Witchcraft and magic in the modern society are pursuits considered to be largely ignored by the body of the modern law and, consequently by the legal scholarship, yet some important vestiges of their criminalization remain strong in the juridical codes of many nations. This article analyses the perceived societal dangers of magic, its perceived victims, its resulting criminalization by the legal statutes in some countries, and the gravity of the punishment as an indication of the perceived societal danger of this crypto-criminalized behavior.
Keywords: Western Criminal Law, Chinese Criminal Law, archaic law, comparative law, witchcraft, magic, criminal societal danger, criminal behavior, history of the law.
In March 2015, a criminal investigation has been launched by the Investigative Committee of Russian Federation into a voodoo ritual conducted by a self-proclaimed magister of the black magic named Anton Simakov, in Sverdlosvk, Russia. The ritual involved slaughtering a cock and spraying its blood on a burial shroud with orthodox Christian insignia on it. The ritual, which intended to cause death of Mr. Piotr Poroshenko, the president of Ukraine, a country embroiled in political and military tensions with Russia, was qualified as falling under the ‘Obstruction to the freedom of faith’ article of the Russian Criminal Code, which carries a punishment by the either of 300 000 ruble fine (USD4 000), community service of 240 hours, forced labor of 1 year, imprisonment of 1 year. [1]
Another prominent example of the witchcraft criminalization is found in China, where the Article 300 of the Chinese Criminal Law states: ‘Article 300. Whoever … cheats others by utilizing superstition, thereby giving rise to the death of people is to be punished in accordance with the previous paragraph. … or has illicit sexual relations with women, defraud money and property by utilizing superstition is to be convicted and punished in accordance with the regulations of articles 236, 266 of the law.’
The Article 300 carries punishment of ‘not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment.’, while the aforementioned Article 266 establishes punishment for ‘Those defrauding large amounts of money and property or having involvement in other serious cases are to be sentenced to three to 10 years in prison, in addition to fines.’, and Article 236 for ‘Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment. Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment. Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than 10 years of fixed-term imprisonment, life imprisonment, or death.’ [2]
These two examples posit important, previously unanswered legal questions: if the modern society is not recognizing magic as feasible why the magic is still a crime under its different guises? Why, oftentimes, the legal decoys are employed to punish magic under a different name or as a different crime? If the PRC laws apparently do not criminalize witchcraft as a separate, aggravating or stand-alone crime, then why they specify witchcraft under the legal euphemism of ‘superstition’? Such are the legal scholarship questions to which this article is intended to provide preliminary but substantiated and holistic answers.
With these examples in mind, we will start our analysis by seeking a general definition of witchcraft, magic, sorcery and ‘superstitious’ activity for juridical purposes, using these terms interchangeably. The modern anthropology does not distinguish between religion, which can be defined as a superstition specifically approved by the state, and magic, which is a superstition, at best ignored by the state, or, in extreme cases, codified as a crime. To an impartial legal anthropologist, these two sets of behavior are completely alike, except in the aspect of the state approval or disapproval. [3]
Therefore, we will define magic as a symbolic behavior intended to cause tangible results by means of a supernatural force and unapproved or prosecuted by the state.
For a clearer definition, such behavior must be distinguished from other types of symbolic behavior, that do not have similar connotations. For example, individually and privately hoisting a state flag, a sacred symbol, in a state-approved manner is not a magical act, since no supernatural powers are apparently engaged and no tangible results are supposed to ensue from the act per se.
On the other hand, individually and privately burning the flag, or otherwise desecrating that sacred symbol of the state, is a magical ritual intended to harm own or the enemy state, as accounted in the modern anthropological research. Although the specific supernatural powers are normally not invoked, but are rather implied matter-of-factly, this act, is an act of sympathetic magic, whereas by the power of sympathy between the state symbol and the state, harming the symbol ensures harming the state. [4]
It is a commonly known legal principle, that for a crime to occur, in the Western criminal prosecution model, the following elements are needed:
– mens rea, which is the criminal intent (or fault) of the defendant since ‘actus reus non facit reum nisi mens sit reas’, in other words, the defendant must act with attributes such as ‘purposely,’ ‘knowingly,’ ‘recklessly,’ or ‘negligently’;
– actus reus, a criminal act or a criminal omission’
– concurrence, between both actus reus and mens rea, that is proximity in time and space;
– causation, that is a both sufficient and necessary cause-effect connection between the conduct of the defendant and the fact of the crime coming into existence.
