Witchcraft, black magic and rituals related to the supernatural are perhaps some of the oldest existing religious and superstitious beliefs/customs that contributed to the early development of laws around the world. This Halloween, Legal Bites brings you an interesting and fun take on the above by R. Nirmmita Mano, who delves deep into the origins as well as the transformation of such laws from ancient times to the modern world.
Happy Halloween! 😈
Since time immemorial, religion has evolved alongside humankind (as early as the Neolithic and Paleolithic ages or even prior to that, as some evidence may suggest). Regardless of debates about its period of inception, one cannot deny its stronghold on human life ever since. Even during the primitive stages of human history, religion has conveniently served as the accepted and satisfactory basis of explanation for the feared, unknown, and the comprehension of the bizarre.
Due to its strong and unwavering influence over the functioning of the state, religion invariably controlled even its legislation, as seen most evidently in the case of several ancient civilisations such as the Mesopotamian Ur-Nammu, Babylonian Hummurabi’s Code, and the Egyptian belief in the obligation of Ma’at. This influence over the law was to such an extent that at a particular point, the law was seen as the only feared and effective means to control, punish, reward and adjudicate matters of every aspect of religion including the evil, the afterlife and the supernatural as sanctioned by religion.
There exist several, then relevant but now bizarre aspects of law and religion from around the world regulating such matters. This article focuses on a few such laws as well as other strange beliefs and their resultant effect on the development of law throughout history. Or rather, as the ancient Egyptians would say, prepare your soul for a purgatory trial!
II. Historical Vultus
From covenants with gods to punishment for witchcraft, concepts of both civil and criminal law such as contracts, mischief, the death penalty, etc., respectively, have existed quite early on in the history of several civilisations. An ancient Syrian artefact known widely as the Arslan Tash amulet is one such example. The amulet is said to have an incantation that protects its reciter/holder from the “Fliers and Stranglers” demons who were said to prey on children. By reciting it, the individual invoked the deity Sasam, who placed the demons under an obligation to not enter the premises of the holder/reciter.
To ensure that this obligation was not disobeyed, the deity Sasam then entered into a ‘treaty’ with the deity Assur and pantheons Heaven and Earth who in turn, through their divine powers, were said to ensure this, once invoked by the ‘treaty’. Here, several elements of a present-day agency can be seen, with Sasam as an agent acting on behalf of the human principal, the former who entered into a treaty with the third party (deity Assur and the pantheons) on the principals’ behalf and of course, protection being the objective for the formation of such an agency.
Such ‘covenants’ or ‘treaties’ during the Neo-Assyrian period are referred to as the adê treaties. Professor Jacob Lauinger at John Hopkins University says that these treaties mean “an obligatory behaviour that was imposed on an individual or a group of individuals and transformed into a destiny by projecting it into the divine realm.”
Further, the God Mitra was a deity who appeared in the pre-Zoroastrian period of early Iranian, Persian and Vedic Hindu religion and was worshipped even in the Roman Empire. However, in all the four religions, he was considered the God of contracts and in Persian, Iranian and Roman religions, he was also the God of friendships. For instance, in Sanskrit, the word ‘mitram’ directly translates into ‘friend’ and in a few Vedic texts, it can be interpreted as both friends and contracts, as contracts between parties establish a friendship or relationship.
Mitra was also considered a capable mediator and establisher of interpersonal communication. Invoking his presence signified a friendly relationship between individuals. In the treaty between the Hittites and Mitanni (two ancient Indo-European and Indo-Aryan races), he was invoked as the God of oath.
In the Iranian religion which later became predominantly Zoroastrian, the deity Mitra continued to exist prominently. Here he assumed the position of a ‘judge’ who adjudicated the eligibility of an individual’s soul to its deserved destination after an assessment of all the deeds done on earth, quite similar to the Hindu God Chitragupta who was believed to be the assessor of a soul’s place in the afterlife and kept an account of all his/her deeds on earth. This continues to be a widespread belief in Hinduism even now.
The Clergy Law Man:
John Cotton was an English clergyman, known for being the theologian of the Massachusetts Bay Colony, the area denoted by the settlement of the earliest British inhabitants in present-day Massachusetts. His work ‘An Abstract or the Lawes of New England, As They are Novv Established’ published in 1641 contained the following under chapter 7, dealing with crimes:
“3. Witchcraft, which is fellowship by covenant with a familiar Spirit, to be punished with death.
1. Consulters with Witches not to be tolerated, but either to be cut off by death or banishment.”
These laws showed a clear view of the religious beliefs present in those times and how strongly they controlled policy decisions. This publication of Cotton was the result of him being asked to undertake a “draft of law”. Hence, it is a draft that was never adopted in the actual framing of laws perhaps due to its rather extreme nature of punishment. However, it influenced another publication known as the Body of Liberties, which detailed the present laws of the state of Massachusetts in the US. 
Trial by the Supernatural:
The other draconian and frighteningly arbitrary method of guilt ascertainment was the trial by ordeal method which had been practised in several cultures. Under this system, the person suspected of a crime was put in a life-threatening situation, under the strong and delusional belief that his/her safety would be ensured by the powers of a supernatural entity (most often believed to be God). Hence, if the suspect was actually innocent, these forces would conspire in their favour ensuring no physical injury, or death, injury if guilty.
