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Nonhuman Rights and Climate Change
Foundations in Early European Natural Justice
Vanessa Burns
A thesis submitted in fulfilment of the requirements for the degree of
Masters of Arts (Research)
University of New South Wales
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,
Acknowledgements
The production of this thesis was achieved with the help of a number of
people whom I would like to acknowledge and thank for their contributions.
I have appreciated the help and professionalism of the staff of various research
institutions including the National Library of Australia, the Mitchell Library
and State Library of NSW. Particular thanks go to staff of the British Library in
London and the various Bodleian libraries in Oxford, UK. I would also like to
extend my thanks to the archivists at the Inns of Court in London and the
British National Archives in Richmond, UK.
I would particularly like to thank Stephen Gapps for editorial comments and
proofreading, and Beth Stone for her invaluable support through the writing
stages. I would also especially like to thank my son Solomon for being so
understanding, supportive and independent while I was away doing research.
And finally, my supervisors Stephen Muecke and Stephen Healy have been
crucial to this thesis. Most importantly, their insightful comments,
suggestions and intellectual discussion have been invigorating and inspiring
and I warmly thank both for their contributions to this project.
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Table of Contents
Originality Statement """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" #Copyright Statement """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" $
Authenticity Statement """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" %
&'()*+,-./-0-)12 """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 3
Glossary of Legal Terms """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 4
Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 5Archives and Research Methodologies""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6#
Literature Review""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63
Roman Texts """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63 English Medieval Texts """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63 English Legal History John Seldon and the Seldon Society Publications""""""""""""""""""64 Contemporary Legal Theory"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""67 International Environmental Law """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""65Contemporary Social Theory """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#8 Divine Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#7
Res Sanctus- City Walls ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++!. Res Sacrae Sacred Things and Places ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++%# Res ReligiosaeTombs, Funerals and Burial Grounds.++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++%&
Chapter Two: The Right to Stand? Nonhumans in Early Legal Procedure """"""""%#
Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%# Pauperies Four-footed Animals """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%3 Substitution in Roman Law """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""36 Towards Due Process: Analysis of Roman Procedure"""""""""""""""""""""""""""""""""""""""""""""""""""""""3$ Medieval European Procedure """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""37Religion and the Natural World """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9# Procedure in Medieval England """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9% The Symbolic Use of Objects in English Legal Procedure""""""""""""""""""""""""""""""""""""""""""""""""94 Conclusion """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""48 An Historical overview of Natural Law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""43 Roman Legacies in Medieval English Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""78
Gratian ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++.%
Bracton +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++.& Customary Law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""5# Secularisation""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""53 Establishing a New Source of Natural Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""55
In Conclusion: Latours Parliament of Thingsand the Problem of
Anthropocentrism in Global Climate Governance """""""""""""""""""""""""""""""""""""""""""""""""686
Bibliography"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 687
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Glossary of Legal Terms
0123* 4 1(5* 267389*9 9*:262)2;6< ;: 3*=(3 )*>?< )1>;8=1;8) )1* )1**;(9 (69 )2783(> )*>?< )1() 6**9 26)>;987)2;6+
damages: The money paid or awarded to a claimant (in the UK) or a plaintiff (in the
US) in a civil action.
decretum:A decree of the senate.
defendant: In civil proceedings, the party responding to the complaint; one who is
sued and called upon to make satisfaction for a wrong complained of by another. In
criminal proceedings, the accused.divinis jurisor divine law: Divine law was a division of Roman legal instruments
under the law of things, further catagorised under res nullius (things belonging to no-
one). It can be thought of as a form of natural justice, given by God, and ruling over
specific things (set out in the corpis juris civilis) that were understood as particularly
sacred or important in some way. Divine law was, in some primary sources, also
conflated with natural justice as the theoretical basis for natural law practice.
due process: This term is used in two ways. Firstly in its legal context it denotes an
order of procedure set out under law. This can apply to any kind of procedure related
to the practice of law including court procedure, or punishments. Latour also uses the
term due process in a different sense as an empirical methodology that might
implement his political theory of things at an institutional level.
extra-patrimonium: Things that are not in commerce, or are owned commonly
inter alia: "Among other things." Used in pleadings before a court or opinions of a
court. ie. "The defendant claims, inter alia, that the plaintiff fails to establish . . ."
iura in rem: Latin the rights of things
iuris or juris: Latin law
jurisprudence: Theory and philosophy of law, which determines appropriate goals
and methods of justice.
jus civile: Latincivil law.
jus gentium: Latin, the law of nations.
locus standi: The right to stand before a court of law and bring or participate in
proceedings.
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natural justice: In its Roman context natural justice was an early form of
jurisprudence that argued for the existence of moral ways of behaving that were given
by various sources, including God and logic. This is different from the modern
interpretation of natural justice as the duty to act fairly that is effectively conflated
with natural law. When I refer to natural justice I use it in its original sense. The word
natural in this context is not associated with the modern term nature. Instead it
denotes a logic of right action or responsibility that was understood to be already in
existence and therefore not a product of human society.
natural law: natural law can be understood in early jurisprudence as a response to the
responsibilities set out by natural justice, expressed in the form of rules and laws that
govern right and just action.
patrimonio: Latin belonging to someone
plaintiff: A party bringing a suit in civil law against a defendant; accusers.
plea: A statement made by the defendant as to his/her guilt or innocence to the charge
made against him or her.
positive law: Man-made law, that is, law established by governmental authority,
especially that which has been codified into a written form (statutory law).
precedent: Judicial decision that serves as an example for how to rule in similar cases
prima facie: Latin for "At first sight." Self-evident; obvious. A prima facie case is
where the plaintiff presents enough evidence to win outright barring any defences or
additional evidence presented by the defendant.
res: Latin thing
res nullius: Things belonging to no one.
