legal jargon - issue one - feb2012 - lvx
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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
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: humandevelopment@hotmail.com
2
PHILOSOPHY AND LAW:
INTRODUCING SOCRATES
“In Minos, one of Plato’s philosophical
dialogues, Socrates asks an unnamed
comrade for a definition of law. The
comrade replies: "Law is what is legislated."
To which Socrates objects that just as sight
isn't what we see, but rather that by which
we see, so likewise law is not what is
legislated but that by which we legislate. The
comrade, accepting this criticism, retracts
his definition. Surprised, one might protest,
“Surely law is the product of legislation, not
vice versa.” Yet in saying that law is that by
which we legislate, Socrates is in fact
appealing to a very old and deep-seated
idea, as we will discover.
The comrade's second definition is this:
"Law is the judgment of the state." Once
again, through repeated questioning,
Socrates quickly proves that this definition
clashes with other things the comrade
believes; thus the comrade is committed to
an inconsistent triad of beliefs:
• Law is the judgment of the state.
• Lawfulness is just.
• The judgment of the state is sometimes
unjust.
If the comrade accepts any two, he must
reject a third. Clearly, Socrates' comrade is
attracted both to a positivist conception of
law (according to which law is whatever the
government says, be it just or unjust) and to
a moralized conception of law (according to
which law is inherently just); and Socrates
eruditely exploits this tension.
So Socrates suggests a revision: "Law is the
correct judgment of the state." Thus only
those judgments of the state that are correct
count as genuine laws. This may seem odd to
us; when state decrees are incorrect, we
tend to say that they are bad laws or unjust
laws, not that they aren't laws at all. Being a
law is a purely descriptive fact with no
evaluative weight: anything the legislature
cooks up, whether good or bad, is ipso facto
a law.
Socrates' conception of law is arguably the
dominant one historically, and our
positivistic one a mere anomaly; the concept
of law as an objective standard to be
declared or discovered (rather than created)
by legislators was the dominant notion both
in legal practice and in legal philosophy
throughout most of history — called rta or
dharma in India, ma'at in Egypt, and torah in
Judea. That's why Socrates can speak
uncontroversially of law as not what is
legislated but that by which we legislate. It
was a standard principle of jurisprudence
for the next two millennia that lex injusta
non est lex: an unjust law is not a law. Not
until the Enlightenment did the notion of
Natural Law degenerate from its original
notion, a constraint on what law was, to a
mere constraint on what law ought to be.
Today's positivistic conception of law is thus
truly something of a historical aberration;
though it seems to have had some currency
in ancient Greece as well, as is shown by the
comrade's resistance, as well as by the fact
that the Greek word nomos means both
3
"law" and "convention." (A similar tension
between positivist and moralized
conceptions of law is found in the Greek
statesman Pericles' confused responses to
Alcibiades' Socratic questioning in
Xenophon's Recollections of Socrates.
Perhaps the fact that Athens was a
democracy, and the average Athenian was
constantly engaged in passing and repealing
laws, served to weaken the traditional
moralized conception of law.)
Socrates argues that only decrees based on
knowledge of objective justice and injustice
can count as true laws; he adds that all
states legislate the just, but they make
mistakes about what in fact is just.
If the law says that government employees
must be paid in gold, then they may not be
paid in iron pyrites, since iron pyrites is not
in fact gold, even if those who wrote the law
were ignorant of the difference. If the law
says that fishermen may not hunt mammals,
then in fact the law says they may not hunt
dolphins, even if the lawmakers had thought
dolphins were fish. Likewise, if the law says
that involuntary servitude is forbidden, then
the government may not conscript soldiers,
since military conscription is in fact
involuntary servitude, even if those who
wrote the law did not recognize this.
The conclusion of Plato's Minos, then, might
be described as follows: All states legislate
both the concept of justice, and particular
conceptions of it. Insofar as they legislate the
concept, they all legislate the same thing,
and these legislations are genuine laws.