Note, that existence of a victim is not required for a crime to occur in this model. In other words, paradoxically, the crime is committed when the criminal conduct, as defined by the criminal code takes place, even if no physical person has been harmed. Moreover, by the modern understanding, magic does not exist and as such can not ever harm a person. Therefore, magic is a victimless crime, yet it is on the books, mostly under aliases. Although almost none of the western legal codes recognize magic outright yet their actual legal usage betrays the punishment of magic in secret, in other words, their acta exteriora indicant interiora secreta (the outward acts show the secret intentions). These considerations demonstrate both the inherent limitations of the prosecutorial model, and the specific shortcomings of it when it comes to the crimes of magic. Surely for a crime to happen there must be a victim of it? And is not the absence of a victim serve as an indication of an unresolved codification issue?
Therefore, to understand the issue in question we must expand the model above, employing the legal scholarship reasoning, which goes beyond the prosecutorial model, adding one more key element for a crime to occur– namely, the victim. Who is the victim in the crime of magic flag burning ritual?
Curiously however, in the flag burning example, the victim is not named, the crime is the victimless criminalized act of the flag burning. This taboo-ating omission is another confirmation that we are dealing with a magic ritual, an important part of the societal cognitive response to which are verbal taboos and euphemisms.
However, in this case the legal verbal veil proves to be quite transparent. Applying the principle of cui prodest (who benefits) to the reasoning, we find, that since it is the state that prosecutes this crime, since the flag is the state’s symbol and since the state stipulates harsh penalties for this crime — in case of the flag desecration the victim is the state, that is the state government as opposed to the people of the state. Despite the fact that the modern state does not recognize magic as feasible (which it did until very recently), the legislation of many modern states provides surprisingly heavy penalties for desecration of its symbols, de facto recognizing magic as a dangerous crime. Consider that our research of the national laws worldwide reveals that penalties for flag burning range from 6 months to 10 years in prison for flag desecration:
Table 1
Imprisonment for flag desecration by country (Source: web sources, own research)
|
Country |
Imprisonment for flag desecration (up to, years) |
|
Algeria |
10 |
|
Argentina |
4 |
|
Austria |
0.5 |
|
Brazil |
2 |
|
China |
3 |
|
Croatia |
3 |
|
France |
0.5 |
|
Germany |
5 |
|
India |
3 |
|
Italy |
2 |
|
Mexico |
4 |
|
Peru |
4 |
|
Philippines |
1 |
|
Portugal |
2 |
|
Romania |
3 |
|
Saudi Arabia |
Life imprisonment or death |
|
Switzerland |
3 |
|
Turkey |
3 |
What are the reasons offered by the proponents for criminalization of this particular type of a magic ritual? They are made clear by a US Congressman explaining the importance of the American flag as a mystical object: ‘Millions and millions of Americans regard it with an almost mystical reverence’ [5].
Thus, although the most often cited reason for criminalizing the malevolent magic towards the flag, is ‘insulting’ or causing grievous moral suffering to the citizens of the flag-bearing country, the real reason is that a flag is a sacred object, which is connected by the magical ties to the well-being of the country, and therefore must be protected from a magical attack. Incidentally, the same report states that in the USA ‘Throughout our nation's history, there have been countless acts of such desecration. Since 1994 alone, there have been over 115 reported incidents of flag desecration in 35 states, the District of Columbia, and Puerto Rico.’ [5]
Having established that magic in the form of flag desecration continues to be practiced, and punished by the legal statutes around the globe, we will proceed to discover other types of magic and its codification under euphemistical legal aliases in the modern society.
