Rostam J. Neuwirth, University of Macau, Faculty of Law, E32, has published Law and Magic: A(nother) Paradox? at 37 Thomas Jefferson Law Review 139 (2014). Here is the abstract.
In the past, paradoxes and similar rhetorical figures that are summarized by the term “essentially oxymoronic concepts”, have been frequently applied to describe mystical experiences or, more generally, “change” that represents the uncertain or the unknown. Thus, their usage has primarily been a privilege of the arts, literature or the occult sciences. Today, however, essentially oxymoronic concepts are increasingly permeating scientific, legal and other public discourses as much as advertisements or daily conversations. Concepts like “globalization paradox”, “co-opetition”, and “piracy paradox”, products labeled “ice tea” and “Sports Utility Vehicles (SUVs)”, and films entitled “True Lies”, are just a few examples that testify to this wider trend. Their usage appears especially prevalent in attempts to scientifically describe and understand the often complex relations between two or more different phenomena or fields. In this regard, the relation between law and magic may be no exception, as it can also be framed by, or gives rise to, several paradoxes. For instance, in early history, and later, in the context of colonialism, laws have often outlawed magic as “witchcraft” or “charlatanry”, based on the belief that their character is irrational, as opposed to the rational character of the law. Paradoxically though, contemporary laws and legal practice still maintain a high degree of rites, rituals and rhetoric, similar to those that have been applied in magic. Similarly, as Jerome Frank has remarked, despite the law’s focus on certainty, it striking to see how often “magical phrases” are used in its language. The apparent contradictions in the nature and language of the law are therefore taken as an opportunity to cast some light on various issues that link law and magic in order to gain some insights about the nature, origin, and role of law generally.
Download the article from SSRN at the link. The article forms part of the conference papers from the Law and Magic symposium held at Thomas Jefferson School of Law, June 2014.
Reacting to the Supreme Court's 6-3 ruling in King v. Burwell, Senator Ted Cruz proclaimed,
Today, these robed Houdinis have transmogrified a federal exchange into an exchange, quote, 'established by the State...This is lawless. As Justice [Antonin] Scalia rightfully put it, without objection, words no longer have meaning.
Since Justice Scalia has referred to the statute as "SCOTUScare" (or SCOTU-scare, depending on how you want to read it), scare-y, magic, Hallowe'en-y language seems to be the order of the day. Carre-y on.
From the mailbox: I've received a copy, courtesy of the authors and publisher, of the wonderful Droit et surnaturel (Issy-les-Moulineaux: lextenso, 2015), edited by Jean-Christophe Roda, a professor of law at the University of Aix-Marseille. This volume collects the papers from a conference held jointly by the University of Aix-Marseille, Centre de Droit economique and the School of Law, University of Aix-en-Provence, September 27, 2013.
It contains 2 introductory surveys and 10 essays by leading scholars on various areas in the subject of law and magic: here's what it contains--law and exorcism, by Herve Lecuyer of the University of Paris II, the supernatural and contract law, by Frederic Buy, of the University of the Auvergne and Marie Lamoureux, of the University of Aix-Marseille, criminal law and the supernatural, by Philippe Bonfils, of the University of Aix-Marseille, occultisme and family law, by Vincent Egea, of the University of Toulon, belief and civil responsibility, by Julien Theron of the University of Toulouse-I, magic and IP, by Nicolas Bronzo, of the University of Aix-Marseille, and numerology and symbolism in the Code of Civil Procedure by Emmanuel Putman of the University of Aix-Marseille (I have to show that one to my civil law colleagues here at LSU--well, I have to share the whole book with my civil law colleagues, frankly), witchcraft law three hundred years after Salem, by Jean-Christophe Roda, of the University of Aix-Marseille, and law and sorcery by Louis-Daniel Muka Tshibende of the Catholic University of Lyon. There is also a concluding essay by Remy Cabrillac of the Faculty of Law, University of Montpellier.
A treasure trove of scholarly writing on this subject.
By what power or authority an assembly undertakes to make paper money is difficult to say. It derives none from the constitution, for that is silent on the subject. It is one of those things which the people have not delegated, and which, were they at any time assembled together, they would not delegate. It is, therefore, an assumption of power which an assembly is not warranted in, and which may one day or other be the means of bringing some of them to punishment.
One of the evils of paper money is that it turns the whole country into stockjobbers. The precariousness of its value and the uncertainty of its fate continually operate night and day to produce this destructive effect. Having no real value in itself, it depends for support upon accident, caprice, and party, and as it is the interest of some to depreciate and of others to raise its value, there is a continual invention going on that destroys the morals of the country.
It was horrid to see, and hurtful to recollect, how loose the principles of justice were let, by means of the paper emissions during the war. The experience then had should be a warning to any assembly how they venture to open such a dangerous door again.
Alastair Sooke, art critic of the Daily Telegraph, discusses the cultural history of witches in this piece for the BBC website. He points out that common images that we associate with witches (that they can turn people into animals, for example) derive from Greek mythology, and that they can foretell the future come from the Bible. But he points to the Renaissance as the period that really formed our modern notion of witches, and to one man--the artist Albrecht Duerer--as the person who created the archetype of the witch. Duerer, says Mr. Sooke, created the duality of the modern witch, who is invariably female.
In a pair of hugely influential engravings, Dürer determined what would become the dual stereotype of a witch’s appearance. On the one hand, as in The Four Witches (1497), she could be young, nubile and lissom – her physical charms capable of enthralling men. On the other, as in Witch Riding Backwards on a Goat (c 1500), she could be old and hideous.
Where did Duerer get his ideas? Possibly from other artists, including Andrea Mantegna. The invention of the printing press (15th century) allowed such ideas to spread quickly. By the beginning of the Enlightenment, belief in witchcraft and witches began to drop off, but artists and writers still found witches an interesting theme, and that theme continues today. And she is still almost always a woman, historically a target for societal blame and legal sanction. More here.
In the New York Times, a long article about the career and opinions of James "The Amazing" Randi. Adam Higginbotham discusses not just Randi's work but lawsuits brought against him by Uri Geller, and recent problems his longtime companion has had with U.S. Immigration.
During the town council's meeting to discuss repeal of the ordinance, protestors complained that such practices were anti-Christian. Like one local resident, they thought that these practices would cause an increase in crime. Nevertheless, the council voted 4-2 to do away with the ban. More here from the Northern Virginia Daily, here from change.org.
As disciplines, magic and the law are usually considered to have little in common. One is mystical, otherworldly, associated with phenomena that reason can’t comprehend; the other is anchored in the affairs of this world and at least aspires to be governed by logic and principle. And yet, as literature shows us, if you want to dabble in magic safely and successfully, it helps to have the advice of a good attorney.
Hmmm. When I read passages like this one, they remind me that there are lots of people out there who still aren't convinced that law and magic are disciplines one can fruitfully compare. Maybe I should send Ms. Barker a copy of the law and magic book. Or at least a citation.