Navigation
Newsletters Index (06:1)
apaOnline Home Page

APA Newsletters

Fall 2006
Volume 06, Number 1

Newsletter on Philosophy and Law

Articles

Liberalism, Euthansia, and the Right to Be Eaten

Patrick Boleyn-Fitzgerald
Lawrence University

It is cliché to point out that "truth is stranger than fiction," but philosophers may have thought that their own fantastic examples would prove the exception. What, for example, could be more bizarre than Joel Feinberg’s "ride on a bus" where, among other things, he imagined a passenger having oral sex with a dog and a group of passengers picnicking on live insects, regurgitating, and finally dining on their own vomit? Feinberg intended these strange examples to support the plausibility of liberalism. As Feinberg conceived it, liberalism is the theory that preventing harm to others and preventing serious offense are the only good reasons to make an act criminal. Other reasons are not good ones to limit a person’s liberty. Thus, Feinberg rejected hard paternalism, which "will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their will, from the harmful consequences even of their fully voluntary choices and undertakings."1 In place of hard paternalism Feinberg advocated soft paternalism, the principle that the state has the right to prevent someone from harming himself only to establish voluntariness or to prevent conduct that is "substantially nonvoluntary."2 From the soft paternalist’s perspective, "the law’s concern should not be with the wisdom, prudence, or dangerousness of [someone’s] choice, but rather with whether or not the choice is truly his."3 So, despite Feinberg’s objection to disgusting picnics eaten on public buses (because they are seriously offensive to other passengers), a private picnic with voluntary participants is not the business of the criminal law. I have always been impressed by the imaginativeness of Feinberg’s examples, but there are some kinds of abnormal human behavior that Feinberg failed to consider and that pose a serious challenge to his arguments against hard paternalism. In the following essay I argue that the plausibility of hard paternalism is bolstered by a real case of consensual cannibalism and other bizarre (but real) cases of self-sanctioned harm.

I. Consensual Cannibalism

Armin Meiwes had fantasized about eating human flesh since he was a young German boy. After his father left him to be raised by his mother, Meiwes would imagine that he had a younger brother whom he could consume, he said, "to become part of me."4 In 2002, at the age of 39, and two years after the death of his mother, Meiwes took steps to bring his fantasy into reality. After collecting graphic images from the Internet, he placed an on-line advertisement for a "well-built man, 18-30 years old, for slaughter."5

Four hundred thirty people answered his ad. While most were interested in role playing rather than actually becoming a meal, some were serious. Of the serious respondents Meiwes rejected two because neither was the kind of man he wanted to eat. Alex from Essen wanted to be beheaded and then have Meiwes eat him, but Meiwes declined Alex’s offer because Meiwes thought he was "too fat."6 Matteo from Italy told Meiwes that "he wanted me to burn his balls with a flamethrower and hammer his body down with nails and pins while he was whipped to death." But Meiwes rejected him, because, as he later publicly explained, "I found that a bit weird."7

Other would-be victims backed out of their agreements. Meiwes described a man named Andreas who "wanted me to pick him up in a cattle truck and slaughter him like a pig." After meeting, Meiwes reported that, "I wrapped him in cling-film ready for slaughtering. But he backed out so we drank some beer and ate some pizza and he went home."8 In the case of Jorg Bose, Meiwes strung him up on a pulley, but as Meiwes later recounted, "his ankles hurt. We tried again. I put on my steel-capped boots and taped it on video. I found the video particularly beautiful." In the end, however, Bose wanted to leave rather than be slaughtered, and Meiwes let him.9 Another would-be victim, Dirk Moller, also changed his mind. Moller came to Meiwes’ house where Meiwes chained him to a bed and stuck pins in his body to mark out his liver, kidney, and other organs. Moller, however, began to get cold feet, and they went to see the movie Ocean’s 11. When they returned Meiwes showed Moller the video he had made of Bose suspended naked on a hook. At that point Moller retracted his offer, deciding that merely fantasizing about being eaten was enough.10

One respondent did not back out. Bernd Juergen Brandes was a forty-three-year-old computer engineer with a fetish for being bitten, especially on his penis. He had previously gone as far as offering his boyfriend 10,000 deutschmarks to bite his penis off.11 When he saw Miewes’ ad he wrote back, "I hope you are serious because I really want it. My nipples look forward to your stomach…"12 After talking with Miewes on the phone, Brandes wrote out his will, had it notarized, told his boss that he was taking the day off "to attend to some personal matters," and bought a one-way ticket to Meiwes’ hometown.13