It is significant, that in the Russian voodoo ritual above, it was a desecration of a sacred cult object (a burial shroud with orthodox Christian insignia), which provided a pretext to the charge of the ‘Obstruction to the freedom of faith’ article of the Russian Criminal Code. Obviously, no freedom of faith was or could have been obstructed by a mishandling of a relatively insignificant cult object, therefore the obstruction of the freedom of faith is an ad hoc prosecutorial device, intended to prosecute a different criminal behavior, namely the magic, underneath of it. It is equally significant that the act of magic per se, the voodoo ritual, was ignored by the prosecution in a taboo-ated manner, but was prosecuted under the alias of faith freedom obstruction.
Another precedent of criminalization of magic is found in a recent prosecution of a hostile magic ritual in the UK, which on the face of it amounts to nothing more than a juvenile prank. In January 2013, a teenage girl and 39-year old man attached bacon to door handles and threw strips inside Edinburgh's Central Mosque. Subsequently, Chelsea Lambie, 18, from Paisley, was sentenced to 12 months; Douglas Cruikshank, from Galashiels, — to nine months in prison. [6]
There are several attributes of this crime that make it a magic ritual legally codified as a different crime:
– no personal or property harm has been inflicted, which is a characteristic of a magical ritual.
– the media described the act of the defendants as: they ‘desecrated an Edinburgh mosque by attacking it with strips of bacon’. The language clearly shows the magical nature of the act directed against a sacred object, which was ‘attacked’, that is, its own magic properties were made less potent, with a magical malevolent talisman (pork bacon).
– the harshness of the sentence is out of proportion to the committed crime, which is an obvious signal that the charged crime is only an alias for the magic.
– the pair were prosecuted for ‘behaving in a threatening or abusive manner likely to cause fear and alarm’. Bacon strips are unlikely to cause fear or alarm to anyone, except in a magico-religious context, which further reinforces the suspicion, that it was the magic being punished under the alias of ‘breach of the peace’.
Also, most telling is the fate of the third participant to the crime Wayne Stilwell, 25, who earlier, at Edinburgh Sheriff Court pled guilty to causing a ‘breach of the peace’ and was jailed for 10 months.
Again, the harshness of the sentences to the all three defendants could be explained only by the magico-religious substance of the crime, which, however, was chosen to be codified by the prosecution as a ‘breach of the peace’. The latter is a common law offence under the Scottish law with the most prominent, ‘leading’ precedent of Smith v Donnelly [7], in which the defendant (unsuccessfully) argued that “that under the European Convention for the Protection of Human Rights there cannot be a charge which does not clearly define what the limits of acceptable behavior are, and that the charge of breach of the peace is an all-encompassing charge which has been used to cover any type of behavior deemed inappropriate in various circumstances and is therefore too vague to be aligned with the European Convention for the Protection of Human Rights.” [7]. And again, for the ‘breach of the peace’ to occur (A) no specific victim is necessary and (B) the criminal behavior is not specified. Turning to the Russian law on ‘obstruction to the religious freedom’ we find the exact same confluence of absence, both of the victim and the specificity in regard to the charge, and, a disproportional harshness of the penalty.
The Russian law stipulates imprisonment for up to three years with no bodily harm or property damage necessary for the crime to take place. The Scottish law is customarily milder: although it is believed that similar offences are rarely prosecuted on indictment, where the sentence could be as high as 5 years imprisonment, but, normally, the maximum penalty for the offence of ‘the breach of the peace’ according to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, and being prosecuted at summary level in the Sheriff Court is 12 months imprisonment, or a fine of up to £5000, or both [7]. As we see above, the three Scottish defendants were given almost maximal sentences at the Sheriff’s level, underscoring the true nature and seriousness of the crime of magic. The further comparison between the Russian and Scottish laws reveals more similarities: in Scotland, for the breach of the peace to occur, Sheriff or Justice of the Peace can find a charge under Section 38(1) proved if they believe that the conduct was likely to cause a ‘reasonable person’ fear or alarm, whether or not there was actual fear or alarm caused to witnesses; while in Russia, it is sufficient for any person to step forward and declare that his religious feelings were hurt, for the crime of obstructing the religious freedom to be recognized by the court. Also, as the court practice shows, the right to free speech is not a defense in regard to this charge.
