judicial shamanism

Theory of judicial shamanism is a postmodern analytical approach to judicial reasoning. It broadens the constitutional atheism proclaimed by the Critical Legal Studies movement (CLS) by the statement that judicial reasoning is a contemporary form of shamanism. The analogy between judge and shaman might be summarized as follows:

• Both a judge and a shaman presuppose the objective existence of certain supra-natural entities with whom they maintain a permanent contact. A general legal principle is a contemporary analogy to a shamanic spirit.
• There is an unavoidable logical link between the starting point of a legal deduction or of a shamanic ritual and its final point.
• A judge has the power to include one general legal principle into her or his starting point/mythological system and exclude another principle. A shaman may similarly invite one spirit and forget about another. Such a situation might be called an abuse of system-constructing.
• A common feature of shamanism is the statement that ordinary people usually do not hear the voices of spirits. Even if some do, it is claimed they will never understand the message of a spirit exactly, since spirits do not speak the human language, but the spiritual one. This is why we need a shaman or a judge.
• Many anthropologists underline that it is often difficult to say whether a spirit is good or bad in shamanic beliefs. Sometimes a spirit does positive things, but the next time s/he may become angry for some inexplicable reason. It is remarkable that nowadays lawyers are not capable of arguing convincingly whether a particular legal principle is “good” or “bad”. Even good spirits commit sins.
• One of the most important shamanic dogmas is that there is permanent conflict between spirits. The same might be said about contradictions among legal principles. The best example is multi-exceptional legal provisions within the European treaties and the European Convention of Human Rights.
• Every single shaman contributes to writing and amending the Shamanic Bible. In a similar manner, every judge of a supreme court contributes to writing and amending the Constitution.
• Often during a ritual, not only the performing shamans but also all observing members of the community start to see and hear spirits. This phenomenon is called a collective hallucination. The same thing happens in the Courts.
• Shamanic practices are performed following certain common standards (or traditions) of 'correct' shamanic ritual. Judicial practices follow similar traditions of 'correct' reasoning.

Judicial shamanism or judicial shamanic practices is adjudication in cases where the law is indeterminate. A contemporary judicial shamanic ritual comprises answering two questions:

• What legal principles (spirits) make up a legal system? At this stage, a judge abuses system-constructing through the incorporation into the “legal system” of certain end-oriented concepts and by the elimination of 'inconvenient' (obstructive) concepts.
• What do these spirits say? This stage is identified as abuse of deduction.

Further articles:

• Stanislovas Tomas (Sorbonne), "Shamanism as an analytical model for constitutional case-law"
• Duncan Kennedy (Harvard), "American constitutionalism as a civil religion: notes of an atheist"
• Lior Barshack (Herzliya, Israel), "The totemic Authority of the Court"