Cannibalism and the Common Law

Why Punish?

Based on all and any of the basic principles of justification that we are taught in our Criminal Law course, the decision to charge Dudley and Stephens with murder is stupefying. How can you deter a starving man from saving his own life? What sort of retribution can be dealt to a man who expedited an already imminent death? The principles of rehabilitation and detainment fail equally spectacularly: killing somebody is the best way to ensure no chance of rehabilitation (although admittedly in this case Dudley and Stephens were spared the ultimate penalty), and detaining somebody from society who acted in a “criminal” fashion only in a setting that in no way resembles day to day life for the majority of people can hardly be said to make society safer on the whole.

So what is the point, exactly? One possible explanation for the seemingly outrageous decision to prosecute and convict Dudley and Stephens is the contemporaneous European colonization of Africa. In order to justify the colonization of a certain people, one usually has to make the argument that the culture that is being imposed upon the colonized people is inherently superior (a manifest destiny justification). One of the more culturally shocking elements of some African tribes was apparently their cultural acceptance or condoning of cannibalism. Katherine Biber in her article Cannibals and Colonialism states that one British explorer stated upon first contact with the Maori of New Zealand 'I suppose they live intirely (sic) upon fish dogs and enemies' and remarks that his “statement was facetious, intending to illustrate his hypothesis that, apart from their shared consumption of fish, the natives of New Zealand were nothing like the British.” Biber goes on to note an interesting parallel between British law and cannibalism: she notes that “indigenous people are said to be the law's outsiders only so that the law can consume them” and that although she is writing about “culturally and legally-constructed fears about people being eaten” she “remembers that law consumes people all the time.” In this case, she is referring to the law's exploitation of natives for its own benefit.

Patriotism and Human Sacrifice

Now this is an interesting concept: the British law, which is apparently so invested in outlawing one person eating another in order to sustain his own life, is perfectly content consuming others in order to ensure its own survival. This is not the only place where a function of the state is fueled in part by the “consumption” of humans. The state in general periodically requires human sacrifice in order to maintain itself, most obviously when the state declares war. Human sacrifice in this context is not only accepted, but condoned and glorified. This is a concept that has existed in western civilization since the days of the Greeks and the Romans. One particularly celebrated Roman hero, Mucius Scaevola, was well known for his ostentatious burning off of his own arm in the name of the Roman state in order to frighten an Etruscan king. Such a literal consumption of the human flesh is not viewed as abhorrent, but rather glorious and something that ought to be admired and respected. Greek mythology told the tale of a group of heroes who were involved in cannibalism – this story was about the house of Atreus, which, if you don't know, did not enjoy the reputation similar to that of Scaevola.

So why is the consumption of flesh by fire in an ostentatious display of patriotism so morally superior to the consumption of human flesh in order to sustain life? Perhaps this can be explained by the state's insistence on securing for itself the unique authority to be fueled by human flesh; if some humans believe that they can sustain their own lives when necessary by killing and eating their fellow man, what horrible and unique power can the state boast to possess above and beyond that which man has?

Cannibalism and the Common Law

It is clear that human sacrifice is not what the British government finds abhorrent: indeed, the colonization of Africa, New Zealand and America all could never have taken place without substantial human sacrifice on behalf of the British Empire. So it can not be the human sacrifice element in itself that the British find abhorrent about the supposed cannibalistic rituals of some of the African tribes. It is most logical to assume that the British government finds human sacrifice abhorrent in the context of one man dying for the benefit of one other alone.

This makes sense especially when one considers the fact that the stories about cannibalism in colonized lands were not necessarily true and were quite possibly exaggerated in order to justify colonization efforts. In her article Biber points out that a work entitled The Truth that was published in 2007 was rejected by anthropologists and historians as inaccurate. The Truth put special emphasis on an allegation that the aborigines in New Zealand were particularly fond of baby-eating. Biber notes that it made these claims to “'refute the romantic Aborigines held by the new class', and to deflect the 'guilt' of invasion and genocide.” Using cannibalism as the slanderous accusation against aboriginal tribes serves the dual purpose of justifying British dominion of the native people while also reinforcing the idea that cannibalism is a deep moral wrong – being a cannibal is essentially the opposite of being British. The fact that such a report was published in 2007 demonstrates that even after colonialism had come and gone there was still a vested interest in New Zealand in perpetuating the idea of cannibalism as an atrocity. After all, the modern state (perhaps not so much in New Zealand as in more militaristic nations) still demands periodic sacrifice of its citizens to promote the greater good of the government and the law.

-- JustinPurtle - 16 May 2009

• The essay begins asking a question directed at the conscious roots of social policy: why punish Dudley & Stephens? This is a sound inquiry, which you almost immediately abandon for an unprovable inquiry into the imperialist mindset in relation to the case. Your reliance on Katherine Biber's silly piece in the Sydney Law Journal doesn't help you to maintain equilibrium, to be sure, but your decision to rely upon her after you read carefully enough (you did read carefully enough, right?) to notice that she gets the result in R. v. Dudley & Stephens wrong implies a preference for the theoretically complicated over the true.

• I don't doubt the presence of this among other unconscious aspects in the various social and individual behaviors that form parts of the story of the Mignonette's crew. But the gap between the reasons given for convicting Dudley and Stephens and the unconscious desire to punish them in order to make "cannibals" out of "natives" is too wide to be covered by the jump between paragraphs. One can go less far than Biber and do better, but it is impossible to fare farther, I think, without doing worse, and that's the problem of this draft. Why don't we go back to the conscious level and settle that, before we depart again for the realms where the history becomes noticeably more difficult?