How universal is the concept of "a trial"

In the modern world criminal trials are pretty ubiquitous even in autocratic countries, but for the most part these can be traced to European Roman or Anglo-Saxon legal traditions either directly through colonialism or simply by virtue of the fact the “western” (or for a while “soviet”) way was the defacto way of doing things for a long time.

Once you go back to before that European-dominated period of world history, and outside the bit of the world that was dominated by greco-roman culture, was the idea that before you can inflict a punishment for a crime on someone you should have a trial to show their guilt ubiquitous? Can it be traced to a particular culture (is this another one of those things we have the Sumarians to thank for?) or is it just one of those aspects of government (like say, taxes) that is obvious enough to be invent multiple times whenever a civilization becomes big enough to need it?

The Mosaic Law contains multiple references to trials. For example, the ancient Israelites had 6 towns that were designated “cities of refuge.” If somebody killed somebody else by accident, he could go to one of those towns and seek refuge from the dead person’s relatives (who would be trying to kill him in revenge). He would tell the town elders what had happened.

“Then the congregation shall judge between the slayer and the revenger of blood according to these judgments” (Numbers 35:24).

Also, for crimes that carried the death penalty, there is this: “At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.” (Deut. 17:6).

What is considered by OP to be a criminal trial? The Ancient Chinese had a system of magistrates, and the magistrate was sort of an inquisitor. His job was to investigate crimes alleged and secure a conviction, and he might have prefects under him who would handle arrests etc. There was certainly a “process” that the magistrate followed, but it looked very different than the sort of trials we hear about from old Anglo-Saxon records or Roman legal traditions. The Chinese magistrate’s job was largely to wring a confession out of a person. There was also an innate presumption of guilt–because it was assumed a good citizen would never become involved in the criminal legal process. In fact it was felt even if a person was innocent of the specific charges against them, just the fact that things had progressed to the point of a magistrate investigating them, meant they had stepped outside the bounds of appropriate behavior in some way–for a person behaving appropriately would not have this happen to them.

The Chinese magisterial inquisitions did not feature counsel or a formal burden of proof. There was also a tradition of mitigating the harshness of the Chinese textual laws that required vicious punishments, often mitigation being offered in exchange for payments to the magistrate. The Chinese system was about protecting the state from the disorder caused by criminals, it was not about settling issues of right and wrong, and it was expected most matters Chinese people deal with through private arbitration. If the magistrate had to be involved the good order of the state was at issue which is why they were so harsh.

The Anglo-Saxon trial system appears to be more about giving both parties a chance to air their “side” of the story and to try to come to a fair conclusion. I don’t view this as more progressive than the Chinese system in ancient times, because the Anglo-Saxons of the 700s/800s etc were a pretty non-progressive people too by our standards. I suspect the reason for their system of trials was more to “keep the peace” between clans and families, in a much more decentralized system. It just happens that this format over many centuries of subsequent evolution developed into more modern trial systems that were actually setup to allow for adversarial trials designed to protect the accused. The ancient Chinese system was more about protecting the hierarchy of Chinese society and promoting good order and discipline among the people. But would the Chinese proceedings be considered “trials” I don’t know.

Well quite. I’m no expert on these matters, but weren’t trial by combat and trial by ordeal still the norm at that time?

I don’t like the implication that the West introduced fair trials to the world – if we compare like for like periods of history I suspect the situation is quite a bit more nuanced than that.

Roman law was very highly developed, and is the basis of Western legal systems.

All the principles of a fair trial that we take for granted were systematically laid down in ancient Rome:

  • justice should be on the basis of written laws and precedents rather than arbitrary decisions
  • an open court where justice can publicly be seen to be done
  • an impartial judge
  • the right of the accused to know the charges against him and to defend himself publicly
  • the right of the accused to employ legal counsel to argue his case for him
  • the right to cross-examine witnesses
  • the right of both sides to be heard
  • the right of appeal to higher authority

As far as I know, no other culture ever independently laid down all those principles together, though they may have used a subset of them.

Exactly. No civilization, including in the West before the modern era.

I don’t know much about history. I don’t know much biology.
But I do know enough about the history of crime and punishment in Britain to know that we did not keep to most of those principles for much of our history.

I don’t know that they were ever the norm.

In some Germanic and Nordic cultures they were used in certain cases, or there was the option of using them in certain cases of personal injury or insult. But cases concerning money, land, contracts, etc. were decided by judges in a hearing.

As I said, Roman civilization did, and influenced all later Western systems.

“Germanic cultures” here including Great Britain (i.e. English Common Law), for both trial by ordeal and trial by combat. And “certain cases” is basically all criminal cases (at one time or another) as well as many civil cases.

Sure but this is a ridiculous cherry pick to support a standard “anglo saxon values” rhetoric.

The principles formulated by the Romans were not entirely followed in Europe. Indeed, they were all but forgotten for a millenium. Meanwhile cultures outside of Europe independently formulated some of those same principles during that time.
So it’s very misleading, at best, to frame it as the world not following any of those principles and needing to be taught them all wholesale from the West.

You’re setting up a straw man.

I never said anything, or honestly even thought about, ‘Anglo-Saxon values’.

Nor did I say anything about ‘the world not following any of those principles’. In fact I said the opposite, that subsets of those principles were followed elsewhere.