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In your opinion, then, it is not in the edict of the magistrate, as the majority of
modern lawyers pretend, nor in the Twelve Tables, as the ancients maintained, but in
the sublimest doctrines of philosophy, that we must seek for the true source and
obligation of jurisprudence Cicero1
Introduction
Theorists Bruno Latour and Alfred North Whitehead have both criticised the
conceptual separation of Nature and Society as something to be remedied in political
theory. Latour and Whitehead argue that the historical origins and development of this
separation reveal a way of viewing the world - from a human centre - that isproblematic. From a theoretical position this problem concerns social organisation.
Yet these theoretical contexts only begin to elucidate the empirical project - one of
addressing this separation in new methodologies at an institutional level.2
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!K();8>@ P#CC%@ !""&Q+ Whitehead, (1968, p. 74)Latour suggests that the terms nature and society do not designate domains of reality; instead,
they refer to a quite specific form of public organization. Latour terms this way of historically
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Anthropocentrism has recently been acknowledged as a problem affecting the fields
of environmental law and global climate governance. Existing methodologies are
criticised as incapable of protecting nonhuman interests in areas such as resource
management and climate change governance. In light of this, emergent legal theory
argues for the development of legal instruments that give rights to nonhumans.
Legal theorist Christopher Stone suggests that this method of decentering the human
in legal frameworks has the potential to achieve greater environmental justice through
broader (more democratic) representation of the interests - both human and nonhuman
- in legal frameworks.3
This thesis presents an historical survey of nonhuman rights, procedures and legal
ethics in early western law aimed at informing such projects. Evidence from the
Roman and medieval periods show that early Western societies had a more connected
and inclusive understanding of humans and things (res) in methods of social
organisation. The legal evidence examined in this thesis shows that this inclusivity of
nonhuman interests is reflected in both the jurisprudence and legal instruments of
both periods. Early jurisprudence included nonhumans in ideas of justice, in their own
right. This meant that nonhuman interests could be considered independently of
human interests. Evidence shows that this understanding in jurisprudence also
underpinned the development of legal instruments, and due process in court, that
allowed for nonhuman representation, trial and punishment. This sets out an important
precedent in Western law for emerging theory and practice in the fields of
environmental law and climate governance.
While Roman and medieval history might seem a remote source for a comparative
analysis of contemporary environmental law and governance, there are certainly
similarities between the jurisprudence (in relation to natural justice), legal instruments
and due process used in early societies, and those being considered in emergent legal
theory to implement rights for the environment.4While these histories certainly do
organising public life between things and people the old Constitution, arguing that by dividing
public life into two incommensurable houses, the old Constitution led only to paralysis. p. 53.%R*9=S*33@ Catherine (1996, 99). Stone, Christopher (1972, 2010).&Stone, 2010.
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frameworks. I argue that the move towards (re)establishing contemporary legal
instruments, that give some rights to nonhumans, calls for many of the same uses and
principles found under the historical examples of early law. I contextualise these ideas
within a political ecology framework (Bruno Latour, Jane Bennett and others), and
make an argument for how greater representation of things (res) in policy and law
will benefit the broader project of environmental governance. Moreover, I consider
the agency of things, how this contributed to their inclusion in premodern law, and
what their reemergence in contemporary legal theory might mean. These
considerations are engaged with political theorist Jane Bennetts question: 1;S
S;839 B;32)27(3 >** S* ); )(O* 2;8
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Literature Review
Roman Texts
Various attempts were made throughout the Roman era to gather and simplify
existing laws, beginning with the law of the Twelve Tables. The Twelve Tables arethe first known written records of Roman law and dated from the mid fifth century
BC. The original ivory tablets were destroyed when the Gauls sacked Rome in 390BC
and reconstructions are based on unofficial editions, the format of which is generally
considered unreliable.
While the reconstruction of the Twelve Tables forms an important basis for Roman
legal ideas, by far the most successful effort to collate Roman laws was that of
Justinian I, whose code superseded all previous laws and formed the Roman Empires
legal legacy. Justinians Code, formerly known as the Corpus Jus Civilis(Body of
Civil Law) is made up of four books examined here; The Codex Constitutionum
(Codex) a reconsolidation of all known Roman laws written by ten Roman jurists;
theDigestaor Pandectae(the Digest) drawn in 530-533 c.e. - consisting of the jurists
comments; theInstitutiones(The Institutes) - a complete exposition of the elements of
Roman law; and theNovellae Constitutiones Post Codicem(The Novels) - containing
several collections of new regulations issued by Justinian himself.
Matters of inheritance, contracts, property and persons remained the main categories
of a revised English use of Roman law in the eleventh century. However, Justinians
Code contains books on other important categories such as some under the law of
things (of which property law is a part) and divine law. These concepts found
primarily within theDigest contain the main body of laws involving nonhuman rights
and standing.
English Medieval Texts
The establishment of early English law in the twelfth and thirteenth centuries
produced a regular demand for what became the standard texts of study. These were
the Roman Corpus Iuris Civilis (introduced above) and the Corpus Iuris Canonica
(body of canon law). The later consisted of the Twelfth centuryDecretum collected
by Gratian to theDecretalsof Gregory IX (1234) as well as theLiber sextus,
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Constitutiones Clementinae, Extravagantes Johannis XXII,andExtravagantes
communes of his successors.
Around these texts, various layers of commentary were built up during the thirteenth
and fourteenth centuries, whether as marginal glosses or as separate volumes.
Scholars such as Azo and Accursius in civil law, and the canonists Bernardus de
Botone of Parma and Johannes Andreas produced commentaries which achieved their
own status as the standard supplementation to the main texts.
