Judicial Torture as a Screening Device

Abstract:     
Judicial torture to extract information or elicit confession was a common practice in pre-modern societies, both in the East and the West. Moreover, often it was applied not only on the suspects, but also on the witnesses and plaintiffs as well. This paper proposes a positive theory for judicial torture. It is shown that torture reflects the magistrate's attempt to balance type I and type II errors in decision-making, by forcing the guilty to confess with higher probability than the innocent, and thereby decreases type I error at the cost of type II error. In that case, torturing the witnesses or the plaintiff might also serve the same function, as it helps to screen the cases so that only those with greater merits enter the court. When the information revealed during investigation improved as a result of technological advance, a judicial system based on torture became inferior to one based on evidence. This result is then used to explain the historical development of the judicial system.

Keywords: Torture, Type I and Type II errors, Evidence

JEL Classifications: K4, D82

Working Paper Series