A Case Study in Combat Sports

CONSENSUAL VIOLENCE AND THE STATE: A CASE STUDY IN COMBAT SPORTS STEPHEN EDWARD KING THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY SCHOOL OF LAW UNIVERSITY OF LIMERICK SUPERVISORS EOIN QUILL, UNIVERSITY OF LIMERICK HAYDEN OPIE, UNIVERSITY OF MELBOURNE SUBMITTED TO THE UNIVERSITY OF LIMERICK, APRIL 2011 ii ABSTRACT CONSENSUAL VIOLENCE AND THE STATE: A CASE STUDY IN COMBAT SPORTS STEPHEN EDWARD KING Eastern Asian martial arts have been becoming more and more popular in Western societies since the 1960s. However, the last ten years have witnessed an exponential surge in the popularity of professional martial arts, and in particular, of mixed martial arts. Mixed martial arts allow participants from any martial arts discipline to compete against each other and use any fighting technique, with few exceptions. The professionalisation of martial arts has led to the development of full-contact competitions, where the head is often a primary target. This gives rise to political, legal and moral questions about what a state’s attitude to such sports should be. In particular, the sword of Damocles appears to hang over the legality of such sports. Can these new sports, by analogy, be afforded the same benefits that are controversially given to boxing? Or is it the case that this analogy does not hold due to these sports being potentially more dangerous than boxing and also being unable to claim the same special historical and cultural roots that boxing has in Western society. It is within the context of exploring what a state’s attitude to combat sports should be, that the main question of this thesis is asked: can a state ever legitimately regulate consensual violence? If it may, in what circumstances and to what degree can it regulate such violence? The answers to these questions are not just important for combat sports; they have an overwhelming significance on other issues central to personhood, such as consensual violence in the context of sexual or religious practices. Case law from England and Wales shows a continual disregard for individual autonomy by criminalising any consensual harm that causes actual bodily harm – which could be anything from a sore bruise to a broken bone. The exceptions to this rule, the courts say, are based upon public policy considerations which allow courts to consider each case on its own merits, in an ad hoc fashion. It is argued that this is an unprincipled and incoherent approach to the area, and that exceptions should instead depend on whether the activity is regulated in a manner in which the state can have confidence. The current approach of the courts also offends against the harm-principle. But the harm-principle has been the subject of much criticism over the past three decades. Its “all-or-nothing” approach to defining the proper limits of state power has left it impoverished. In particular, it is argued that it does not sufficiently vindicate a state’s duty to foster autonomy or dignity within its political community. It is argued that there can be circumstances in which a state may be justified in paternalistically making reasonable interferences in its citizens’ self-regarding decisions in order to protect their future autonomy. Further, in situations where human rights conflict or regulation is inappropriate or ineffective, and where communities are required to take a stance on a morally controversial issue, the state may legitimately defer to its best interpretation of dignity in order to determine its position. iii DECLARATION I hereby declare that this dissertation, submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, represents my own work. ________________________________ Stephen E. King 1 April 2011 iv ACKNOWLEDGEMENTS I must first thank Eoin Quill for his help, encouragement, support and guidance throughout the thesis. He patiently reviewed the text on many occasions and offered sage advice each time. His help has improved this thesis immensely. I also owe a great debt to Hayden Opie, who facilitated my trip to the University of Melbourne as a Visiting Scholar in 2008 and has since offered his very thoughtful insights into my work. He, too, greatly enriched the final version of this thesis. I would also like to thank all those at the Victorian Professional Boxing and Combat Sports Control Board, the Massachusetts State Boxing Commission and the Nebraska State Athletic Commission for their invaluable help. In particular I would like to thank Noel Sharpe for all of his assistance. Over the course of writing this thesis I have received much valued advice from Professor Dermot Walsh, Dr Ger Coffey, Dr Patricia Conlan and Dr Colin King, and for that I thank them. I would also like to thank Professor Lloyd Weinreb and Peter Carfagna who both read and provided insightful comments on drafts of Chapters Four and Six, respectively. Indeed, I owe a special thanks to Peter Carfagna, who also facilitated my trip to Harvard Law School as a Visiting Researcher in 2009, along with Professor Paul Weiler, to whom I am also grateful. I also acknowledge the generous support which I have received throughout the writing of this thesis from the University of Limerick School of Law, the Faculty of Arts, Humanities and Social Sciences Research Board, the Centre for Criminal Justice and the International Commercial and Economic Law Group. I would also like to thank all of my friends and colleagues at the University of Limerick for their friendship and support over the years. v The constant love, support and patience of my family made this project achievable. All of the opportunities I have, I owe to my parents and I thank them for going above and beyond to help me complete this thesis. Finally, I would like to thank Morgane Nerrou who, through her love and understanding, is a constant source of happiness in my life. She made the daunting task of completing this thesis that much easier. vi TABLE OF CONTENTS ABSTRACT........................................................................................................... iii DECLARATION ....................................................................................................iv ACKNOWLEDGEMENTS......................................................................................v TABLE OF CONTENTS .......................................................................................vii TABLE OF CASES .................................................................................................x TABLE OF LEGISLATION .................................................................................xiii CHAPTER ONE - INTRODUCTION......................................................................1 Outline........................................................................................................... 2 Important Distinctions.................................................................................... 6 A Sense of History......................................................................................... 9 SECTION ONE: THE DESCRIPTIVE THEORY CHAPTER TWO - CONSENSUAL VIOLENCE AND THE COURTS.................21 Introduction ................................................................................................. 21 Dangerous Fighting Sports and Breaching the Peace.................................... 23 In Search of a Coherent Theory in the Courts............................................... 29 The Traditional Common Law Approach ................................................. 29 R v Brown and its Wake ........................................................................... 32 Sex and/or Violence? ............................................................................... 33 The Role of the Legislature ...................................................................... 40 Criticisms................................................................................................. 42 Boxing in Brown ...................................................................................... 43 Brown in the European Court of Human Rights........................................ 46 Applying Brown in the Court of Appeal ................................................... 47 The New Zealand Approach......................................................................... 53 R v Lee..................................................................................................... 53 R v Barker................................................................................................ 63 The Uncertain Irish Position......................................................................... 67 The Issues in Dolny.................................................................................. 68 The Dolny Judgments............................................................................... 72 Determining the Ratio Decidendi ............................................................. 74 Reflections on the Court’s Approach........................................................ 76 Explanations of the Approach................................................................... 81 Concluding Remarks................................................................................ 83 Conclusion................................................................................................... 85 vii CHAPTER THREE - A THEORY OF CONSENT.................................................87 Introduction.................................................................................................

Load more