Information Law Possum (discontinued)

Phew. I just completed my discussion paper on the subject that’s been dominating my blogging for quite a few days. (See all posts here.)

I wrote it in German and I don’t dare put it online, but I’m happy to email it to anyone who wants it.

My conclusion is that a focus on emotions–especially that of disgust in cases of cannibalism–may convert the hitherto rather hollow ritual of interpreting statutes in Switzerland to a heuristics that leads to the essential normative question(s) at stake.

In our case, that question would be whether the public deserves special protection from particularly disgusting crimes by way of punishing the perpretrators of these crimes more severely. (You can either underlay deterrence or restitution as a theory of criminal justice to this question, it doesn’t seem to matter much.)

The bad news is that the questions uncovered by this “emotional” statutory interpretation are more difficult to answer than the initial ones and, a fortiori, more difficult to motivate in a convincing way.

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.

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.