Question Your Law

Snaking around the outer wall of the courthouse in Mbaiki, Central African Republic, is a long line of citizens. … Most are witches, and they are facing criminal punishment for hexing their enemies or assuming the shape of animals. By some estimates, about 40 percent of the cases in the Central African court system are witchcraft prosecutions. … The penal code. … dictates a decade or more in jail and a nominal fine for engaging in witchcraft. …

The Azande attributed a staggering range of misfortunes—infected toes, collapsed granary roofs, even bad weather—to meddling by witches. … Central Africans, who demand that the law reflect the influence of witchcraft as they understand it. … Foreign human-rights groups have noticed that many of the targets of prosecution are vulnerable types (like Pygmies, or even children). …

“The problem is that in a witchcraft case, there is usually no evidence,” … trials generally ended with an admission of guilt by an accused witch in exchange for a modest sentence. … [To determine guilt,] “the judge will look at them and see if they act like witches,” Goroth said, specifying that “acting like a witch” entailed behaving “strangely” or “nervously” in court. … Every other lawyer I met not only supported [witchcraft] criminalization, but seemed to believe in the reality of shape-shifting and killing with magic spells. …

Mbaiki’s sole foreign nongovernmental organization, … acknowledged that the rights of the accused are violated regularly in witchcraft prosecutions, because the charge carries enormous pressure to confess. But they, too, supported keeping the laws on the books, for pragmatic reasons: if people thought witches could hex with impunity, mobs would simply seize the alleged offenders, bring them to a pit, and bury them alive. (more)

Alex calls this “The unenlightened economy.” You enjoying feeling smugly superior too? Because, after all, your law uses evidence right? Well consider:

  1. Most of the accused in Mbaiki confess not because they are guilty, but because the punishment of non-confessors is much higher and court errors are frequent. Many confess in your law for exactly the same reason.
  2. Their law uses “evidence,” of the judge looking into folks’ eyes, and of the fact that some community accused them. Our judges and juries often rely on similar evidence.
  3. Your law relies on “evidence” like testimony by public police and lab workers. But what about meta-evidence on the reliability of that evidence? Do you randomly test police and lab workers to see how often they lie?   Do you do randomized trials to show what lab evidence indicates? Your law shows little interest in meta-evidence.
  4. Public law in Mbaiki is justified by claiming private law would impose overly severe punishments. But is there evidence for this, or is it a just knee-jerk rationalization?  Your arguments for public law over private law in your world may be similarly weak.
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  • J

    “[To determine guilt,] “the judge will look at them and see if they act like witches,”

    Honestly, it’s not like routine forensic means such as scales and ducks are too advanced for their legal system to use, so yes, I do think our system is superior.

    “1.Most of the accused in Mbaiki confess not because they are guilty, but because the punishment of non-confessors is much higher and court errors are frequent.

    That’s a pretty solid description of our tort system, which sees more than it’s share of cases built on preposterous superstitions. I wonder what would happen in the CAR if they implemented a law that the accuser got thrown in jail if the problem they were blaming on witchcraft didn’t go away after the witch was sentenced.

  • this is not totally dissimilar to the way that some paedophile cases were conducted in the UK in the 1990s.

    Orkney and Lewis were the most well known examples

    a summary of what happened

    The McCarthy trials in the US also come to mind.

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  • claiming private law would impose overly severe punishments. But is there evidence for this, or is it a just knee-jerk rationalization?

    Sure, witch lynchings are common in other countries, most of which do not prosecute “witches” formally.

  • I have no love for the way court procedures work in America, and I do find this article quite humbling. Nevertheless, I must snarkily ask:

    -What are CAR (Central African Republic) courts’ standards for hearsay evidence?
    -To what extent is the right against self-incrimination and unwarranted search and seizure respected in CAR trials?
    -What is CAR’s policy on lawyers for those who cannot afford one?
    -Most importantly, what does CAR require from a kind of “science” before that science can be admitted as evidence?

  • Yes, our system is superior. It has problems, and all of these are serious points related to aspects that need reform. But at the end of the day, witchcraft doesn’t exist and the crimes people are being prosecuted for here do. That means that if the claim above that 40% of their cases deal with witchcraft that means we already have a substantially lower error rate even if our criminal cases are just as accurate as theirs in other situations.

    As to the worry that such mobs would exist: We know they do. In many examples of penis stealing situations in African countries, the accused are killed or severely harmed by mobs before anyone gets to trial.

    But the overall points are still valid. I don’t think that most people who’ve looked at our criminal justice system think that it functions very well.

  • cournot

    I’m not even sure what Robin is signalling with his post. Does he mean that our court system shares some of the flaws and hypocrisies of the CAR’s system? Does he mean that some of the more irrational aspects of our tort or other systems are just as bad as the CAR? Or does he mean that properly weighting the errors and flaws of our system and judging by some sort of third party standard against some ideal our system is LITERALLY as error filled and as prone to making mistakes that are just as severe and just as given to punishing innocent people as in a world where fully 40 percent of the trials are for a non-existent crime [And please, no libertarians telling us that prosecuting someone for drugs is just like prosecuting someone for witchcraft!] ?!!