When Brandes arrived at Meiwes’ home, Meiwes showed him the special room he had constructed to slaughter people. Meiwes captured the events that followed on videotaped. At Brandes’ request Meiwes cut off his penis, and then cut it in half so they could share it. They tried to eat it, but they failed. Uncooked they found it "too tough," and when Meiwes tried to cook it, he burned it so badly they both found it inedible. Brandes retired to a bath after telling Meiwes that if he was still alive in the morning maybe they "could eat his balls together."14 He bled in the bath for eight hours while Meiwes went to another room to read a Star Trek novel. When Meiwes returned at 3:30 a.m. Brandes was unconscious. He removed him from the bath, told him, "I can’t do anything else," and stabbed him repeatedly in the neck.15 He would consume about 20 kg of Brandes’ body and use one of Brandes’ feet as a table decoration before being arrested.

In Meiwes’ first trial the prosecution argued that he should be convicted of murder. Meiwes’ defense attorney argued that his actions were really a case of mercy killing because the victim consented to the act. The original trial court found him guilty of an intermediate offense, "killing on demand," a crime akin to manslaughter. The conviction was later overturned because a higher court found it too lenient, and Meiwes was found guilty of murder.16

II. The Soft Paternalistic Strategy

Most readers will undoubtedly find the above case disgusting and disturbing, and think that it ought to be illegal to kill and eat someone, even if they consent. We might also think that it is a straightforward problem for Feinberg’s liberalism; if liberalism is not concerned about preventing harm people do to themselves, or sanction having done to themselves, it would appear that liberalism would have to grant Brandes a "right to be eaten." While Feinberg never discussed consensual cannibalism, it is clear that he would not have argued for such a right. He supported laws that prohibited voluntary slavery, dueling, and consensual killing. Instead of trying to justify the legality of these practices he considered it a challenge for liberalism to explain how their prohibition is consistent with its fundamental principles.17 Thus, while these legal prohibitions may seem to conflict with Feinberg’s rejection of hard paternalism, Feinberg denied that the laws required paternalistic rationales. Laws against dueling, for example, don’t need to be justified paternalistically because "almost all of us wish to be protected against potential harassment of a peculiar kind, even those who would otherwise respond in the traditional way. The implicit rationale seems to invoke the harm to others principle."18 In other words, laws against dueling are justified, but they are not justified because they keep people from harming themselves. Instead, laws against dueling are justified because they prevent a particular kind of harm—the harm of being challenged to a duel and having to choose between accepting the challenge with all of its risks or declining the duel with the resulting implications for one’s honor.

Feinberg employed a similar strategy with voluntary slavery arguing that a prohibition of voluntary slavery can be justified by the harm to others principle. The case of voluntary slavery is a difficult one for the liberal. When J. S. Mill considered the case, he abandoned his principled opposition to paternalism and argued that in this special case individuals had to be protected from themselves. Feinberg, however, thought that the move to paternalism was unnecessary. His main argument focused on the difficulty of establishing voluntariness. How do we know if the would-be slave’s desires are voluntary? Demanding simple consent will often be insufficient because coercive forces can easily sway choices. Even if we set up a complicated procedure to test for voluntariness Feinberg wonders if it wouldn’t be fallible or cause harm to others through its sheer cumbersomeness and expense. Thus, the legal machinery necessary to determine voluntariness could be so problematic that the state might legitimately exclude all such contracts. So Feinberg believes that the liberal can ban voluntary slavery without giving up her objections to hard paternalism.

It would seem natural for Feinberg to make a similar response to the case of consensual cannibalism. Thus, he might say, while there is no valid legal objection to consensual cannibalism in principle, it would be too difficult, cumbersome, and/or expensive to determine that individual cases of cannibalism were truly consensual. While the prohibition may look paternalistic on its face it is really based on concerns about voluntariness and the harm to others principle. There certainly is some merit to this argument. Trying to determine whether a person really wanted to be someones’ meal would be difficult. We would need to make sure that the individual was not under the influence of coercive forces, or under the influence of delusion. In general, we would need to make sure that the decision was really his and in real cases this could be complicated. Because of its complicated nature we might never be assured that we could develop a reasonable principle to establish voluntariness and hence make the practice illegal on principle.

