“Subjective Beliefs, Social Judgments, and Witch Killers”
Matthew P. Cavedon
In a 1992 abortion decision, Casey v. Planned Parenthood, a plurality of the U.S. Supreme Court held: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Consider this decision the height of the subjective theory of law – the untouchability of people’s subjective beliefs about ultimate questions. But in 2020, the federal government executed William LeCroy, who subjectively believed that the woman he killed had placed a sexual spell on him after molesting him as a child. Why was there no outrage beyond general opposition to the death penalty? Because the public accepts that society can make determinations about human morality and apply them even to people who do not subjectively accept them. The way the law treats the killing of suspected witches shows that underneath liberal subjectivism, social judgments still hold sway.
Belief in witchcraft as an actual threat has been sidelined over the past several centuries in the West, so much so that the phrase “witch hunt” has become a throwaway line. (Whether this skepticism stays entrenched even as over a million Americans come to identify as Wiccans and Pagans, only time will tell.) But other countries that share the English legal heritage, many of them in Africa, deal with witch slaying cases quite frequently. Ugandan researcher Rukundo Solomon analyzed the laws surrounding them in a recent issue of the Journal of Law and Religion. Over and over again, Solomon found that the law imposes social judgments on defendants who subjectively believe witchcraft to be real. At almost every turn, African states with English legal systems deny suspected witch killers any defense based on their subjective beliefs.
For instance, the common law generally allows defendants to argue that they were honestly and reasonably mistaken about some fact that could justify a crime. But Solomon notes a Nigerian case where the defendant killed a woman based on his subjective belief that she had mortally cursed his wife. The court acknowledged that the man’s tribe believed in witchcraft. But it refused to condone a mistake defense that would let subjective beliefs decide who lives and who dies. Solomon observes that “although witches are a part of Africa’s social reality they lack the ontological status of theoretical entities in scientific research and when the justification for belief in witchcraft is assessed by external objective standards it turns out to be insufficient.” Society’s appraisal of the value of life and the falsity of witchcraft holds sway over even honest mistakes about the danger of witches.
Another key defense under common law is self-defense. Self-defense requires a defendant to show that violence was necessary and proportionate. Solomon finds witch killings to rarely qualify as necessary, even within societies that believe in witchcraft. Spells are performed remotely, and community authorities can often intervene to stop witches from carrying on. Solomon further treats physical force as inherently disproportionate. The measured response to supernatural assaults are prayer and traditional spiritual practices.
The concepts of mistake of fact and self-defense are only partially subjective. Defendants raising them have to show some objectively reasonable belief about reality, or some objective necessity justifying violence. Perhaps it is unsurprising that these defenses are unavailable to someone who subjectively believes in the unverifiable phenomenon of witchcraft. But Solomon also finds iciness with respect to a defense that is entirely subjective: insanity. Insanity turns entirely on the mindset and mental capacities of the defendant. One colonial court in Uganda did allow an insanity defense to an accused rural man who had long harbored obsessive thoughts about his victim’s witchcraft. But “[w]itchcraft belief is usually a result of training, not a disease of mind,” and most African courts therefore reject insanity defenses in witchcraft killings. As one Kenyan case put it, “Even if [the defendant] believed that he was justified in killing his wife because she was practising witchcraft, there is again no evidence that such belief arose from any mental defect; it is a belief sometimes held by entirely sane Africans.” Indeed, in the context of different African cultures, witchcraft lies between being a widespread social oddity and formal public recognition. Kenya and South Africa officially characterize witchcraft merely as a subjective belief, whereas Ugandan law “recognizes witchcraft as a reality.”
Regardless, though, all of the societies considered by Solomon punish people who kill witches. Why? They prioritize social judgments about the value of human life over subjective beliefs regarding the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Despite widespread cultural fears of witches and the honest subjective belief of many killers that they are only doing what must be done, social order requires “an objective distinction between acceptable and unacceptable conduct.” So does justice, which requires ending “harm against the victim” that would continue unabated if subjective beliefs excused homicide. “Simply because beliefs are sincerely held does not imbue them with moral validity,” and social determinations regarding human rights justify the punishment of violations – “no matter how culturally justifiable” they might be.
Americans believe the same thing. Whatever William LeCroy’s subjective beliefs about life and the universe, his society made a judgment about the value of life and legitimately held him to it. To allow his subjective beliefs to let him do otherwise would be to leave everyone at the mercy of others’ whims. It would be to substitute individual caprice for social solidarity. The Casey plurality proclaimed a limitless right to subjective judgments about life and death. It could not possibly be applied consistently without annihilating society’s ability to protect human beings. Subjectivity is an important component of freedom. But social judgments about ultimate questions can legitimately prevail in defense of human lives. ♦
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.
Cavedon, Matthew P. “Subjective Beliefs, Social Judgments, and Witch Killers.” Canopy Forum, February 8, 2021. https://canopyforum.org/2021/02/08/subjective-beliefs-social-judgments-and-witch-killers/