Information Law Possum (discontinued)

This 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.

Imagine you were a judge at an international human rights court.  The bench has just established that the government of one of the court’s member states is responsible for the execution and/or disappearance of forty-one members of a domestic terrorist organization.  Now you have to decide on appropriate remedies for the surviving members of the victims’ families.  What would you do?

My (very unimaginative) answer would have been:

• compensation and amends
• a publication of the judgment

A couple of days ago, my favorite Swiss newspaper, the Neue Zürcher Zeitung, featured a report on a “recent” decision by the Interamerican Court of Human Rights in such a case:  In 1992, 41 members of the Peruvian rebel/terrorist group “Sendero Luminoso” lost their lives in prison, and the court concluded that they were executed illegally by state organs.  (The official verson of Fujimori’s government at that time was that the prisoners were killed in fightings following a mutiny …)

The judgment isn’t as recent as I would have thougt, it dates from November 29, 2006.  In return, it is massive in length (almost 150 pages), and, personally, I find the remedies granted by the Court very innovative.

Here they are (from p. 114-118):

• First, the Court declared that the Peruvian government had violated various provisions of the Interamerican Convention on Human Rights, including the right to life, the right to physical integrity, and judicial guarantees.  These declarations were in turn declared to constitute a form of reparation per se.
• Second, the Court obliged Peru to pay compensation to the survivors (between USD 20,000 and 60,000, which is 3 to 9 times the per capita GDP of Peru).
• Third, Peru has to publish certain parts of the judgment, including the sections dealing with the abuses proven before the Court.

So far, so unspectacular. But here comes the interesting part:

• Peru must immediately complete the investigations against the authors of the human rights abuses and ensure that they are punished in accordance with national law.
• The government must also immediately search for the remains of the victims, turn them over to the victims, and cover eventual funeral costs.
• The government is also ordered to hold a public ceremony of recognition of responsibility, attended by government representatives, and in presence of the survivors.
• Further, the names of the victims are to be inscribed in the national memorial “El Ojo que Llora”, which is dedicated to the victims of violence, in an official ceremony.
• From the day of proclamation of the judgment, the government further needs to provide adequate medical treatment and psychological assistance to the survivors.
• Last but not least, the government must arrange permanent education in human rights for the members of intelligence services, the army and national police, as well as for public prosecutors and judges (!).

This list of remedies is truly impressive, and it’s hard to imagine many more things a government could do to remedy past human rights violations.  Of course, one could argue that court-ordered expressions of regret are not much good for the victims–similar to Kant’s saying that obeying the law is not morally “valuable”.  But on the other hand, the ceremonies ordered by the Court might also be looked at by the survivors as symbols of their victory against the government and therefore as symbols of justice.

Certainly, grave human rights violations as in this case are irreparable.  Yet, justice is restorable.  In this light, a combination of restorative, preventive, and symbolic remedies as taken by the Interamerican Court of Human Rights seems to be the “best second-best” solution available.