The first collections of English Law include the twelfth century text (exact date
unknown) Treatise on the laws and customs of the Kingdom of England written by
justice to the court of Henry the II Ranulf Glanville as well as BractonsDe Legibus
et Consuetudinibus Angliae(The Laws and Customs of England), composed primarily
before 1235.9These are the two main texts attributed with establishing a system of
English law. Both exhibit careful study of the main Roman texts and therefore act as
intermediaries between the earlier interpretation of the Roman texts and the later
development of English law. The differences between the two (written roughly one
hundred years apart) are that Bracton shows an interest in interpreting Roman law in
the creation of English legal practice, while Glanville is mainly concerned with
replicating Roman ideas and practices.
Also important to the literature on English medieval law were the yearbooks, which
were books of legal cases or reports published annually in England from the thirteenth
to the sixteenth century. The development of English common law was based on the
law of the case something similar in premise to the legal principle of precedent.
Lawyers and courts relied on previous court decisions that involved similar issues of
law and fact. The law of the case could not take hold, however, until cases were
recorded, reported, and eventually published. The English Year Books, which were
created in about 1290, are the first example of a reporting system. Though they were
informal and often contained running commentary about the judges' personalities and
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the lawyers' quips, the Year Books were referred to increasingly by judges and
lawyers.
During the reign of King Edward I (1272-1307) legal material began to be collected
into separate books for each year. During this early period the Year Books were very
informal. They contained accounts by anonymous scribes and law students of
courtroom proceedings and arguments that helped explain the judicial decision. The
quality of the reports varied according to the abilities of the note takers. Despite these
shortcomings, the reports conveyed basic procedural information to lawyers and
students, but they stated few rules of law.
The Summa Aureawas another important work written by the academic and
ecclesiastical lawyer William of Drogheda in the 13th century. It is concerned solely
with legal practice, procedures and forms for canon law, and presenting and winning a
case. The Summais very incomplete, and appears to consist of the first of the six
projected books of the work.
English Legal History John Seldon and the Seldon Society Publications
The publications of The Seldon Society, established under the patronage of Queen
Victoria in 1887, makes up the main historiography of early English law. The society
has published prolifically since its establishment, mainly with the aim of printing
extensive edited collections of manuscripts from various archives, including the
national archives and many borough archives. The focus of the collections vary and
include the history of the law, the development of legal ideas, the legal profession, the
courts and legal institutions, individual judges and lawyers, as well as legal literature
and records.
The society was based around the work of its namesake, the 17 thcentury English legal
historian John Seldon. Many of Seldons original works are held in the Duke
Humphries reading room at the Bodleian in Oxford. Seldons collection of works give
a detailed account of English legal history with particular interest given to the period
prior to the Norman conquest of England in 1066. The value of the texts, for my
purposes, were their close accounts of the transitions in legal thought over the
medieval period. They also form an important compilation of English law from its
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formal origins in the twelfth century to around the fifteenth century when legal ideas
and practices had begun to be influenced by Renaissance thought.
Interestingly, the broader body of Seldon Society publications consulted during
research contained no evidence of a continuation of nonhuman rights or standing in
English law: this despite primary sources of early English jurisprudence (Bracton and
Glanville) containing many references to the Roman law of things. 10In Bractons
The Laws and Customs of Englandthis included a complete reproduction of the
Roman categories under the law of things, alongside original interpretations of natural
justice and its application to nonhumans (see Chapter Three, pp. 80-89).
The absence of any case notes or evidence of legal procedures reflecting these aspects
of early English jurisprudence in the extensive Seldon Society publications certainly
suggest substantial inconsistencies either in the empirical use of these ideas in
jurisprudence, or in the Society publications themselves (see Chapter Two, pp. 62-
64). As indicated in several of the editors prefaces (reference here), the Society
publications may have been selective in the material published in order to maintain an
editorial focus on the development of laws and practices that have more contemporary
relevance.
Although it is likely that there was a decrease in the practice of nonhuman standing,
further research may reveal a writing out of this practice from English legal
historiographies. Although outside the scope of this thesis, establishing such a claim
would involve revisiting the archives holding the primary sources translated and
published by The Seldon Society - in particular the borough archives where
customary practices would most likely to have been mentioned in records.
Contemporary Legal Theory
Contemporary environmental legal theory could be thought of as starting with
Christopher Stones 1972 edition of Should Trees Have Standing: and other essays on
law, morals and the environment. This pivotal text generated a body of work from
various authors questioning the anthropocentrism of Western legal frameworks. Most
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notably was the work of Professor of International Law, Catherine Redgwell
(University College London) and Professor of International Law and Human Rights,
Francesco Francioni (European University Institute). Redgwell (1996, 99) and
Francioni (1996, 2006, 2008) both argue for legal instruments in international
environmental law that rely on inherent rights for nonhumans under law in order to
better protect natural and cultural heritage. This work spurred my original interest in
early law instruments and the evidence of nonhuman rights existing in early western
legal frameworks. My interest was also based in an understanding that throughout
history the law has reflected normative social values.
Thus I formed my research question; are Redgwell and Francionis calls for new legal
instruments plausible when we consider these instruments must be based in ideas that
are contrary to social norms? And, is the emergence of this and other theory (Latour,
Whitehead), which calls for a decentring of the human in public life, a sign of
ecological actors forcing social change?
International Environmental Law
The surviving manuscripts and documents of early law are not just the domain oflegal history. They are also important as empirical evidence for other disciplinary
analysis, particularly the social sciences. As the Seldon Society has noted of English
history the only continuous records have been legal records, [and] there is in them a
wealth of incidental information on every aspect of contemporary life and conditions
to be found in no other source.11Legal historiographies are already familiar with
interdisciplinary approaches to the extensive body of legal historical material.
