C O M P A R AT I V E S T U D Y in cases of doubt, “in dubiis,” one should act in such a way as to minimize the possibility of pollution.24 In other words, in order to punish, the judge needed to be convinced in a person’s guilt, otherwise, he himself would be punished by God. The Pope’s declarations parallel the rediscovery of the Corpus Iuris Civilis in the twelfth century, including the Digesta.25 As such, Canon lawyers of the twelfth century applied the ideas of the antique Church Fathers in the campaign against the judicial ordeal and the Canon law, the law of the Christian Church, played a fundamental role in its abolition.26 As a consequence, in 1215, after several decades of agitation by church reformers, the Catholic Church (through the Fourth Lateran Council)27 forbade clergy from participating in ordeals. This effectively abolished the ordeals, save for their use in some cases involving witchcraft.28 The ideas of Church Fathers were embraced and elaborated by the canon lawyers of the twelfth century (and afterwards), who were largely responsible for creating modern law, while scholars regard the abolition of ordeals as marking the beginning of Western legal traditions.29 The decline of the ordeal has been subject to different interpretations. Shapiro argues that the judicial ordeal was about factual proof and that its abolition involved a change in the nature of fact-finding.30 Whitman disagrees with this line of interpretation. Whitman argues that “factual proof was not the issue at all... Primarily at stake was the moral responsibility for judgment.”31 In his view, ordeals were abolished “precisely because they subjected those who participated in them to the taint of bloodshed.”32 Both Shapiro and Whitman agree that the result of the abolition of ordeals caused a formative crisis in adjudication, influencing procedural rules.33 24 Pope Clemens, Clemens III, Patrologia Latina vol. 204 [col. 1485D]. Pope Innocent III, the lawyerPope who presided over the Fourth Lateran Council, produced the classic formulation: “In dubiis via eligenda est tutior,” i.e., “When there are doubts, one must choose the safer path.” cited in Whitman, p. 117. 25 James Gordley & Arthur Taylor Von Mehren, An Introduction To The Comparative Study Of Private Law – Readings, Cases, Materials 33 (Cambridge University Press 2006). 26 Whitman, p. 55. 27 The Lateran Councils were synods of the Catholic Church held in Rome at the Lateran Palace from the twelfth to the sixteenth centuries. The purpose of the Lateran Councils was to address various problems of the Catholic Church, church property, patriarchal precedence, judicial and church reforms, and other issues. See Whitman, p. 53-54. 28 Whitman, p. 49, 55, citing Canon 18 of the Fourth Lateran Council. 29 See generally Shapiro, Doubt, p. 3, explaining that in the twelfth century, “irrational proofs,” such as trial by ordeal were replaced on the Continent by the Romano-canon inquisition process and in England by the jury trial; Morano, p. 509, stating that trial by jury developed as a substitute for older methods, such as trial by ordeal; Baker is also discussing the rise of the jury trial and describing the abolition of ordeals as the prominent event in criminal procedure. 30 Shapiro, Doubt, p. 3-4. 31 Whitman, p. 56. 32 Whitman, p. 56. 33 Shapiro, Doubt, p. 4, Whitman, p. 56. 21