Law, Emotions and Cannibalism (part 4)
March 27th, 2007This weekend, I read that much research is going on on the question whether morality is a learned behavior/attitude (?) or whether it is shaped by inherited emotions. The results tend to point to the latter hypothesis, though I don’t know how robust they are. Posner’s saying that a moral judgment …
… is an expression of a strong attraction or repulsion to the behavior being evaluated,
seems to match this proposition fairly well. His argument concerning moral judgments by the courts (which otherwise would be highly problematic, as they raise the countermajoritarian problem of constitutional rights) can thus be interpreted as a normative statement that criminal law ought to sanction the evocation of certain (rather strong) emotions. My previous research in this respect focused on religious emotions and the boundaries set to the law when it comes to protecting them. Here, we are dealing with disgust–an emotion more ambivalent than it seems.
I suppose that disgust has important social functions, and I’m confident that a social psychologist could name at least a handful of them. Also, disgusting things and acts have some attraction to human beings, including the one who’s writing these lines–notably on a very disgusting case. The more beastly a murder is, the more extensive is the media coverage, and the more intense the interest of many of us. However, I would distinguish between “push” and “pull” disgust: By “pull” disgust I mean that an individual may seek his or her “does of disgust”, for instance by watching a horror movie or local news in the U.S. “Push” disgust is aroused against the will of the subject, as in the example of the cancer images on Canadian cigarette packets. The latter example also implies that even “push” disgust isn’t necessarily condemnable, but may well be utilized as a policy instrument, although–if I remember well–the effects of the images on smoking habits are at least disputed.
The ambivalent nature of disgust, among others, also explains why the law is–and ought to be–very reluctant to forbid the dissemination of “disgusting” information. (In Switzerland, criminal law, apart from protecting minors, only prohibits certain forms of “hard” pornography, Art. 197, and extreme depictions of violence, Art. 135.)
In the case of the cannibal of Rotenburg, a great deal of disgust could have been avoided by banning all reporting on the case–which is something that no serious legal mind would demand. But then, why should the cannibal be punished more severely?
(Note that the legal question is not whether cannibalism should be punishable at all. Rather, we must compare the Rotenburg case to a case where somebody with limited power of judgment asks another person, a sadist, to be killed, and the sadist willingly does it. In that case, the perpetrator would perhaps face between five and fifteen years of inprisonment.)
My personal opinion is that disgust is not a good reason to punish a cannibal more severely, and in the next post I will perform the ritual of interpreting Art. 111 (Willful Killing) and 112 (Murder) of the Swiss criminal code with the means of the canon mentioned in part 2 of this series. I will come to the conclusion that my view corresponds with the duly construed meaning of these provisions :-) .
I will also argue that the prohibition to desecrate human corpses (Art. 262) has an emotional rationale, but not as regards disgust.