Any comparative analysis of this material with contemporary law requires an
extensive survey of the main fields of environmental law. This is critical in assessing
the legal instruments used in cultural and natural heritage laws and treaties, as well as
contemporary jurisprudence, and in contextualising the emergent legal theory
discussed above.
11http://www.selden-society.qmw.ac.uk/ accessed 30/10/11.
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My reading here was based around the following themes: international environmental
law and law-making (including international politics of the environment); the
principles of environmental law; the implementation and enforcement of international
environmental law; non-compliance procedures; nature conservation and biodiversity
with specific reading on the Ramsar convention on wetlands (Ramsar, Iran, 1971),
the World Heritage Convention (UNESCO, 1972), the Biodiversity Convention (Rio
de Janiero, 1992) and its supplementary convention, the Cartagena Protocol on
Biosafety (2000); and lastly, climate change, with specific analysis of the United
Nations Framework Convention on Climate Change (FCCC,1992), the Kyoto
Protocol, 1997, the FCCC Conference of Parties in Bali, (2007), the 15th Conference
of Parties (COP-15) in Copenhagen (2009), and the COP Cancun Agreements (2010)
which together form the main basis of international climate regime.
Contemporary Social Theory
I have already mentioned the work of Bruno Latour and Alfred North Whitehead as
important in guiding the conceptual approach of the thesis. More recent work includes
that of Isabelle Stengers (2010), Jane Bennett (2010), Donna Haraway (2008) and
Nigel Clarke (2011). In engaging with Latours Politics of Nature (2004) which
may be generally considered as a politics of things - Stengers and Bennett set out a
broad theoretical framework for political theory that develops some of Latours key
ideas. They move Latours connectedness of things into political thought as a way of
reforming institutional practice. This is highly relevant to my comparative analysis of
legal instruments based in nonhuman rights and to any call for these rights to be
institutionalised in international law practice.
Haraway develops an argument for an ethics of participation and inclusion of
nonhumans that is in fact a useful basis for thinking about the inclusion of nonhumans
in the ethical frameworks not just of contemporary society, but how this might have
operated in past societies. Clarke takes Latours re-constitution of people and things
further and considers this in an environmental context of earth processes such as
climate change and natural disaster. These theoretical developments were most useful
in framing the conclusion of my thesis where I consider how early law - because of its
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more inclusive politics around nonhumans - could prove significant in reforming the
current institutional governance of environmental concerns.
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Chapter One - The Law of Things: Nonhuman Rights in Roman Law
Introduction
The eleventh century saw the first production of scholarly, legal texts that defined an
English system of civil and canon law. This process was aimed at consolidating and
revising Roman laws and integrating them with the customary laws of Indigenous
Britons. This project continued throughout the medieval period and underpinned the
legal frameworks of Britain, its expanding colonial empire, and much of the worlds
legal systems.12
Yet while many of the legal institutions and instruments developed by the Romans
persisted in English civil law, many other laws that applied to nonhumans did not.
The main English legal texts after the Norman Conquest of 1066, and other related
manuscripts, show that this was particularly true as secularisation developed during
the early Renaissance in Europe. 13The gradual separation of Church and State and
the rise of positive law saw nonhuman rights (that had been protected under divine
law) and some ethical concepts that underpinned natural law abolished.14
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Roman law had made provisions for the various roles and functions of nonhumans in
early Roman society under the so-called law of things. This codification of laws
relating to the nonhuman world included inanimate objects and animals, and was
underpinned by concepts of rights for nonhumans in natural jurisprudence. 15While
contemporary law is still familiar with the law of things (res) it now relates almost
exclusively to real and personal property. What has been lost from modern
adaptations of Roman law is the right of a thing to stand before the court or to hold
rights of its own.
In contemporary Western law the nonhuman exists in legal frameworks only in
relation to human rights. Importantly, this poses significant problems in contemporary
environmental law whereby a thing cannot be protected in its own right, unless it
can be aligned with human uses or values.16Legal mechanisms that maintain a
dependence on human interests in order to uphold the interests of a thing (such as a
rainforest or glacier) struggle to adapt the logic of human interest to the more
remote ecologies of climate geographies, among other concerns. There are no legal
instruments in place that can protect ecologies critical to the global environment in
their own right even given the implications for human societies if these ecological
systems were to fail.
This has been one of the reasons that the question of nonhuman rights, including
rights to stand before the court, has once again emerged as a theme in jurisprudence.
Among others, legal scholars Christopher Stone and Catherine Redgwell have been
interested in new mechanisms that rely on the concept of nonhuman rights. Stone
explores these ideas in a recontextualised sense of natural justice. Redgewell asks
how nonhuman rights might be used to expand and strengthen natural and cultural
heritage laws. Stone and Redgwell both argue for a mechanism that does not rely on
human rights frameworks, but instead establishes the intrinsic rights of nonhumans in
certain contexts. 17 Such concepts of nonhuman rights might provide the basis for
theorising the rights of ecological and earth systems (such as those driving global
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climate) that are more remotely connected to human interests. This would potentially
give environmental law a rights based framework able to protect natural systems
critical to global climate, and address questions of human (and nonhuman)
intergenerational justice.
From this position concerned with environmental protection, early Western law
informs contemporary legal thought by providing evidence of arguments within
jurisprudence, and the development of legal procedures, that included the concept of
nonhuman rights. This chapter interrogates the logic underpinning laws relating to
nonhumans in the main Roman texts through an analysis of legal frameworks and
language. It highlights historical evidence from this period of three important facets Iargue are relevant to contemporary legal theory: a more inclusive and functional
understanding of the law of things; evidence of nonhuman rights in institutional
practices; and evidence of a more integrated concept of humans and nonhumans.