Nor did I say anything about ‘needing to be taught them all wholesale from the West’.

You seem to have some bee in your bonnet, and you’re projecting views on to me that I’ve never expressed and don’t hold.

Please try to argue against what’s actually been said, not against what you imagine or prefer might have been said.

This is pure speculation but even in pre-history, there would have surely been some way of resolving disputes by argument rather than violence.

It is well established that in any human group, a leader emerges. They may be the strongest physically, but likely to be the one with the best ideas as well.

When there is a leader, it is natural for the followers to look to them to resolve disputes. Not a trial as we know it, but possibly both sides presenting a case followed by a judgement.

His post is the one that mentioned Britain. You disagreed with said post.

Well perhaps I misconstrued what you were getting at, because you responded to a post of mine in the context of arguing against that framing. I don’t think it was crazy for me to assume you were trying to defend that framing.

But anyway, no point arguing about it, it seems we’re in agreement on the main point (though this is an inference too, based on you trying to say what you’re not arguing…)

But that’s not the question in the OP. Clearly a legal system exactly the same as the Roman legal system with all it’s characteristics is not ubiquitous outside the Roman sphere of influence.

I was asking of the much more general concept of a criminal trial was ubiquitous?

How about the codex of Hammurabi (ca 1800 BCE)? https://www.history.com/topics/ancient-history/hammurabi

Without a strong working definition of trial it remains somewhat difficult to answer the OP, but I would say most advanced civilizations (and I use that term to refer to civilizations that developed writing, currency, agriculture, and some form of semi-centralized government) had some form of “procedural mechanism” for adjudicating crimes. In fact in researching this I saw an interesting passage from a 130 year old book on Ancient Jewish criminal jurisprudence, that defines a trial as implying the presence of: 1, a competent tribunal; 2, an accuser or prosecutor; 3, an accused. By that rough definition even the Ancient Chinese magisterial proceedings would meet that definition.

Let me add the typical caveats: lots of societies have existed that we lack much written history of, and could be exceptions to the rule. But I spent some time trying to “find the negative” on this–i.e., a known advanced civilization that had no criminal process at all. Which would mean either the government entirely left it up to the citizens to handle matters of criminality, or the government just had agents executing punishments entirely on whim with no process at all.

A number of cultures seemed to have a “Judge” model, where some form of judge would be empowered to make decisions. The process this judge ran might sometimes look like an Anglo-Saxon trial, but often times it might instead look like more of a police investigation where the judge is also the decider of fact and punishment.

Speaking from a sociological perspective I have to imagine it’s a fairly natural process that as a civilization reaches a certain point, some means aside from “personal vendetta” would be seen as desirable to settle criminal matters. Long before ideas about justice, the rights of the accused etc were common place, if nothing else having some sort of government arbiter helps to avoid societal disorder and other problems. At the same time from everything we know about history, pre-modern societies even when they had a formal legal system, settled much more in the way of disputes informally than is common in modern Western countries. Corruption was likely almost universally much higher than modern Western countries as well. The descriptions of the Ancient Chinese magistrate system describe a system in which corruption is a standard and probably even typical way matters resolved. The magistrates in some eras received bonuses for convictions, had a statutory time limit during which they HAD to obtain a conviction, and the men they employed to go out and find and arrest criminals were financially motivated as well. So likewise if you had money to make it more worthwhile to dispose of the case to your advantage, that could often be arranged.

Going to the example of the Ancient Jewish people, we see standards of criminal procedure going back over 2200 years that actually would still make some level of sense in modern times. The 1890 book I was looking at refers to Jewish tribunals as “synhedrion”, although I think that term fell out of use with later writers and the more commonly known “Sanhedrin” term is used to describe these tribunals (I’m not good at etymology but it looks like both words are ultimately derived from Greek.) There were Sanhedrin in every city and they were expected to try cases impartially–enforced by requirements that no one sitting on the tribunal could be related to the accuser or the accused, and other requirements such as a requirement that the members of the tribunal must not be experiencing “discord” among themselves–because distaste for another tribunal member might cause one to vote simply to spite that member, and not in the interest of justice.

The accused were imprisoned upon accusation, but were prohibited from being molested or abused in any way, and assaults or etc upon them were punishable as crimes. Evidence of at least two witnesses was required for conviction, and in the penumbras of these requirements you find a presumption of innocence, unlike the Ancient Chinese system that welt torture could be appropriate to wring the truth out of the accused, the Jewish system treated the accused as innocent persons until convicted, and protected them from physical abuse.

Even still these courts would produce results we’d consider shockingly unjust by modern standards. Simeon ben Shetach was held up as a paragon of justice in his day, but he presided over the mass execution of lots of women on the charge of “sorcery.” There is a tale (probably a parable) about the relatives of 80 women who were executed for sorcery during one of these purges, these relatives sought revenge, so they accused Simeon’s son of a capital crime and bore false witness against him. After his conviction, they admitted to having born false witness, Simeon asked that the case be reopened and retried in light of this–but under the law, past a certain point, witness statements could not be recalled as the assumption was they might be recalled dishonestly. Simeon’s son is said to have told his father that he must uphold the Law to stand as a divine example to others, so they proceeded with the execution despite knowing the convicted was innocent.