III. Euthanasia and Consensual Killing

At first blush the soft paternalist argument against consensual cannibalism looks plausible. It runs into difficulty, however, when we try to square it with the liberal case for euthanasia. In other words, when we examine the liberal case for a right to die it undermines the soft paternalistic arguments against the right to be eaten. While this would not be problematic for someone who opposes euthanasia, Feinberg argued that liberalism justifies a broad right to die.
According to Feinberg, liberalism supports euthanasia rights broader than any currently recognized in law. Establishing a right to die begins by extending the importance of autonomy to life and death decisions, "when a person is capable of making his own voluntary choices in self-regarding affairs, those choices should govern, even in—perhaps especially in—matters of life and death."19 While it is legal in the United States and most of the world to withdraw or withhold medical care that patients refuse, it is illegal in most jurisdictions to administer a lethal injection or prescribe a lethal overdose. The two exceptions are Oregon, which makes physician-assisted suicide available for the terminally ill, and the Netherlands, which makes voluntary active euthanasia available for those experiencing "unbearable suffering." Feinberg advocated laws that go beyond either Oregon or the Netherlands. In commenting on an article written by James Rachels, Feinberg states, "by restricting his remedy to terminal patients in severe pain, Rachels has also denied legal deliverance to those who would end their lives, if only they could, for reasons other than to escape present pain, and wish to die long before they are, in any proper medical sense, terminal. Some such people would commit suicide if they were able, but cannot because they are paralyzed, or closely supervised, or both."20 The problem with restricting euthanasia to the terminally ill or those in severe pain is that the restrictions place limits on autonomy. He states, "to the liberal, it is only the voluntariness of the death request (given its self-regarding character) that counts; pain and suffering and the shortness of the life remaining are not necessary for its legitimate fulfillment."21 To bolster his case Feinberg discusses the1972 British TV drama called Whose Life Is It Anyway? In the drama a recently quadriplegic wishes to die but is denied his request. The character is neither terminally ill nor in severe pain, but Feinberg believes that his request should be honored because it is voluntary. He states, "whatever Mr. Harrison’s reasons are, they are good enough, provided only they are his reasons."22

Could a soft paternalist advocate such liberal policies of euthanasia, but still argue against consensual cannibalism? I don’t believe so. Consider the soft paternalist argument that we discussed above. In the argument a liberal does not make a principled objection to consensual cannibalism, but instead rejects it because he worries about its voluntariness. Determining the voluntariness of the would-be-consensual cannibal would be too cumbersome, expensive, or fallible. Yet determining the voluntariness of the would-be consensual cannibal is not fundamentally different than determining the voluntariness of the patient who expresses a wish for euthanasia. While the reasons for individuals wanting to die in these cases do differ, the liberal does not look at whether the reasons are good but, rather, whether they are voluntary. When we look at the question of voluntariness, both are cases of consensual killing.

Feinberg did oppose allowing a consent, or mercy killing, defense to homicide because he believed that doing so could lead to abuse. In its place he suggested that "a better scheme might be to provide licensing procedures whereby the authenticity of consent is determined in advance so that the mercy-killer would kill (or petition specialists to kill for him) only with prior state permission, thus minimizing his personal risks, and removing the problem almost entirely from the province of criminal law."23 A system of permission, he believed, would avoid problematic cases. "Mafia assassins, muggers, barroom brawlers, angry vengeance seekers, and other ‘ordinary murderers’ would not be likely to apply in advance, with their prospective victims, for state permission to kill!"24 Feinberg might have been right that "ordinary murderers" would not be able to utilize a state system that granted permission to kill, but his response does not exclude our case. A system of prior permission that focused merely on voluntariness would have granted Meiwes permission to kill Brandes. It seems that Feinberg’s liberalism would have to grant Brandes the right to be eaten and Meiwes the right to eat him.

At this point it is important that I clarify the implications of my argument. I am not saying that anyone who favors legalizing euthanasia will be rationally committed to legalizing consensual cannibalism. That is not the case. Most arguments for euthanasia do not rely exclusively on the principle of autonomy. Advocates for euthanasia do not typically say that euthanasia ought to be legalized simply because people ought to be able to act autonomously. They typically supplement their concern for the autonomy of the patient with a principle of mercy.25 In other words, the typical argument for euthanasia is that when an individual expresses a voluntary wish to die and experiences unbearable suffering or severe pain, society ought to grant her wish. This would enable the typical advocate of euthanasia to reject the right to be eaten by claiming that those who want to be eaten do not suffer unbearably. Feinberg’s argument for euthanasia is unlike the typical argument because it focuses exclusively on voluntariness.

