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.
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in a different direction, than the realists intended. Classic anthropological studies reveal several telling structural similarities between traditional proximate cause analysis and ritual magic. Moreover, it seems that in diverse cultural contexts, magic not only survives skeptical exposure, it feeds on it. Drawing on the anthropological literature, I propose that exposing doctrinal indeterminacy functions as a kind of ritual unmasking that ultimately increases rather than diminishes the credibility of doctrinal analyses. The Article concludes by considering how unmasking doctrinal indeterminacy works to strengthen faith in doctrine and by raising some questions about the implications for law’s legitimacy. Does unmasking doctrine only further mask judicial power? Or can ritual theory help us see some potential legitimate value in maintaining doctrine as the form of legal decision making, even as we acknowledge doctrine’s inability to determine legal outcomes?
This paper explores the rise of the fiscal state in the early modern period and its impact on legal capacity. To measure legal capacity, we establish that witchcraft trials were more likely to take place where the central state had weak legal institutions. Combining data on the geographic distribution of witchcraft trials with unique panel data on tax receipts across 21 French regions, we nd that the rise of the tax state can account for much of the decline in witch trials during this period. Further historical evidence supports our hypothesis that higher taxes led to better legal institutions.
In a new article published in the Cornell Law Review, scholar Yishai Blank examines the "reenchantment of law": the reworking, remaking, or recreating of bases of law so that it can provide what seem to be more substantial ideals about morality and justice.
Here is the abstract.
The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.
Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation - and the possibility of objective and legitimate adjudication - is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
Roger Pearse discusses Roman attitudes toward magic in this post from August 8, 2009. He begins,
There were three sets of Roman legislation relating to magic. There was an edict in the Twelve Tables (ca. 451 BC); the laws of Sulla (81 BC); and the legislation of Constantine and other Christian emperors (after 312 AD).
(Apologies to Mr. Pearse for having initially misspelled his name).
Peter T. Leeson, George Mason University Department of Economics, has published Animal Trials. Here's the abstract.
For 250 years
French, Italian, and Swiss ecclesiastic courts tried insects and rodents for property crimes as legal persons under the same laws and according to the same procedures they used to try actual persons. I argue that the Catholic Church used animal trials to increase tithe revenues where tithe evasion threatened to erode them. Animal trials achieved this by bolstering citizens' belief in the validity of Church punishments for tithe evasion: estrangement from God through sin, excommunication, and anathema. Animal trials permitted ecclesiastics to evidence their supernatural sanctions' legitimacy regardless of these trials' outcomes. They strengthened citizens' belief that the Church's imprecations were real, allowing ecclesiastics to reclaim jeopardized tithe revenue.
The full text is not available from SSRN.
Animal trials weren't that uncommon. See also
Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Brill, 1993), at 100-133.
Esther Cohen, Law, Folklore, and Animal Lore, Past and Present (1986) at 110.
Warning: If you are an animal lover, read with extreme caution, or don't read at all. The accounts of what people have done to innocent animals, out of stupidity, ignorance, folly, narrow-mindedness, or religious fervor, are truly stomach turning.
The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such, evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence.
This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modem cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.
As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence" and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.
Although the comparison between the witchcraft trials of 1692 and modem trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century." Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.
Download the full text of the Article from SSRN at the link.
Professor Moriarty discusses seventeenth century and modern "ways of knowing" and their probative value, suggesting that while they haven't changed since 1692, the assumptions we make about what we observe certainly has. She points out that scientists sometimes term "insights" what they use to fuel hypotheses (and then test by the scientific method). I note that others term these insights something else ("visions" perhaps) and don't test them at all.
Professor Moriarty's piece links up nicely, it seems to me, with what we seem to be learning about magic and neuroscience, and how magicians (and others) deceive us so easily. As Hercule Poirot, a devotee of justice, as opposed to prosecution, and a remarkable though fictional figure-outer of puzzles, it gives one furiously to think. His creator, like other good mystery writers, knew a lot about deception herself. But that's material for another post, about mystery writers and magic.