGBEIN, AT 56.

[XL]WITHOUT A DOUBT, THERE WERE OTHER FIGURES WHO

BETTER DEMONSTRATE A HISTORICAL CONFLUENCE BETWEEN THESE

AREAS OF KNOWLEDGE.BACON WAS PROBABLY NOT EXCEPTIONAL IN

HIS EXPOSURE TO DIVERSE JURIDICAL METHODS. IT WAS ACTUALLYFASHIONABLE FOR COMMON LAWYERS TO STUDY CANON LAW AS

DOCTORS OF LAW AT OXFORD AND CAMBRIDGE. THESE

INSTITUTIONS PROVIDED GUIDANCE TO CHANCELLORS AND

MINISTERS, BUT NOT THE EMERGING LEGAL PROFESSION. GUI ANDBACON SHARED A GENRE OF WRITING: THE METHODOLOGICALREFLECTION, BUT THEY WERE NOT ALONE.A THOROUGH GENEALOGY

WOULD ATTEND TO QUOTIDIAN, IGNOBLE PRACTICES, LOOKING TO

THE WORKS OF PROLIFIC MONKS AND DILETTANTE JURISTS; WHOSEHALF-BAKED METHODOLOGIES PROLIFERATED THROUGHOUT THESE

CENTURIES.

[XLI]FOUCAULT SAYS, THE INQUISITORIAL MODEL, DISPLACED

AND GRADUALLY TRANSFORMED, WILL CONSTITUTE, STARTING IN THE14TH CENTURY, ONE OF THE FACTORS THAT SHAPES THE EMPIRICAL

SCIENCES.IS THE INQUISITORIAL MODEL, MERELY A MODEL?

[XLII] THIS ACCOUNT IS INDEBTED TO HARVEY WHEELER, A

FASCINATING BACONIAN ON THE WEST COAST: FRANCIS BACONS"VERULAMIUM": THE COMMON LAW TEMPLATE OF THE MODERN INENGLISH SCIENCEHARVEY WHEELER [email protected].

SCIENCE OUT OF LAW, TOWARD A HUMANISTIC SCIENCE OFPOLITICS,D.H.NELSON &R.L.SKLAR,UNIV PRESS OF AMER.,NEW

YORKWHEELER, (1983A) POWER AND POSITIVISM BACONIAN

POSITIVISM,ALTERNATIVES,AJOURNAL OF WORLD POLICY,IXNO

2WHEELER, HARVEY (1983B) THE INVENTION OF MODERN

EMPIRICISM: JURIDICAL FOUNDATIONS OF FRANCIS BACONSPHILOSOPHY OF SCIENCE,LAW LIBRARY JOURNAL, VOL 76NO.1 ,


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HARVEY (1990 FRANCIS BACONS NEW ATLANTIS,, ETC., ED W.A.SESSIONS,FRANCIS BACONS LEGACY OF TEXTS,AMSPRESS,NEWYORK

[XLIII]SIR WILLIAM DAMPIER,AHISTORYOFSCIENCEANDITSRELATIONSWITHPHILOSOPHYANDSCIENCE(1932), AT138

[XLIV]SIMILARLY, IT COULD BE ARGUED THAT BACONS SCHEMESWERE ABORTIVE ATTEMPTS AT PURE SCIENCE, STEEPED IN ALCHEMY

TAINTED BY MYSTIFICATION AND THEOLOGICAL CONTENT. UNLIKE

MANY OF HIS CONTEMPORARIES,BACON ERECTED A SCIENCE WITH A

KIND OF ESTABLISHMENT CLAUSE: ...AN UNHEALTHY MIXTURE OFTHE DIVINE AND THE HUMAN LEADS NOT ONLY TO FANCIFUL

PHILOSOPHY BUT ALSO TO HERETICAL RELIGION.(NOVUM ORGANUM71).

[XLV]COQUILLETTE, (1992) FRANCIS BACON, STANFORD U.PRESS, STANFORD.(1991) THE JANUS FACES OF GENIUS; THE ROLE

OF ALCHEMY IN NEWTONS THOUGHT, CAMB UNIV PRESS,CAMBRIDGE ELKANA, Y. (1979) TRANSFORMATIONS IN REALISTPHILOSOPHY OF SCIENCE, ETC., VAN LEER JERUSALEMFOUNDATION. FARRINGTON, B. (1949) FRANCIS BACON:PHILOSOPHER OF INDUSTRIAL SCIENCE, HENRY SCHUMAN, NEWYORK HACKING, IAN (1983) REPRESENTING AND INTERVENING;

INTRODUCTORY TOPICS IN THE PHILOSOPHY OF NATURAL SCIENCE,CAMBRIDGE UNIV PRESS,CAMBRIDGE.HACKING HAS REMAINED ONE

OF BACONS MOST DISCERNING AND PERCEPTIVE INTERPRETERS.

[XLVI]MARIO BIGIOLI, GALILEO, COURTIER: THEPRACTICEOFSCIENCE INTHECULTUREOFABSOLUTISM307-308(1993)

[XLVII]ISABELLE STENGERS, AMBIGUOUS AFFINITY, IN M.SERRES, A HISTORY OF SCIENTIFIC THOUGHT, AT 381.(SUMMARIZING INDUCTIVE METHOD). PERHAPS IT IS INTERESTING

THAT RECENTLY FEMINISTS HARDING, MERCHANT, AND KELLERHAVE READ BACON AS MAKING ANALOGIES TO RAPE, AND MOREOVER(FOR OUR PURPOSES) TO TORTURE TO ADVOCATE HIS SCIENTIFIC

METHOD.FOR A CONTRIBUTION AND SUMMARY OF THIS DEBATE, SEEALAN SOBLE,IN DEFENSE OF BACON,25PHILOSOPHYOFTHESOCIALSCIENCES192(1995).


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26 V. KANWAR [2000

[XLVIII]LANGBEIN 85

[XLIX]LANGBEIN 81-89.

[L] HARVEY WHEELER, THE ARCHIVAL FUNCTION:KNOWLEDGE PROCESSING FROM THE MANDALIC TO THEOMNIFICENT, ED. MICHAEL GORMAN, CONVERGENCE, AMERICANLIBRARY ASSOCIATION.

[LI]REFERENCES TO BACONS WORKS REFER TO THE WORKS OFFRANCIS BACON,BARON OF VERULAM,VISCOUNT ST.ALBANS, ANDLORD HIGH CHANCELLOR OF ENGLAND,COLLECTED AND EDITED BYJAMES SPEDDING, ROBERT LESLIE ELLIS AND DOUGLAS DENON

HEATH, 15 VOLS, BROWN AND TAGGARD, BOSTON, 186064.

HACKING, IAN (1983) REPRESENTING AND INTERVENING;INTRODUCTORY TOPICS IN THE PHILOSOPHY OF NATURAL SCIENCE,LONDON.COQUILLETTE,D.R.(1992)FRANCIS BACON,STANFORD U.PRESS,STANFORD.DOBBS,B.J.T.,(1991)


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inquisition and the birth of inquiry by vik kanwar

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