Today's post is a guest post from my good friend Scott Hansen, who you may know as @Lithros on Twitter. Scott is a Professor of Law and Ethics who also happens to be an avid student of the occult, and in this post he discusses an interesting blend of magic, technology, and our modern legal system. Enjoy!
Libraries are magical places. I think this is both figuratively and literally true. Figuratively because, well, take a look at what I just linked! Everyone agrees that free access to books is an amazing, transformative resource with compounding effects towards unlocking the pinnacles of human intellect, art, and ideation. People build whole identities around loving libraries and books, because those things are a synecdoche for human achievement generally. Among identities, that’s probably one of the cooler ones.
As for being literally magical, take a stroll sometime down the nonfiction aisles, towards the lower end. Between 130-133, Dewey’s system provides space for parapsychology, occultism, and spells. You will find, nestled amid histories of local ghost stories, actual books of magic. As to whether their magic works, I can’t say, but it shows that libraries are, at the least, repositories of somebody’s idea of magical lore, which makes them slightly more magical than any place that doesn’t even try.
I had my first exposure to magic in a library, and it wasn’t non-fiction. I was eight years old, wandering through the kid’s section a book caught my eye:
This was before Harry Potter, so it wasn’t that easy to find a book about a plucky youngster selected for magical training. I was thrilled! I read the whole series, and while I don’t remember much of the plot’s nuance, one thing really stuck with me: wizards couldn’t lie. In that setting, a wizard who spoke something untrue would permanently lose his or her ability to use magic. It wasn’t a purely technical misuse of language, but rather the intent and execution to use words to deceive, that triggered one’s magical ability calling it quits. Even little pranks and white lies could be sufficient to bar someone from using magic forevermore.
And while the rule only applied once someone had started learning magic, it still terrified me. What if a minor mistruth, harmlessly meant to ease some social interaction, had already locked away my magical potential? Like, when some kid asked my favorite basketball team, and I told him it was the Bulls, but only because I didn’t know any others, since I didn’t actually care about basketball at all? Was the ubiquity of Michael Jordan in the mid-90s going to be the reason I never developed magical powers?
I’m grateful the world doesn’t work that way, and that the reason I haven’t developed significant magical power is that I haven’t tried that hard yet. But the prohibition against lying stuck with me, and so too lingered the unreasonable fear that I may be bound by untold restrictions of which I remain blissfully ignorant, up until the moment I suffer their horrible consequences.
Actually, the world works exactly that way. How many laws can you actually name? How many laws did you break today? Did you always intend to be a hardened criminal, or did you just luck into that lifestyle, achieving it as a result of the broken incentives that inevitably arise when making new rules is the primary qualification in the popularity contest that determines who runs society?
Laws are written by legislatures, but that’s far from the end of it. Before a single law is enforced, it needs to be analyzed, both by the individuals and organizations it commands, and the police, prosecutors, and regulators who’ll apply it. At some point, one of the latter decides one of the former has stepped out of line, and the work of interpretation shifts to a judge, who’ll decide what the legislature actually meant or was allowed to do (or just decide he’s grumpy because he ate a bad breakfast).
The animation and voice acting is funny, but the transcript is a real conversation in court between a judge and a defendant. This is the legal system we’re working with!
Did you get that? Did you notice how distinct what gets passed is from what turns out to be ‘the law’? At any step on that chain between a lobbyist getting a twinkle in his eye and the Shawshank Redemption, messy, prejudiced people are applying their judgment in legitimate and illegitimate ways to modify how the rules actually work.
If that hurts you, you’ll think it’s awful. But it probably helps you much, much more often than it hurts you. If there are too many laws to follow, we all rely on law enforcement and judicial discretion to stave off complete societal collapse. There are a lot of different solutions to that problem, but as long as there are too many laws, you need a law enforcement system that’s willing to ignore some of them.
