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