Why, then, couldn’t Feinberg embrace an argument for euthanasia similar to the more common one? Why couldn’t he maintain that society should only grant an individual’s wish to die when the individual experiences unbearable suffering or is terminally ill? He could, of course, but the cost would be rejecting soft paternalism. Failing to extend the right to die to individuals in cases where we don’t think they have met a threshold for pain or suffering or a threshold for prognosis requires us to deny some voluntary choices out of a concern for the subject’s well being. As I quoted Feinberg earlier, "to the liberal, it is only the voluntariness of the death request (given its self-regarding character) that counts; pain and suffering and the shortness of the life remaining are not necessary for its legitimate fulfillment." Or as Meiwes said, "I do believe everyone should be able to decide what he wants to do with his own body."26

IV. Other Answers

In this last section I will consider some nonpaternalistic arguments against the right to be eaten to see whether Feinberg’s liberalism might still be rescued. To defend liberalism but deny the right to be eaten, we might claim that consensual cannibalism is not really possible because any apparent case of consensual cannibalism is not really voluntary. Anyone who would want to be eaten for its own sake is mentally ill and this mental illness undermines self-determination. Brandes’ decision to be eaten, we would claim, was not voluntary but, rather, a symptom of a controlling mental illness. Some psychiatrists who publicly commented on the case thought it likely that Brandes had Body Dysmorphic Disorder, suggesting that Brandes would have disassociated with his body, not felt pain, and would have enjoyed his mutilation.27 Any diagnosis, of course, would have to be speculative, but if we felt some confidence in a diagnosis it would be tempting to jump straight to the conclusion that any decision made under the influence of such a disorder would have to be substantially nonvoluntary. This is not, however, how Feinberg used the term.

According to Feinberg, a mental illness does not always undermine voluntariness. One could make a voluntary decision, for example, when one is clinically depressed. From Feinberg’s perspective some depression is "understandable, even proper, rational, and justifiable, a state of mind any normal person would experience if he were to suffer certain losses."28 It would certainly be hard to say the same thing about Brandes’ situation, but the general point remains—we cannot infer a lack of voluntariness (in Feinberg’s sense) from merely pointing to a clinical condition. Brandes’ clinical condition would have had to be such that we would have believed that the decision made was not really his. From the description of the case this does not seem likely. Brandes’ decision was the expression of long-term desire. The execution of the desire showed considerable forethought, and while Brandes’ desires were strange, they did not appear to be the result of psychotic delusion. In the normal sense of the word the desire appeared to be his.

Another strategy in arguing against consensual cannibalism would be to move our focus away from the harm that it may cause either party and argue that cannibalism is wrong in itself. Would cannibalism be wrong even if it did not cause harm? If we can answer this question affirmatively we would be claiming that when cannibalism does not harm it is still a case of harmless wrongdoing. In Feinberg’s terminology we would be embracing legal moralism. There are two moralistic arguments that are worth serious consideration.
The first moralistic argument would focus on exploitation: consensual cannibalism is wrong because it exploits the eaten. All exploitation, Feinberg claims, involves one party "taking advantage" of some characteristic of another party or some feature of another party’s circumstance. In this sense, Meiwes clearly exploited Brandes’ unique sexual fetish. While this kind of exploitation is clear, Feinberg does not claim that all exploitation is unfair, and the question of whether Meiwes unfairly exploited Brandes’ desires is not straightforward. Feinberg claims that cases of exploitation have three potential unfairness-tending characteristics. The first condition is how the other party is used. Here coercion and deception are the most unfair followed by manipulation, straightforward offers, fishing expeditions, and the least unfair are "acceptances of unexpected offers originating with the other party."29 Measured by this standard, the case has little unfairness. Meiwes attracted Brandes by a "fishing expedition" on the Internet. Measured by other dimensions of unfairness-tending characteristics, however, the case looks less just. Meiwes exploited what we would likely call one of Brandes’ weaknesses, which is not as bad as exploiting a virtue but worse than exploiting cruelty, greed, or some other moral flaw. Perhaps most unfair is the way that the gains and losses were distributed. While both Meiwes and Brandes might be said to have satisfied an intense desire through their interaction, it was Brandes who ended up mutilated and then dead. In this sense, Meiwes seems to have exploited Brandes and done so unfairly.
This description of Meiwes’ exploitation leaves the case as an example of the following category—"when A’s conduct both exploits B and adversely affects his interest, but it is done with B’s fully voluntary consent."30 Feinberg deemed examples of this kind "troubling," but he rejected them as a reason for criminalization. "Invoking the exploitation principle in this manner to justify legal coercion for cases in [this kind of] category could hardly appeal to the liberal who has already rejected hard paternalism, for it amounts, in effect, to a kind of ‘back door paternalism,’ equally demeaning to personal autonomy."31 For Feinberg, therefore, exploitation cannot give us a good reason to deny the right to be eaten. (Even if it did give us a reason, it is unlikely that exploitation is the central reason why consensual cannibalism is wrong. Upon hearing the Meiews/Brandes case few, if any, would respond, "that’s so unfair!")

