Tue Dec 16 16:32:52 PST 1997

I remember raising the voodoo problem in my first-year criminal law class at
Stanford with Herbert Packer in 1970.  As I recall (and I'm not under oath
on the accuracy of my 27-year-old memories), he said that it certainly
indicated the relevant mental state of wishing to bring harm to another
person, so that anyone who engages in voodoo is a "bad person" from the
point of view of the law.  Can we distinguish the voodoo adherent from the
person who fires a toy gun (believing it to be the real thing)?  Wouldn't we
say, as Bill Rich suggests, that the odds are considerably higher that the
gun firer, upon discovering his/her mistake, will go out and buy an
effective gun than that someone who has never even fired a toy gun (again,
believing it to be "real") would engage in gun-related violence?  If that's
the case (and thus the justification for punishing the "mistaken" gun firer
is the revealed propensity for violence), then what is the argument for not
punishing the voodoo adherent, unless it is a tenet of voodooism that one
can kill one's enemies *only* though voodoo and that, for example, one
condemns oneself by using implements of destruction like guns or knives?  If
that is the case, then I think that the voodoo adherent would still be a
"bad person," but empirically harmless (except to persons who in fact
believe in voodoo and who take voodoo curses seriously).  But doesn't all of
this return us to the endlessly debated topic about the rationality of
religious belief?  I assume that Emily would not be happy with the dismissal
of voodoo as, well, "voodoo" (as in "voodoo economics").

Sandy Levinson

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