Information Law Possum (discontinued)

Most neuroscientists now recognise six basic emotions: anger, disgust, fear, joy, sadness and surprise.

(The Economist, Survey on the Brain, Dec 23, 2006, special section, p. 4.)

Which of them are present in our case about the Cannibal of Rotenburg?

• Anger, joy, sadness and surprise arguably don’t play a significant role here.
• The facts of the case don’t mention fear of the victim. Rather, he repeatedly gave his consent to be killed, knowing that he would be eaten up, and gave the cannibal the instruction to stab him as soon as he would lose consciousness. (This may be explained by the fact that the victim’s power of judgment was so constricted due to the extreme sexual masochism he “suffered” from that he was, according to the court, unable to fully understand the consequences of his resolution.)
• Interestingly, fear on the part of the victim doesn’t seem to play a significant role in Swiss criminal law. (I will always be referring to the Swiss Criminal Code, which doesn’t differ from the German Criminal Code a great deal.)

At this point, I should give a brief overview of the relevant provisions: There are four forms of willful homicide: The first one, “Willful Killing” (Vorsätzliche Tötung, Art. 111) is the basic form. “Murder” (Mord, Art. 112) is qualified by a particular unscrupulousness of the perpetrator, especially if his motivation, the purpose of the act or the manner of its execution are of particularly hideous character. “Manslaughter” (Totschlag, Art. 113) exists if the perpetrator has acted in the heat of the moment and if his deed is (morally) excusable–or humanly understandable, as the Federal Supreme Court puts it. In addition, killing a person who earnestly and insistently demands to be killed is privileged (with relatively mild punishment), provided that the person who kills the other person has no interest whatsoever in killing that person (Töten auf Verlangen, Art. 114).

It comes as no surprise that the victim’s consent doesn’t exculpate the murderer, apart from Art. 114’s privilege. What is more surprising, though, is that consent doesn’t appear to play a role in the sentencing rules and practice, either. From a strictly utilitarian perspective (which the Criminal Code doesn’t take), this practice seems to be explicable only by emotions–not the ones of the persons involved in the act, but those of the population. I will return to this point later in a different context. But now back to our stock-taking of emotions:

• Disgust is arguably the key emotion involved in this case. Paradoxically the only people not feeling this emotion were the cannibal and his victim themselves.

In fact, disgust may be the only reason why the cannibal was convicted for murder and sentenced to life-long imprisonment. Well understood, I am not talking about the emotions of the court here, but rather of the disgust of the population as a whole, on whose behalf criminal law exists and is enforced. (In Germany, court decisions even begin with “In the name of the people …”.)

The legal question here is of course whether the disgust a given homicide arouses is and should be a valid reason for more severe punishment.

Richard Posner’s view of the problem is roughly the following (taken from Chapter 7 of his 2001 book ”Frontiers of Legal Theory”): He argues that the more “emotional” a crime is, the less severely it ought to be punished. For once, the circumstances giving rise to an “emotional” crime are not likely to recur. Also, the criminal would be caught more easily and most “emotional” crimes would involve an element of provocation on the part of the victim. (As bold as the latter two claims might be, they’re both true in our example!) For Posner, lighter punishment in case of provocation would discourage provocation and thus reduce the crime rate.

However, he goes on, there’s another type of emotional crime, represented by the sexually motivated serial killer, whose drivenness by very powerful emotions is a great danger to society. On the other hand, the absence of emotions–cold-bloodedness–make a criminal more dangerous. too. Thus, both types ought to be punished more heavily.

The cannibal in our example doesn’t fit in any of these categories, though there is a point in saying that if dangerousness were an important sentencing criterion, the cannibal would have received a much milder sentence. But Posner also talks about the disgust of society, by which he explains the criminalization of “immoral” conduct that doesn’t cause harm to human beings, such as the desecration of human corpses or public nudity.

Disgust when sufficiently widespread is as solid a basis for legal regulation as tangible harm.

He goes on noting that a moral judgment backed by consensus …

… is an expression of a strong attraction or repulsion to the behavior being evaluated.

Consequently, he endorses moral judgments by the courts for a reason that may be viewed as one of separation of powers:

[I]t is not the proper business of judges to dismantle the moral code of their society or, what would come to much the same thing, to insist that it be rationalized convincingly.

This takes longer than I thought. I’ll continue later. Thanks to all readers who haved stayed the course till here! :-)

First, a track that I am not going to follow: The emotions of the judges. Unless they were robots, they must have been extremely agitated at least when taking evidence, especially since the perpetrator had videotaped the killing and the disembowelment of his victim. It is not difficult to imagine, however, that the appeals judges too felt strongly about the matter, even if they only studied the documents and transcripts of the trial.

Emotions on the part of the court are a fact, unavoidable but not necessarily undesirable, and the law has to cope with them. My principal–if only preliminary–thesis is that one of the better ways to cope with them is to embrace emotions generally:

First, this involves meta communication (or “meta thinking”) on the part of the judges, in the sense of an “emotional self-assessment” that increases the chances of getting latent emotions (in our example: disgust) to the surface of their consciousness. I am convinced that many judges do that on a daily basis.