Early Roman Law: An Overview
Roman law dealt with matters of succession (or inheritance), obligations (including
contracts), property (including slaves), and persons. Although the rulings of
magistrates were important, most laws were passed by assemblies dominated by the
patrician families or Roman nobility. Later, Emperors bypassed these forms and
issued their own decrees. As legal frameworks further developed under the early
Roman Imperial era (44 BC to 117AD) the interpretations of individual jurists also
became important in shaping law, and many of the texts compiled towards the fall of
the Empire (395-476 AD) were contributed to, or overseen by, prominent jurists.18
Over the course of Roman history, from the Republic to the Empire, there were many
phases of legalistic development.Jus civile,or civil law, developed during the period
of the Republic (75331 BC) and was based on custom (unwritten laws) or legislation
(written laws). While civil law applied only to Roman citizens, the expansion of the
Roman Empire gave rise to the other major legal framework inherited by modern
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Western law -jus gentium, or the law of nations, which applied to matters of justice
involving foreigners.
Roman legal texts were consolidated in two major commissions; the first under
Theodosius II published in 438AD, and later under Justinian I published in 534AD.19
Together these major works documented Roman law as it was practiced from the
time of the founding of the city in 753BC until the fall of the Western Empire in the
fifth century AD.20They hold a comprehensive and comparative history of Roman
jurisprudence that now forms the basis for the law codes of most countries of
continental Europe and derivative systems elsewhere.21
The Law of Things
The Roman law of things (res) was divided into the law of property (things in a
restricted sense), the law of succession and the law of obligations.22While the law of
things survives today as a cardinal feature of modern civil law, things are
understood as economic assets only, showing a greatly reduced set of principles far
removed from their original jurisprudence. An examination of the Roman law of
things reveals a broader, more complex set of principals, and a logic that sort to
include concepts of nonhuman rights as a mechanism that could be used to protect or
manage broader social interests.
Legal historian William Buckland notes that main classifications used in the Corpus
Juris Civilisgroups things according to the rights existing over them. They were
eitherpatrimonio(belonging to someone) or extra-patrimonium, meaning things that
are not in commerce, or are owned commonly.23Within the grouping extra-
patrimoniumthere are the following classifications:
19Sirks, A. J. B., (2007).
20However it remained in use in the Eastern, or Byzantine, Empire until 1453. Buckland, W.W. (1921)
pp. 33-41.21Roman law also forms the basis of legal frameworks in some countries, such as Germany, that were
never part of the Roman Empire. Ibid22http://www.notarypublic.ie/download/Roman%20Law.pdf
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Table 1. First Categorisation ofRes from Justinians Corpus Juris Civilis.
Category Translation
Res communes common propertyRes publicae public property
Res universitatis property of a corporation
Res nullius property belonging to no one
Buckland notes that Justinian also gives a second classification of resbelow:
Table 2. Second Categorisation ofRes from Justinians Corpus Juris Civilis.
Category Examples
res corporales que tangi possunt things which can be touched
for e.g. physical objects.
res incorporales que tangi non possunt - things which cannot be
touched for e.g. abstract conceptions, notional
things and rights.24
The later categorisations are closer to those definitions given by the pagan jurist Gaius
who, writing circa 161AD, distinguished between things subject to either divine or
human right - further categorised as corporeal and incorporeal things.25
Buckland
notes of the second classification, above, that res incorporalesdid not include rights
relating to humans but instead iura in rem, or the rights of things. However, it is the
first system of classification that is more consistently referred to throughout the
Corpus Civilis.WhileIura in remis not referred to directly under this classification, I
argue that the concept of nonhuman rights is established under the various
subcategories of divine law, itself a subcategory of res nullius, as set out below:
!%
I87O3(69@ P#C!#Q+!&Ibid,p.187.
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Table 3. Categories ofRes Nulliusin Justinians Corpus Civilis
Category Subcategory Examples
res sacrae Things consecrated by priests, like
churches, their contents and sites.res sanctus The gates and walls of a city.
divini iuris
[divine law]
res religiosae Tombs and burial grounds.
Wild animalshumani iuris
(Relates to the
acquisition of things
formerly res nullius)
No subcategories
Abandoned property
The way laws were categorised provides some important insights into the social
structures and cultural logics of the time. In particular, it highlights the conceptual
approaches used in the development of early jurisprudence and their complexity -
challenging the widespread idea that early law was irrational. The following
sections address each category of divini iuris(divine law), from Table 3., and pay
close attention to the ways in which laws under these catagories were applied in
different scenarios.
This comparative analysis develops a detailed study of the roles nonhumans were
understood to have in Roman in society, and how jurisprudence and the law
developed to reflect these roles and their associated rights. This section also builds a
basis for examining how these ideas influenced the establishment of English law,
which is explored further in Chapter Two. Given the remoteness of early law to
contemporary legal logic it is important to focus on the cultural relativity of early law
- on how the law resolved conflicts and managed the social concerns of the time. As
the broad aim of this thesis is to consider how early law might inform contemporary
legal theory, there is a greater focus on material that highlights the conceptual
approaches toward addressing social and political concerns, rather than the concerns
themselves.
!,Gaius@ The Institutes, Book 2.
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to play in the pre-Roman era but particularly as borders between conflicting ideas
sets the precedent for their specific mention under the Roman law of things. The later
Roman evidence suggests that these historically established functions of city walls
became increasingly important evident in the specific laws dealing with public acts
of violation against them. An expanded understanding developed that included, as
Sabinus suggests, the concept of the city walls being inherently sacred in an
autonomous and representative sense, that warranted protection under res sanctus.
While the evidence shows that the legal principle of res sanctusdeveloped because of
political and cultural ideas to do with social boundaries, the principle itself had a
unique function. It acted as an instrument that could protect the city walls a
nonhuman entity - without relying on laws pertaining to human rights. While the city
walls certainly represented ideas that were important to human society, in practice
these interests were relatively remote. Subject to the principals under res nullius, city
walls were classified as belonging to no one entity or indeed, even a common entity.
