Law in Contemporary Society

War, 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


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.

The Fallacy of Self-Justification – War

Moral judgment is the common thread tying together the disparate ends of criminal punishment -- deterrence, utility, condemnation, retribution. 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. And we decide these questions based on moral choices regarding what we value that may be, upon reflection, uncomfortably relative.

It may shock our conscience today when we consider that under the common law on which our modern legal system is premised, death was the penalty for any felony. But our conscience rests easy when 2,412 civilians are killed in a single year (2009) by American-led forces in Afghanistan. In the latter instance, we judge, in accordance with our particular, self-serving Western values, that the life of an Afghani child does not deserve the same protection as that of an American. Thus, in Afghanistan and elsewhere, we lack the compulsion to avoid war, the moral blameworthiness of which has escaped us for generations, and the material benefits of which our utiliarian objectives have often led us to embrace. More generally, we come to understand wars as just as long as they do not implicate our own lives as greatly as those lives on which we wage violence, and as long as their benefits more generally outweigh their costs.

Likewise, in the case of Dudley and Stephens, the men felt compelled to kill rather then to refrain from killing. They did not feel morally blameworthy because their need to survive was immediate and the lives of others were of lesser importance than their own. And the benefits of their killing Parker -- saving three lives -- far outweighed the cost. Whatever theory of criminal punishment under which we consider the seamen's actions, it seems that they were justified in acting as they did.

If, for example, following his imprisonment, Dudley happens to be on another ship and the same events transpire, he will probably kill again even though he was punished once and knows he will be punished again. Moreover, Dudley would likely kill Parker again even if his prison sentence had been much longer or harsher.

From the standpoint of social utility, of course, the survival of three men at the expense of one is far superior to the death of all four.

As for Dudley’s blameworthiness, his behaviour was an immediate reaction premised on the survival of himself and the men to whom he owed a duty of care. And while the Home Office believed that the cannibalism constituted an immoral offence both the seamen and the Falmouth citizenry believed that the seamen had acted naturally, if not heroically.

And regarding retribution, neither Parker, nor his family, nor society apart from the government either sought to exact retribution on the seamen or derived any satisfaction from their punishment. Parker’s brother, for one, shook hands with the three seamen who lived. And the public sentiment, in Falmouth and in England at large, (once the case gained prominence), recognised the necessity of the seamen’s “cannibalism.”

Drawing War Closer to Dudley's Cannibalism

The problem that arises under all this analysis is that according to those bases on which we, in the modern world, justify war, as well as to all the various theories of criminal punishment, Dudley and Stephens were in fact justified in their actions. This suggests that there is a major discrepancy in our moral judgments regarding killing: how can a homicide be at once just and unjust? Where, exactly, lies the absurdity? Can war justify all killing, and in the absence of war or the infliction of violence by another, can no other justification, however strong, stand? 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 crewmember to sustain himself and the seamen to whom he owes a duty, why does the force of law stand against him?

This essay seeks only to pose these questions. Regardless of whether war or cannibalism is good or evil -- and whatever the particular content of those descriptions might be -- we must ask why one marches in glory while the other receives the gallows, when all those things that justify war and other actions that otherwise would be criminal might be used to justify cannibalism.


In general, this essay lacked a coherent narrative and suffered from a dearth of transitions both within and connecting paragraphs. It was never clear what, exactly, the essay was trying to do; where it wanted to go; how it got where it did; and where, exactly, that was.

Probably the essay would have been better served by focusing sequentially on whether some wars are just and some are not, or whether all wars are just once (some, any?) men declare them; assuming a difference between just and non-just wars, what actually constitutes a just war and thereby might legitimate killing; and finally what aspects of such a just war might be transposed onto the situation presented in the case of Dudley and Stephens, in order to provide a moral justification for their actions (at least so far as the Scriptures would allow).

As for the concluding question (and the essay's provocation?) -- why war gets the glory while cannibalism gets the gallows -- it seems to me that an argument seeking to show war's absurdity, which I think this essay attempts, could find a better foil for war than cannibalism, which gets the gallows because it is rather intuitively icky. Cannibalism is taboo, whereas war is not and never has been. They are both anthropological facts, but they require different kinds of analyses -- at least if what we are interested in is their moral and/or justificatory content.

That said, I have attempted to elicit a narrative from the given material. I am happy to re-edit upon further changes or disagreement with my analysis.


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r5 - 13 Jan 2012 - 23:34:41 - IanSullivan
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