This is part of a series on the history of torture, and how that history influences the way that we currently debate the subject. Previous posts in this series include:

Part One: In which torture gets invented by the Greeks


Modern legal theory owes a debt to Rome. While people sometimes claim that America is patterning her imperial ambitions after the first true super-state, the fact is that we get a lot of our ideas about how society should function from Rome. Legal scholars of first the Roman Republic and later the Roman Empire provided extensive documentation of thei  system of jurisprudence, and later countries adopted much o  that system wholescale. There are remnants of the Justinian Code even now in the laws of the US, France, Britain, and much of the modern world. And while we may owe a social and legal debt to Rome, Rome cribbed much of its legal system from Greece.

What this means practically, in terms of torture, is that  the Romans initially treated torture in the same way as the Greeks: torture was a way to set the testimony of slaves on the same legal footing with that of freemen. Slaves were considered incapable of lying under the influence of pain, so torture was a way of validating their testimony before the judges of the day. Accordingly, in the early Roman republic, freemen were protected from torture: there was no need to validate their testimony, so there was no need to torture them.

Around the second century AD, however, the Republican legal code came to recognize two general classes among citizens: honestiores and humiliores (roughly translated, 'the honorable' and 'the lowly'). Honestiores were an upper class, generally privileged against torture except in the case of high treason against the state. Humiliores, on the other hand, while still Roman citizens, were subject to the torture that had once been the exclusive province of slaves. Although these class differences were based essentially on wealth (honestiores were the families of office-holders and the vastly wealthy, humiliores were everyone else), the distinctions were couched in terms of moral superiority: honestiores were somehow more morally honorable, and thus their testimony required no validation.

The creation of two classes opened the important idea that the state could legitimately torture its own citizens. As with the Greeks, the rationale for broadening torture powers was given in the language of the law of proof: second-class citizens, such as Christians, needed an extra kind of force to insure that their testimony was truthful. Once more, the ostensible goal of torture was to make sure that all proofs given before a court were trustworthy.

With the rise of the Roman empire, a new understanding of law emerged, and torture practices shifted to accommodate the idea of a supreme head of state. By privileging the Emperor above all other citizens of the state, the law opened the way for legitimate torture of all citizens, even the previously immune honestiores. After all, in comparison to the Emperor, everyone was a second-class citizen. Interestingly, the torture of honestiores by imperial decree still had to be justified by an appeal to proofs. Nero was known to have ordered one of his closest officials tortured, man with whom he'd shared a personal disagreement, but felt compelled to rationalize the act by accusing the advisor of a flimsy plot against the empire, so that the torture might be a 'proof' in a sham investigation.

All of this history is important because it demonstrates the cardinal importance of the concepts of proof and privilege in creating and justifying the practice of torture by the state. Today's 'ticking bomb case' finds its roots in Nero's sham investigation: both are artificial constructs that allow a nation to justify torture by appealing to the need to justify testimony. Debates over torture are essentially moral debates because they emerged millenia ago as a practical way of ensuring the moral clarity of testimony.

Side-by-side with this moral dialogue, however, is a dialogue about class structures: torture originated as a way to validate testimony from second-class humans. For the Greeks, this 'other' class was slaves. The Romans expanded the 'other' to include some citizens, and later all citizens below the Emperor. Even today, debates about torture are debates about how we view classes of people. Notice how the propaganda from BushCo repeatedly refers to terror suspects as 'monsters' or 'animals'. Terror suspects are routinely classified as inhuman because the history of torture dialogues requires that they be so: to justify torture, BushCo must invent a modern 'other'. Once more, history repeats itself. The words may be new, but the dialogue is very, very old.