05 April 2013


Footnotes and fries to go with the fava beans, chianti and human liver?  We've moved on from Dudley v Stephens to the strange Mr Meiwes

'Eat What You Kill: Or, a Strange and Gothic Tale of Cannibalism by Consent' by Charles Reid Jr in (2013) North Carolina Journal of International Law and Commercial Regulation (Forthcoming) argues that
Consent-based jurisprudence has become the dominant model for understanding much of law and ethics. It exalts freely-exchanged consent grounded on rational and autonomous decision-making. This Article means to raise questions about the foundations of consent-based jurisprudence. It does so by focusing on a recent German case. Two German computer scientists exchanged repeated and free consent to an act of cannibalism. Following these exchanges, which were not only reduced to writing but put on video-tape, the one scientist killed and ate the other. The victim, if he can be called a victim, even urged the cannibal to the completion of the task when the cannibal seemed to lose nerve. This Article reconstructs the circumstances of this case, evaluates the German law under which the cannibal was tried, examines the existing scholarship on this case, and concludes with a review of its implications for jurisprudence and morals.
Reid comments that
It is a law professor's dream hypothetical, the sort of question students would chuckle at as something so far-fetched as to be impossible: Suppose two men meet over the internet. One has had a life-long desire to eat another human being; the other has had the life-long desire to be eaten. They exchange consent not once, but repeatedly, videotaping their consent, signing a formal "willingness agreement," and performing other acts making clear the total resolve of the victim as well as the cannibal. Suppose, further, that when the cannibal loses his nerve, it is the victim that spurs him on to complete the deed. Suppose further that all of this is captured on videotape. Suppose, also, that the cannibal, who is a very legalistically-minded individual, had released a number of prospective victims because it was clear that they failed to give the same level of free, informed, and repeated consent. Suppose, further, that while there was certainly evidence of emotional unwellness on the part of both men, they were able to hold executive-level responsibilities, maintain friendships, and otherwise assume a large range of everyday duties. Suppose, finally, a statutory regime that did not punish cannibalism and only lightly punished assisted suicide. May the cannibal eat the "victim" under such circumstances?
Such a case actually occurred in Germany in the years between 2002 and 2004. The facts and the trial electrified that nation and much of the world. Two German computer specialists, Armin Meiwes and Bernd Brandes, engaged in precisely this set of behaviors, culminating in Armin's slaughter and consumption of Bernd. This case has attracted significant scholarly attention in legal and criminological circles, which is detailed towards the close of this Article. Michael Sandel, the Harvard legal philosopher, has written about the case, as has Lawrence Friedman, the legal historian at Stanford. But the case itself has never been subjected to a full-scale English-language analysis. It is the intention of this Article to fill this notable gap in the scholarship.
A second purpose of this Article is to raise questions about the nature and limitations of consent-based jurisprudence. For it seems that a system of law grounded on autonomy and consent, and nothing more, is incapable of responding coherently to the facts of this case. Commentators are led either to unqualified, unconditional support for the cannibal and his victim, and believe that their actions can be justified on libertarian premises; Or, alternatively, they are horrified at the facts of the case but lack the framework to construct a reasoned alternative jurisprudence of the case.
I cannot hope to construct that alternative jurisprudence in the context of a single law-review article, though I shall develop some constructive avenues of further investigation in the conclusion. But it is not necessary at this stage of investigation to formulate a fully-developed alternative to consent-based jurisprudence. That would be a very large undertaking, indeed. This Article, rather, is focused on five related points: It will offer a careful reconstruction of the facts of the case and the relevant personalities. It will review and analyze the German law that was employed in the trial and the appeal. It will evaluate the legal theories used to justify the trial court's verdict and the appellate review. It will carefully consider existing scholarship on the case, touching especially on some of the weaknesses in current interpretations. And finally, it will close with why I believe the cannibal and his victim were not justified in their actions.
My method in proceeding is to rely heavily on a narrative history of the case to expose the legal and philosophical issues. Without a careful reconstruction of the facts, it is impossible to understand the degree to which both parties acted freely and non-coercively. And that is what, in the end, makes the case both difficult and significant jurisprudentially: Armin Meiwes and Bernd Brandes did everything one could reasonably expect of two persons consenting to perform a momentous act, and yet we are left deeply uneasy at the final result of their consensual acts.
Reid concludes -
Armin Meiwes' case threatens our jurisprudential self-understanding. This may be an unconscious reason many of the scholars who have addressed this case tend to underplay the radically consensual nature of it. Armin secured the consent of his victim, if you can even call Bernd a victim. Bernd, after all, answered Armin's advertisement and encouraged him at every stage of the process, even after he had undergone emasculation. He signed documents evidencing his consent, he videotaped his consent, he made his will and sold his belongings, and he can be seen on the home movies Armin made of the slaughter telling Armin not to lose heart and insisting that he finish the job.
