Law in Contemporary Society

Cannibalism and the Institutionalized Ritual

-- By DavidFrydman - 14 May 2012

Capital Punishment is the Modern, "Civilized" Form of Ritualized Killing

Mankind has practiced human sacrifice around the globe and throughout history. The rituals surrounding such killing have varied greatly, yet the killings themselves are almost invariably ritualized and, therefore, governed by very particular rules. The sacrifice is often seen as a gift (to whatever the institution commissioning the sacrifice purports to represent), and this notion of gift-giving illustrates an important aspect of the rationalization of such killings. The sacrifice is a demonstration that the society as a whole is committed to the principles in the name of which the sacrifice is affected, and simultaneously serves as a validation of those principles by reinforcing their importance in direct relation to the value of a human life.

Some theorists contend that capital punishment is a contemporary form of human sacrifice. They posit that because "implementation of the collectively endorsed state mandated death sentence requires inflicting lethal violence upon a human being, the penalty itself has a dimension that incorporates the ritual of providing human lives for sacrificial purposes." 48 Buffalo L. Rev. 175 at 182. Imposition of the death penalty is seen as furthering the good of the whole community by restoring the social equilibrium. Furthermore, the sacrifice may prevent vigilante justice; if the retributive eye is taken by the state and in the name of the community as a whole, he from whom the original eye was taken has no opportunity, or need, to seek personalized justice. The social equilibrium must be maintained by the society as a whole, not the actions of individuals, however justified they may seem. The society must preserve the ritual for the sacrifice to achieve its desired equilibrating effect.

A Sacrifice Without Proper Ritual: Dudley and Stephens

When we read A.W. Brian Simpson's Cannibalism and the Common Law, I found it disconcerting how little the legal proceedings focused on what had seemed--at least to me--to be the most important aspect of the Mignonette tragedy: the act of cannibalism. From Simpson's account of the proceedings, it appears that the cannibalistic act was never explicitly addressed. Although it was implicitly tied up in discussions of necessity as a potential defense, the cannibalism was not a crucial point in the deliberations. Rather, Dudley and Stephens were convicted of murder and sentenced to death for that crime. It appears, then, that some other justification were needed for punishing two men who had acted the same way that hundreds of shipwrecked sailors before them and hundreds more after them acted.

The difference with Dudley and Stephens was in the details. Their act of cannibalism was more deserving of punishment than any before it because it differed from these other acts in two important ways. First, no lots were drawn, and second, Dudley killed Richard Parker before the prospect of death for any of them was absolutely imminent. The cabin boy was sacrificed for the "greater good"--to guarantee the survival of his superiors. However, to a society that has institutionalized human sacrifice (as English society had through the death penalty), any sacrifice requires ritual.

Under ancient Roman religious practices, a sacrifice without proper ritual was known as vitium. Vitia were believed to have a substantial negative effect on the society, and were to be strictly avoided. Dudley and Stephens' killing of Richard Parker was vitium in its own time and place. The sacrifice of Richard Parker was invalid, and therefore deserving of punishment, because the killers did not give due regard to the institutionalized rules and rituals of human sacrifice. The three sailors sacrificed the cabin boy for the benefit of themselves, not society as a whole, and without any semblance of an equitable selection scheme. In relation to other sacrifices on the high seas, the ritual of selecting straws was an essential aspect of selecting who would be sacrificed for the good of the other survivors. In relation to capital punishment sacrifices on the main land, the rituals of proving moral desert (as through criminal proceedings), and more importantly of sacrificing one for the benefit of the society as a whole, were required for a killing to be proper.

Punishment and Pardon

In ancient Rome, vitia could be punishable by criminal sanctions. Dudley and Stephens deserved such punishment for their own vitium. But why was their death sentence pardoned; why was their killing not deserving of a ritualized human sacrifice of the perpetrators for the good of the English society as a whole? I think the reason is a sort of recognition that the English legal system could not exercise its own rituals, however institutionalized, on a culture that has its own rituals for human sacrifice. When they killed Richard Parker, Dudley and Stephens were operating under the rules of a distinct institution--that of the sailor. They still deserved some form of punishment (e.g. stigmatization as a result of criminal conviction, 6 month imprisonment), but did not deserve capital punishment because their vitium did not disturb the sacrificial institution of English society as a whole. If punishment for the disregard of the ritual of the seas (as through the failure to draw straws) were to be doled out, it would have to be the institution that had imposed those rituals doling out that punishment.

Disregard for ritual gave rise to the need for punishment, but simultaneously placed a limitation on that punishment because the rituals they had disregarded were not those of the institution actually administering the punishment. Thus, Dudley and Stephens walked away from their criminal, vitious sacrifice of Richard Parker because none of the institutions exerting control over their actions had the proper authority to sanction their conduct with the full force of the law.

(Eben: For the time being, I would like retain the option to continue editing and improving this assignment into the summer)

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  Attachment Action Size Date Who Comment
else Capital_Punishment_as_Human_Sacrifice_(Harding) props, move 296.8 K 14 May 2012 - 20:55 DavidFrydman Roberta M. Harding, Capital Punishment as Human Sacrifice, 48 Buffalo L. Rev. 175
r5 - 22 Jan 2013 - 20:09:52 - IanSullivan
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