Therefore, the both laws stand in violation of the basic legal principles: nullum crimen sine lege (no crime without a law) and nulla poena sine lege (no punishment without a law), the historical reasons for which differ by country. In Scotland, the legislative chaos stems from the overlay of the common law and codified law system which provides for multiple lacunae, and even referred to as ‘a work in progress’, something that been termed a ‘living law’ or ‘evolving law’ in the literature, which of course, provides for a nolens, volens abuse by and of the legal system; while in Russia the legal system is a hodge-podge of the soviet laws, old tsarist laws and certain imported western legal elements.
Turning to the third legal system that we intend to explore in this article, namely the Chinese one, we note that before 1997, the criminalization of magic was more specific: its article 165 (since rescinded) states “ [Article 165] Any practitioner of sorcery or witchcraft who takes advantage of superstition to spread rumor or swindle money or other property shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance; if the circumstances are serious, the offender shall be sentenced to fixed term imprisonment of not less than two years and not more than ten years.”
第一百六十五条. 神汉、巫婆借迷信进行造谣、诈骗财物活动的，处二年以下有期徒刑、拘役或者管制；情节严重的，处二年以上七年以下有期徒刑。 [8]
The law had been since amended, with that article removed, and brought to the condition quoted on the first page of this article. While the 1980 version of the law (CL80) codifies magical practitioners unequivocally and individually as 神汉、巫婆 shén hàn、 wū pó, (literally, spirit-fellows (for males), witch-hags (for females)), the 1997 version (CL(97) refers to them with a collective euphemism of道门、邪教组织 dào mén、 xié jiào zǔ zhī, (literally, sectarian and heretical structures), thus rendering the target of the law collective, rather than personal; while at the same time distancing itself from the antiquated personal definition for the perpetrators, as well as providing an umbrella euphemism for the magic.
The comparison of the European examples with the Chinese one reveals an important distinction: in the Chinese law the magic does not constitute an aggravating component of the crime, meaning, in other words, that in China, the magic is not an additional mens rea component that makesthe defendant more culpable, since the punishment for the crimes conducted with the assistance of magic is the same as that without one; while in the European law, the euphemized magic is most definitely an aggravating component incrementally resulting in very harsh sentences for what otherwise would have been at most a silly prank or victimless theatrics.
We find the reason for such difference in the origin of these respective criminal codes. While the European codes were created on the basis of the common law, and are misused for the politically correct agenda in the modern era, the Chinese law was carefully crafted as a codified law from its very origins 2500 years ago, taking its start in the impeccably logical reasoning of the legalist school (法家 fa jia) of the Chinese philosophy. The recent legal developments in China which led to these changes largely could be ascribed to the rejection of a flexibility principle (灵活性línghuó xìng), and to the rise of Falung Dafa and similar, politically-threatening sects in the 1980s, with currently, their pride of place being occupied by the Muslim fundamentalism. The larger undercurrent for these development was a contemporaneous paradigmatic shift from the general legal state-forming principle of a “legal system country” (法制国家 fǎzhì guójiā) to the homonymous principle of “relying on law to govern the country” (法治国家fǎzhì guójiā), the latter (to keep the country manageable) required awarding more rights to the individual, and less rights to the potentially subversive organizations. [9]
Namely, requiring:
– more specificity, hence specifying the superstition by name in CL97,
– more lenience toward the individual activities, hence removal of the individual witchcraft from the CL80,
– more severity towards the organized magical sects stirring social unrest, hence the criminalization of sectarianism in CL97.
To put it in classical terms, the Chinese jurists are cleaving to the legal tenet of ubi jus incertum, ibi jus nullum (where the law is uncertain, there is no law) specifically identifying the magic by the name (in CL80), or by a slightly euphemistic term of ‘superstition’ (in CL80). On the other hand, the western law formation, at some point in history, veered into a complete taboo-ation of magic. To understand the present state of affairs, it would be useful to look ab initio at the very beginnings of the law on magic in these two legal systems.
