When Scotland had a sovereign Parliament, one of its most intriguing and characteristically distinctive acts was that of 1563 which made witchcraft a crime.

The topic resonates with contemporary social and political issues in Scotland and the UK.

In some respects, Scottish witchcraft legislation and prosecutions were unlike witchcraft legislation and prosecutions elsewhere. To say this is not to praise our witch hunts. It is not in itself a merit of practice, procedure or decision-making that was a characteristically Scottish one. We should not venerate that which is Scottish merely because it is Scottish. We should value highly that which is good, whether Scottish or not.

The Scottish witchcraft act was particularly unfortunate and cruel since it did not rest on a presumption of the actual efficacy of the alleged witchcraft. It was unusually severe also in making it a capital offence to consult witches.

One did not need to be a successful witch to be guilty of witchcraft in Scotland. To attempt to be a witch or to purport to be one was sufficient to be legally guilty of witchcraft. Hence, curiously, some of those who were found guilty in Scotland of being witches actually were guilty.

The use of torture in witchcraft cases seems to have been more common in Scotland than, for instance, England. Sleep deprivation was one of the characteristic devices of the interrogators in Scottish witchcraft cases.

Because witchcraft was considered to be an exceptional crime, it was deemed to be justifiable to use exceptional means, such as torture, in the detection and prosecution of suspected witches. One hears similar sorts of arguments today about the exceptional sorts of measures that are supposedly justified in the case of suspected terrorism.

It seems quite clear to us now that, at least with regard to witchcraft, the wiser policy would have been to maintain the normal procedures and safeguards. Some political policies are more perilous than the problems they are intended to address. I suspect UK policies against terrorism are a bigger problem than terrorism.

Because there is a very low rate of convictions in rape cases in Scotland, some people have suggested that we should consider modifying our legal practices and procedures in such cases.

This is highly dubious. The function of the courts is to give fair and just trials. If the trials are fair and just, the outcomes, regardless of how they might turn out, should be accepted.

A high conviction rate is no more desirable as such than a low one. After all, there was a high rate of convictions in witchcraft trials but that was hardly in itself a good thing or a suitable cause of pride in the legal system. The question of the wisdom of paternalistic legislation is another issue of contemporary relevance a consideration of witchcraft cases raises.

Although it was passed in the wake of the Reformation in Scotland as a product of religious zeal, the legislation was also paternalistic in intention. At least in part, the act was passed to prevent gullible people from being fleeced by charlatans and other "abusers of the people". In contemporary Scotland, although we no longer have a close association between the Kirk and the state, we seem to have the legacy of a heavy reliance on the public sector and the acceptance of the supposed legitimacy of paternalistic policies and legislation. This reliance and acceptance are worth questioning.

What should be done by the state? What should be left for individuals and non-state organisations and institutions to do or to refrain from doing as they so choose?

What is the proper role and scope of the criminal law? When and why is it justifiable for the state to prohibit the performing of particular actions and to punish those who perform them?

Should the state pass laws in order to protect people from the folly of their own voluntary actions?