The Constitutional Case for Cannibalism
Often described as a tradgedy, the consumption of ones own species has hystorically been deemed an extreme taboo, even under extenuating circumstances. n1 The discourse of cannibalism is a repeated and powerful trope in colonial contact and conflict. Fascination with -- and accusations of -- ritual sacrifice and survival cannibalism disclose the fear of the native Other. In 1884, a landmark English decision saw survival cannibalism produce a new legal doctrine -- the criminal defence of necessity. n3 In 2002, in South Australia, evidence was adduced in which the so-called bodies in barrels' murders in Snowtown occurred in the context of allegations of cannibalism, the allegations suppressed until 2005 because of the likelihood of unfair prejudice upon trials that had not concluded. n4 And in 2004, readers across the world were astonished and gripped by the trial in Germany of Armin Meiwes, whose cannibalistic transaction with Bernd Jurgen Brandes, facilitated by the internet, interfered with established notions of consent
Law always constructs an Other. It draws boundaries around itself. Everything within the boundary is within law's jurisdiction. Everything outside the boundary is lawless. It is the intention of law to bring everything within its own boundaries; there should be nothing that is outside. Microscopic life forms in the hydrothermal vents of the deepest oceans are now being brought within law's jurisdiction. Celestial and lunar resources are the subject of property claims. These places were once law's outsiders. Once they can be classified, once legal names or categories can be appended to them, they become law's subjects.
Whilst many historians and anthropologists urge great caution in applying European labels to pre-contact and early-contact indigenous practices, it is generally accepted that Aborigines and Torres Strait Islanders -- in some areas, in rare circumstances, and in the conduct of rituals -- practised some forms of anthropophagy, notably mortuary cannibalism. n5 From an anthropological perspective, these practices had meanings to their practitioners that are not readily translated into colonial categories; anthropologists resist reading anthropophagous practices through the squeamish lens of western cannibal myths, particularly where those myths are mobilised into debates about race-based hierarchies.
For these reasons, historians and anthropologists rejected allegations of Aboriginal cannibalism when they were re-articulated in 1997, when the publication of The Truth, attributed to (although not written by) Pauline Hanson, stated that Aborigines practised cannibalism and, especially, baby-eating. These cannibal claims were derived from works by Hector Holthouse, Henry Mayhew, various travellers and explorers and, especially, Daisy Bates who was cited in The Truth as stating: In one group every woman who had had a baby had killed and eaten it, dividing it with her sisters, who, in turn, killed their children at birth and returned the gift of food. n6 The Truth repeated these claims to refute the romantic view of the Aborigines held by the new class, and to deflect the guilt of invasion and genocide. n7
This (notably) western guilt continues to perpetuate the modern (dare i say "urban") fear of and fetishism over the life of the native, while simultaniously spurring a systematic and organized trend, beginning on the north american continent in the early fifteenth century, of otherizaiton of and nuclear genocide against natives and aborigional inhabitants all over the world. The overarching legal implications of this fear concieved in american constitutional law, rendering impotent any legitimacy first or the fourteenth amendment might have brought to a right of "privacy" or free speech acts and religion. n8 The fervent belief in these fundamental and unalienable rights by americans undermines any effort toward token revival of native belif.
Why should functionalism be part of the seamless garment of subjectivism-atheism-moral relativism? If there is no God, then human life has no transcendent telos. Consequently, the value and dignity of a human being is left to be understood in merely materialistic and temporal terms. Humyns are no longer creatures with an immortal soul or eternal destiny, but rather masses of protoplasm (or a cosmic ganglion) with but a functional significance. n9
It is in this light that constitutional law points toward the evident discussions of prior jurisdiction and consideration of grandfathered [sic] beliefs existential long before the western moral lens magnified the sun and burned all honest belief in the systematic harmonization of anti-anthropocentric beliefs, and subsequently removed those who came to believe in that goal from the earth, as "discovered" by anglo-europeans some five hundred years ago. n10 The alliterated right to privacy in this case is undeterred in some areas of the country/world still, however these practices should come into the light of the law not as the Other, but as the structured revolution critical for humyn survival beyond the critical mass of technology and the knowledge that comes thereby. n11
Additionally, there is a pre-existing test case for this interpretation of the fourteenth amendment, the bourgeois, bureaucratic estate tax. The current interpretation of this
right seems to remove the right to privacy and property of it's deceased citizens. The incidental test was rejected in Gardner v. Conway. In that case, the committee for the unauthorized and illegal practice of law of a county bar association sought to have the defendant perpetually enjoined from holding himself out as an estate tax payer, duly qualified to give advice and aid to the public in the making of estate tax documents, and to hold him in contempt of court for so doing. The defendant had a grade-school education and practiced as a public accountant after serving for three years as United States deputy collector of internal revenue. The plaintiffs hired a private investigator to pose as a client. During the course of the meeting with the private investigator the defendant prepared an income tax return and gave advice with respect to several issues that arose in connection with the preparation of the return. n12
The court recognized the difficulty of defining the practice of law, and stated that:
the development of any practical criterion, as well as its subsequent application, must be closely related to the purpose for which lawyers are licensed as the exclusive occupants of their field. n13 That purpose is to protect the public from the intolerable evils which are brought upon people by those who assume to practice law without having the proper qualifications. n14
**Authors note:
The inspiration for this article flows from a the author's firm belief that the united states should legalize cannibalism, ancestor worship, ritual sacrifice, and this excerpt from the conclusion of a favorite article by Pierre Schlag. Enjoy.