In the West, which started as a Greco-Roman civilization and turned into a Judeo-Christian one at the beginning of the common era, the witchcraft was always judged severely, as a factual actus reus, with an aggravating mens rea. While the archaic Greek and Roman legislation against magic is scarce, the two most explicit examples of it are found in Dirae Teiorum ‘The curses of the Teian State’ (dated to after 479 BC):
‘ If anyone makes harmful spells/poisons [pharmakadeleteria] against the Teian state or an individual of it, he is to die, himself and his family with him.’;
Also, a would be jurist, Plato (429–347 BC), provided for laws against magic in his utopia of an ideal city:
‘As to that class of monstrous natures who … conjure the souls of the living and say that they can conjure the dead and promise to charm the Gods with sacrifices and prayers, and will utterly overthrow individuals and whole houses and states for the sake of money-let him who is guilty of any of these things be condemned by the court to be bound according to law in the prison which is in the centre of the land, and let no freeman ever approach him…No one shall possess shrines of the Gods in private houses, … And if a person be proven guilty of impiety whether he have sacrificed publicly or privately to any Gods, let him be punished with death…’
And, in the Twelve Tables (Leges Duodecim Tabularum), which were the Rome's archaic law code (dated to 450 BC):
‘A. Whoever has sung an evil incantation [malum carmen], or crop-charming (excantatio cultorum)... B. It is illegal for anyone to charm away another man's crops’. [10]
A comparative legal analysis of these three examples demonstrates, that for the Greeks a mere performance of a malevolent spell constituted an actus reus, even absent a victim, grave enough to deserve death for the perpetrator and his clan, bringing to mind a biblical injunction against witches ‘A witch thou dost not keep alive’ (Exodus 22:18). Ironically, the Teian laws were called ‘curses’ in the original Greek, thus themselves being a juridical magical incantation. In contrast to the archaic Greeks and Jews, the Roman law was much more level-headed in its treatment of magic: first, not all magic is forbidden, just the malum one; second, magic was deemed not potent enough to cause harm to the state or a person, at most capable only of crop-charming; third, a penalty for magic was not specified, and left to the discretion of local courts.
What could be the reason for such different treatment of magic between the Greeks and Jews on one hand, and the Romans on the other? While a detailed answer to that will be beyond the scope of this article we can briefly state the obvious difference in the national psyche from which in our opinion stems the difference of the laws: while all three nations in question were archaic theocracies, the Romans were much more given to Reason at the detriment of Superstition; much less tribal and much more individualistic, to be afraid of magic in earnest.
In the pagan, Gallic-German Europe, being a witch was a crime: The Salic Law (6th century), the law of the Visigoths (6th century), and the Pactus Legis Alamannorum, dating to the early 7th century criminalized witchcraft as a crime punishable on equal terms with poisoning. If a free man accused a free woman of witchcraft or poisoning, the accused may be disculpated either by twelve people swearing an oath on her innocence, or by one of her relatives defending her in a trial by combat (judicial duel, duellum), the false accuser required to pay a fine (Pactus Legis Alamannorum 13).
In a surprising turn of events, at the early stage of Christianization of Europe, the witches in Europe received protection from the Christian rulers, who were punishing by death not the witches, but actually those who killed witches. After imposition of Christianity upon the people of Saxony by Charlemagne in 789, he stipulated: ‘If anyone, deceived by the Devil, shall believe, as is customary among pagans, that any man or woman is a night-witch, and eats men, and on that account burn that person to death... he shall be executed. Also, the Lombard code of 643 states: ‘Let nobody presume to kill a foreign serving maid or female slave as a witch, for it is not possible, nor ought to be believed by Christian minds’. [11]
Further down the timeline, the Roman way of dealing with magic was preserved, yet even more hardened in the Constitutio Criminalis Carolina (henceforth shortened to Carolina) considered the first body of the German (that is to say of the Holy Roman Empire) criminal law, promulgated in 1532 by the Diet of Regensburg under the Holy Roman Emperor Charles V. The Carolina defined as severe crimes murder, manslaughter, robbery, arson, homosexual relations, and witchcraft, specifying that those found guilty of causing harm through witchcraft should be executed with fire, opening way for the mass witch trials of 1580 -1680.