    I’m not even going to get into issues like corruption and bribe taking for which there is ample evidence that the US system is clearly superior.

    Who’s being biased now?

    I’ll even go one step further. If sneering at others helps maintain a bias in favor of pushing for more rational, more enlightened law (even supporting more use of betting and experimentation) then we should all do more sneering at countries whose legal systems we can’t change much.

    • Tom Adams

      Why do you call witchcraft a non-existent crime?

      Casting spells is an activity that bothers people. The activity exists. If there is a law against an activity then how is that an non-existent crime?

      • Will

        There’s no such thing as witchcraft.

  • Joshua and Joshua, the fact that sometimes severe punishments are given in private law does not tell us the average punishment.

  • Constant

    I’m reminded of the recent contrarian paper rehabilitating trial by ordeal. In light of that, might trial for witchcraft be rehabilitated? I don’t see how, but a while ago I might have said the same for trial by ordeal.

    If it were trivially easy to bring an accusation of witchcraft, then presumably every accusation of witchcraft would be answered by a retaliatory accusation of witchcraft. I presume that does not happen (for, if it did, I think it would be mentioned here). If not, then it is not trivially easy to accuse someone of witchcraft. What is the barrier preventing everybody from accusing everybody of witchcraft?

    • William Barghest

      Here is a guess. I think there is a cost to you reputation if you are viewed as making either too many or implausible accusations. If you are so low status that you have nothing too loose, you can make all the accusations you want, but no one will believe you. If you are high status, but are interested in protecting your reputation you will only make those witchcraft accusations which seem plausible.

      • special case

        Your comments are well worth noting…and have more impact than most realize in deciding to prosecute in the first place

  • Alex Tabarrok

    I would happily release all those in the CAR who have been imprisoned for witchcraft. How many of the people in our prisons for murder, theft and rape would you happily release?

    • burger flipper

      not exactly the thoughtful half of MR, huh?

      I would equate their murderers and thieves w our murderers and theives.

      I would happily release our drug offenders and their witches and warlocks.

      • Alex Tabarrok

        Apparently, I wasn’t clear enough. I would release people imprisoned for witchcraft not because I think witchcraft is ok but because I think that 100 percent of the accused are innocent! In this sense, our criminal justice system does a much better job of separating out the innocent from the guilty.

        As it happens, I am against drug prohibition but this is an entirely different matter not relevant to Robin’s post.

      • Alex, they may be innocent of witchcraft, but they are likely guilty of something; they were accused for some reason, after all. This is a common excuse given for faking evidence to gain convictions in our legal system.

      • Alex Tabarrok

        Robin is a warlock. I have the pictures to prove it and he cast a bad luck spell which caused me to get into a car accident. He must be punished.

      • mgravity

        Robin may or may not be a warlock, but I bet if the government launched an investigation on the matter they could get him on obstruction of justice. He’d probably plead guilty too when he saw the lengthy prison sentence he’d be facing if he went to trial and lost.

      • Aron

        Alex, Robin created a caricature of you for some inscrutable reason and you fell for it. His position was that you lacked nuance when comparing us vs. them. Your response is that us is a lot better.

        It’s a game. Play along.

    • idiot

      “I would happily release all those in the CAR who have been imprisoned for witchcraft.”

      Why? You haven’t been targeted by a witch. You haven’t seen their actions. You claim that witches don’t exist…but they got solid evidence right here, important hear-say evidence.

      Are you seriously calling for the legalization of the blighting of toes?

      • idiot

        And apparently, in that same article, a couple of Pygmies were accused of “murder-by-witchcraft”. So what now? You’re going let witches get away with murder now?

  • Jerry

    I was enjoying feeling smugly superior. Now I’m just depressed.

  • Aron

    I object: argumentative.

  • I rate their system of justice a 2 out of 10. I subjectively rate the US at a 5 or so. I think both could stand for some improvement. I won’t really be happy with ours until:

    – no more drug use crimes
    – regular reviews of forensic practices and some bottom limit on their acceptable reliability
    – better proportionality (i.e. no automatic weapons at a pot use arrest)
    – de-militarization (see Radley Balko)
    – better accountability for crimes committed by law enforcement, or gross malfeasance by prosecutors (also Balko)
    – prison reform (lots of suggestions here)

    There are probably lots of others, but that stuff might get me to give a 8/10 rating.

    • michael vassar

      For a 9 I would require that the legal system regularly review the efficacy of the elements of court proceedings as well via testing in staged trials.

  • Private law seems to have a rather daft name 🙁

  • Rob

    >> if people thought witches could hex with impunity, mobs would simply seize the alleged offenders, bring them to a pit, and bury them alive. One said, “If we do not apply laws against PCS, we will apply lex talionis.” That is, the rule of an eye for an eye, as preached in the Bible. <> Christianity, post-Reformation and post-Luther, with its teaching of a direct, personal, two-way link between the individual and God, unmediated by the collective, and unsubordinate to any other human being […] offers something to hold on to to those anxious to cast off a crushing tribal groupthink. That is why and how it liberates. <<
    As an atheist, I truly believe Africa needs God

    • Rob

      Should have been a blank line separating the end of the first passage (‘…in the BIble”) and beginning of the second (“Christianity…”).

