Judicial Torture as a Screening Device

Judicial torture to extract information or to elicit a confession was a common practice in pre-modern societies, both in the east and the west. This paper proposes a positive theory for judicial torture. It is shown that torture reflects the magistrate’s attempt to balance type I and type II errors in the decision-making, by forcing the guilty to confess with a higher probability than the innocent, and thereby decreases the type I error at the cost of the type II error. Moreover, there is a non-monotonic relationship between the superiority of torture and the informativeness of investigation: when investigation is relatively uninformative, an improvement in technology used in the investigation actually lends an advantage to torture so that torture is even more attractive to the magistrates; however, when technological progress reaches a certain threshold, the advantage of torture is weakened, so that a judicial system based on torture becomes inferior to one based on evidence. This result can explain the historical development of the judicial system.