A second possible moralistic argument could begin with a focus on repugnance. Clearly, most find the practice of cannibalism repugnant, and some philosophers think that repugnance is a good guide to morality. Leon Kass famously made this argument against human cloning in his article, "The Wisdom of Repugnance." Kass argued that, in crucial cases, "repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it." 32 One of the examples that gave of this deep wisdom was the repugnance we feel at the idea of eating human flesh. If Kass is right then cannibalism is simply wrong in itself, and we can know this through the repugnance we feel at the thought of it.

Most ethicists would deny that repugnance is enough evidence to conclude that an act is wrong. We only need to look back half a century to the repugnance many felt at interracial marriages to see that it may represent indefensible prejudice rather than wisdom. In the case of cannibalism our repugnance extends beyond cases that look to be serious moral problems. Consider reactions to an innocuous case. Mark Nuckols, a business student from Dartmouth, recently marketed a "tofu that is textured and flavored to resemble human flesh," a product he named Hufu. When interviewed by Samantha Bee for Comedy Central’s The Daily Show, Nuckols claimed, "if you really want to come as close as possible to the experience of cannibalism, Hufu is really your best option." Now there certainly isn’t anything intrinsically wrong with eating flavored tofu, but the studio audience was nonetheless repulsed. Audience members groaned when Bee interviewed Mark Levitt, a marketing expert, and he suggested a slogan for Hufu’s advertising campaign: "Hufu: the great taste of friends." (Personally, I thought Bee’s own "Hufu: it’s who’s for dinner" was better). More tellingly, they groaned at the sight of Hufu on a plate.33 It seems unlikely to think that eating Hufu is intrinsically bad. So repugnance doesn’t only have general problems guiding us to ethical choices, it has problems when we use it to guide us in cases connected to cannibalism.

If repulsion is not a reliable guide for all cases associated with cannibalism, we must question whether it explains the moral wrong associated with the Meiwes/Brandes case. I think it misses the crucial issues. Consider another case of cannibalism that was reported in a British tabloid as fact, but was apparently fabricated.34 According to the report, a man cut off a woman’s breast (at her request), cooked it, ate part of it, and gave the rest to the dog. As reported, this case raises the same issues as the Meiwes/Brandes case, but we can change it slightly to illustrate my point. Suppose the man did not eat any of the breast himself, but instead merely fed it to the dog. I find the altered case no more or less morally problematic. The altered case, however, is no longer a case of cannibalism. Consequently, it doesn’t seem like cannibalism is the central moral issue. Meiwes’ actual consumption of Brandes is not the central moral issue in that case. Rather, the central moral issue is that Brandes was mutilated and killed in order to satisfy a strange and ignoble desire.

To support my point, consider another case of self-harm that is similar but less extreme than the Brandes case—self-demanded amputation. The reason that someone might request the amputation of a healthy limb can vary. Consider three cases:

Mr. A makes his living as a beggar on the streets of New Delhi. Realizing that amputees make a better living than non-amputees he requests the amputation of his left leg. (As I write this three Indian doctors are being investigated for offering this service to beggars.)35

Mr. B suffers from body integrity identity disorder (BIID) where an individual has an overwhelming desire to amputate a healthy part of his body. In this case he wants to amputate his left leg and explains his desire by saying, "I am a one legged person stuck in a two legged body."36

Mr. C may also suffer from BIID, but his desire to amputate is connected to a sexual fetish. He seeks to have his left leg amputated to satisfy a "sexual craving."37

Each of these cases raises a host of issues that merit discussion, but we can begin by following on our previous discussion. Suppose that we added cannibalism to each of these cases. In the case of Mr. A we can imagine that he found someone willing to pay for the right to eat his amputated leg (perhaps Mr. A responded to an ad that said, "well-built man’s leg, 18-30 years old, for barbeque"). In the cases of Mr. B and Mr. C we can imagine them giving their amputated leg to a cannibalistic friend or, like Brandes, dinning on it themselves. Adding a cannibalistic twist to these stories amplifies their oddity, but I would contend that it doesn’t change the fundamental moral issue. With cannibalism the cases look very much like instances where individuals eat a placenta to celebrate the birth of a child. Many find the practice odd, and when it is done in public it may be offensive (such as the case of the British TV cooking show where guests were served a placenta pate),38 but it is not in itself a serious moral problem. If cannibalism isn’t the central issue then what is?