  • Alan

    It was interesting and enjoyable to read the article in the original source. What follows isnt’ an appeal from direct knowledge of the cultural anthropology of this nation–which is zero– but rather from a cursory search of online sources in a span of a few minutes. Where in the article was there any evidence that the author was a proficient speaker of French or Sangho (the national language)? It’s curious that no one has asked this question thus far. If one doesn’t speak the language(s) with any degree of fluency or understanding of nuance, one doesn’t know diddly–right off the bat. Not a great place to start offering interpretations.

    There was no mention of the fact that CAR became an independent state as late as 1960, or that the median age of the male population is less than 19, or that infectious disease is rampant–all of which would seem to call to mind a place where attributional systems based on animistic beliefs are commonplace–unlike developed western democracies. There was no mention that the Azande tribe straddle several nations–situated to the north–and who apparently do not represent a meaningful proportion of the population, the majority of whom belong to other ethnic groups and are nominally Christian. The source story dealt with some happenings in the southwest part of the country, where one wouldn’t expect to find many indigenous Azande anyway–but Mbaki looks from the map to be a border town, so one would expect other salient dynamics to be in play. Why bring up a northern tribe?

    Pedantic quibble on the original article: lex talionis was not “preached” in the bible. The preaching, purportedly, was quite to the contrary.

    • Pedantic quibble on the original article: lex talionis was not “preached” in the bible. The preaching, purportedly, was quite to the contrary

      Erm… Leviticus 24:20 is in my copy of the Bible. God might have changed his mind by the time the New Testament was written, but the original article is still correct.

  • Henry Harpending, a cultural and genetic anthropologist, found in his years in Africa that a fear of witchcraft contributed to order in African villages. When individuals feared that if they did bad things to their neighbors, they would be hexed in return, they were less like to do bad things in the first place. In contrast, in places where fear of curses was dying out, rape, robbery, assault and the like were rising.

  • By the way, the article doesn’t explicitly address the point, but from this line — “His principal advice to clients, he said, was to act normally and refrain from casting any spells in the courtroom.” — it sounds as if many of the accused witches believe they really are witches.

  • Psychohistorian

    The individual errors in this post have largely been addressed by commenters.

    The meta-error remains unstated, which I find surprising. Not all shades of gray are equal. Just because there are flaws in their system of justice, and there are flaws in our system of justice, that does not mean that the two are practically comparable, and it certainly does not mean some third system must therefore be appropriate. Indeed, given how complex and difficult to create our current legal system is, the obvious question is why we should expect a private legal system to be any better than the African one mentioned, rather than why we should expect private to be better than the American one.

    I will mention the obvious error in 2, because I don’t see that in the comments. “You rely on ___ evidence,” and “You rely *solely* on ____ evidence” are two wildly different statements. The former applies to the US, the latter to the relevant example; equating the two is unjustified.

  • Pieter

    The tort system the US uses seems enough reason not to extradite our suspects to them. We probably still do because we don’t want to harm relations with them.

    Whether forensic evidence is admissable is based more on jurisprudence then experiments and publications. Science may be verifyable by other scientists but judges and juries just have to take someone’s word for it. When disputed it often comes down to two experts disagreeing with each other in court. At that point, all a judge can do is look deeply in their eyes and see which is the most confident expert.

    Criminal law does very little to prevent crime other then having people who might commit crimes in jail temporarily. We have a justice system to prevent people taking their own revenge. For this function, it is more important that the laws reflect the views of people who feel they have been wronged then that they are about real crimes.

  • Tom Adams

    What is the problem with having a law against witchcraft?

    If lack of evidence was the problem, then they could tighen up the evidence rules to ensure that the accused was actually engaging in witchcraft activities. But there was no mention of that anyone was considering that option in the article.

    The article mentions selective prosecution of the vulnerable as a problem. That is a problem, but that problem seems to be at least as widespread in the US legal system.

    Perhaps the real problem that is leading them to consider repealing the law is that witchcraft has a component of superstition, a component of unscientific belief about something in the domain of science.

    And it could be viewed as discrimination against a particular religion, that would be a problem under our constitiution.

    It could be they can’t just tighten up the evidence rules because the people are so paranoid about secret hexes.

  • I think our system is much better than theirs but I am shocked that our police sometimes still use lie detectors!

  • Will

    Whilst the original article seemed to have a rough point about the weakness of any claim to objectivity in a legal system, the subsequent comments have seriously undermined this.

    One type of law is much better than the other in that it doesn’t criminalise an imaginary action: casting a spell.

    Withcraft is not real.

    This entire argument is also seriously undermined by the lack of figures available for CAR on the success of the justice system outside of statistics based solely on demographics. Both could be flawed in similar ways yet one can still be much more effective because dangerous crimes are still more likely to meet with detection, arrest and conviction. Many people in jail deserve to be in jail – something that it’s easy to overlook when you play the numbers game.

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