Armin and Bernd's cannibalism has to be seen as an autonomous act. And autonomy is the foundation-stone of so much about Western law. Our legal philosophers instruct us to aim at policies that maximize freedom in our personal lives and insist that we be non-judgmental as to the ways others define themselves and their private pursuits. Autonomy, in other words, is the "key component" of the "good society." Courts, in the United States, in Canada, and in Europe have elevated human autonomy to constitutionally-protected status.
And this autonomy, commentators have made clear, embraces decisions about ultimate goods, such as life and death itself. To be sure, the United States Supreme Court rejected arguments that the notion of liberty implicit in the Due Process Clause included the right to assisted suicide. Even so, the State of Oregon has moved in this direction statutorily. So also has the nation of the Netherlands. The New Jersey case of Zygmaniak v. Kawasaki Motors, furthermore, while not precisely recognizing a right to die, has been interpreted by commentators as standing for "a clear instance of voluntary euthanasia."
And, truly, all Bernd did was will his own death. To be sure, in the end, he died at the hands of another, but the evidence overwhelmingly supports the conclusion that this was the fate he devoutly longed for and desired. Suicide for exalted purposes has not only not been condemned in western literature, it has been celebrated. Cato the Younger passed sanguinary judgment on Julius Caesar's dictatorship by shedding his own blood, taking his own life as an ultimate act of protest. For this, he won the praise and glory of fellow republicans, his name enduring down the generations. Some of Shakespeare's greatest plays — Othello, Romeo and Juliet — end with the suicides of the protagonists.
Modern existentialist writers have felt the need to justify not suicide, but the decision to live. Albert Camus, Jean-Paul Sartre, and others have spoken in these terms. Why should we not regard Bernd as the brave man, the free man, the quintessentially autonomous man, who has decided that his life might be put to a higher and more beneficial purpose by being united physically, in the most intimate way imaginable, with another human being?
While classically a philosopher like Immanuel Kant objected to suicide as morally wrong and inherently incompatible with human nature (as a misuse of human freedom), even he faced opposition in his own day from thinkers like David Hume. Some modern philosophers are willing to find defensible at least some suicidal acts. Libertarian writers have in particular developed arguments such as the total ownership of one's self to justify a kind of personal sovereignty over the decision whether to live or die. And even many non-libertarians will defend assisted suicide in cases where an individual is terminally ill.
So, if we finally concede that Bernd, on at least some contemporary readings of the scope and nature of human autonomy, was justified in permitting Armin to take his life, still do we not recoil from sharing Armin's perspective? We really do not want to justify his killing of Bernd to satisfy his fixed and settled craving—his Sehnsucht, his fetish for flesh, as it has been called. But even at this outer boundary we should not be too quick to judge. After all, if Armin had a fetish for human flesh, he had a fetish every bit as strong, perhaps even stronger, for free and autonomous consent. It was part of his fantasy that he could only consume the flesh and blood of someone who gave repeated, obvious, and free consent. He wanted everlasting unity with a brother, after all, and such unity could only be the product of absolutely free consent. Was Armin a danger to others? Was he likely to repeat his crime? Perhaps, but, the evidence suggests, only with another victim as resolved to die as Bernd.
So, perhaps Bernd and Armin were right in their actions after all. Perhaps we should agree with those libertarians who see support for their cause as a litmus test for freedom. I, for one, do not wish to go there. John Stuart Mill, is taken by many as the founder and paradigm of modern libertarianism. But this is a misreading of Mill's great essay ON LIBERTY. In that essay, Mill defended the proposition that "there is a sphere of action in which society . . . has only an indirect interest," in which human beings may interact with others on the basis of "free, voluntary, and undeceived consent." So long as harm does not result to others, individuals should be free to act within this sphere "without impediment from our fellow-creatures."
If this was the totality of Mill's ON LIBERTY, one might be justified in reading his work as the libertarian ur-text, the cornerstone of consent-based jurisprudence. But Mill argued, additionally, that his notion of liberty was the product of contingent historical events—the struggle against tyrannical kings, the wars of religion, resistance to a modern tyranny of the majority. Mill saw in this grand historical movement a process of societal maturation. Liberty, as he conceived it, could not be practiced in "[the] backward states of society," and could only be adhered to by "human beings in the maturity of their faculties."
Mill, clearly, was much more than a modern libertarian. He thought deeply and profoundly about proper standards of human conduct and what it meant to live in a civilized society. While he was certainly not a recognizably Christian thinker, Mill even proposed a "Religion of Humanity" as a code to live by. Stressing altruism and sympathy for others, Mill, at least, a liberal from another age, would find it difficult to accept the legitimacy of Armin's and Bernd's essentially uncivilized acts. And I would share Mill's disquiet at Armin's and Bernd's atrocious conduct.