Insofar as they legislate different
conceptions, their decrees (or most of them)
are not genuine laws, and their legislators
are simply proving themselves to be
ignorant of what the law truly requires.”
HELP ME! ... I’M AN
OVERSTAYER!
“As cases such as Ye v Minister of
Immigration [2008] NZCA 291, which
concerned the removal of two families of
failed refugees who had New Zealand-born
children, ultimately turn on the
interpretation of the relevant statutory
powers, it is it is necessary by way of
background to outline relevant provisions in
the Immigration Act 1987 governing the
situation of overstayers.
The starting point is that a person who is not
a New Zealand citizen is entitled to be in
New Zealand only if he/she is a holder of a
permit granted under the Act or is exempt
under the Act from the requirement to hold
a permit. Conversely, a non-New Zealand
citizen who does not hold a permit is in New
Zealand unlawfully and is under an
obligation to leave New Zealand:
Immigration Act 1987, ss 4, 34 & 45.
Generally speaking, a person who is in New
Zealand lawfully (for example, because they
are the holder of a temporary permit) is
entitled to apply, in the prescribed manner,
for a residence permit: Immigration Act
1987, s17. Although the grant of residence is
a matter of discretion, applications must be
considered in conformity with applicable
government residence policy: Immigration
4
Act 1987, s13C. The content of the policy is a
matter for the government of the day.
Typically, the Tavita-type cases concern a
person(s) whose temporary permit has been
expired and has not been removed. As an
overstayer, the continued presence in terms
of the Act is unlawful, and according to the
Immigration Act 1987, s17(2) no longer
entitled to apply for residency and is under
an obligation to leave New Zealand.
At this point, section 47 of the Immigration
Act 1987 provides a right to appeal the
requirement to leave New Zealand to the
Removal Review Authority (the RRA) on
humanitarian grounds. The RRA determines
the appeal on the papers and may grant it if
the RRA considers that “there are
exceptional circumstances of a humanitarian
nature that would make it unjust or unduly
harsh for the person to be removed from
New Zealand” and, in addition, “it would not
in all circumstances be contrary to the
public interest to allow the person to remain
in New Zealand”: Immigration Act 1987, s
47(3).
If no appeal has been brought within 42
days, or if the appeal is unsuccessful, the
person becomes liable for removal from
New Zealand: Immigration Act 1987, s 53.
Section 54 provides that the chief executive
of the Department of Labour or a designated
immigration officer “may make a removal
order” if satisfied, in essence, that the
person is unlawfully in New Zealand and has
exhausted any appeal right. The removal
order authorizes any member of the Police
to take the person into custody and to
proceed to execute the order (i.e., to put the
person on a plane): Immigration Act 1987,
s53. It was the exercise of statutory powers
during this removal phase that was at issue
in Ye.
Regarding the timing of the removal order,
since 1999 the 42-day period for lodging an
appeal is triggered by the mere expiry of the
person’s temporary permit rendering their
presence in New Zealand unlawful:
Immigration Act 1987, s 47(2). It is only
once the appeal right has been exhausted
that the removal order is served (and,
potentially, quickly executed): The
Immigration Bill 2007.
Under section 58, a designated immigration
officer may, at any time, cancel a removal
order. However, section 58 is one of a
number of provisions in the Act to be cast as
what the Immigration Bill 2007 describes
conveniently as an “absolute discretion”:
Immigration Bill 2007, no 132-2, cl 5D.
Specifically, section 58(5) stipulates that:
Nothing in this section gives any
person a right to apply to an
immigration officer for the
cancellation of a removal order,
and where any person purports
to so apply—
The immigration officer is under
no obligation to consider the
application; and
Whether the application is
considered or not,—
The immigration officer is under
no obligation to give reasons for
any decision relating to the
application, other than the reason
that this subsection applies; and
Section 23 of the Official
Information Act 1982 does not
apply in respect of the
application.
