Consensual violence and the state : a case study in combat sport

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.