So the government has a bunch of effervescent rules it can arbitrarily enforce when it decides it doesn’t like somebody. Arbitrary enforcement is a major source of injustice, but it can be extremely useful, too! A criminal mastermind who, by a slim technicality, manages to avoid breaking any specific law, or leaving any traces that would link him or her concretely to a conspiracy, is no less culpable. Justice is an amorphous concept, sure, but it should have some connection to people getting what they deserve, and that’s rarely identical with the sentence that can be passed after clearing a court’s evidentiary standard, let alone the adversarial trial process.
It’s a problem when you need to read an entire library to know the rules. It’s a bigger problem when you can read the entire library and yet not know the rules. But books keep getting written, and the rules, they keep a-changin’.
Witch hunts are a pretty good example of arbitrary enforcement.
I’m talking about Salem-style witch hunts and trials, not modern witches, who seem to be doing pretty well for themselves (relative to the past, that is; somebody will definitely be able to find an example of contemporary witch-hunting to dispute any general statement about how well things are going). Compared to the multitudes of people executed for practicing witchcraft in the last five centuries (estimates range from a few tens of thousands to a few million), modern witches are perfectly safe. My mother-in-law is a proud witch, and a more pious, family-oriented, upstanding member of the community, you’ll never know.
Old-timey witches didn’t have it so good. There were laws against that sort of thing. Here are the specific things outlawed by the England’s Witchcraft Act of 1604 (thoughtfully translated from Shakespeare-ese).
An Act Against Conjurations, Enchantment, and Witchcraft
- To practice or exercise any invocation or conjuration of any evil or wicked spirit;
- To consult, covenant with, entertain, employ, feed, or reward any evil or wicked spirit, to or for any intent or purpose;
- To take up any dead man, woman, or child out of his, her, or their grave, or any other place where a dead body rests, or the skin, bone or any other part of any dead person, to be employed or used in any manner of witchcraft, sorcery, charm, or enchantment;
- To use, practice, or exercise any witchcraft, enchantment, charm, or sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed in his or her body, or any part thereof
- To tell or declare, by witchcraft, enchantment, charm, or sorcery:
- in what place any treasure of gold or silver should or might be found or had in the earth or other secret places, or where goods or things lost or stolen should be found; or
- with the intent to provoke any person to unlawful love; or
- whereby any cattle or goods of any person shall be destroyed, wasted, or impaired; or
- to hurt or destroy any person in his or her body, attempted or otherwise
The punishment for the first offense is one year in prison, without possibility of bail, and once per quarter to be pilloried on market day for six hours. The punishment for the second offense is death.
Now, since most of my context for witchcraft prosecution comes from Salem, we should consider the laws at play there as well. The Massachusetts Bay Colony didn’t adopt English law directly, but tried to follow it generally, with a heaping dollop of Biblical ‘precedent’ on top. In the 1640s, Massachusetts codified witchcraft as one of many capital offenses with the following:
“If any man or woman be a witch, that is, hath or consulteth with a familiar spirit, they shall be put to death. Exod. 22. 188; Deut. 13. 6, 10; Deut. 17. 2, 6.”
The other capital offense are mainly efforts at following the Old Testament laws that aren’t explicitly about the minutiae of Jewish religious practice. No blaspheming God or worshipping other gods, no killing without self-defense, no poisoning to death (somehow distinct from killing), no bestiality, no adultery, no bearing false witness. No ravishing either, which was a pleasant surprise to read.
There’s also some weirder ones; I’m not sure what it means to “STEALETH A MAN,” (kidnapping?) but that earns the death penalty. Also, kids with bad manners who turn sixteen are eligible to be put to death unless it can be shown their parents were very negligent or abusive. If this was an attempt at reducing the rudeness of adults in Boston, I don’t think it worked.
Back to witchcraft. The standard is a lot lower here than it was in England. The Witchcraft Act required some kind of necromancy, harm, or interaction with an explicitly evil spirit. Even then, your first offense would just end in jail time. In Massachusetts, a witch was anyone who could be shown to have a “familiar spirit”, and that’s not defined in any deeper way in the text of the law. Does it mean you have a cat? How suspicious does the cat need to be? One of the Salem ‘witches’ was a 5-year-old who claimed she had a snake for a familiar. Good enough, right? A red bump on her hand was considered evidence she’d fed the snake some blood. Superstition fills the gaps when you pass a supernatural law without defining anything!
