20 Schmidt has emphasized that the growth of the inquisition was a practical outcome of the heresy trials that started in the 1200s; in the secular process, the immediate triggering factor behind the adoption of an inquisitory procedure was the fight against crime that threatened the king’s peace. For Schmidt, the growth of inquisitory procedure and judicial torture are to be explained primarily as ways of acquiring and defending positions of power.^^ Bartlett’s account fails, nevertheless, to provide sufficient reason as to why certain clerics felt it necessary to abandon the use of ordeals. For Bartlett, the ordeal began to be critiziced simply because “the practice was wrong.”^4 The mere referring to the changed attitudes seems, however, to beg the question as to why the attitudes changed.The traditional dismissal of the problemas a mere “rationalization” of proof meets similar difficulties. Why did the law of proof rationalize? Before attempting an answer, it is worthwhile to take a cursory look at the theory that came to replace the ordeal, the Roman-canon law of proof. The decision of the Lateran Council in 1215 seems to have left a lacuna in the law of proof. However, that lacuna had already started to be filled with what is called the legal, statutory or Roman-canon law of proof. The similitudes between the “system” of ordeals and that of legal proof have been stressed: the “hard” cases that were previously decided by ordeal were, starting gradually from the thirteenth century, tried by the Roman-canon system of proof involving torture. As Langbein remarks, the difference between ordeal and torture must not have appeared significant at the time.^^ But why should the holders of central power have wanted to alter the system? Another important point of Langbein’s provides, I believe, a key to the riddle as to why ordeals were abandoned. Langbein suggests that after the decision of 1215, the judicial order faced a legitimacy problem. A judge who previously had justified his decision on an ordeal revealing God’s will nowhad to find other means of legitimation. To fill the void, a system of statutory proof, developed in the subsequent centuries, provided a legitimation by which decisions made by professional judges could be accepted by the “tradition-conscious and religiously devout societies” of the medieval world. The legitimation was derived fromthe fact that, instead of remitting its decisions to God, the judiciary could nowrefer to rules issued by a secular authority. Fromthe point of viewof a hierarchical administrative organization aiming at increased efficacy, ordeals involved serious setbacks. For one thing, ordeals 37 ” Schmidt 1965 pp. 98-99. 34 Bartlett 1988 p. 81. 33 On the hesitant and changing attitudes of popes, councils, and intellectual circles of the church towards ordeals in the late twelfth and early thirteenth centuries, see Baldwin 1961. 36 Langbein 1976 pp. 5-8. 3^ Ibid. p. 6.
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