Droit et Cultures (Nov 2022)
La distinction entre torture ordinaire et extraordinaire : Une modulation de la douleur judiciaire en France (XVIe-xviiie siècles)
Abstract
The traditional summa divisio between ordinary and extraordinary takes on various forms and is notably observed from the 16th century onwards concerning torture during the investigation. This dichotomy between ordinary and extraordinary Gehenna was part of a set of several classifications aimed at progressively intensifying judicial suffering in order to obtain confessions from defendants. The issue was then the subject of extensive regulation with the aim of framing the torments and avoiding any abuse on the part of the agents of justice. The distinction between ordinary and extraordinary torture has significant material repercussions for the suspect, whose physical integrity may be affected to varying degrees. The ordinary question is milder and generally constitutes a prelude to the more rigorous extraordinary question, their modalities naturally depending on the times and the judicial jurisdictions. The justification for such a difference in treatment is based in principle on the desire to spare a certain category of weaker people such as women, the sick, the elderly, etc., who are then subjected only to ordinary torture. In contrast, healthy male defendants are usually subjected to the ordinary question and then the extraordinary question. The intensity of the pain that the tormented bodies can undergo can thus fluctuate considerably according to the state or condition of the defendants. These two degrees of torture thus represent distinct and/or complementary stages of the inquisitorial process. However, it emerges from the analysis of the sources and the acts of the practice that ordinary and extraordinary Gehenna
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