Unlike consensual cannibalism, Feinberg did discuss cases of amputation on demand. Such cases fall under statutes prohibiting "mayhem." The question for us is whether consent should be a defense against the crime of mayhem. As Feinberg points out, according to English common law mayhem is "‘maliciously depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or to annoy his adversary.’ Mayhem, in truth, was a crime against the state consisting in rendering ‘the person less efficient as a fighting man (for ‘the King’s army’)."39 This would have been especially relevant when the law was conceived since someone might consent to mayhem as a way of getting out of military service. But clearly the same justification for the prohibition would not hold time today. The United States does not have a draft, and without a draft there is no motive to cut off a limb to avoid it. And even in countries that have a draft, the cases of consensual mayhem have no serious implications for national defense.

Since the traditional reason for rejecting consent as a defense to the crime of mayhem does not apply, we are faced with either allowing the defense or denying it for some other reason. Feinberg is in favor of allowing it unless there are reasons to doubt the voluntariness of the consent. He states, "where the motive for self-mutilation or consent to mayhem seems mysterious and incomprehensible, the presumption of nonvoluntariness because of psychological impairment is very strong."40 So, from Feinberg’s perspective, the question of whether consent should be a defense to the crime of mayhem turns on whether the consent was truly voluntary, and voluntariness is unlikely in cases where the motive is incomprehensible.

In the case of Mr. A the motive is intelligible. Mr. A wants an amputation to increase his income. An economist would say that Mr. A’s leg is worth less to him than the extra money he would get from its absence. Mr. A is identical, in all important ways, to a classic case cited by Feinberg. In Wright’s Case, "‘a lusty rogue’ had his left hand amputated by a companion ‘in order to get out of work and be more effective as a beggar.’"41 While consent did not exculpate the maimer in the classic case, it seems that Feinberg would be in favor of exculpation.

In the cases of Mr. B and Mr. C, some may consider the motive unintelligible. Is it intelligible to think that you are a one legged person in a two legged body? Is it intelligible to be sexually excited by amputation or consider one’s own attractiveness dependent on amputation? Another way to ask these questions is to ask whether a request for amputation by Mr. B or Mr. C could be truly voluntary, whether in either case it is really his. This question is not straightforward when we look at individuals who have body integrity identity disorder. The name of the disorder itself should tell us why. These individuals have a disorder about their identity. How do we determine whether an individual’s desire to remove a limb is actually his, when he doesn’t believe that the limb is his? First, we could claim that the limb is actually his and therefore disqualify all desires influenced by BIID. ("You say that you want to remove your limb because you have a sense that it is not yours, but you are wrong. The limb is yours, so your desire is based on delusion and cannot be voluntary.") Second, we could claim that identity is not determined by a well-defined body and count his desires as fully voluntary. Finally, we might claim that some of individuals who want an elective amputation are autonomous while others are not. We might, for example, treat a case like Mr. B as a condition analogous to transsexualism but wonder whether Mr. C’s fetishistic desires are authentic rather than merely being intense. Whichever way we go we are going to have to use more than a common sense notion of voluntariness and identity to resolve these issues. I have doubts that a more complex theory of personal identity could be very helpful for guiding legal decisions like these. I have some doubts that looking for the true or authentic self ever makes sense, but I have grave doubts about that question in cases of identity disorders.