However, as behooves the precise codified body of law, the Carolina (Art. 109) made a clear distinction between the malevolent magic and its less noxious kinds, stating:
‘Item, when someone harms people or brings them trouble by witchcraft, one should punish them with death, and one should use the punishment of death by fire. When, however, someone uses witchcraft and yet does no one any harm with it, he should be punished otherwise, according to the custom of the case; and the judges should take counsel as is described later regarding legal consultations.’ [11]
On the other hand, only 40 years later this distinction was rejected by the religious law and common law inspired electoral Saxon criminal constitutions of 1572 which have criminalized all magic, both the harmless and the maleficium, (‘per maleficium’, being glossed as ‘visible effect of malicious intention’) making a terrifying distinction between the punishments only:
‘…if anyone, forgetting his Christian faith, sets up a pact with the devil or has anything to do with him, regardless of whether he has harmed anyone by magic, he should be condemned to death by fire…if anyone causes harm by magic without such a pact, be he great or small, this sorcerer or sorceress should be executed with the sword.’ [11]
In this way, the criminalization of all magic persisted in Europe until the revolutionary creators of the French Criminal Code Napoleon of 1810, which served as a basis for other European codes, specifically decriminalized ‘«phony offenses created by superstition, feudalism, the tax system, and despotism’. [11]
On the other side of the globe, in China, the departure point was different. In an antithetical contrast to Europe, the archaic Chinese lawgivers did not criminalize witchcraft. In, fact, Confucius (551–479 BC) used the imperturbability of a witch as a moral standard against which a nobleman must be measured, noting with approval:
‘The people of the south have a saying — 'A person without constancy cannot be either a witch or a doctor.' Good!’ 子曰：“南人有言曰：‘人而无恒，不可以作巫医。’善夫！
However, 300 years later, Zhou Li (the Rites of Zhou, dated to the early Han dynasty, around 200 BC).) stipulated: ‘Death to anyone who disturbs the government … who confuses people by practicing witchcraft, astrology, and fortune telling’. [12]. Note, that the actus reus here is directed against the government, not persons.
The term used by Confucius, 巫 wū (witch) is the same as used in CL80 2500 years later, which shows a great consistency in the Chinese legal framework and also encourages historical research for gaining a greater understanding of the current jurisprudence on the subject. It is known that the current Chinese code was formed under the influence of European and soviet legal systems superficially but many legal scholars note that the spirit of the Chinese laws has retained its unique foundation from the imperial times, taking its root in the innermost psyche of the great Chinese nation. Therefore, for the historical analysis of the legal treatment for witchcraft we turn to the imperial codes, whereas we propose to split the historical progress of the Chinese imperial legal code into two stages:
– the first one would be the classical stage, starting with the state of Cheng Book of Punishment (xing shu) which was inscribed on a set of bronze vessels (536 BC,), and going through the evolving legal codes of Qin (221–206 BC), Han (206 BC — 220 CE), Tang (618–907), which were marked by a tendency of moving away from Legalism in favor of the Confucian principles;
– and, the second one, the pre -modern Ming (1368–1644) and Qing (1644–1911) codes.
The first more or less fully preserved code was that of Han, the dynasty whose rule was marred by an explosive witchcraft mayhem erupting in 91 B.C (Wugu zhi huo巫蠱之禍), during the reign of Emperor Wu, whereas wugu was the art of directing malevolent spirits to harm people with such practices as shamanic curses 祝诅, the utterance of evil prayers at night 夜祠, the burial of mannequins representing the intended victims 埋偶人, and shamanic sacrifices on roads 祠道中, all of these crimes are mentioned in the Han code with corresponding punishment. The greatest crimes, directed against the the emperor were classified as 大逆不道(dànìbúdào, the greatest treason and heresy) for which the punishment was for the criminal to be cut in two at the waist and his family subjected to 灭族 (miè zú, extermination of the clan). Some of these were ‘fabricating charts and oracle-texts’, ‘performing witchcraft and uttering imprecations against pregnant women in the imperial harem’, again directed against the ruling dynasty [13].