I don’t think I need to reiterate that the Salem witch trials, specifically, are considered to have been badly prosecuted, the result of a society that prioritized the appearance of moralizing in defense of the common good over any individual’s life or well-being, combined with a temporary public mania around the existence of witches and a total breakdown of the legal system’s ability to conclude that any given accusation might be frivolous.
Witch hunts aren’t mainly bad because they hurt innocent people. They’re bad because normalizing them rewards bad faith actors for hurting innocent people. When the standard of evidence to be believed falls too low, the cost of bringing a false claim vanishes, and they start springing up everywhere.
From a legal perspective, the Salem witch trials were able to happen because the law didn’t have a rigorous evidentiary standard; it could essentially be applied arbitrarily. When the price of accusations drops, the demand for accusations goes up, and suddenly the least honest members of society have the most power. And then the most heavily persecuted minority becomes the set of all people the least honest members of society have grudges against.
But in Salem, there were lots of confessions. There are three main reasons someone might confess to a crime. First, you might confess under duress, either torture, the threat of torture, or the threat of harm against something or someone else you care about. Second, you might confess in exchange for a reduced sentence (as many of the confessed witches did, in fact, receive in Salem).
Either of those reasons is consistent with a false accusation; it just alters the balance in your risk assessment when deciding to fight the charges. But the third type of confession only makes sense if the accusation is true: you might believe you actually did it and want to take responsibility.
It’s impossible to sift through the historical record and decide conclusively that any given confession matches this third type. But even if we can’t be sure it’s ever happened in a witchcraft context, the notion lends itself to an interesting thought experiment.
Before we go further, we need to establish the basic requirements for criminal liability. We’re sticking with the common law tradition; although these ideas were present in English law even by the time of Salem’s witch trials, they wouldn’t be expressed precisely in this manner for almost another two centuries.
Guilt requires the presence of two or three factors: a bad act, a bad intent, and, depending on whether harm is part of the crime, proximate causationbetween the act and the harm suffered.
A bad act (“actus reus” for you Latin junkies) is any voluntary action which the law has defined as being illegal. Speech can also be an action in this context; so can choosing not to do something (failing to pay your tax bill, for example). What matters is that you use your will to cause a part of your body to move, or not move, in such a way that results in a crime.
The English witchcraft statute is very clear on the bad acts it outlaws. The Massachusetts law is a little murkier, but still passes muster as describing a bad act. For modern purposes, possession is considered a voluntary act, and keeping an animal (or spirit) would be considered a form of possession (no pun permitted).
Actions are relatively binary compared to what’s going on in your head (you did, or did not do a thing, but you may have thought for and against a specific idea dozens of times in just a few minutes). But bad intent doesn’t actually mean you intended to break the law. You don’t even need to know you’re breaking the law in order to be guilty of it, remember! Bad intent basically means you intended for your physical act to create a result that would count as illegal under the statute. This means having knowledge of the situation you were in such that you (or a reasonable person in your shoes) could have reasonably foreseen the result based on your actions. If you pick up a cigarette and, believing it’s tobacco, light and smoke it, you aren’t guilty if it turns out to be an illegal drug, because you didn’t intend to smoke an illegal drug.
Under the English witch law, there are lots of places that a lack or mistake of knowledge could eliminate guilt. A big one is if you thought the spirit you were talking to was good! Or if you read some weird Latin words in a book, and then at the bottom of the page see that it says (in English): “THE ABOVE, WHEN READ, WILL CAST A SPELL TO CAUSE THE DEAD TO RISE”. This might lead to a cool movie franchise, but it will not lead to legal guilt, as you did not intend to cast that spell.
The idea of a “familiar spirit” in Massachusetts makes the question of intent somewhat moot, because nobody could reasonably have or consult a familiar without knowing what it was.
The last component is causation. This is irrelevant for the Massachusetts law, since it isn’t dependent on a harmful result (though of course, many such results were alleged in Salem to help bolster the case). The English law, though, lists a lot of specific harmful results that, lacking causation, could negate guilt.
