chapter  2
20 Pages

Medico-legal practice before the modern period

An understanding of the history of forensic medicine must start with the activity itself: the practical business of providing medical knowledge in a legal context. This chapter surveys medico-legal practice from the ancient world – Western civilization is after all built on foundations laid in classical Greece and Rome, through the medieval period to the last decades of the eighteenth century, when recognizably modern states emerged in Europe and North America. The notion of professional expertise is typically associated with nineteenth and twentieth century science and medicine in the service of the state,1

a connection which will be examined in Chapter 3, but it has long been evident that in many areas of critical importance to the state and its citizens, individuals possessed of specialized knowledge have assumed a privileged competence in public administration,2 not least in the law courts. Medical practitioners, as a consequence of their professional experience and skill in interpreting the mysteries of the human body, have been among the most visible actors in this historical process, a fact which scholarship of the past 30 years has done much to emphasize. Physicians, surgeons and midwives were found in various legal forums, most notably in relation to death and injury investigations but also in civil procedures involving allegations of sexual delinquency. When legal officials required information about the hidden interior of the body, and the consequences on it of exterior actions, they turned to those who possessed medical knowledge. This stands in contrast to the history of attitudes to the mind where, for reasons to be discussed in Chapter 4, deference was by no means always accorded to the medical profession. Historians of forensic medicine have long tended to refer to medical

practitioners who testified in legal settings as ‘expert witnesses’, a term which is now used to refer only to someone who has attained a recognized professional skill and standing and, ideally, some court experience too, and who is therefore sufficiently qualified to give evidence of both facts and opinion. Following this definition, it is reasonable to ask to what extent a medieval physician or an early modern country surgeon could really be described as an expert? The next chapter will consider the early modern shift in the notion of expertise from ‘practical experience’ to ‘intellectual understanding’; but in the

medieval period, insofar as an individual to whom the community afforded status as a person skilled in medicine possessed knowledge that other members of the community did not have, he or she was to all intents and purposes an expert whose opinion deserved and carried an associated authority. This chapter will show how and why such expertise was used in pre-modern courts; the problems which arose when experts began to range themselves against one another will be considered in Chapter 3.