When reading the excerpt for today's class, and when I finished reading Regina v. Dudley and Stephens in Criminal Law for that matter, I kept thinking about the practicality of the result. Would the convictions really prevent or deter survival cannibalism? Wouldn't the next crew to find themselves in such dire circumstances do the exact same thing, throw any evidence overboard, and just not tell anyone about what they had to do to survive? If so, it appears that the practical result is simply an incentive to lie.
Then why prosecute survival cannibalism? We talked about it in class as sending a message to the community that survival cannibalism will not be tolerated - better for all to starve to death on the open sea. It seems to me to be the importance of criminalizing activity deemed to be immoral. But even the conclusion that the conduct is immoral isn't universally held in the community, however, as evidenced by the death threat issued to the mayor. Even Richard Parker's brother Daniel, hearing the news and traveling to Falmouth, "shook hands ritually with the three men in open court . . . publicly exonerat[ing]" them. Yet there are those who, with Sergeant Laverty, the mayor, the magistrates et al., believe that the killing was so morally reprehensible to warrant the convictions. Eben mentioned his personal experience with his father, and I'm sure our class would split (though my guess is it would do so quite unevenly) on whether or not what he did was justified.
So I'm wondering what you all think - what purpose does the moral stamp of disapproval serve, if not deterrence and prevention? What is the practical effect of moral punishment, if it is so warranted?
-- CarolineElkin - 14 Apr 2009
The only true "purpose" I see by placing a moral stamp of disapproval is to stigmatize the practice until it is disfavored in the public. As you mention Caroline, the only effects will be an incentive to lie, certainly not increased maritime safety. This ban appears to be one group imposing its abstract principles on society. This recognition forced me to question whether morality itself can justify criminalization.
Can a visceral, biological reaction (which I'm sure many people share) to cannibalism alone support a per se ban? Should we avoid the higher modes of thinking simply because of an instinctive feeling that eating people is "over the line?"
My "gut" reaction is no. I think that relying on such abstract principles will either lead to transcendental nonsense, or perhaps worse, provide a cover for animus legislation. Any other thoughts as to the effects/justifications of morals legislation?
-- KeithEdelman - 14 Apr 2009
In response to Keith's question: I think in this particular case, a per se ban is fine. As pointed out, "banning" cannibalism is likely to have zero effect upon the actions of people in situations dire enough to occasion its thought. It's also unlikely to have any effect on people mentally disturbed enough to consider doing it outside of those circumstances. The rarity of its occurrence also makes it unlikely that specific people are being targeted or unfairly discriminated against. Because it actually affects so little, I see no harm in agreeing upon the fact that, as a society, we feel that eating people is always wrong.
Perhaps the purpose behind it can be seen as a unifying mechanism, just a recognition that at least we can all agree on something or a reminder that all our horrible and confusing legal mumbo jumbo has gotten something right. Separation from our primal selves or whatnot. Also, while we may all be in agreement that certain circumstances can justify almost any action, I don't think it is best idea to have that thought in people's heads all the time. Personally, I think the general idea that "If I really have to, I can do anything I want no matter what" should be kept out of sight. I'm pretty sure it'll be there when you need it.
As far as applying this to almost anything else though, I think I'd be in agreement with Keith. I can't think of anything else besides "necessary" murders that would fit into the general category, and even there there is simply not the "biological reaction" to compare it to cannibalism. Euthanasia/assisted suicide is much more common than cannibalism and likely to become more and more common soon enough. Not that the rate of occurrence is be all end all factor, but I think it plays a large part.
-- JustinChung- 14 Apr 2009
Caroline, when we talked about this in my Crim class, our professor focused on the court’s fixation on the lack of drawing lots. I agree with you, Keith, and Justin, that part of the purpose is to place a moral stigma on cannibalism—but that this doesn’t really change anything. It’s hard to imagine that many moral stigmas could run so deep in people that they would choose to die rather than commit the offence (though there are certainly some over which people would rather choose death).
While I realize that the court does not sanction cannibalism if lots are drawn, there is a reason that this instance of cannibalism at sea among others was chosen to be the defining landmark case, and I think that it has a lot to do with the choosing of the weak boy with no dependant relatives over the respected family men. This is the time of Charles Darwin, and, perhaps more importantly here, Herbert Spencer. Perhaps the court wishes not only to place the stamp of moral taboo on cannibalism for all society to see, but also on the idea that men may choose who is to be sacrificed by whose life is of greater social value. While the famous takeaway of the case is that cannibalism will not be tolerated, perhaps it should be instead that the social value of a man does not determine the value of his life.
I think we're all missing the point when we say that this moral stigma doesn't do anything because it won't keep starving sailors from eating each other to survive. Enforcing the law against Dudley is not meant to deter the Bad Man from killing and eating his crew members. The Dudley ruling can be better understood as part of a larger project of inculcating values into society's citizenry. To analogize to child-rearing: parents who are trying to raise a child to be honest punish the child for lying. However, this does not mean that their ultimate goal is to instill a child with a fear of getting grounded. That would miss the mark. Parents punish bad behavior and reward good behavior to raise their kids to be people who believe in certain values, whether or not they yield social advantages.
Similarly, enforcing an absolute prohibition against killing reinforces messages transmitted by other means in society. If the law against killing is the stick; the carrot is, say, a high school student receiving an A on a paper about human dignity. Enforcing the law sends the message: “yes, we really do mean it when we say killing is wrong, no matter what the social station of the victim is, etc.”). The goal is not merely to deter the Bad Man, but to make sure people don't turn out as the Bad Man.
-- MichaelDreibelbis - 15 Apr 2009
While the famous takeaway of the case is that cannibalism will not be tolerated, perhaps it should be instead that the social value of a man does not determine the value of his life.
I think this is a really compelling point. In the reading for tomorrow, we learn about O’Brien’s fate aboard the Francis Spaight, despite his contention that drawing lots should not be limited to the boy apprentices. We see how Captain Harrison attempted to enforce the system of drawing lots on the Peggy, following a suspicious result in the first instance of lot drawing on the ship. Objections did not seem to arise from the system of drawing lots (which seemed to be accepted as a fair and common practice), but rather the objections point to the idea that the more suspicious the results, the more cause there was for concern. This completely supports your determination that there was a sense of the morality at stake not only on land, where the “condemnation of the custom of the sea” is sought through the trial of the case, but at sea as well. With ideas like natural selection and survival of the fittest on the one side, this kind of concern for social parity in matters of life and death reinforces the value of human dignity on the other.
Please correct me if I’m misunderstanding you, Mike, but I think all of this is in response to your point that practical results do arise out of moral stigma. Perhaps this case is the legal regulation that ensures it to be so.
-- CarolineElkin - 15 Apr 2009