5
The apparent stringency of this provision is
somewhat belied by the fact that it is at this
stage that the Immigration Service has
interposed a humanitarian interview
process. As a result of observations made by
the Court of Appeal in Tavita v Minister of
Immigration [1994] 2 NZLR 257, the
Immigration Service introduced guidelines
to ensure that a humanitarian assessment is
conducted before removal orders are
executed. These guidelines were updated in
1999.
The relevant paragraphs in the Immigration
Service’s Operational Manual note that it is
essential that New Zealand’s obligations
under International Law are “taken into
account when executing removal orders”
and lists several treaties that may apply in
such circumstances – the International
Covenant on Civil and Political Rights (the
ICCPR), the Convention Relating to the
Status of Refugees and associated protocol,
the Convention Against Torture, and the
Convention on the Rights of the Child
(UNCROC). The Manual then directs
immigration officers, when determining
whether or not to “execute a removal order”,
to take into account the particulars of the
case and the impact of removal on the rights
of the person being removed and their
immediate family, and to balance those
factors against various itemized factors
relating to the right of the State to control its
borders: New Zealand Immigration Service
Operational Manual (1999) paras D4.45 and
4.45.5.
Regarding the legislation, two other
provisions enable (but not require) the
grant of a permit to an overstayer. First,
under section 35A, the Minister of
Immigration may, at any time, grant a
permit to an overstayer, as long as there is
no deportation order or removal order in
force in respect of that person. At all
relevant times, the section 35A power has
been delegated to immigration officers of a
certain status. It is, essentially, the
mechanism by which a person whose
removal order has been cancelled under
section 58 is then granted a permit: New
Zealand Immigration Service Operational
Manual (1999), paras A.15.4.1. Like section
58, section 35A is cast as an absolute
discretion: there is no right to apply for a
permit under section 35A, no obligation for
any such an application to be considered,
and no obligation to give reasons for any
decision: Immigration Act 1987, s35A(2).
Finally, section 130 of the Act, read together
with section 7(3)(ii), These paragraphs in
the Operational Manual are supplemented
by a detailed “humanitarian questionnaire”
to be completed “at [the] time of proposed
service or execution of [the] Removal
Order”: New Zealand Immigration Service,
“Humanitarian Questionnaire”. Stage one of
the questionnaire is designed to elicit
general information to establish whether
further investigation (at stage two) is
warranted. A stage two investigation is
triggered in all cases, amongst others, where
the interviewee has New Zealand born
children and/or immediate family living in
New Zealand. The stage two interview
process includes a range of questions
relating to the situation of any dependent
children. At stage three, the immigration
officer documents his/her assessment, first,
of the interviewee’s personal situation and
secondly, of countervailing public interest
factors. He/she then weighs the competing
matters and documents his/her conclusion.
6
Regarding the legislation, two other
provisions enable (but not require) the
grant of a permit to an overstayer. First,
under section 35A, the Minister of
Immigration may, at any time, grant a
permit to an overstayer, as long as there is
no deportation order or removal order in
force in respect of that person. At all
relevant times, the section 35A power has
been delegated to immigration officers of a
certain status. It is, essentially, the
mechanism by which a person whose
removal order has been cancelled under
section 58 is then granted a permit: New
Zealand Immigration Service Operational
Manual (1999), paras A.15.4.1. Like section
58, section 35A is cast as an absolute
discretion: there is no right to apply for a
permit under section 35A, no obligation for
any such an application to be considered,
and no obligation to give reasons for any
decision: Immigration Act 1987, s35A(2).
Finally, section 130 of the Act, read together
with section 7(3)(ii), authorizes the Minister
of Immigration to make a “special direction”,
granting a permit to a person in respect of
whom a removal order is in force. As with
sections 35A and 58, a similar worded
“absolute discretion” clause applies:
Immigration Act 1987, ss7(4) and 130(6). At
all relevant times, this power had also been
delegated to immigration officers of a
certain status (although, in fact, the Ye
family made numerous requests for special
directions direct to the Minister’s office and
they appear to have been dealt with by that
office): New Zealand Immigration Service
Operational Manual (1999), para A.15.4.1.”
