War, Cannibalism, and Criminal Punishment

Introduction

The word "kill" is misleading. The Sixth Commandment says plainly that "Thou shalt not kill." But most scholars agree that rasah, the term for killing in Hebrew, never refers to killing at war. Nor do the Hebrew Scriptures differentiate properly between just and unjust wars, conflicts in which killing is acceptable and conflicts in which it is not. Thus, in providing an exception to the blanket prohibition on the taking of lives, the Hebrew God has provided us with a useful self-serving justification for war: when we are at war, we may kill with impunity. If we do not assume a God who allows men to kill in conquest or in self-conjured defense -- as long as those who kill are "at war" -- but not in times of self-evaluated need, then there seems to be little difference, if any, between the killing in war and the murder in Regina v. Dudley and Stephens. But once we assume such a God and such a moral scheme, then the difference appears as that between justified and unjustified killing. Here, Dudley and Stephens cannot justify their actions because they were not at war; thus they are morally deficient, and we are morally justified in judging them deserving of criminal punishment.

Drawing War Closer to Dudley's Cannibalism

War, Simpson’s Cannibalism, and Criminal Punishment

-- By MohitGourisaria - 06 Apr 2010

I believe that when man evolves a civilization higher than the mechanized but still primitive one he has now, the eating of human flesh will be sanctioned. For then man will have thrown off all of his superstitions and irrational taboos. — Diego Riviera

Kill is a misleading word. The Sixth Commandment (some say the Fifth, but who cares?) says: Thou shall not kill. Modern translations often substitute “murder” for “kill” but much of that is, I believe, for the sake of convenience – the connotations of murder are more specific, making the command easier to defend. Most scholars agree that this term (rasah) for killing in Hebrew is never used in Hebrew Scripture to refer to the type of killing that takes place on the battlefields. Thus, we have the potential for a handy, self-serving justification for war – an exception to the blanket prohibition on taking the lives of others. Once we take the assumption of a God, who purportedly allows men to kill in conquest or in self-conjured defense (or sometimes in pursuit of oil) but not in times of self-evaluated need, there seems to be only a faint demarcation, if any, between the killing in war (or terrorism, depending on which side one is on) and Dudley’s killing in Cannibalism & the Common Law.

The Fallacy of Self-Justification – War

Our first week of Criminal Law expounded the purposes of punishment – deterrence, utility, condemnation, retribution, and so on. The common thread that weaves this blanket of criminal punishment is (some degree of) moral judgment, which, of course, is not value-neutral. We decide what must be deterred (and to what extent), which measure of utility is optimal, where a crime falls on the continuum of culpability, and whose behaviour deserves retribution. Thus, it “shocks our conscience” today when we consider that people, under the common law that begot our legal system, were put on death row for rape (or any other felony for that matter). But we are not similarly shocked (not conscience, not mind, not anything) when 2,412 Afghani civilians are killed in a single year (2009) by the American-led war. But as someone in our class once stated, the life of an Afghani child does not deserve the same protection as that of an American – a moral judgment that he made, espousing a particular, self-serving value, as an American citizen. We are not compelled to deter war; utilitarian objectives often lead us to favour war for the material benefits it produces, and the moral blameworthiness of war has escaped us for generations.

Walking Cannibalism through the Fire of Criminal Punishment

Deterrence

If Dudley happens to be on another Mignonette (after the completion of his six-month imprisonment) and the same events transpire, will he do things any differently? I am afraid not. Neither a cost-benefit analysis nor a sense of regret (for there is none) for his past conduct will prevent Dudley - or any “reasonable” man– since that is the basis against which the law measures its deviants - from putting a deathly ill Parker to the same fate. This determination would not be different had Dudley received a much longer sentence. There are necessities on sea, where the laws of land cannot apply with much efficacy.

Utility

The utilitarian perspective most easily debunks the outcome of Regina v. Dudley and Stephens. Three men survived at the expense of one, who would have, most likely, died in any case. From a social standpoint, this consequence is far superior to the only plausible alternative – all four men dead and devoured by the ocean.

Condemnation

The blameworthiness of Dudley’s action must be considered in light of its unique context. Is a man culpable for protecting his life and the lives of his subordinates? Maybe. The Queen’s Bench Division did not recognise a Defence of Necessity and thus found Dudley to have committed murder. However, their dispositions were predetermined. Dudley’s behaviour in the dinghy, on the contrary, was an immediate reaction to his own need for survival and to his duty towards his sailors. To the Home Office the cannibalism may have been an immoral offence but to Dudley, Stephens, Brooks, and the Falmouth citizenry (which represents a broader “public” sentiment than the Home Office) this was a natural act, if not one of heroism. When casting our vote on the moral turpitude of Dudley’s cannibalism we must remember that this was not a classic criminal act with a perpetrator and a victim. Any one of the four seamen could have been fodder for the rest, and Parker’s destiny was only a consequence of the frailty of his constitution and his drinking of the sea water (assuming no lots were drawn, for in that case only probability must be found culpable).

Retribution

On behalf of whom? What satisfaction will punishment bring to Parker and his family or even to society for that matter? Parker’s brother, for one, shook hands [this gesture speaks volumes!] with the three seamen who lived. As mentioned earlier, the public sentiment, in Falmouth and in England at large (once the case gained prominence), supported, or at least recognised the necessity of, the seamen’s “cannibalism.”

Drawing War Closer to Dudley’s Cannibalism – Some Closing Questions

When the state blows the bugle, irrespective of how perverse its breath, why are the slayers of innocent civilians not condemned? But when an expert sailor tears open the body of a dying chap to sustain himself and his fellow seamen why does the force of law stand against him?

The answer to this cannot be found in history, scripture, or self-serving notions of morality. Regardless of whether war or cannibalism is good or evil (whatever those words may mean to you), one must wonder why one receives the gallows while the other marches in glory.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, MohitGourisaria

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list