6 Comments
Oct 30Liked by Brandon Hendrickson

FWIW, there are absolutely real cannibalism legal cases; especially one very high profile one in England in 1884 that remains very relevant in English and American law. Admittedly my knowledge level on this is "I read two wikipedia pages and watched a youtube video" but you may be interested in "R v Dudley and Stephens" and look up the "custom of the sea"

* https://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens

* https://en.wikipedia.org/wiki/Custom_of_the_sea

My (very amateur) understanding is: The "custom of the sea" referred to an agreement agreement widely understood among sailors and the British general public that if sailors were shipwrecked and starving, then if (and only if!) everyone present consented, then they would draw lots and kill/eat the unfortunate one picked. (If I'm understanding this right, the reason killing/eating someone was preferable to letting them die of natural causes is because killing them earlier left more drinkable blood in the body to avoid dying of thirst. Fun.) This was allegedly a very publicly-accepted custom, but definitely not law. English courts thought the whole thing was terrible and had long been "waiting for a case" with a set of circumstances that they could definitively declare this whole practice illegal, no matter how much public sympathy shipwrecked sailors had.

The "R v Dudley and Stephens" case (British case in 1884) ultimately did declare the whole thing illegal. It's an interesting one partly because in this case the "custom" was *not* adhered to. Four sailors were shipwrecked.; after about ten days, one of them got sick and fell unconscious. They discussed drawing lots; one of the conscious sailors refused. They also discussed killing the unconscious sailor since he was probably dying anyway. Eventually two (or three, disputed) of the sailors killed the unconscious one; all three of them ate some of him. Then finally two weeks later they got picked up. So there was no drawing of lots, and therefore no custom.

After they got rescued, the three of them made their reports to some administrator, which was going to be business as usual -- none of them expected to be charged with murder. A local policeman overheard, sent the news up the chain, and eventually the three of them got charged with murder. Two of them were ultimately convicted of murder (they dropped the charges against the last one so he would testify). It set a very important precedent because judges all made it clear that the lots/agreement wouldn't have mattered from a legal perspective, the whole thing was murder and the "necessity" did not justify it under the law. (But they also commuted the death sentence and gave them 6 months in prison instead, way lighter than a typical murder sentence -- and also the public sentiment was apparently very much that the necessity *did* justify it and they shouldn't have been convicted.) This was apparently the last openly admitted cannibalism case for British or American sailors.

This case also ended up being really important as a precedent because it was used to argue that many other kinds of necessity weren't considered justifications for murder! Wikipedia says this case is "one of a few criminal cases taught to all law students in England and Wales" and that it is a "standard legal case taught to first year American law students and is often the first criminal case read in American law schools." But [citation needed] for both of those wikipedia quotes, so take that with a grain of salt. (Also, this isn't universal! There were cases in Norway that went the other way!)

If the case really is that famous, I can only assume Fuller must have known about it when writing the Speluncean law review article to probe the ethical+legal issues around this. But this makes his little disclaimer at the end that, basically, any connection between this work and real events is coincidental, a absolutely hilariously thin veneer.

Expand full comment
author

Best comment… or best comment EVER?

Expand full comment
Oct 30Liked by Brandon Hendrickson

Highly recommend David Friedman’s “Legal Systems Very Different from Ours”, especially on embedded legal systems.

Expand full comment
author

Just purchased it — thanks!

Expand full comment

Reading SCOTUS oral arguments is fascinating and reasonably accessible (and you can do it aloud). It gets much clearer how much each case has the potential to touch and why it matters in ways that goes beyond who wins and who loses.

I saw an excellent staging of oral arguments on whether nude dancing is first amendment protected speech and reviewed the show here: https://www.the-american-interest.com/2014/09/15/the-art-of-argument/

Expand full comment