LEGAL JARGON FEBRUARY 2010 A CONTEMPORARY KIWI LEGAL PUBLICATION “LEGAL JARGON” is a scholarly flagship journal published quarterly by MR HUMAN, BARRISTER (Auckland, New Zealand) focusing on real and relevant legal issues of the day and of the future in Aotearoa, New Zealand. As a law review these articles serve an important purpose in that they express the ideas of legal practitioners, in New Zealand and overseas, with regard to the direction the law should take in any and all areas. We invite legal practitioners in New Zealand to write articles and members of the public to submit comments. MR HUMAN is the new barrister on the block. Mr Human is a barrister currently practicing in the Central Business District, Auckland, New Zealand. He has experience, expertise in and is passionate about criminal, human rights, immigration, intellectual property, family, employment, civil, mental health and refugee law and litigation. Mr Human is a lawyer you can trust. Mr Human can be retained through a solicitor. Kind regards, HU. “THE PARADOX OF CULPABILITY” YOUR CAT KILLED MY SPARROW IN THEIR YARD! PAGE 2: PHILOSOPHY AND THE LAW: INTRODUCING SOCRATES PAGE 3: HELP ME!…I’M AN OVERSTAYER! PAGE 6: THE RISE AND RIGHTS OF THE INTERNATIONAL KIWI CHILD PAGE 9: WHICH WITCH?: THE STRANGE WORLD OF LEGAL MAGIC (FEAT. EVGENY ORLOV) HIEROPHANTIC H HUMAN, Level 4, 369 Queen Street, Auckland Central. Phone: (09) 306 8939. Fax: (09) 306 8889. Email: [email protected]
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LEGAL JARGON FEBRUARY 2010
A CONTEMPORARY KIWI LEGAL PUBLICATION [
“LEGAL JARGON” is a scholarly flagship journal
published quarterly by MR HUMAN, BARRISTER
(Auckland, New Zealand) focusing on real and
relevant legal issues of the day and of the future in
Aotearoa, New Zealand. As a law review these
articles serve an important purpose in that they
express the ideas of legal practitioners, in New
Zealand and overseas, with regard to the direction
the law should take in any and all areas. We invite
legal practitioners in New Zealand to write articles
and members of the public to submit comments. MR HUMAN is the new barrister on the block. Mr Human
is a barrister currently practicing in the Central Business
District, Auckland, New Zealand. He has experience,
expertise in and is passionate about criminal, human
1 Russell, Jeffrey Burton (1972 repr. 1984). Witchcraft in the Middle Ages. Ithaca, NY: Cornell
University Press. ISBN 0801492890. Page 279
10
Malleus Maleficarum were posited as
authoritative statutes used to try, to torture
and to convict so-called ‘witches’.
The Spanish Inquisition was an ecclesiastical
tribunal started in 1478 by Catholic
Monarchs which had its jurisdiction only
over baptized Christians. The Inquisition
functioned in large part to ensure the
orthodoxy of new converts. Torture was
always a means to obtain the confession of
the accused, which was itself considered the
proof of guilt, not as a punishment itself. It
was applied without distinction of sex or
age, including children and the aged.
Section III is the legal part of the Malleus
that describes how to prosecute a witch. The
arguments are clearly laid for the lay
magistrates prosecuting witches. Institoris
and Sprenger offer a step-by-step guide to
the conduct of a witch trial, from the method
of initiating the process and assembling
accusations, to the interrogation (including
torture) of witnesses, and the formal
charging of the accused.2 One example of
torture used was trial by drowning of
suspected witches.
Trial by drowning is a medieval ordeal
allegedly used on women suspected of
witchcraft. The idea was that witches would
float. As part of the trial the accused was
thrown into a lake or river. If the accused
sank, she was innocent and presumed not to
be a witch. If the accused floated, she was
presumed to be a witch and could be hanged
or executed by burning. Either way, the
accused faced death, and a no-win situation.
Further, Women who did not cry during
their trial were automatically believed to be
witches.3
There was never an earnest attempt to find
the truth and indeed the ritualistic and
magical systems did not want to investigate
2 Broedel, Hans Peter (2004). The Malleus Maleficarum and the Construction of Witchcraft:
Theology and Popular Belief. Manchester University Press. ISBN 0719064414. Page 34 3 Mackay, Christopher S. (2006). Malleus Maleficarum (2 volumes). Cambridge University
Press. ISBN 0521859778. Page 502
– heedless of Seneca (Lucius Annaeus
Seneca)’s ‘If you judge, investigate’ - but
simply to perpetrate a political act whilst
consolidating and monopolizing power into
one body, the Catholic Inquisition.
