Cannibalism and the Law Term Paper

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Economic model of crime suggests that crime is driven by rational self-interest. Thus, any penalties incurred for crimes such as insider trading must exceed the potential economic gains for the subject. This is based upon a rational concept of cost-benefit analysis on the part of the defendant. Crime must be ensured not to 'pay' because of the penalties extracted by the legal system. The theory was first advanced by Gary Becker in a seminal 1968 paper. "Becker's paper, 'Crime and Punishment: An Economic Approach,' looks at criminals as rational individuals, just like anyone else. Criminals, like ordinary citizens, seek to maximize their own well-being, but through illegal instead of legal means" (Bahrani 2012). Just like you and I seek out the most advantageous jobs and the best prices to maximize our utility, so do criminals.

Regarding criminal cases, the economic model suggests that criminals will weigh the potential negatives against the positives. Becker said that his theory was actually spawned by a real-life problem. "Should I park closer in a spot that was illegal, or should I park in a lot which was somewhat further away?' So I had to make a calculation: What was the likelihood that I'd be caught if I parked it down the street vs. The time, the money, that would be lost by parking further away" (Bahrani 2012). For example, if someone is running late for a very important job interview, they might rationalize that it would behoove them to take the closer illegal parking space and run the risk of getting the ticket, since the cost of not doing so might be making a bad impression during the job interview and losing a potentially lucrative position. In contrast, someone not running late who was just doing some casual shopping might decide that there is no incentive to park illegally and doing so would just add additional costs to the fees already incurred by shopping in the first place.

Of course, the case of men adrift at sea who claimed to be driven by necessity to eat one of their companions (a cabin boy) poses a far more dramatic scenario than Becker's contemplated parking crime. In this case, according to the defendants the potential negatives were starving to death vs. The possible legal consequences they knew they would have to suffer afterward. It is almost impossible, according to the model, to suggest a punishment that is comparable to that fate given the death that would be meted out by the criminal justice system might not be seen as horrible as dying by starvation. From the point-of-view of the defendants, based upon the available evidence, death was certain if they did not act while they at least had the hope of a reprisal, as accorded by the mercy of the justice system.

One view of the economic model of crime is that, given the extremity of the circumstances, the value of the punishment as a deterrent to future crimes would seem negligible. The criminals themselves seem unlikely to go on to commit future murders but rather were driven to do so, simply based upon the physical aspects of their plight. The crime seems rooted in circumstance rather than intention: when setting off to sail the men did not resolve to eat the cabin boy but hoped for a successful journey. The only theoretical deterrence value would be that when men are in similar circumstances they would not look at consuming one another as an option -- but once again, the physical aspects of starvation and the irrationality created by the extremity of the environment makes this an unlikely prospect. Even if the men were made an example of and punished as a deterrent, the immediate, salient urgency of having to eat and not to die would outweigh the legal consequences.

However, it is possible to argue also using the economic model of crime that extreme circumstances will always arise and the law has an obligation to ensure that people do not act badly when they do. For example, say a city were to be struck with an earthquake or a typhoon. The resulting desperation may cause many otherwise law-abiding citizens to loot and pillage. Maintaining a social contract is not tenable if every time there are pressures put upon individuals they act in an asocial manner. The purpose of the law is to ensure that people act in accordance with moral dictates when there are pressures not to do so: for example, if there was no enforcement of parking laws and not parking illegally was solely based upon an 'honor' system, most people would park illegally whenever it was convenient.

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In fact, it is arguably more rather than less necessary to incentivize upholding the law under dire circumstances. If people are allowed to react with fear and according to their basest instincts every time they are in a stressful situation, we will become a less law-abiding society. Theoretically people could blame 'road rage' as the reason for their violent actions, citing the circumstances as the reason they acted irresponsibly. They could blame bad weather for parking illegally, to use Becker's example, or the fact that they were hungry and perceived no way out of their desperate situation other than stealing to shoplift. It is very rare, economic theories of crime would suggest, that people do not have a rationale for acting in a negative fashion but that does not mean that the law should condone such negative thinking.

The argument in favor of not accepting their plea of necessity is that individuals could possibly use the defense to excuse horrible crimes that were not strictly necessary in the future. In this instance, the men were adrift on a boat but it is also possible someone could quarrel with someone on a hunting trip, shoot him, and then emerge weeks later from the wilderness claiming to have killed the man 'out of necessity' due to starvation. "It is not suggested that in this particular case the deeds were 'devilish,' but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime" (The Queen v. Dudley and Stephens, 1884, Justis).

Still, Becker would likely side on the idea of not punishing the men as severely as if they had committed murder. He might suggest punishing them just enough so that people did not use the 'necessity' argument as a way of justifying heinous actions. In Becker's view, fines are often the best way to deal with all but the most serious of offenses. "Fining has a great advantage. If you're a criminal and you pay me (as the government) a fine, then I'm getting compensated. On the other hand, say I send you to prison; then you're giving up something, but I'm also giving up something since I have to have guards and money and so on to take care of you. So that's a really bad form of punishment" (Bahrani 2012). In terms of opportunity costs, it simply is not 'worth it' to society to punish the criminal with imprisonment unless there is a significant benefit to be gained.

Essay 2: Cannibalism

In the stated case in which a cabin boy was cannibalized, some might argue that based upon the laws of the sea there was a job 'contract' in which it was agreed upon that in such circumstances, the cabin boy would be consumed since he was the lowest-ranking man and did not have dependents. According to the law, a contract must contain certain elements to be enforceable. There must be an offer and acceptance (mutual assent); consideration, capacity and legality (Contract, 2014, LII). In other words, there must be a legitimate offer made and accepted. In this case, the argument would be that the cabin boy, by accepting his position, was effectively consenting to being the 'dinner' of the rest of the crew, should they be abandoned at sea. However, it is unlikely that this was a stated or implied part of his job contract.

A contract can be written or verbal and must entail some form of consideration -- something of value must be exchanged. In this instance, it is likely that the boy was receiving wages for his employment upon the ship. However, there is no evidence that the idea he was expected to give up his life was part of the verbal or written understanding between himself and the captain of the ship. Additionally, according to the terms of contract law, there must be 'capacity' in terms of someone's ability to consent. Here, this seems to be clearly unlikely given that the boy may have been a minor and thus did not have the ability to consent to a contract. Also, the capacity of someone to assent to a contract would be called into serious question if he agreed to a contract which made his own demise by cannibalism to be likely under the circumstances. There is no way that such….....

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