The various ways to subject suspected criminals to trial by ordeal were- fire, water, divination, combat, physical test and bier. However, regardless of its unscientific nature, this method served as an effective one as the suspected party would immediately confess the truth out of fear of harm to life. It was also quite biased in the sense that the proceeding of the trial could easily be manipulated according to the needs of the powerful and influential thereby preventing a fair trial.
III. The Practice of Witchcraft
Every culture in the world, regardless of its present state of development and existence, has had beliefs steeped in superstition. For instance, the effectiveness and authenticity of witchcraft and its ability to cause harm, although perceived differently by each one with certain cultural differences. Hence it might not be surprising to find legislations that existed to punish its practice.
In the state of New Orleans in the US, voodoo as a religious practice arrived in the 1700s along with the natives brought from the Western African coast for the slave trade. Presently, according to the state’s law, it is illegal to practice voodoo within city limits.
Article 17.1 of the San Francisco City Law explains that all those practising fortune-telling and other similar psyche businesses were to be regulated through permits to prevent any case of fraud and to protect those likely to be vulnerable to it.  The state of Massachusetts requires a permit for fortune-telling. On the other hand, North Carolina recently replaced its 1951 Anti Divination Law, viewing it as dated and constricting freedom of religious personal belief and choice, thus allowing the public to practice any ritual of their faith particularly those considered ‘craft’ sciences.
In Canada too, section 365 of the Criminal Code was repealed as of 2018. It previously stated the following:
“ 365. Every one who fraudulently;
- Pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration
- Undertakes, for a consideration, to tell fortunes, or
- Pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost maybe found,
Is guilty of an offence punishable on summary conviction. “
In the United Kingdom, the Fraudulent Mediums Act, 1951 was brought in place of the now-repealed Witchcraft Act, 1735 and section 4 of the Vagrancy Act, 1824, all with the view of bringing in uniform legislation to punish the use of ‘psyche’ mediums for committing fraud and unjustly deceiving the public.
Papua New Guinea:
Papua New Guinea’s Sorcery Act, 1971 was repealed in 2013 but any death resulting from murders and other gruesome crimes under the suspicion of the practice of sorcery was made punishable by the death penalty. PNG has seen several thousand deaths, particularly of women, who were suspected of witchcraft. The move came in a bid to curb such deaths and ill-treatment.
In India too, there have been reports of several such deaths, lynching and other crimes mostly against women. Hence to prevent these as well as other sexual abuse injustices, the states of Maharashtra, Karnataka and Assam have passed the Maharashtra Prevention and Eradication of Human Sacrifices and other Inhumane, Evil and Aghori Practices and Black Magic Act 2013, Karnataka Prevention of Superstitious Practices Bill 2013, Witch Hunting (Prohibition, Prevention and Protection Bill 2015, respectively.
As of 2019, the state government of Kerala has also drafted a similar preventive bill that awaited passing by the state assembly. Chhattisgarh, Bihar, Jharkhand and Orissa had passed similar bills much earlier. All of these states have seen innumerable cases of brutalities due to the fear of witchcraft and those suspected of its practice. Further, the Drugs and Magical Remedies (Objectionable Advertisements) Act 1954 was passed to prevent the advertisements of drugs and medicinal remedies that claim to have magical healing effects.
IV. Spectral Properties
American Haunted Houses
In the US, property laws mandated property disclosure statements during the sale of properties regarding any ‘material defects’ of the same at the time of transaction. However, what varied was the treatment of incidents such as suicides, murders, and other illegal or rather contentious phenomena including allegations or proof of being haunted that may have taken place in a said property as ‘material defects’ under different state laws.
States such as Mississippi, Missouri, Massachusetts, Maryland, Florida, Texas, Georgia and Pennsylvania do not legally require the sellers to inform any death or presence of spirits as these were perceived to not constitute material fact. While according to Californian law, a matter of death and its manner may be disclosed if it happened within the past three years. In Arizona, non-disclosure of any supposed ‘stigma’ associated with a property due to some untoward happening was not protected against.
Strambovsky v. Ackley
In the case of Strambovsky v. Ackley, the appellate division of the New York Supreme Court decided in favour of the respondent, stating that the defendant by mentioning to the local magazines and newspapers that the house in question was apparently haunted by poltergeists was not estopped from mentioning the same fact to the prospective purchaser, Mr Strambovsky who refused to make the complete payment on this ground. The court thus declared that the house was indeed haunted, “as a matter of law” to ensure that Mr Strambovsky would be fully reimbursed of all the payments made thus far.
The court also held that although according to the contract, the house was to be sold “as is”, this clause in no way could have cautioned the buyer, an outsider, to enquire into its’ “phantasmal reputation” unless specified by the seller. Further, it was held that though the contract claimed to deliver the house “vacant”, it could not be considered so when inhabited by poltergeists. The case caused a furore at the time due to its unusual and supernatural claims and also mainly due to the highest court of the state acknowledging the other-worldly.
The supernatural has always been a part of day-to-day life and from the above instances, a lot more than we might know, admit to or agree with.
So sit tight and get spooked! 😈
 N.Y.S. 2572 N.Y.S. 2d 672 (1991)