THE RISE AND RIGHTS OF THE
INTERNATIONAL KIWI CHILD
“In New Zealand, when it comes to
immigration matters and international law,
there are two international law instruments
which are usually invoked, especially in
situations where an immigrant or migrant
family may have a New Zealand-born
child(ren). These are the United Nations
Convention on the Rights of the Child, often
referred to as CRC or UNCRC (“the CRC”)
and the International Covenant on Civil and
Political Rights (“ICCPR”).
THE UNITED NATIONS CONVENTION ON
THE RIGHTS OF A CHILD
The CRC is an international convention
setting out the civil, political, economic,
social and cultural rights of children. Nations
that ratify this international convention are
bound to it by international law. Compliance
is monitored by the United Nations
Committee on the Rights of the Child which
is composed of members from countries
around the world. New Zealand ratified the
CRC on 6 April 1993. The CRC generally
defines a child as any human being under
the age of 18, unless an earlier age of
majority is recognized by a country's law.
Governments of countries that have ratified
the CRC are required to report to, and
appear before, the United Nations
Committee on the Rights of the Child
periodically to be examined on their
7
progress with regards to the advancement
of the implementation of the CRC and the
status of child rights in their country. Their
reports and the committee's written views
and concerns are available on the
committee's website.
The CRC deals with the child-specific needs
and rights. It requires that states act, in the
best interests of the child. This approach is
different from the common law approach
found in many countries that had previously
treated children and wives as possessions or
chattels, ownership of which was often
argued over in family disputes.
The CRC acknowledges that every child has
certain basic rights, including the right to
life, his or her own name and identity, to be
raised by his or her parents within a family
or cultural grouping and have a relationship
with both parents, even if they are
separated.
The CRC obliges states to allow parents to
exercise their parental responsibilities. The
Convention also acknowledges that children
have the right to express their opinions and
to have those opinions heard and acted upon
when appropriate, to be protected from
abuse or exploitation, to have their privacy
protected and requires that their lives not
be subject to excessive interference.
The CRC also obliges signatory states to
provide separate legal representation for a
child in any judicial dispute concerning their
care and asks that the child's viewpoint be
heard in such cases.
In its General Comment 8 (2000), the
Committee on the Rights of the Child (“the
Committee”), affirmed again international
law’s recognition of the importance of rights
of the child and further stated that there was
an "obligation of all States parties to move
quickly to prohibit and eliminate all corporal
punishment and all other cruel or degrading
forms of punishment of children".
Regarding the application of reasonableness
(proportional to the end sought and
necessary in circumstances) in terms of the
rights to protection against interference in
the family and the notion of family unity,
articles 9 and 3(1) of CRC are important.
Article 9, referred to in Tavita applies to
even violent offenders. It regards The Right
of a child not be separated from its parents
and states:
“1. States Parties shall ensure that a
child shall not be separated from
his or her parents against their will,
except when competent authorities
subject to judicial review
determine, in accordance with
applicable law and procedures, that
such separation is necessary for the
best interests of the child. Such
determination may be necessary in
a particular case such as one
involving abuse or neglect of the
child by the parents, or one where
the parents are living separately
and a decision must be made as to
the child's place of residence.
2. …
Where such separation results from
any action initiated by a State Party,
such as the detention,
imprisonment, exile, deportation or
death (including death arising from
any cause while the person is in the
custody of the State) of one or both
8
parents or of the child, that State
Party shall, upon request, provide
the parents, the child or, if
appropriate, another member of
the family with the essential
information concerning the
whereabouts of the absent
member(s) of the family unless the
provision of the information would
be detrimental to the well-being of
the child. States Parties shall
further ensure that the submission
of such a request shall of itself
entail no adverse consequences for
the person(s) concerned.”
