Folter und Hexenprozess: Die strafrechtliche Spruchpraxis der Juristenfakultät Rostock im 17. Jahrhundert (review)

During the last thirty years, the study of witchcraft persecutions has advanced enormously by focussing on the social and political context of trials. Legal history, on the other hand, once a classic approach in this field, is now regarded as too limited to matters of procedure to explain the social origins and meanings of accusations. By reconsidering in a comparative perspective the role of torture, the very “soul of witchcraft trials” (Soldan-Heppe), Robert Zagolla sets out to bring legal history back into the field and to align it with prevailing sociocultural approaches. (Compare to other recent studies: Peter Oestmann, Hexenprozesse am Reichskammergericht [1997]; Britta Gehm, Die Hexenverfolgungen im Hochstift Bamberg und das Eingreifen des Reichshofrates zu ihrer Beendigung [2000]; Claudia Kauertz, Wissenschaft und Hexenglaube: Die Diskussion des Zauber- und Hexenwesens an der Universität Helmstedt (1576–1626) [2001].)

Zagolla questions whether torture was an exclusive feature of witchcraft trials, arguing that it should instead be seen in relation to its use in cases of other capital offences such as murder, arson, and theft. He therefore criticizes legal historians for separating witchcraft trials from ordinary justice merely on grounds of the former’s fictitious character. Zagolla also criticizes social historians for neglecting the legal context of witchcraft persecutions, implying that legal thinking and procedure did, under certain conditions, make an impact.

Given this, it comes as no surprise that Zagolla directs his questions toward a realm of legal action where pluralist and rational thinking did indeed matter—the decisions of a legal faculty in witchcraft cases, in this case that of the University of Rostock, which left some ten thousand legal briefs for the years from 1595 to 1700. By doing so, Zagolla follows in the tracks of his mentor Sönke Lorenz, who in 1983 published an impressive study of the attitudes that the legal faculties of the universities of Rostock and Greifswald displayed toward witchcraft accusations, as well as their role as judicial counsel.

Zagolla’s study is divided in five major parts: the first discusses contemporary meaning and relevance of torture (pp. 1–65), and the second the structure, function, and personal composition of the Rostock legal faculty, including the literature its members used when providing legal counsel (pp. 66–146). Parts three to five, the center of the book, are dedicated to a detailed analysis of the faculty’s dealing with procedural questions prior to the use of torture (pp. 147–317), the application of torture itself (pp. 318–408), and finally the procedure following torture, that is, confession or release, final sentence, and punishment (pp. 409–88).

Besides offering an overwhelming mass of illustrative examples and deep insights into applied legal thinking and its sources (pp. 131–46), the principal contribution of Zagolla’s study is his quantitative analysis of the faculty’s decisions concerning not only witchcraft accusations but the whole range of capital offences (esp. pp. 99–120). The counsel provided by the Rostock legal faculty on the use of torture reflects that (at least according to the will of the former) witchcraft trials were to be conducted in the same way as trials against other capital offences. Neither the fictitious character of witchcraft nor the lack of a “corpus delicti,” which could occur in other capital offences as well without impeding further procedure (p. 193), prompted the faculty to advise any special treatment. In fact, it seems that, contrary to the notion of reduced standards on grounds of the concept of “crimen exceptum” (p. 491), the Rostock faculty increased the requirements necessary for allowing torture particularly against suspects of witchcraft when compared with its decisions in cases of theft or infanticide (pp. 85, 99–120, 489–91).

It has to be noted, however, that these interesting insights are as limited as the source material regarding the influence the Rostock legal faculty (as any other legal institution) was able to exert. Zagolla admits that legal briefs do not...