When we’re talking about causation in the law, we’re talking about a very specific way of considering it. In the general, non-legal definition, causation exists whenever event B would not have occurred “but for” the occurrence of event A.
A simple example: “I would not have gotten drunk tonight, but for my choice to drink a whole bottle of wine.” This is simple and obvious, but the problem with this test is it’s too expansive.
How about: “I would not have gotten drunk tonight, but for…
A) …my choice to stop and buy a bottle of wine on the way home.”
B) …the fact that I’d planned a party and all my guests cancelled at the last minute, so I drank the bottle by myself.”
C) …my being an alcoholic.”
D) …living in a country where alcohol is legal.”
E) …being born.”
Assuming these are all true, each one is a factor contributing, to some extent, to the causal chain that results in being drunk. You can see why this sort of test is overbroad for determining guilt. The biggest problem, as C, D, and E demonstrate, is that but-for causation doesn’t have limits.
Let’s torture some facts. Say you really hate your neighbor and decide you want to kill him. You buy a tasteless, odorless, colorless poison and invite him over for a drink. You sprinkle the poison in his drink, but he sneezes as he goes to drink it, spilling poisoned liquor all over the floor. Your dog runs over, starts lapping up the spilled booze, and immediately goes into spasms. You and your neighbor rush the dog to the vet, who’s able to save the dog’s life (nobody suspects that poison was involved). Your neighbor forms a bond with the dog after saving it, and asks to take it for a walk. While walking the dog, he accidentally drops the leash, and the dog runs off. He chases the dog, and it turns around and bites him. The bite gets infected, he doesn’t bother getting it treated, and he dies.
A but-for analysis says your poisoning attempt was a causal factor in your neighbor’s death. You clearly have a bad intent and bad act; therefore you are guilty! But this is absurd, because now you could be on the hook for potentially infinite ways your neighbor dies, and anything can be traced back to your action. So the law seeks a closer connection to demonstrate that the harm inflicted is, again, reasonably foreseeable as a result of your action.
Now, for witches, things get really murky. Even if you can demonstrate a bad act, like invoking an evil spirit to curse someone’s cattle, and even with a confession of bad intent, how can you demonstrate causation?
Of course, prosecutors have not been able to present material evidence of witchcraft causing harms. Yet prosecutions went forward anyway. How can this be? It turns out that, for certain crimes involving subterfuge, the 17th-century legal system was willing to offer the prosecution some leeway in making their case.
Remember how the Massachusetts laws set apart killing by poison as distinct from regular old unjustified homicide? That’s because poisoning involves an element of secrecy, so the legal system was willing to permit a lower standard of evidence. Suddenly hearsay and circumstantial evidence become much more readily admissible, to better combat the poisoner’s efforts to deceive and escape justice. Witchcraft is similar; it’s assumed that a witch commits their crimes in secret, and that the workings of their magic will be imperceptible to a pure person anyway, so the court will have to assume certain facts that couldn’t otherwise be proven in order to support the pursuit of justice.
It’s true that relaxing standards like this will result in increased rates of false conviction. But the theory is that in exchange, society is likely to see reduced rates of people attempting such crimes, as there’s a greatly increased chance of being caught and convicted just on somebody’s suspicion. Whether this tradeoff is fair or just or even reasonably supported by observing human nature, I won’t argue. But it’s a better-faith defense of witch trials than what’s commonly assumed.
And while this approach to evidentiary standards in ‘secret’ crimes doesn’t survive to the present, it sheds light on how so many witchcraft prosecutions could have happened while the Massachusetts and European legal systems seemed to go on functioning otherwise. There was a wholly separate manner of prosecuting these crimes, because their perpetration was, unlike everything else, completely opaque to the legal system.
With our 20/20 hindsight, this form of law enforcement looks insane, prejudicial if not downright malicious. But at the time, it was seen as the only way of combating these dangerous techniques that threatened to destroy society. If there were many false convictions, that was simply a result of society too-well protecting itself; better to err on the side of a few innocents falling than allow your community to be dragged into hell. And what was the cost of another length of rope, anyway? It was reusable! And so these investigators set about removing every trace of magic they could find from the world.