Using a complex theory of personal identity to solve those issues would be problematic, but there is a more central problem here. Whatever theory of identity we embrace (and hence whatever answer we give to the question: Can desires influenced by BIID be fully voluntary?) we could end up with untenable guidance. First, we should note that the prospects for treatment of BIID are unclear. Individuals have not been helped by therapy or medications thus far, but the condition is just beginning to get attention from the psychological profession. Potential treatments, therefore, have gone untested. Suppose we conclude that desires influenced by BIID are fully voluntary. The result would be a right to amputation on demand. That right could exist even if there was an effective treatment for BIID. Consequently, we could grant people a right to have help chopping off a limb even when treatment would leave them wanting the limb kept intact. This sounds implausible to me, in the same way that granting a right to suicide for someone who has a passing depression sounds implausible. Alternatively, suppose we conclude that desires influenced by BIID are not fully voluntary. The result would be that there would be no right to amputation on demand. That, however, would be the result regardless of whether there is any effective treatment of BIID, and this describes our current situation where individuals are so desperate to satisfy their desire for amputation that they get illegal and sometimes fatal operations, shoot or otherwise injure themselves in hopes of forcing a medical amputation, or simply lay down on train tracks for a do-it-yourself amputation. I find this highly counter intuitive. To my mind, it would be better to grant a right to amputation than to leave individuals so desperate that they try to do it themselves with a bottle of whiskey and a circular saw. It is better even if the desire for amputation is not fully voluntary. Likewise, it is better to eliminate someone’s obsessive desire than to eliminate someone’s limb, even if the desire is a voluntary one. The lesson from cases of BIID is, I believe, the same as the lesson from consensual cannibalism—we should focus on the issue of well being. Here, the law should try to protect individuals from harm, not merely respect voluntary choices.

V. Conclusion

In Feinberg’s four-volume work on the moral limits of the criminal law, he makes a strong case for liberalism, the theory that the only good reason to make something a crime is to prevent harm or serious offense to others. In this essay I have questioned his rejection of hard paternalism. Some may welcome my arguments and see them as a reason for an outright rejection of liberalism. If preventing self-harm provides a reason to criminalize some actions, we might want to criminalize numerous acts where individuals seem to act contrary to their own interests. I have said nothing against this approach, but it is not the one I favor. How might we see the depraved examples explored in this paper as a reason to embrace a more moderate theory of liberalism rather than a reason to reject liberalism?

The approach that I favor focuses on an alternative rationale for the importance of autonomy. Many believe that it is right to respect individual choices because individuals are the best judges of their own well being. J.S. Mill made this claim. "His voluntary choice is evidence that what he so chooses is desirable, or at least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it."42

There are at least three reasons that we might believe an individual is the best judge of his own well being. First, allowing individuals to have what they want can promote well being by producing an educational effect. Individuals are more likely to learn from their own mistakes than from another’s. In the long run, allowing individuals to make their own choices can help them improve their choices. Second, because individuals have unique access to subjective information they inhabit a privileged epistemic position. Subjects can know their own desires and fears first hand, giving them private access to information relevant for determining whether a choice does or does not promote their well being. Finally, an individual’s preference is a constitutive element of well being. When X wants Y and X gets Y, X will not suffer from not getting what she wants. In addition, when X wants Y, X will freely accept Y. X will not suffer from being forced to have an option she does not want. Together these three claims give us reason to believe that when someone prefers something it is probably good for them. In the large majority of cases this evidence is a sufficient reason to respect a choice. The preference itself is evidence for the claim that what the individual wants would be in his interest, and evidence against the claim that forcibly stopping him would be to his benefit.

In some instances, however, none of these reasons are very convincing. When someone is about to step into oncoming traffic, our knowledge that they are about to get hit by a car is more convincing than the evidence provided by their preference to leave the curb. In a case like consensual cannibalism, although the reasons differ, the evidence is also undermined. Because the choice is irrevocable (death), the educational value is negligible. Brandes learned nothing while in Meiwes’ freezer. Because the effects are so monumental, the constitutive elements are overshadowed. The harm of suffering with the frustration of not being eaten seems less significant than the harm of dismemberment, death, and consumption. Because the preference seems so bizarre and because it seems to be about what is intrinsically valuable, we doubt the significance of private knowledge. We don’t think, "well, if I knew Brandes’ desires I would conclude that he is better off eaten."

Feinberg unfortunately ignores some cases where the reasons for believing an individual the best judge of his own well being are not convincing. Despite his mastery of vivid and engaging examples, he failed to give serious attention to, or imagine, a wide variety of depraved desires. In cases like voluntary slavery, consensual mayhem, consensual cannibalism, and consensual killing we can imagine the motivations of someone willing to accept an apparent set back of interests as either intrinsic or instrumental. In the case of slavery, for example, we can imagine someone submitting to slavery because the idea of slavery itself is attractive or because someone gave him an offer too good to refuse. Feinberg acknowledges the possibility of intrinsic motivation, but he gives it little attention. Instead, he focuses on motivations that have an instrumental source. He imagined, for example, someone who agreed to be a slave in exchange for $1 million that he could give away before his slavery began. In the case of mayhem he focused on Wright’s Case where someone consented to amputation to avoid work and augment his income. While these instrumental cases may have some plausibility they are less troublesome for the liberal to explain than cases of intrinsic motivation.