Buckland has noted how there are no obvious reasons why the ownership of walls
might not have been regarded as vested in the city.
Therefore, in practice, the law protected city walls in their own right. A lack of
concept of ownership in this particular example is consistent with other objects
protected under divine law (as discussed below) that rationalised the integral rights
and autonomous status of these structures under law.33Yet distinct from other
principles under divine law,Res sanctuscould be understood as an instrument that
protected important human interests, such as security. If one considers the possibility
that the ultimate purpose of the instrument was to protect human these interests, then
the logic of res sanctusprotects these interests by removing all legal recourse to them.
I suggest this forms an important example of how legal instruments that engage with
concepts of nonhuman rights, such as those being considered in contemporary
environmental theory, might be used to protect nonhuman entities. Furthermore,
protecting these entities in their own right, could be central to protecting human
%!
N*(3*G (99< )1() the idea of pollution is a secondary elaboration upon the primary desire forretribution P!""-Q B+ !,+%%I87O3(69@ 0+ 0+@(1921) p. 42.
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interests. On this basis, I suggest that res sanctuscould inform the development of
new legal instruments in environmental law for particular use in the governance of
climate change. Evidence shows that the principal of res sanctus is particularly robust
in situations where the rights of the nonhuman conflict with human interests or
rights (such as the right of passage and building rights). I suggest this is an important
historical precedent in Western law that could also inform the dilemma of either;
protecting nonhuman entities that cannot be directly linked to human interests or
rights under law; or protecting nonhuman entities whose rights or interests conflict
with human rights and interests.
Res Sacrae Sacred Things and Places
While res sanctusshows that structures could maintain independent rights under
Roman law, res sacrae shows not only sites and objects holding rights of their own,
but in many cases these rights taking precedence over human rights. This is
particularly evident when private property rights were overridden. Once a site had
been sanctified it ceased to be in commerce and could no longer be owned, either
privately or collectively. Furthermore, if through sanctification a site became
significant to the public, the owner of the surrounding land was required under law to
provide access.34
Firstly, it is important to consider the legal guidelines for sanctification under Roman
law. For example the third century Roman jurist Ulpian states that it must be
understood that a public place only becomes a sacred one when the Emperor has
dedicated it or has granted a power of dedicating it. This statement contradicts that
made by Roman Emperor Martian (450457AD) that things sacred must be made so
by an act of the whole people rather than an individual... this would instead make the
thing profane.35
While these accounts do vary, they both point to res sacraeas a legal instrument that
protects the public use of such sites through the creation of what is effectively a
%&_8
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commons. Ulpian adds that sacred places are those which are dedicated to the people
whether within the civitasor in the countryside.36
Yet, unlike a commons that protects a site as the common property of a select group,
inBook IIIof The Institutes(Corpus Juris Civilis)an excerpt from Martian refers to
buildings such as churches, consecrated sites and objects as things sacred or religious
or sanctified are no ones property. So while a sacred place might in effect behave
like a commons in terms of public access, divine law provides an instrument that
protects the site from misuse by institutionalising the site as res nullius.
Distinct from the legal concept of terra nullius, orunclaimed land, a sacred site
protected under res nullius is claimed on behalf of no-one as a proxy to absolve
human rights over a site or thing. This is a unique instrument that protects a
nonhuman by separating this right of ownership from the framework of human
rights. Yet as consecration was understood as permanent, and importantly could be
transient across different sites (as referred to below), this instrument both establishes
itself as autonomous, while also being firmly included within the common legal
frameworks used for everyday matters of human society.
It is worthwhile considering the commons as a legal instrument under res nullius in
relation to what later became known by ecologist Garrett Hardin as the tragedy of the
commons. In short, this tragedy was the depletion of a finite common resource by
its collective owners based on each individual acting in self-interest, and without
regard for the sustainability of the resource as a whole. While a commons is often
aligned with ideas of social justice because of equitable access to the resource, there is
no legal instrument in place that protects the resource itself. A comparison between a
sacred site sanctioned under res sacrae as no-ones property, and a site owned
commonly such as grazing lands, shows that while the resource of the two differs
considerably, both allow human access and use of that resource. Yet, only the
instrument under res sacraehas the power to protect the resource itself because it has
effectively established the autonomous rights of that resource.
%-Edict, Book 68.
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Obviously, the Roman concept of divine law is defunct in a modern context. However
the principle of an institutionalised lack of ownership or res nulliuscould be
extended in useful ways in environmental law. Whether ownership of a site or thing
(or resource) under divine law in its original context could ultimately be seen to rest
in God or not is irrelevant. What is important is that a human institution established
the integral rights of nonhumans under law, while at the same time irrevocably
removing human rights (at least within that society) as a measure to control human
use of a site or thing. Given the historically close relationship between religion and
politics, the obligations of the Roman state to preserve sanctified sites or objects was
likely coupled with a political pragmatism. It seems likely then that this relationship
was in part at least, the mobilisation of religious beliefs in upholding the pragmatic
functions of this clever and highly effective legal instrument.
One of the most interesting principals ofres sacraeis that the agency of a sacred
object or building to remove property rights remains even once the object or building
has been removed.For example, Martian states that once a building is consecrated
even if it is destroyed, the site on which it stood remains sacred. 37This suggests that
ideas of sacredness were conceived in both the building/object and its space.
Sacredness was understood as an entity in itself that maintained ownership.
