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.

… 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! :-)

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.

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).

In Switzerland, copyright expires 70 years after the known author’s death (50 years with respect to software), respectively 70 years after publication if the author is unknown throughout that period. The duration was 50 years (according to the 1922 Copyright Act) for authors who died before January 1st, 1943. No renewal, no formalities, no dividend.

Certainly, the appropriateness of the coyright terms’ length can be disputed under both legal regimes. And certainly, a U.S. lawyer or policymaker would find the Swiss solution utterly crude. On the other hand, I strongly believe that statutes may reach levels of sophistication that entail disproportionate costs to society. Just think of all the law students who have to learn the rules and of all the practitioners who have to apply them. Yet, in my view the worst thing is the legal uncertainty for non-professionals such sophistication creates:

High school student Barney, for instance, has become a big fan of Hemingway’s short stories and wants to put the ones he likes best online to share them with his Facebook buddies. He heard about copyright and that copyright has a limited term, so he googles for more information. But alas, if Tim Armstrong’s flowchart doesn’t appear as one of the top results, it’s very likely that Barney is discouraged and abandons his plan. Or he posts the stories anyway, despite being worried about media reports of students who have to pay high sums for copyright infringement.

In either case, Barney is the victim of legal rules too complicated to be practical, and he feels bad.

Or, to say this rather pathetically: The law should cause grief only to the bad and guilty, and certainly not to those who want to obey the rules.

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.

In the paper, I argue that it is better to strengthen social norms through appropriate procedures than to replace them by substantive rules aimed at protecting emotions.

In Switzerland, Article 261 of the Criminal Code states: “Whosoever openly and invidiously insults or derides the beliefs of others in matters of faith, in particular the belief in God, […], will be subject to fine or a prison sentence of up to 6 months.” Similar provisions can be found in the laws of many other countries on the European continent. Their purpose is to protect public order by shielding the faithful from undue encroachment.

The nature of emotions, and especially the nature of religious sentiments, sets boundaries to the protection of emotions via substantive law: On the one hand, a legal rule aiming to protect emotions cannot—and ought not to—be entirely subjective; on the other hand, objectifying emotions necessarily involves their valuation. Yet, emotions are protected by law to a certain extent precisely because they are subjective and inaccessible to the valuation of others, be it another person or the judiciary. Therefore, objectifying emotions to a certain extent contradicts the very purpose of their legal protection.

A year ago, the publication of a dozen cartoons of the prophet Mohammed by a Danish newspaper caused a huge stir in Western Europe and in the Middle East, and to a lesser extent, as I understand, also in North America. In the light of Article 261 of the Criminal Code, the publication of the cartoons is not punishable, despite the fact that many Muslims, and by far not only the zealots, felt deeply offended by them. Obviously, the sensitivity of members of different religions of the world as to the ridiculing of the founders of their religion greatly varies.

The law, in contrast, cannot take that into consideration for various reasons, and protect each belief in a different manner, according to their degree of sensitivity. As a consequence, the protection of religious sentiments does not depend on the intensity of an encroachment, but rather—and arguably to a high degree—on the cultural background of the judiciary. In these cases, the law becomes ineffective, as it cannot fulfill its function of ensuring public order anymore.

In my paper I suggest that Article 261 should be repealed.

Instead, I argue that the provision should be replaced by a procedural mechanism which to some extent parallels existing concepts of criminal mediation, and which I chose to name a palaver*: Whoever nowadays would file a criminal complaint under Article 261 of the Criminal Code should be enabled to initiate a legal proceeding with the author of the statement concerned, in which he or she can confront that person and discuss the issue. (I am skipping the details of the procedure.)

The palaver could lead to either an apology or heated argument, ore something in between, depending on the good faith of the parties. Either result is a good one because in both cases, negative emotions caused by the concerned statement can be effectively canalized within the procedure and thus absorbed. As media coverage of the palaver can be expected particularly in cases where an offensive statement and the reactions thereto have received high publicity, the palaver will also give those people some satisfaction who do not take part in the proceeding but were nevertheless offended.

Last but not least, the remedy hopefully will have a preventive effect: Whoever is going to make a defamatory statement on religious matters in the public, i.e. via more or less unidirectional media, has the prospect of being confronted with his or her statements in a face to face situation. Since most humans tend to be more moderate and tactful in the presence of a person they know they might offend, odds are that they behave the same way when they speak or write in public. In other words, odds are that the remedy I suggest leverages the social norms governing face to face conversations in a way that they are respected when people speak through the media, instead of overriding them, as the substantive legal norm of Art. 261 of the Criminal Code does.

*) After a proposition by J.N. Druey. Palavers are known as important dispute resolution mechanisms in archaic societies.
—————-
Update: Following a suggestion by my friend and colleague James Thurman, I replaced “religious emotions” by the more precise circumscription of the uncircumscribable, “religious sentiments.”

The tremor was caused by drilling work for a geothermal power plant, and so public prosecutors have started an investigation for damage to property (if there was any) and threats causing public alarm (Article 258 of the Swiss Penal Code).

The latter has the following wording (my translation):
“Whosoever causes public alarm by threatening or pretending a danger for life, physical condition or property, shall be liable to imprisonment of up to three years.”

I doubt that there will be a conviction based on Article 258 because apparently, there wasn’t any intention on the part of the persons involved to threaten the population. Nevertheless, I take my hat off to the creativity of Basel’s public prosecutors.

As a matter of principle, I’m not particularly happy with Article 258:

• First, there may be free speech issues — not in this case, but the classic example would be Orson Welles’ famous radio adaptation of H.G. Wells’ novel “The War of the Worlds”, which did cause public alarm in 1938.
• Second, the population sometimes can react hysterically to certain threats or dangers, and it seems problematic that a potential over-reaction is attributed to the person who is responsible for the threat or danger, even if that person had the intention to scare some people.

Nevertheless, we possibly can hardly do without Article 258 Penal Code because of its preventive effect, in particular with respect to would-be imitators of amok runs, bombings, and all the other nasty things that have been happening way too often in Europe over the last couple of years.

P.S. A quick scan of the blog posts on the topic of the man-made earthquake has revealed that most bloggers rather seem to act as news brokers than as citizen journalists (or eye-witnesses, depending on your standpoint).