Law is not magic, and prohibitions are not spells

9th June 2026

Again, politicians think that “banning” something is an end to a problem.

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This is a topic this blog has addressed before, but the issue never goes away and so the same old points bear repeating.

Law is not magic.

Prohibitions are not spells.

When you make a law against a thing, that thing may not instantly vanish.

It is not as if one points a wand and says something in cod-Latin, and the unwanted thing is thereby extinguished.

The unwanted thing may instead continue, it is just that further instances of that unwanted thing may be attended with different legal and practical consequences.

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Of course, there should be certain prohibitions.

But it is naïve – indeed magical – thinking to believe that just because, say, murder is prohibited there will be no more murders.

What the prohibition means is that any further murder can be followed by onerous consequences that would not be present if there was not a prohibition.

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Sometimes perhaps the prohibition may deter people doing the unwanted thing.

At other times, people will still do the unwanted thing, but in a way which means they will not be detected.

Or people will still do the unwanted thing if people believe the prohibition will not be seriously enforced – or if they believe the prohibition cannot be enforced.

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A prohibition in and by itself is not a policy. It may be part of a (wider) policy, alongside the allocation of resources, administrative priority, guidance and “soft” law, publicity, and political leadership.

But to make a law against something is often just as effective as casting a spell against something.

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The prompt for this post is the government of the United Kingdom threatening to do something-or-other if the internet companies do not do something-or-other.

Apparently, according to politicians, it is possible to ban social media use for under sixteen year olds.

The politicians will enact a prohibition [and cod-Latin and a merry wave of the legislative wand], the unwanted behaviour will disappear.

But it would seem things are a little more complicated than that.

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One curse of the modern age (and no doubt of earlier ages, but in a different way) is the belief that there are (instant) solutions to social and political problems.

And because of notions of parliamentary sovereignty, politicians in the United Kingdom believe that just because it is relatively easy for legislation to be passed, then more legislation is the solution to any social or political problem.

Members of Parliament cannot do much, but they can pass laws, and so they come to believe that passing laws is the only thing to do.

But public policy is hard.

Public policy is about effecting wanted outcomes which would not occur, but for the public policy. If things would happen anyway, then there is not much of a policy.

Laws are an important, if not crucial part, of much of public policy. Not just prohibitions, but the creation of discretions and obligations, and of rights. Laws can create legal personality or deem certain states of affairs.

But rarely, if at all, is any law the entirety of a public policy.

And so if politicians genuinely want to get rid – or reduce – an unwanted to thing, they have to do more than impose a prohibition.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.

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How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March

New Year’s Day 2025

By the mid 1700s in England there was a curious juxtaposition between the lore of New Year’s Day and the law of New Year’s Day.

The legal system, the government, the established church, and business: all insisted that the year began on 25 March – Lady Day.

That would be the date on which, say, 1748 would become 1749.

This sort-of-made-sense for many reasons.

It would make the month beginning with ‘Sept’ the seventh month, and the month beginning with ‘Oct’ the eighth month, and so on.

It also meant that years began in spring, rather than in midwinter (bleak or otherwise).

It accorded with the conventions of business and legal transactions – and even today 25 March is one of the quarter days on which certain debts become due.

(Also at this time, Acts of Parliament and other legal instruments were usually dated by regnal years anyway.)

And it even fitted with the Christian year, for the feast of Annunciation was a good time to get spiritual things going for a new circuit of the sun, with Christmas then neatly coming nine months later.

Linguistically, legally, administratively, commercially, spiritually – everything pointed to 25 March being the start of the year.

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But.

There was a problem.

And the problem was that people ignored what they were supposed to think, and carried on celebrating the new year on 1 January anyway, as they had done since time immemorial.

Even within the court and the corporations – as Ronald Hutton details in his great book The Stations of the Sun – they privately celebrated the new year on 1 January.

There was thereby a tension – indeed a contradiction – between the lore of new year and the law of new year.

This, in turn, had practical problems.

As A. F. Pollard explains in this informative 1940 paper, wills and other legal instruments affecting normal people often had date errors, because what people believed to be the new year contrasted with the official position.

(It also meant problems in respect of dealing with Scotland which had sensibly moved to a 1 January start date back in 1600.)

It did not matter what the church and parliament and the crown and the courts said, people persisted in acting as if the year changed on 1 January.

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And so in 1750 the church and parliament and the crown and the courts gave up.

An Act of Parliament was passed switching the start of the year to 1 January:

The Act had this wonderful preamble:

“Whereas the legal Supputation of the Year of our Lord in that Part of Great Britain called England, according to which the Year beginneth on the 25th Day of March, hath been found by Experience to be attended with divers Inconveniencies, not only as it differs from the Usage of neighbouring Nations, but also from the legal Method of Computation in that Part of Great Britain called Scotland, and from the common Usage throughout the whole Kingdom, and thereby frequent Mistakes are occasioned in the Dates of Deeds, and other Writings, and Disputes arise therefrom […]”

This was also the Act which switched the English calendar to the Gregorian calendar, omitting the days from 2 September to 14 September 1752.

(See what you can do with Acts of Parliament. Just as powerful on matters timey wimey as any Doctor Who scriptwriter.)

Lore had prevailed over law: what people believed and practically understood to the case forced the official position to yield.

Law can only conflict with lore for so long.

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Happy new year to all the followers of this blog, and thank you for your support.

“Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending

The day before the Winter Solstice, 2024

“…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore

Hallowe’en 2024

As words ‘law’ and ‘lore’ can sound pretty much alike. And as things they are also very similar: that is a theme of this blog.

But from time to time the courts are asked to deal with (what we can call) capital-l Lore – that is (what we can call) Folklore.

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One of the greatest examples is the (ahem) hallowed 1991 New York case of Stambovsky v Ackley – the case that provides us with that priceless quote above.

Here is the quote in context (broken into one-sentence paragraphs):

“Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.

“Plaintiff promptly commenced this action seeking rescission of the contract of sale.

“Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.

“The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack.

“Not being a “local”, plaintiff could not readily learn that the home he had contracted to purchase is haunted.

“Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.”

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I am not an American lawyer, but on the basis of the fuller quote above, one gets the sense that the judge is being playful. The rest of the judgment affirms this view.

There are many ways the judge could have worded the point without saying that “as a matter of law, the house is haunted”.

(And as an English lawyer, the true Hallowe’en horror of the passage is that estoppel is a matter of equity and not a matter of law, but we shall let that pass.)

The judge could have simply said that the defendant was “estopped from going back on previous statements” or something similarly bland.

But the judge saw their chance to end their point with that wonderful wording, and the judge took it, much to the amusement or puzzlement of many American law students since.

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For more on ghosts and the law, please see this absolutely superb paper by Canadian lawyer Michael Shortt – and a hat-tip to William Holmes at Legal Cheek for pointing to it.

(The Shortt paper is something I would love to have written, but I would not have done such a good job. It is brilliant.)

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Happy Hallowe’en to all my readers.