In terms of environmental law and climate change, Pomponius (Readings, Book 2)
statements on public property are an interesting comparison here. Pomponius stated
that just as a building erected in the sea becomes private property, so too one which
has been overrun by the sea becomes public property. This shows a complicated
understanding of what constitutes ownership and property rights. While an area of the
sea cannot be privately owned, a space can be erected and claimed above it. Yet the
sea, as public property, can reclaim private land on shore. This fluid notion of
ownership and the transience of public and private space contrasts starkly to the
comparative permanence of a sites status as res nulliusunder the legal instruments of
res sacrae.
%/_8
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In another example, there is a distinction made between a sacred place and a
sacrarium, where sacred objects are housed. A sacrariumcan be created even on
privately owned land and to those who wish to free such a place from its religious tie
do so customarily by evocation of the sacred things there from.38
Therefore, the
rights effectively rest with the objects themselves that have the power vested in them
to remove the property rights held over whichever piece of land they are housed. The
fact that this right is understood to be transient only increases the objects agency.
Most importantly, the right is an inherent right what might be understood as a
natural right independent of the dedication of an Emperor or other public
dedication.
Ulpian offers a third distinction stating that things need not be either sacred or
profane (as Martian suggests), but only confirmed by some sort of sanction even
though it be not consecrated to a god, as is the case with city walls. 39Importantly
Ulpian adds that a sacred thing is not subject to pecuniary valuation. Similar to
sacred sites, sacred objects are outside commerce and therefore inconsistent with
other categories under the law of things that deal with things or sites in monetary
terms.
Res ReligiosaeTombs, Funerals and Burial Grounds.
The third subcategory of divini iuris is res religiosae, or laws presiding over tombs,
funeral processions and burial grounds. Similar to the sanctification of land or objects
under res sacrae, a burial rendered a site res nullius. Burial rights were complex and
took precedence over other laws, again overriding public and private property laws.
Furthermore, the Twelve Tablesof Roman law (Law XVII, Table X) states that No
one can acquire by usucaption [a method by which ownership of property can be
gained by lapse of time] either the vestibule or approach to a tomb, or the tomb itself.
This means that as was the case with sacred sites under res sacrae the site was
permanently removed from any future commerce.
%.Justinians Digest, Vol. 1, p. 26.%CIbidp. 26.
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Corpses also held special rights of passage. For example, people were restricted by
the provincial governor from obstructing the transport of a body in any way.40The
second century Roman jurist Papinian refers to both the burial and transport of
corpses in the following statement:
There are persons who, although they cannot make a place religious,
nevertheless are entitled to seek an interdict concerning the carrying of a dead
man for burial there, for example, if the holder of the title carries or wishes to
carry a dead man for burial to a farm whose fruits belong to someone else. If
he is prevented, he is entitled to seek an interdict, as a result of which there
will be an inquiry into the rights of ownership. The same applies to a partnerwho wants to carry a dead man for burial to a common farm against the wishes
of the other partner. For in the public interest, in order that corpses should not
lie unburied, we ignore the strict principle, which is quite often left out ofaccount in doubtful religious disputes, because the highest principle of all is
that which serves the interests of religion.41
While there are public health concerns here, it is important to note that the pragmatic
and political uses of divine law also means that religious principle took precedence
over conflicting interests such as property disputes. A corpse, like an object under res
sacrae,could also be moved for a number of reasons creating a dilemma of how to
zone the land it had previously occupied.42JustiniansDigeststates that the better
view is that a cenotaph [an empty tomb] also is a religious place, Virgil being a
witness to this point.43Of note here is the similar logic that underpins res sacrae,
whereby the site of a consecrated building remained under res sacraeeven if the
building had been removed.
All these examples raise questions around what appears to have been shifting ideas of
divinity operating across transient spaces. While I have suggested that sacredness
was understood as an entity in itself that could effectively own a site under law, as
an entity it also touched and remained in the objects and sites in which it was
40Ulpian,All Seats of Judgment, Book 9.
For example, Marcian,Institutes, book 3states that corpses that were lawfully buried are not to be
disturbed or transported, although it may be possible to move the sarcophagus itself to a more suitable
place.JustiniansDigest, Questions, Book 8.&!4) ?(3 A8>2(3 1(9 ;778>>*9 ;
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invested. However the inconsistencies between practices, while quite possibly
bureaucratic, also suggest the existence of a hierarchy of cultural importance that
connects these various sites and objects. This raises the question of whether the
corpse, the ritual or the site takes precedence over the other in rendering another, or
remaining itself sacred. Furthermore, this inconsistency suggests that sanctity is a
legal entity that can shift inside this hierarchy of sites and objects giving and taking
away a things rights under divini iuris.
A comparison with a modern context is useful here. Clause 9 of the 1847 British
Cemeteries Causes Act (1847) states that:
the company shall not sell or dispose of any land which shall have been
consecrated or used for the burial of the dead, or make use of such land for
any purpose except such as shall be authorised by this or the special Act, or
any Act incorporated therewith (and) the company shall define by suitable
marks the consecrated and unconsecrated portions of the cemetery (Clause24).
While ideas of sacredness are still evident in modern secular law, the removal of
bodies and de-consecration of land can return it to public or private use. Thus in the
modern context, sacredness is not considered to permanently remain in a site once it
has been consecrated and consecration is understood as performed by a priest rather
than the corpse itself. In its most practical form sacredness is simply attributed to a
site, or not, as a matter of town planning. Yet it does highlight how in modern law
concepts of divine law were indeed used for diplomatic and social reasons.
The fact that corpses were categorised under res nullius is intriguing. In death, a
human body becomes nonhuman or a thing (res). This has remained the case in
modern Western law. Legally, we do not own our bodies. They remain technically
nonhuman or no-ones thing. Medical ethicist Donna Dickenson suggests that the
historical precedent of this legal categorisation of the human body under res nullius
developed because human tissue had no commercial value attached to it and so the
issue simply did not arise. With recent advances in medicine this is no longer the case
and if we lose a limb or if an organ is taken from our bodies, Dickenson points out
&%p. 25.