They succeeded. Magic left the world.
Eventually, either society lost its ability to perceive the impacts of witchcraft due to a shift in the shared hallucination of global consciousness, or witches got better at hiding. I’m not sure which. But nowadays, our legal system understands that absence of evidence of witchcraft was, in fact, evidence of absence of witchcraft, and has moved to reform or eliminate those laws.
This was possible because the people making those laws always understood that witchcraft was inscrutable to them. They were fighting in the dark and swinging blind, and once they decided there weren’t any monsters, they were able to stop swinging.
Imagine, though, if things had gone differently. What if everyone continued to believe witches were real and worth passing laws against? But today’s legal system is too complex for any legislature to entirely understand the nuances of the areas it seeks to control. Instead, they delegate the responsibility of understanding to expert advisors and industry-connected professional regulators.
In this modern world of magic regulation, everyone accepts that magic can be used for good or ill, and that the average person can’t hope to understand magic or how it works. Regulators try to limit the harmful uses of magic, but the difference isn’t always clear between what’s harmful, and what’s simply a benefit accrued from more skillful or competitive use of beneficial magic. Regulation of magic therefore becomes a race between the regulators and those who seek to gain advantages by practicing novel forms of magic the regulators aren’t looking for or prepared to stop.
If a witch discovered a new spell that allowed her to predict the movements of the stock market the next day, she would have a very strong incentive to use that spell. Regulators would have a very strong incentive to control it, because it represents an enormous advantage over other investors that would harm the stock market more and more as all the gains started going to one person.
The regulators still don’t have material evidence. And so the arms race takes a peculiar turn: the witch wants to find ways to describe what she’s doing as not-magic, and might start calling it ‘quantitative analysis’ instead. It’s quantitative analysis nobody else can understand or replicate, but the regulators are in a quandary now. Is all novel quantitative analysis magic? They need to somehow demonstrate that what the witch is doing goes beyond applied mathematics, but if the witch is onto something truly novel they may not even have the language or ideas to describe what she’s doing or why it should be illegal.
Sufficiently advanced magic is indistinguishable from technology. People working on the cutting edge of software development are in a similar situation. They’re able to effect social and financial change at a rate faster than our regulatory scheme can keep up. In our world, there is no catch-all accusation of magic you can make; according to the law, magic doesn’t exist and can’t accomplish anything.
Similarly, from a legal perspective, these new technologies don’t exist, and need to either be awkwardly forced into another framework in the pursuit of someone’s idea of justice (arbitrary enforcement -> punishment), or ignored from a causative standpoint (magic -> no punishment). This creates an enormous amount of leeway for someone able to operate in that cutting-edge space, maintaining deniability of violating any crime because the statute or interpretation doesn’t exist that adequately defines what they’re doing.
Did I say cutting-edge? Realistically speaking, the legal system in the United States is operating about 30 years behind modern technology. With a few exceptions, the function of computers, as most judges and legislators understand them, is fixed at what they were capable of in the early 90s. The laws, such as we have, were (wisely) written under the assumption that technology would develop quickly, so broad language would be necessary for them to have any meaningful lasting effect. That’s right, but it misses the second piece of the puzzle: broad language paired with meaningful expertise on the part of those interpreting the laws is ultimately necessary for the law to be flexibly and fairly enforced as technology progresses. And this doesn’t even get into all the other laws that need to be reconsidered in light of shifting norms caused by technology changes (for example, the cruel way sex offender and child pornography statutes can be used against minors sharing sexy pictures of themselves with each other). In a better system, legislatures would be properly motivated to remedy these bizarre applications of law.
We don’t have that; judges and lawyers rely on expert testimony, where needed, to fill in the gaps and explain how technology works in court. Competing experts, paid, prepared by, and partial to one side, together with the lingering role of the non-technical judge in applying what the experts say to what the law says, means that this will always be an imperfect system. Legislatures write broad laws and then delegate enforcement to regulators who have an incentive to justify their own existence. We’re left in a similar arms race as our imaginary modern witchcraft regulation, engaged in a battle of categorization and redefinition, as nobody with any power suffers any harms from the broken system, and it rewards them with reelection anyway.