To end on a speculative, indeed cannibalistic note, I want to say a few things about what is missing from this article. I started out to write an article about legal form. So at the outset, I dismissed substance from the scene. I also buried history in a footnote very near the beginning. Seemingly missing from this article is a sense of how these cannibal moves relate to current social practice. I think there is a reason for that -- one which is reflected in my summary dismissals -- and I think it has to do with the form that dominates current social practice: namely, bureaucracy. Increasingly, life and work experiences occur within this or that consumer or producer bureaucracy. Increasingly, the objects of work consist of servicing bureaucratically defined objectives, according to bureaucratically sanctioned procedures. The refinement, expansion, and increasing rationalization of the bureaucratic form is not socially (or intellectually) weightless: Over time, it yields the accelerating mutability of meaning, the increased insularity and specialization of knowledges, the heightened instrumentalization of cultural symbols and values, the fetishism of instrumentalism, and the proliferation of complexity and fragmentation. In this sort of world, it should not be surprising to find that substance offers little (if any) resistance to form. And it should also not be surprising that form becomes cannibalistic.
[*962] APPENDIX 1: A LIST OF SPLITS
slavery
constraint
coercion
necessity
determinism
other
public
other-regarding
visible
collective
official
objective
physical
demonstrable
shared
neutral
fact
general
stable
absolute
categorical
strong
substantial
direct
core
essential
substance
outcome
content
freedom
choice
consent
rational
free will
self
private
self-regarding
intimate
individual
non-governmental
subjective
mental
unprovable
individual
biased
opinion
particular
changeable
conditional
balancing
weak
insubstantial
indirect
peripheral
formality
procedure
process
form
** n15
So, in closing, don't die on the authors porch.
Citations:
n1 Chow, Gary Kar-Chuen. (2005). 12 Asian L.J. 103.
n2 R v Lowe [1827] NSWSC 32.
n3 R v Dudley and Stephens (1884) 14 QBD 273.
n4 Snowtown Cannibal Claim' aired News.com.au (19 Sept 2005):
n5 The Representations of Savage Life Offered by Eliza Fraser' in Ian McNiven, Lynette Russell & Kay Schaffer (eds), Constructions of Colonialism: Perspectives on Eliza Fraser's Shipwreck (1998) at 56-57.
n6 Cited in Pauline Hanson, Pauline Hanson: The Truth (1997) at 134, cited in David Bernstein, The Protocols of the Elders of Hanson', Australian Jewish News (2 May 1997):
n7 cited in Hanson, id at 137.
n8 Id. at 345.
n9 Judge Reinhardt states that in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court "first determined that a woman had a constitutional right to choose an abortion" before determining "whether the state's prohibition on assistance unconstitutionally restricted the exercise of that liberty interest." Compassion in Dying v. Washington, 79 F.3d 790, 801 (9th Cir.) (emphasis added), cert. granted sub nom. Washington v. Glucksberg, 117 S. Ct. 37 (1996). Similarly, Judge Reinhardt reasonably argues that the liberty interest to commit suicide precedes the question of the right to assisted suicide. See id. at 802. Accordingly, unless called for, we will deal with the issue of suicide per se, assuming that any right to assisted suicide exists only if there is indeed a prior suicide right.
n10 Compassion in Dying, 79 F.3d at 800-01.
n11 Id. at 801.
n12 Id. at 813-14 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)). Judge Reinhardt specifically noted: "Like the decision of whether or not to have an abortion, the decision how and when to die is one of 'the most intimate and personal choices a person may make in a lifetime,' a choice 'central to personal dignity and autonomy.'" Id. (quoting Casey, 505 U.S. at 851).
n13 According to Barlow Christensen, the origin of legislation in five states can be traced to the mid-1800s and in several other states legislation predates 1920. See id. at 180. The status of accounting as a profession is a relatively recent development. The first legislation creating the professional designation "Certified Public Accountant" was enacted on April 17, 1896 in New York. The period between 1913, the year the Sixteenth Amendment to the United States Constitution was enacted, and 1934, after passage of the federal securities legislation, marked the growth and establishment of accountancy as a profession. See generally JAMES DON EDWARDS, HISTORY OF PUBLIC ACCOUNTING IN THE UNITED STATES (1960). See also infra note 172 and accompanying text.
n14 See Comment, Control of the Unauthorized Practice of Law: Scope of Inherent Judicial Powers, 28 U. CHI. L. REV. 162 (1960). Most states, by statute, vest the judiciary with the power to regulate the practice of law. See Note, Remedies Available to Combat the Unauthorized Practice of Law, 62 COLUM. L. REV. 501, 501 n.4 (1962).
n15 Schlag, Pierre (1988) 40 Stan. L. Rev. 929.