It is a law professor’s dream hypothetical, the sort of question students would chuckle at as something so far-fetched as to be impossible. Suppose two men meet over the internet. One has had a lifelong desire to eat another human being; the other has had a lifelong desire to be eaten.
They exchange consent not once, but repeatedly, videotaping their consent, signing a formal “willingness agreement,” and performing other acts making clear the total resolve of the victim as well as the cannibal. Suppose, further, that when the cannibal loses his nerve, it is the victim that spurs him on to complete the deed. Suppose further that all of this is captured on videotape.
Suppose, also, that the cannibal, who is a very legalistically-minded individual, had released a number of prospective victims because it was clear that they failed to give the same level of free, informed, and repeated consent.
Suppose, further, that while there was certainly evidence of emotional unwellness on the part of both men, they were able to hold executive-level responsibilities, maintain friendships, and otherwise assume a large range of everyday duties. Suppose, finally, a statutory regime that did not punish cannibalism and only lightly punished assisted suicide. May the cannibal eat the “victim” under such circumstances?
Such a case actually occurred in Germany in the years between 2002 and 2004. The facts and the trial electrified that nation and much of the world. Two German computer specialists, Armin Meiwes and Bernd Brandes, engaged in precisely this set of behaviours, culminating in Armin’s slaughter and consumption of Bernd.
This case has attracted significant scholarly attention in legal and criminological circles, which is detailed towards the close of this Article.’ Michael Sandel, the Harvard legal philosopher, has written about the case, as has Lawrence Friedman, the legal historian at Stanford. But the case itself has never been subjected to a full-scale English-language analysis. It is the intention of this article to fill this notable gap in the scholarship.
It is beyond the scope of this article to construct that alternative jurisprudence in the context of a single law review article, though some constructive avenues of further investigation shall be developed in the conclusion. But it is not necessary at this stage of investigation to formulate a fully-developed alternative to consent-based jurisprudence. That would be a very large undertaking, indeed.
This article, rather, is focused on five related points: first, it will offer a careful reconstruction of the facts of the case and the relevant personalities; second, it will review and analyze the German law that was employed in the trial and the appeal; third, it will evaluate the legal theories used to justify the trial court’s verdict and the appellate review; fourth, it will carefully consider existing scholarship on the case, touching especially on some of the weaknesses in current interpretations; and finally, it will conclude that the cannibal and his victim were not justified in their actions.
The method in the proceeding is to rely heavily on a narrative history of the case to expose the legal and philosophical issues. Without a careful reconstruction of the facts, it is impossible to understand the degree to which both parties acted freely and non-coercively. And that is what, in the end, makes the case both difficult and significant jurisprudentially: Armin Meiwes and Bernd Brandes did everything one could reasonably expect of two persons consenting to perform a momentous act, and yet society is left deeply uneasy at the final result of their consensual acts.
Essen: “To eat!” As a verb, essen carries the meaning of “to eat everything up,” “to overeat, to overindulge (in food)[,]” to bask in a warm celebration of friendship and family.’ As a noun, Essen signifies an abundant table, a feast, a gourmand’s infatuation.’ Dining delight, gustatory pleasure, a sense of satiety, of fullness, of richness, the joy that comes from quenching one of our most primal, animal urges-the need to eat-these are the connotations suggested by verb and noun alike.
But if the verb and noun summon up deep feelings of contentment and wellbeing, Essen is also a place-name. And it is the city behind the place-name that helped shape and form the earliest years of Armin Meiwes, the German cannibal.
Essen had been around for centuries, long before there was even a political unit known as “Germany.”‘ By the dawn of the nineteenth-century, however, Essen was known for steel and guns. Essen prided itself on being the smelter and armourer of the world. And sitting atop this food chain, dominating the surrounding vistas and valleys, was the Krupp dynasty.’
The family firm had begun in modest circumstances early in the nineteenth century, but by 1870 it had grown into the largest steelworks in the world.’o And when it converted its steel-making prowess to the manufacture of the latest large-bore artillery,” the company assumed an almost uniquely controlling position not only in Germany, but in the European economy taken as a whole.
When the guns of August echoed across central Europe in August 1914, “[t]he German armaments firm Krupp was the largest single business in Europe.”‘ By 1945, however, the firm was in ruins, as was Essen-devastated by the Allied war on Nazi power.