Indeed although our legal system prides
itself on rationalism and scientific
methodology, one only needs to look at its
Roman roots to see the fallacy of its attempt
to incorporate the ideas, ideals and beliefs of
magic into a scientific framework. Roman
law was devoted to the concept of ‘justice’
which takes its roots from Iustitia, the
Roman Goddess of Justice and sometimes,
simply “Justice”.
Lady Justice is an allegorical personification
of the moral force that underlies the legal
system. Justitia is typically depicted holding
a set of weighing scales suspended from her
left hand, upon which she measures the
strengths of a case's support and opposition.
She is also often seen carrying a double-
edged sword in her right hand, symbolizing
the power of Reason and Justice, which may
be wielded either for or against any party
that stands before her.
Roman Courts depended very much not only
on the rhetoric of the lawyer who invoked
the principles of the goddess but also on the
social status of the tried victims. Roman
society was hierarchical with slaves (servi)
at the bottom, freedmen (liberti) above
them, and free-born citizens (cives) at the
top. One’s social status therefore determined
11
the legal rituals and magical remedies to
which one was entitled to.
In the nineteen-twenties and thirties, the
American Realists voiced their critique of
legal rationality by casting aspersions that
judges practiced “legal magic”4. According to
the Realists, legal outcomes were actually
determined the individualized preferences
and prejudices of judges rather than
empirical and evaluative analysis.
At the same time, across the Atlantic, the
Scandinavian Realists were also contending
that modern legal practice was historically
descended from merely magic rituals. In the
words of Karl Olivecrona, “According to the
Roman view, Hagerstrom maintains, the
right of property is a mystical power over
the spirit inherent in the object. This power
is created, and transferred, by means of
magical acts…All the ancient legal acts
belonging to the original Roman law were
magical acts.”
The Realists catalogued and demystified
legal magic and exposed the many ways that
the law’s magical features can masquerade
as objective truth and costume politics as
nature. They showed factually that legal
magic – like other forms of magic – can be
used to whore out ulterior motives and
posterior motivations so as to perpetrate
ideologies of social dominance. Further, they
thought they showed convincingly that all
4 Felix Cohen, Transcendental Nonsense and the Function Approach 35 COLUM. L REV.
809, 821 (1935)
precedential forms, doctrinal formulas, and
procedural functions were infested with
“magic solving words”5, “word ritual”6, and
“legal myth”7 acting out so as to obscure any
real reasons for legal adjudication and court
decisions.
The Malleus Maleficarum, the Spanish
Inquisition or trial by drowning for example
were all substantiated by ethical rules
defined yet never articulated in the law in
any meaningful way but are rather based on
the perceptions, preferences and prejudices
of those who were so empowered.
It is only through recognizing law as a form
of ritual and magic and further that it is
based on perceptions of culture and
creations of linguistic art as logos that we
can also begin to analyze how law can
become and is intended in part to be a
system of social control and oppression -
that is – black legal magic. Notwithstanding
this, this noble, notable and notorious
practice and profession of law is blessed
with a very real potential for enriching and
transforming societies so that each and all of
their subjects can subjectively experience
and “imagine law as an activity that in its
ideal form, at least on occasions, has true
intellectual, imaginative, ethical and political
worth” and in so doing to find “both
something to aim for and a more workable
and trustworthy ground for criticism of
what we see around us”8 - that is – white
legal magic.
5 Cohen, supra note, at 820 6 Leon Green, The Duty Problem in Negligence 28 COLUM. REV. 1014, 1016 (1928) 7 Jerome Frank, Law and the Modern Mind 12 (2ed. 1931) [1930] 8 Milner S. Ball & James B. White, A Conversation Between Milner Ball and James Boyd
White, 8 Yale J. L & Human. 465, 468 (1996), quoted in Paul Schiff Berman, Telling a Less
Suspicious Story: Notes Towards a Non-Skeptical Approach to Legal/Cultural Analysis, 13