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.

 

 

Ahem.

 

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.

 

 

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15 Responses to The law and magical thinking

  • Mcberniemc says:

    I’ve always viewed the law in a similar vein and find it amusing when people state ‘you can’t do that, it’s against the law’ as if ,by magic, it will immediately stop the action – they rarely like my answer which is: ‘they can, it just means the may be arrested’

  • AJ says:

    An illustration of this was when I was in car in Denmark with an American driver and two danes. At a red light the driver asked ‘can I turn right through a red light’ (as you can in many US states). One Dane said ‘of course …..’ . At which point the American driver drove through the red light and turned right only for the Dane to contine ‘but if you do you can be arrested.’ It made me laugh at the time but it illustrates quite well that the law of itself prevents nothing but imposes potential penalties.

  • Professor David Rosen says:

    I enjoyed your blogpost. I agree with you that people do not just stop thinking the way they do, just because a new Law is created. Take smoking, for example. A consistent attack from the Health Authorities, together with a substantial hike in taxes, supported by ‘no smoking’ zones, contributed to a growth in moral abhorrence. Social responsibility has been reflected in the Law. An outright ban would have created an underground society. Subjugation over time, caused a dearth of desire.

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  • nadine Evans says:

    Hmmmmm a fun post but tenuous link between law and words! All words would acquire magical status if the authors example is to be used. Think of children playing in the play ground, many of the rules and regulations are not legal per se, but are tradition, (tick your on!!!) nothing to do with law but just more words…off ground tick… because you are 1 inch off the ground you cannot tick me….it’s all exactly the same…..nothing to do with law!!!!!!!

    • sheenaghpugh says:

      All words do have magical status. “Grammar” is a variant of “glamour”, an old word for magic. “Spell” and “spell”, noun and verb, are cognate. When we arrange the words for things in some order, we hope thereby to acquire power over the things they represent; to be able to order and control “grief”, “love”, “power” as we do the words for them (don’t we all say “this is a table” when we mean “this thing is called a table”?)

  • Paul says:

    “…..these words have the “real world” effect of being a prelude to, and justification for, the use of coercive power…”

    That is true, but what is that persuades a person to use that coercive power?

    That people participate in law at all (either enforcement or representation) is because they are convinced by the words of a particular ‘vision’ of justice and society: they are motivated to see things done in a particular way. We cannot naturalise this motivation in science, we can only articulate it in words (perhaps even rhetoric).

    Like it or not, words do have this power. They can articulate / inspire our participation in (or rejection of) the entire enterprise of our social existence. The very notion of “me” and “my society” is itself a linguistic determinate.

    A psychologist (from Freud onwards) might object to this and speak of such ‘real’ entities as my psyche and my ego; and “I” might even be persuaded!! But since the talk is now of the ‘invisible’ and of ‘magic’….exactly where are our psyches?! We speak of them (copiously), but can we point? (Reductionism to the brain is entirely unproven…and indeed fraught.)

    Not only are words powerful, they are also a uniquely constructive (and wondrously human) enterprise; as, in fact, psychology has persuasively demonstrated.

    To balk at the word ‘magic’ is, I think, an historical misunderstanding (a prejudice in fact). It subscribes to the belief (ah the irony!) that these ‘other’ primitive cultures are trapped by the illusion of invisible powers. There is no evidence to support this (David Abram). It is a caricature employed as a denunciation…the stuff of empire builders.

    Cultures are informed by their practices, no more, no less. And the use of language is a powerful practice….a practice that motivates us (literally). It inspires both continuity within a social milieu, and it can inspire change. Such is it’s power, even it’s autonomy.

    It has always been the case that good lawmaking is well spelt out! Perhaps those ‘other’, more ‘primitive’ cultures are simply more aware of this than we now are.

  • There is also an element of magic and law being something-that-everyone-agrees-it-is. Someone is a witch because everyone agrees that they are, they gain the mystique of being a witch and the prospect of being trialled-by-burning.

    Following on from that, if people start denying the power of the magic, the magic diminishes – whether it be someone pointing out the statistics of how many “witches” float vs how many drown, or when a cabinet minister says that they don’t care about measures designed to increase participatory democracy in lawmaking.

    (Heart-felt apologies for Daily mail link: http://www.dailymail.co.uk/news/article-2224975/Michael-Gove-dismisses-150-000-signed-petition-new-school-field-rules.html)

  • Nile says:

    Not so much wizardry as sorcery: one is an art of words that direct the power of the speaker; the other, an invocation to summon and bind a dark and terrible power to the speaker’s purposes.

    A court of law acts in the name of the crown – in its most primitive form, a court arbitrates disputes beore the King himself – and the judgements bind the coercive powers of the state to the service of the winner.

  • Interesting. I thought that the law also had a lot to do with social conventions, and that the words got their meaning through social practices …

  • Botzarelli says:

    Unfortunately law and lawyers have a lot less power than the magical theory of law would suggest. I’m reminded of a story from a friend who was a defendant personal injury lawyer. Unusually for him he’d recommended his client to make a very generous settlement offer on the basis that there was no real dispute as to liability and the claimant solicitor’s quantification of the claim was realistic (the latter being particularly rare from some claimant sols…). However, for some reason which the claimant’s lawyer could not provide, the claimant was refusing to settle. In the end, the claimant spoke directly to my friend, who asked why the settlement was not acceptable and what more could be done. The claimant answered “I don’t want any more money, I want you to make me well again”.

  • Peter Stewart says:

    Just after reading your post I came across this:

    ‘In China, following an incident in which a 2-year-old baby was left stranded in the middle of a marketplace and run over, not once but twice, as passersby went casually about their business, an appalled electorate has petitioned the government to pass a good-Samaritan law to prevent such a thing from happening again.’

  • Isn’t Magistrate cognate with magician ?

  • Muscleguy says:

    @Peter Stewart
    New Zealand has recently passed a bystander law, criminalising lack of action, including alerting the relevant authorities. This was after various neighbours of a particularly egregious domestic violence case knew all about it but did nothing, did not call the police or social services. You are not required to risk yourself, but doing absolutely nothing is no longer acceptable. If you are aware then it is your business.

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