In cases where an individual desires a significant harm for its own sake, the case for hard paternalism is strong. As the choice looks worse and worse, and the three claims discussed above get weaker and weaker, we have less and less reason to believe that allowing the satisfaction of the preference promotes well being. This is, of course, a matter of weighing evidence, and it is difficult to determine when we should say: "that does not make you better off." While the liberal will give significant weight to the evidence provided by preference, a moderate liberal will leave open the possibility of conflicting evidence that is weightier and hence make room for hard paternalism. As a moderate liberal I am not sure where we should draw that line, but I am confident that it comes somewhere before "burn my balls with a flamethrower, hammer my body down with nails and pins, and then whip me to death," and also somewhere before "bite off my penis, feed it to me, and then cut me up into tiny little morsels for your dining pleasure." I find the evidence here weak, but perhaps I’m a bit weird.

Endnotes

1. Joel Feinberg. Harm to Self: The Moral Limits of the Criminal Law (Oxford University Press, 1986) 12.

2. Ibid., 12.

3. Ibid.

4. Abigail Wild. "Why on Earth Would Anyone Want to be Eaten by This Man?" The Herald (Glasgow) (6 December 2003): 11.

5. Ibid., 11.

6. Allan Hall. "Horror Death of Man Who Asked to be Cannibal’s Victim; Eat Me!" Daily Star (4 December 2003): 19.

7. Ibid., 19.

8. Ibid.

9. Kate Connolly. "I Asked Cannibal to Eat Me, Says Would-be Victim," The Daily Telegraph (London) (16 December 2003): 13.

10. Ibid. See also Hall, p. 19.

11. "Victim ‘Wanted to be Mutilated’—Boyfriend Offered Money to Bite Off Penis, Court Told," Canberra Times (14 January 2004).

12. Luke Harding. "Cannibal Who Fried Victim in Garlic is Cleared of Murder: ‘Psychologically Sick’ Killer Jailed for Manslaughter," The Guardian (London) (31 January 2004): 2.

13. Wild, p. 11.

14. Meiwes quoted in Hall, p. 19.

15. Harding, p. 2.

16. Tony Paterson. "Cannibal Given Life for Eating Victim," The Independent (London) (10 May 2006): News, 26.

17. Feinberg, Harm to Self, 24.

18. Ibid., 19.

19. Ibid., 346.

20. Ibid., 351.

21. Ibid.

22. Ibid., 354.

23. Feinberg, Harmless Wrongdoing, 169.

24. Ibid.

25. See, for example, Margaret P. Battin, Ending Life: Ethics and the Way We Die (Oxford University Press, 2005).

26. Roger Boyes. "Cannibalism is Murder—Even if the Victim Requests to be Eaten," The Times (London) (10 May 2006): Overseas News, 3.

27. Wild, p. 11.

28. Feinberg, Harmless Wrongdoing, 355.

29. Ibid., 204.

30. Ibid., 211.

31. Ibid., 212.

32. Leon Kass. "The Wisdom of Repugnance," The New Republic (2 June 1997): 17-26.

33. Samantha Bee. "Flesh in a Pan," http://www.comedycentral.com/shows/the_daily_show/videos/samantha_bee/index.jhtml

34. "Cannibal Ate Girl’s Breast," The Sun (10 February 2005). In a Lexis/Nexis search I could find no other paper reporting on the murder trial described in the article, so I doubt its veracity.

35. Rahul Bedi. "Doctors Offer to Amputate Beggars’ Legs," The Daily Telegraph (London) (2 August 2006): News, International, 14.

36. Robin Marantz Henig. "At War with Their Bodies, They Seek to Sever Limbs," New York Times (22 March 2005): Section F, Column 2, Health and Fitness, 6.

37. Mr. C is loosely based on the case of Philip Bondy who died from gangrene after a botched amputation in Tijuana. He cited a "sexual craving" as the reason he wanted the amputation.

38. Alison Gray. "Dinner of Placenta Pate is not to Everyone’s Taste," The Scotsman (5 February 1998): 8.

39. Feinberg, Harmless Wrongdoing, 170.

40. Ibid., 171.

41. Ibid., 170.

42. J.S. Mill, On Liberty, chapter V, paragraph 11.

Previous Article | Index | Next Article

APA Newsletters

Fall 2006 Volume 06, Number 1

Fall 2006
Volume 06, Number 1