- Tortured Subjects: Pain, Truth, and the Body in Early Modern France
In the early twenty-first century, pain speaks only negatives: senseless, undesirable, terrible. In early modern Europe, however, pain was multivocal: feared and avoided, but also embraced and valorized. In a world where “people...endorsed different interpretations of pain in different spheres of their lives (5),” torture acted to hold together—not fragment—society. Lisa Silverman offers a new cut at an old story: the end of torture and the advent of a less cruel penology. Her interpretation depends neither on the rise of an enlightened critique of the “savagery” of early modern criminal procedures nor on the specific epistemological ruptures Foucault postulated. For Silverman, the decline of torture came only when pain’s cultural meaning changed. [End Page 239]
The paradox she addresses—and which drives her work—is that the use of torture persisted long after its legal utility disappeared. To explain this conundrum, she must first reconstruct the early modern epistemology of pain and locate torture’s place within it. While little in this section will surprise medieval or early modern scholars who have long recognized the care with which torture was applied and its function in inquisitorial investigations, Silverman’s discussion of the theory of torture is necessary because it lays the foundation for her argument. Pivotal is Silverman’s understanding of the quality of truth in early modern jurisprudence; eighteenth-century legalists regarded truth as “product, as artifact to be discovered (20).” Torture’s value to the judicial system was therefore “closely tied to the role of proof in early modern law (43).” Yet proof remained a contested territory. Where “complete proofs” existed, that is, the testimony of two reliable witnesses or written evidence (a forged document, for example), torture was needless because a complete proof was adequate (and necessary) for conviction in capital cases. Complete proofs were, however, rare and, as Silverman demonstrates in the case of one suspected murderer, Jean Bourdil, proximate or less thorough proofs were usual. Torture could “be employed only when such a proximate proof existed (45).” Proximate proofs created “grave suspicion,” but were in and of themselves inadequate. Confession under torture, in which truth was literally “pulled out of” the suspect, was then requisite for a capital conviction. The paradox developed, however, with the promulgation of the 1670 criminal ordinance, according to which the absence of a complete proof made a capital conviction impossible. Yet, the two forms of torture (the question préparatoire and the question préalable) were not abolished until 1780 and 1784 respectively (albeit being less frequently applied). Why then did magistrates continued to order suspects tortured once law had negated its validity? According to Silverman, torture persisted because at least until the 1760s pain remained a “meaningful experience” in the connection between body and soul. The final three chapters of Silverman’s book describe the epistemology of pain in seventeenth- and eighteenth-century France and show why after mid century that epistemology shifted.
Silverman is guided by the realization that we today are able to see a difference between “truth-seeking” and “pain-inflicting” that simply did not exist for seventeenth- and early eighteenth-century Europeans. Our ability to make that distinction depends entirely upon “epistemological changes that occurred in the eighteenth century (22).” Thus, the jurists of early eighteenth-century France (or rather Toulouse, the focus of Silverman’s research), despite their familiarity with the doctrine of proofs and its new constitution in 1670, nonetheless continued to regard pain—torture—as meaningful. Silverman locates the reasons why in the lives of the jurists themselves. She sketches the connections between post-Tridentine confraternal life, lay piety, and what she calls “the valorization of pain.” Many Toulouse jurists belonged to one or another penitential confraternity—such as the Pénitents bleus—that not only served as a venue for the expression of spirituality but also linked local elites to national political ones. Jurists in Toulouse remained involved in penitential activities—processions, flagellations, works of charity—until...