Microkhan by Brendan I. Koerner

Hocus Pocus

January 19th, 2011 · 3 Comments

Should you ever find yourself digging through the Vanuatuan penal code, you might notice a curious offense listed in Section 151: “No person shall practice witchcraft or sorcery with intent to cause harm or detriment to any other person.” Though this prohibition obviously has its roots in traditional Vanuatuan culture, it’s inclusion in the nation’s official statutes is of far more recent vintage: The penal code was crafted in 1981, just a year after Vanuatu gained its independence.

The criminalization of witchcraft seems dreadfully archaic to my American ears. But writing in the LAWAISA Journal, the Australian legal scholar Miranda Forsyth makes the case that such a ban is actually smart policy:

There are a number of factors that indicate that the practice of sorcery should continue to be criminalised in Vanuatu. Sorcery is considered to be a serious crime by the majority of the population and as discussed above is a source of considerable community disorder and fear. As the Papua New Guinea Law Reform Commission observes “[w]hat is important about the existence of sorcery is not that it can be proved objectively and mathematically, but rather that the subjects and the objects of sorcery believe it exists and is effective, for good or for ill.” Further, the criminal law has always recognised through the doctrine of attempt that a person who intends to harm someone but is stopped before they actually cause harm is just as guilty as someone who actually causes the harm. Given that legitimacy is a major issue for the state legal systems in Melanesia, effectively criminalising behaviour widely perceived to be evil would certainly be a step in the direction of giving ownership of the state system to the people…Finally, if sorcery is not criminalised then people who honestly believe that they are the victims of sorcery will have nowhere to turn and may as a consequence engage in vigilantism. It would appear to be manifestly unfair for a legal system to provide no means of redress for a person who believes his or her life is at risk, but then to punish that person if he or she takes steps to protect themselves from that risk.

Forsyth adds that Section 151 is almost entirely for show, as there has never been a successful sorcery prosecution in Vanuatuan state courts. (The “customary” courts that exist on the village level are apparently a different story, however.)

Reading about Vanuatu’s symbolic anti-witchcraft stance made me curious about when and how similar laws slid off the books of Western nations. Perhaps unsurprisingly, the pattern was similar: Sorcery remained technically illegal long after state legal systems stopped caring about such “crimes”:

The formal decriminalization of witchcraft had little bearing on the broader process of decline that we have been discussing. The blanket repeals that took place in Great Britain and Sweden had no effect whatsoever on witchcraft prosecutions in those countries because the last trial had long preceded the legislation effecting the change. The same could be said of the large number of states which repealed their laws only in the nineteenth century. Even in those countries which passed witchcraft statutes before the end of the trials, the new laws had only a limited effect on the volume of prosecutions. The first of these laws, the French edict of 1682, probably prevented prosecutions only in the few outlying regions of the country where trials were still taking place. The same could be said of Frederick William I’s edict of 1714, since prosecutions in Prussia had slackened considerably since the 1690s. The Polish law of 1776 affected only those isolated villages like Doruchowo where there was still pressure to prosecute.

The lesson here? Laws are often the carts behind the horses. Real-world attitudes develop too quickly for the machinery of government to keep pace, something that smart officials recognize by stretching (or ignoring) the rules in place. Were legal originalism to always reign in day-to-day practice, the world would be a much more unbearable place.

(Image via Sense and Sensibility)


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