Witchcraft Redux

My stint at Prawfs has come to an end, sadly.  I want to reiterate my gratitude to Dan for the experience, which has been terrific.  I thought I would end where I began, with government regulation of witchcraft in South Africa. 

In my initial post, I defended the new democracy’s first attempt to regulate occult practices.  Parliament recently passed the Traditional Health Practitioner’s Act, which establishes a regulatory agency for the purpose of licensing and regulating traditional healers.  These healers employ occult powers in order to protect clients who feel they have been the victims of witchcraft.  Drawing on democratic theory, I argued that regulating healers in this way is defensible but I warned that the government ought not go further and criminalize witchcraft itself. 

On Friday, I presented a draft of that argument to the New York Junior Faculty Colloquium at Fordham Law School.  The crowd included many friends and (as I learned) more than a few Prawfs readers.  Below are just three of their many insightful comments along with my preliminary reactions. 

Some people wondered whether it makes sense to even consider criminalizing witchcraft, since it is in fact impossible for witches to cause harm by occult means.  Nice point.  A first answer is that most Africans—citizens, members of Parliament, police, etc.—believe that witches can harm others.  But admittedly it doesn’t necessarily follow that we ought to credulously accept that belief as a normative matter.  Others countered that even U.S. law occasionally recognizes beliefs that may appear to be impossible.  In one Mississippi case, for instance, two brothers pled guilty to conspiracy to commit murder by means of voodoo.  (Although such cases are rare, few jurisdictions recognize an “inherent impossibility” defense.)  Tort law, someone else reported, also sometimes permits suits based on spiritual aggression.  And some state health insurance programs apparently cover treatment through prayer healing.  Certainly these examples are controversial.  But my initial sense is that the intent to cause harm (if present in witches) may be sufficient to justify a criminal law against witchcraft, even in the face of serious disagreement about whether witches can cause harm.  Ultimately, of course, I too come out against criminalizing witchcraft—my point here is only that there is something serious to argue about.

A few participants worried that regulating traditional healers will involve the government in favoring or disfavoring particular belief systems in violation of anti-establishment norms.  Favoritism could take several forms, including endorsing certain methods of healing over other techniques.   This is a real concern (even though framers of the South African constitution pointedly declined to include an anti-establishment provision).  My immediate response is that absolute government neutrality, even assuming its attractiveness to another culture, is difficult to achieve in this area.  Certainly many think that previous law denigrated African culture as a whole.  And any conceivable policy approach will violate government neutrality in one way or another.

One of the most interesting comments was only tangentially related to the project.  Recalling that any misfortune can be attributed to witchcraft—including illness, poverty, or even a car accident—one person asked:  What would it take for Africans to come to understand automobile collisions as meaningless accidents?   Americans have come to view accidents as relatively unconnected to human agency, even though we routinely make policy choices that can reduce or redirect their costs.   How might South Africa encourage its citizens to view car accidents and other misfortunes as similarly disconnected from meaningful human action? 

Comments are more than welcome.