Later on, the lawmakers of the Tang dynasty in its Tang Code (唐律, Táng lǜ) were the first to formulate the mainstay of the all successive codes, the Ten Abominations (十惡), which included the black magic, specifically it was codified as 不道 (budao, depravity) to make or keep 蠱(gu, the remote action poison), linked with summoning spirits and other, especially reprehensible forms of magical practice. [14]
In the second stage of the imperial law development, these Ten Abominations with their magic-punishing intent were kept in the Ming and Qin laws. The last set of laws, The Great Qing Legal Code (大清律例, dà qīng lǜ lì) is marked by criminalization of black magic but not the white one. As a pre -1912 European legal scholar noted on the Qing code: ‘Penal Codes in the West long since refused to recognize any power in magic to help or to injure; witchcraft as an offence in itself indictable does not exist. In China the mere practice of sorcery with intent to injure, even if no one be injured, is a capital crime’. [14] It should be noted that in the pre- modern era there was a decisive shift from the criminalization of magic as directed ultimately against the monarch, towards it being a crime directly against an individual subject.
Conclusion:
In the West, the vestiges of the indictable magic survive under such legal euphemisms as ‘flag desecration’, ‘obstruction to faith’, or ‘disturbance of the peace’, and constitute an aggravating, yet a taboo-ated primary element of the offense, an unnamed or a misnamed proximate cause. The crime of magic is codified as victimizing the society on the whole and not a specific person, even though an individual outrage is used as the legal test (or a pretext) for triggering the law, even (or perhaps, especially) if no harm is done to a person, thus mainly serving to protect the societal political order.
On the other hand, in China, the magic is codified more transparently as ‘superstition’ and does not serve as an aggravating element of the crime, being specified for the reason of the underlying legal theory that requires a specific law for a specific crime. Also, in China, the crime of ‘superstition’ serves not as a proximate cause, but as a cause-in-fact of harming a person, with less emphasis on societal order.
We believe that this, necessarily sketchy, historical analysis of the legal evolution provided in this article is necessary for understanding the current legal practice and theory in the both legal civilization, as well as clarifies the reasons for their divergence on this subject, opening a promising venue for further research.
References:
- Вуду не защитило. http://ura.ru/news/1052202882, 16.03. 2015.
- Criminal Law of the People's Republic of China. Adopted by the Second Session of the Fifth National People's Congress on July 1, 1979 and amended by the Fifth Session of the Eighth National People's Congress on March 14, 1997.
- An Anthropology of Religion and Magic. Hildred Geertz, The Journal of Interdisciplinary History. Vol. 6, No. 1 (Summer, 1975), pp. 71–89.
- Magic and Modernity: Interfaces of Revelation and Concealment.By Birgit Meyer, Peter Pels. Stanford University Press, 2003. p. 196.
- 108th Congress. Report. House Of Representatives. 1st Session. 2003. pp. 16–17
- Pair jailed for Edinburgh's Central Mosque bacon attack,BBC. 20 June 2014.
- Smith v Donnelly (Procurator Fiscal, Dumbarton) [2001] ScotHC 121 (28 September 2001).
- 中华人民共和国刑法.（1979年7月1日第五届全国人民代表大会第二次会议通过 1979年7月6日全国人民代表大会常务委员会委员长令第五号公布 自1980年1月1日起施行）.
- China's Supreme Court.By Ronald C. Keith, Zhiqiu Lin, Shumei Hou. Routledge 2014. pp. 67–70.
- Magic, Witchcraft, and Ghosts in the Greek and Roman Worlds: A Sourcebook.By Daniel Ogden. Oxford University Press, 2002. pp. 275–280.
- Witch Hunting in Southwestern Germany, 1562–1684: The Social and Intellectual Foundations. H. C. Erik Midelfort. Stanford University Press, 1972. pp. 23–25
- Zhong-guo zhe-xue fa-zhan shi [Development of the History of Chinese Philosophy]. Wu, Y. Taipei Sun Ming Stock Limited Company, 1984. p. 37
- Witchcraft and the Rise of the First Confucian Empire. By Liang Cai. Suny Press, 2014. pp 102–110.
- Witchcraft in the Chinese Penal Code. Williams, E. T. Journal of the North China Branch of the Royal Asiatic Society, vol. XXXVIII (1907), pp. 61–96.
