As this blog is named after a medieval wizard, this post is a Hallowe’en Special…
You would think magic and the law had little in common.
After all, old men in elaborate robes adopting solemn tones as they read archaic words in special sequences from old books is, of course, something which would never happen in the modern world.
In fact, magic and the law do have something in common – at least that part of magic which is concerned with spells and sorcery.
Other than in extreme situations, the stuff of law consists of words: words in statutes or in contracts, words said in court or in witness statements, and words in judgments and court orders.
Ultimately these words have the “real world” effect of being a prelude to, and justification for, the use of coercive power by one person on another. This can include the court attendant “taking you down” to the cells or the bailiff enforcing a court order at your door.
But such resorts to coercion happen at the margins: most people conduct their daily business on what they believe the law to say: “you can’t do that, there is a law against it” or “it is perfectly ok for me to do this, there’s no law against it”.
It is as if the words in the statute books and the case reports are so many spells, given the invisible power they are supposed to have over other people’s lives.
A Martian looking down on humans milling around would be quite unaware of the social power of law; the Martian may even be unlikely to infer all the rules by which we conduct ourselves by just seeing the prisoner being taken from the dock or the goods seized from some debtor’s house.
There are, of course, other sets of norms and principles which influence human behaviour; but what may be special about law is that it is believed that by “making a law against it” you somehow can change the reality of our daily lives.
It is like some Harry Potter gesture, as the earnest law-maker commands, “I prohibit you thus!”
(Indeed, it is possibly not a surprise that the Royal Courts of Justice is very similar to Hogwarts, both inside and out.)
But, as I have contended elsewhere, we perhaps should ban “banning things”.
To prohibit something with the law is not actually to extinguish it: the prohibited item or conduct does not suddenly disappear with some quick final sparkle.
Often to say, “there should be a law against it” is really no different from saying there should be a spell against it, and is just as effective.
Think of drugs, or sex work, or back street abortions.
For when something is “banned”, all that happens is that any further incidents of the prohibited activity may be attended with (intended and unintended) consequences which it otherwise would not have but for the “ban”.
And criminalising certain activities often does create unintended consequences.
Think again of drugs, or sex work, or back street abortions.
All this is bleedingly obvious to anyone who sees the law for what it is: just precisely chosen words in certain books which lead to particular processes with the occasional coercive outcome – socially important, yes, but that import is limited.
Few people see the law in such restrained and practical terms; instead, they think uttering special words by means of law-making can somehow change the world.
This is not to say that law cannot have sensible effects – indeed, the imposition of civil and criminal liability, and the coercion which then can follow when that liability is determined, and the giving of legal powers to certain people, are an essential part of a modern liberal society.
However, law-making is not magic: to make something legal or illegal is never by itself going to work like a spell.
Few people in the United Kingdom of Hallowe’en 2012 any longer – supposedly – believe in spells and sorcery.
But it is time people stopped thinking about law in magical terms.