Czarownica pławiona i spalona w mieście Delhi w 1340 roku, czyli o powszechnikach kulturowych i ich roli w prawie karnym
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Among the historians there are often disputes about the origin of a legal norm. The establishing of this origin is particularly signiﬁcant when the norms that are binding in the given communities resemble those that are known to have been binding in other periods of time and on other territories. The resemblance of the norms results from various forms of legal culture diffusion (including the resemblance resulting from the reception of law provisions). Likewise, the resemblance may result from the parallel evolution (cultural convergence). What plays an essential role in a certain ﬁeld of law are also the primeval common elements or the cultural universals, derived from the most remote stages of the development of mankind. What offers interesting examples in this respect is the analysis of the principles of penalizing the magic practices as well as the analysis of types of evidence designed to prove the truthfulness of facts presented at the trial whenever the reality of witchcraft and its effects are acknowledged. In the present paper the starting point is the story told by Arab traveller Ibn Battuta about the trial of the witch accused in 1340, in India, of putting on a form of the hyena and killing a young boy. In the evidentiary proceedings the ordeal of water was applied and the accused, when found guilty, was condemned to death by being burned at the stake. The description in question includes numerous elements characteristic of the trial of witches in Europe at the beginning of modern era. It may be found that the belief that human beings may be transformed into animals and that women, while putting on a magic form, may kill young men, was widely spread in all remote cultures and is conﬁrmed by numerous sources. The penalizing of witchery appears in the oldest relicts of law, those that are four thousand‐year old story. This penalizing has survived until now in the customary law of many peoples of Africa, Asia and Oceania. This is not witchery as such that is penalized (the useful magic is accepted) but only such practices which – according to the opinion of the groups and communities – cause harm and are “socially noxious”. In the oldest communities the “spontaneous primeval norms” protect above all life and health of human beings as well as the basis of their existence. As the structures of state power develop the norms of the law impose the punishments also for the witchery that hits the basic system and doctrinal values (including the penalties for behaviour challenging the recognized religion). In the medieval trials of witches, Christianity and the late Roman understanding of the crime of apostasy were invoked as justiﬁcation. In Hindu law, in its turn, the primeval values (life) were pointed to as what was mostly defended. The need to arrive at the national establishing of the trial facts, visible in all cultures, contrasted, in case of crime of witchcraft, with the irrationality of matter and the impossibility of applying the objective criteria for the evaluation of fact situations. Hence the evidence that was commonly applied in the trials was the one that is considered irrational today(ordeals as well as the oath). Also the ordeals were to the varying extent applied in all known cultures of the past and they are still applicable in the present day cultures that are of traditional nature. The ordeals however were alien to the Roman law and they in fact contradicted also the Christian doctrine. In Europe their origin was Germanic. The medieval inﬂuential position of the Germanic states, and the Church which cooperated with them, led to the spreading of ordeals within the orbit of Western Christianity. The renaissance of Roman law and the development of Canon law as well as the strengthening of theology, were responsible for the withdrawal of the Church’s acceptance of them. This is what eventually happened after Lateran Council IV. The Roman‐Canonical trial provided for further possibility of penalizing witchcraft in the context of the crime of apostasy. In its evidentiary proceedings this trial therefore resorted later to witnesses and to confessio extorted by tortures. In this respect the evident attempts at turning the evidentiary proceedings into the rational ones had paradoxically its source in Roman law. It is striking however that from the most remote time the ordeals of the same type as those detectable among the Germanic peoples were applied – in similar matters – also in India. In this respect it is hard to avoid the association of the discussed phenomenon with the “proto‐Indo‐European community”. Yet it should be remembered that the loss of contact between the Germanic peoples and the Aryan ancestors of the Hindu population is what occurred 5–6 thousand years ago. What is interesting is that the “legal culture universals” are found above all in the area of penal law, both substantial and procedural. These universals are bound with the deep areas of human subconsciousness that, on a large scale, are common among the present day communities despite the differences in their cultures. These universals continue their existence, arousing surprise. The present day witchcraft trials in which ordeals are still applied and which are detectable in India, testify to this.
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