My second point concerns “juristische Methodenlehre”, i.e. the “art” of legal interpretation. As mentioned briefly in my previous post, Swiss courts use a “canon” of methods to construe a statute or a code. (One might more accurately term the canon of methods a toolset.) Its elements date back to the 19th century (Savigny), and its most common elements are the following:

• the wording of a norm
• the position of the norm within the systematic of the law
• its legislative history
• its purpose, at the time of enactment and in the present

Some scholars would add that an interpretation which respects the constitution best should be preferred. Traditionally, the elements mentioned do not have a hierarchical order–the Federal Supreme Court speaks of pluralism of methods (”Methodenpluralismus”) in this regard.

The “canon of methods” has been widely discredited among scholars and–I’m 100% sure–among judges as well for decades, even if the Federal Supreme Courts and other courts formally uphold it. My unoriginal and rather mainstream take on it is that the “canon” is a ritual with limited, but not inexistent potential of rendering decisions more rational.

Now, after giving account of these underlying notions, we can return to my point on emotions in the “Juristischen Methodenlehre”: The “canonical” ritual of statutory interpretation ought to take into account emotions when considering each one of the elements mentioned. The way how this is to be done likely varies according to the element of interpretation and the emotion(s) involved. I am going to try and specify that in the next post, using the Rotenburg case as an example.

The Swiss Study Foundation is holding its second “Juristic Colloquium” in April, entitled “Emotions and the Law”. The format of the event may be named 2.0, as it is up to the participants (like me) to prepare the discussion for each session. The speakers are Franz Nyffeler, former justice at the Federal Supreme Court; Suzette Sandoz, Prof. em. and former member of the Federal Parliament; Urs Gasser, and his dad Peter, who is a Prof. emeritus of psychology.

Our session–with Suzette Sandoz as the principal speaker–deals with the relationship between emotions and the interpretation of the law. (As James confirmed today, the German term for this, “Juristische Methodenlehre”, is untranslatable: It means interpreting our statutes and codes–which are, for anglo-american standards, very vague in their wording–from different perspectives, e.g. analyzing the wording, systematic, history, purpose, constitutionality, etc. of a norm.)

Primarily to make up my mind myself on the topic, I decided to make a short case study, from which I hope to gain insight into the role emotions should play in the “Methodenlehre”.

Cannibalism.

Wikipedia says:

There is an innate disgust with the term cannibalism, which strikes at the heart of the most base of human activities. This social stigma has been used as an aspect of propaganda against an enemy by accusing them of acts of cannibalism to separate them from their humanity.

Emphasis added. Cannibalism still exists today. Wikipedia’s relating chamber of horror (text only, fortunately) can be found here. The Great Source of Knowledge also taught me that sexually motivated cannibalism is called vorarephilia. Apparently, the internet is playing an essential role in this context (quote from Wikipedia):

The wide use of the Internet has highlighted that thousands of people harbor sexualized cannibalistic fantasies. Discussion forums and user groups exist for the exchange of pictures and stories of such fantasies, a good example of which is provided by the works of Dolcett. Typically, people in such forums fantasize about eating or being eaten by members of their sexually preferred gender. The cannibalism fetish or paraphilia is one of the most extreme sexual fetishes. Very rarely do such fetishes leave the realm of fantasies, most being satisfied with pornographic stories, fetish art or photo modification (or completely computer generated images), with some enacting their fantasies in sexual roleplaying.

There have however been extreme cases of real life sexualized cannibalism, …

for instance the case of the famous Cannibal of Rotenburg:

In December 2002, a highly unusual case was uncovered in the town of Rotenburg in Hesse, Germany. In 2001 Armin Meiwes, a 41-year-old computer administrator, had posted messages … in Internet newsgroups on the subject of cannibalism, repeatedly looking for “a young Boy, between 18 and 25 y/o” to butcher. At least one of his requests was successful: Jürgen Brandes, another computer administrator, offered himself to be slaughtered. The two men agreed on a meeting. Jürgen Brandes was, with his consent, killed and partially eaten by Meiwes.

(Note the passive voice the Wiki author is using to describe the most horrible–or disgusting–part of the story.)

The legal follow-up in a nutshell:

• Meiwes was convicted for voluntary manslaughter and sentenced to eight-and-a-half years in jail.
• Upon appeal by the prosecution, the German Federal Court of Justice ordered a retrial upon in May 2005, and in May 2006 Meiwes was convicted of first degree murder and sentenced to life imprisonment (which is the highest possible penalty in Germany).

One has to add that the perpetrators of many “ordinary” murders (i.e. all killings morally worse than voluntary manslaughter) are usually sentenced to between ten and twenty years of imprisonment in Germany.

The fact that someone has received the maximum sentence for committing a crime with the victim’s consent is puzzling and can only be explained with emotion–disgust.

As announced, I shall try to use the Rotenburg case to study the role of this emotion in the interpretation of law, particularly of the relevant section of the Swiss criminal code (which does not differ a great deal from the German one in this respect).

http://stud.unisg.ch/webcam/

Coming up: something more serious.