Article 3(1) regards The best interest of the
child and states:
“1. In all actions concerning
children, whether undertaken by
public or private social welfare
institutions, courts of law,
administrative authorities or
legislative bodies, the best interests
of the child shall be a primary
consideration.”
Article 3(1) has been addressed by the
Courts in New Zealand on a number of
occasions, notably by the Court of Appeal in
Puli’uvea v Removal Review Authority (1996)
2 HR NZ 510. The line of authority has
culminated in the Supreme Court decision of
Ye & Ors v Minister of Immigration and Anor
SC 53/2009 20 July 2009.
The extent to which rights are to be
respected under the CRC is informed by
Article 27(1) which requires state parties to
recognize the right of every child to a
standard of living adequate for the child’s
physical, mental, spiritual, moral and social
development.
INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS
The International Covenant on Civil and
Political Rights (“ICCPR”) is a United Nations
treaty based on the Universal Declaration of
Human Rights, created on 16 December
1966 and entered into force on 23 March
1976.
The International Covenant on Civil and
Political Rights is monitored by the Human
Rights Committee (a separate body to the
Human Rights Council which replaced the
Commission on Human Rights under the UN
Charter in 2006) with permanent standing,
to consider periodic reports submitted by
member States on their compliance with the
treaty. While New Zealand has not
incorporated the ICCPR into law, it took
measures to give effect to many of the rights
contained within it by passing the New
Zealand Bill of Rights Act in 1990.
Article 17 of the ICCPR, dealt with and
affirmed in Tavita, provides:
“No one shall be subject to
arbitrary or unlawful interference
with his…family…”
The significance of the family is also
reinforced by Article 23, which provides:
“The family is the natural and
fundamental group unit of society
and is entitled to protection by
society and the State.”
9
Article 17 of ICCPR is mirrored by Article 16
of the CRC.
“1. No child shall be subjected to
arbitrary or unlawful interference
with his or her…family…
2. The child has the right to the
protection of the law against such
interference or attacks.”
The United Nations Human Rights
Committee in General Comment 16 (8 April
1988) held, in respect of Article 17:
“…that the concept of arbitrariness
is intended to guarantee that even
interference provided for by the
law should be in accordance with
the provisions, aims and objectives
of the Covenant and should be, in
any event, reasonable in the
circumstances”
Since then, the Committee has interpreted
reasonableness as requiring that any
interference be proportional to the end
sought and necessary in the circumstances
of any given case.”
WHICH WITCH?: THE STRANGE
WORLD OF LEGAL MAGIC!
Ritual magic like legal adjudication or legal
magic are indeed practices in other settings
that are understood to transform the
meanings of sets of circumstances through a
combination of performative, formal,
metaphoric and temporal techniques. The
practical similarities between ritual magic
and legal magic are evident in enacting
performance, heightened formality,
performativity, temporal play and
transformative analogy elements that they
share.
Law is the method by which people act out
certain rules and procedures in a ritualistic
way in order to try to solve their personal
problems in a ‘socially-certified’ setting. It is
in essence a ‘magical act’.
The Malleus Maleficarum (Latin for "The
Hammer Against Witches", or
"Hexenhammer" in German) is a famous
treatise on witches, written in 1486 by
Heinrich Kramer and Jacob Sprenger, two
Inquisitors of the Catholic Church, and was
first published in Germany in 1487. The
Malleus Maleficarum is an interesting
example of magic and law and sources of
law as magic.
The main purpose of the Malleus was
systematically to refute arguments claiming
that witchcraft does not exist, refute those
who expressed skepticism about its reality,
to prove that witches were more often
women than men, and to educate
magistrates on the procedures that could
find them out and convict them. The treatise
is divided up into three sections. The third
section is to assist judges confronting and
combating witchcraft.
The Malleus Maleficarum was not an
original text and heavily relied upon earlier
works such as Visconti, Torquemada and,
most famously, Johannes Nider's
Formicarius (1435).1 Notwithstanding this
during the Spanish Inquisition books like
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
Yale J. L & Human 95 (2001)
12
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