But there is a way forward out of this mess.
I have often been called a wizard.
In my work doing IT support, I often get called upon to fix problems that my users have no earthly understanding of. My solutions, no matter how simply and earnestly explained, are impossible for them to grasp. The function of the computers they depend on for every aspect of their jobs remains a complete mystery, and I am the guardian of that mystery, the person cursed to carry the knowledge so they don’t have to.
In some cases, I myself don’t know how I’m able to fix the computers. Every dedicated support person has stories like this, how a given problem will simply go away once a trained set of eyes alights on it. When it’s difficult for even the problem-solver to explain how they made a problem go away, it’s natural to suppose there must be some arcane element at play. But I can make my solutions fully explicable, and still many users refuse to accept any answer other than magic.
These people may not understand how silicon and electricity work together, but their ontology correctly connects magic with any technique which is forever beyond them. The difference may seem semantic, but I wouldn’t say so; to call it magic implies that something went into earning that knowledge beyond what other skills demand. On one level, I know they mean it as a matter of interest, that they could never be bothered to learn. On another level, that doesn’t change the fundamental reality that they will never learn.
We can rehabilitate magic. We can formalize it, to the extent that it describes the set of practices (particularly in technology, but also potentially in applied math, and probably in the arcane and occult) with repeatable results for those with the requisite knowledge. And, unlike the legal systems that had to grapple with witchcraft, we can recognize that such knowledge is not reserved to the malicious, and appoint suitable experts to oversee legal proceedings. We already do this in tax court, because tax laws are considered ridiculously byzantine and impossible for general-purpose lawyers and judges to sufficiently understand. It’s a pretty small jump to doing the same for special-knowledge crimes.
This way, we can end the bizarre notion that professional bureaucrats are in the best position to create and interpret rules governing technology; we can reify the common understanding that there is something distinctive about technology and the people who can command it; and, most importantly, we can reintroduce the idea of magic as something present and substantial in the real world.
There are, of course, lots of steps missing in the above proposal before it’s anything like a workable plan to fix the relationship between our legal system, magic, and technology. I say coming to accept magic is the most important step not only because of my concerns about rampant technologists escaping justice through inscrutable acts that nevertheless cause harm, but also because I’m worried about literal spellcasters doing the same thing.
Anyone who’s suffered identity theft and then couldn’t figure out how the breach occurred is left wondering, without closure, what they could have done differently to protect themselves. A traceless hack might as well have been the result of magic, and no honest epistemology can lead you to conclude that it definitely wasn’t. Now that we’re all on the same page about novel technology being able to cause these kinds of invisible harms, we have to recognize that magic could do the same thing; magic is the same thing. The only way to protect people from it is to be on guard for it, and to empower investigators to learn about and prevent those kinds of attacks in all their forms.
These are big ideas, and this is just laying the foundation for most of them. I intend to keep exploring them. For now, I’m doing my best to gesture in the direction of a theory of proper engagement with mystery, and pointing out that our age of technology presupposes a dearth when, really, mystery abounds. The laws around witchcraft, inexpertly written and applied as they may have been, at least accurately acknowledged the existence of things beyond common understanding. Today, the inexplicable remains, but our readiness to meet it is gone, and our brightest scientists would rather be destroyed by mystery than admit to its reality.
We will probably never codify any of the laws of magic; really, magic is more likely to be that set of phenomena which are real yet resist codification. I still think there is so much good left to be done for the world, and so much bad to be avoided, if we can simply embrace the existence of that which we don’t understand. Unlike my childhood books, a proper law of magic will not prevent magicians from lying; it will simply remove the incentives to deceive, one by one, until we are left with something less fearful and more beautiful. And then the circle will be complete.
In closing, a song (to the tune of I am the Captain of the Pinafore):
I dream of justice as we sought before
when we didn’t know what’s true
It was hard, lacking light
To tell wrong from right
And understand what witches do
But the times, how they change
Now we do not mind the strange
Or reject what’s not understood
So I think we can accept
An astonishing precept:
That the unknown can be good