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:
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.
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.
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.
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.