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that it is in fact not ours under law because of its technical lack of ownership under
res nullius.44
Still, in death, a corpse is not completely disconnected from human frameworks. As
noted previously, corpses and sacred objects had their own power under Roman law
that established a site as sacred and they maintained this status even after they had
been exhumed or moved. Interestingly, Ulpian extends this same law to slaves. He
states that a place where a slave is buried is religious, highlighting a consistency of
legal interpretation across class groups.45
Yet this interpretation is by no means consistent. For example, Justinian notes in his
Digestthat the body of no dead slave shall be anointed; nor shall any drinking take
place at his funeral, nor a banquet of any kind be instituted in his honor.46
So too,
there were particular honours reserved, and represented by wreaths, that can appear
not to have applied to slaves:
Anyone who has rendered himself deserving of a wreath, as the reward of
bravery in war, or through his having been the victor in public contests or
games, whether he has obtained it through his own exertions or by means of
others in his own name, and by his own money, through his horses, or his
slaves, shall have a right to have the said wreath placed upon his dead body, orupon that of any of his ascendants, as long as the corpse is at his home, as well
as when it is borne away; so that, during his obsequies, he may enjoy thehonor which in his lifetime he acquired by his bravery or his good fortune.47
&&IID &@ !.)1N*B) !"#"@ H*D#0B) I*2%-&,UlpianBook 25.&-The Tables are understood to have been written primarily for the plebian or lower classes so thatthey would have knowledge of laws previously known exclusively within the patrician class.&/Twelve Tables, Law XIII, Table X.Table Xof theTwelve Tables,which refers to funeral rites more generally, makes similar restrictions
without reference to slaves in particular through the following laws:
No wine flavored with myrrh, or any other precious beverage shall be poured upon a corpse
while it is burning; nor shall the funeral pile be sprinkled with wine (Law XI).
Large wreaths shall not be borne at a funeral; nor shall perfumes be burned on the altars (Law
XII).
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Legal matters relating to slaves fell under the law of things because slaves were
consideredpatrimonio,or property belonging to someone and having a monetary
value.48
Therefore slaves were not considered strictly human in this legal context.
For example, while male and female slaves were dealt with equally in burial (which
was not the case with freemen), funeral expenses were incurred by their owners under
similar guidelines to the burial of animals.49
Yet despite these inconsistencies in
practice, it is clear that in death a human corpse attained some level of equality under
the classification of reswhile still maintaining a connection to human frameworks
such as class.
In another example from JustiniansDigestUlpian states that anyone who spends
something on a funeral is held to contract with the deceased, not with the heir. 50
While a corpse as a nonhuman thing under res nullius is clearly not able to enter into
an exchange, this example shows that a deceased (freeman) can still symbolically
participate in a commercial transaction.
This particular law suggests that divine law was exercised to restrict human rights for
diplomatic purposes. In this case res nulliusprevented access to the deceased persons
estate for the reimbursement of funeral expenses. The important point to note here is
that all these examples around funerary practices all extend the definition of res
nulliusand show how classifications of humans and nonhumans were at once flexible,
yet in many ways closely connected.
The transformation of funeral expenses offers further insights here. Early twentieth
century Roman scholar and translator Samuel P. Scott suggested that the "Long
Coron" or large wreaths:
would seem to refer to garlands of excessive size, exhibited by way of
pomp and ostentation at the celebration of funeral rites. The greater part of thelegislation of this Table was evidently framed for the correction of the
inordinate display of wealth and luxury already becoming prevalent at the
&.I87O3(69@ B+#.!+&CUlpian,Edict, book 25, and Papian,Replies, book 3.However, free women had some particular laws pertaining to funeral expenses. The laws governing the
burial of women were common to other property laws in that the expenses came from her dowry where
possible, the onus lying with whichever of her husband or father had received the greater sum from herdowry after death, as per the agreements made when her husband received the dowry.,"Ibid.
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burial of the dead.51
The legal concern with ostentatious funerary practices was long standing. In 177 BC
the Greek philosopher Celsus stated:
one ought not to bury ornaments and such like with the body, as theuneducated do. This action, called the action for funeral expenses, is based on
considerations of justice and fairness. It only covers expenses for the sake of
the funeral.52
In both these examples a law under res religiosaeis used to restrict cultural practices
and religious ceremony. Although these restrictions were about the conservation of
wealth, it is important to consider how they were connected to social values, rather
than religious practices. Indeed, examples of these laws relating to funeral expenses
seem to dismiss many religious practices altogether. For exampleLaw XV Table X
discourages the use of precious beverages or the burying of precious ornaments that
formed part of many Christian and pre-Christian burial ceremonies. It also states that:
Gold, no matter in what form it may be present, shall, by all means, be
removed from the corpse at the time of the funeral; but if anyone's teeth
should be fastened with gold, it shall be lawful either to burn, or to bury it
with the body.
The social and cultural value placed on both precious objects and austerity in funeral
rites often took precedence over religious ceremonial funerary practices. In effect,
divine law had many pragmatic uses that could be quite separate from religious
concerns. Although there was some inconsistency over different time periods, Roman
attitudes as expressed through legal concepts of reverence towards the dead and the
agency of corpses suggest that a hierarchy of nonhumans operated and that this
hierarchy was understood in wider Roman society.
Conclusion
This chapter has investigated three aspects of Roman law that highlight how Roman
society had a more inclusive understanding of nonhuman participation in the social
and cultural aspects of everyday life. It has focused on how modern interpretations of
Roman law have generally ignored evidence of a more inclusive and functional
understanding of the law of things. This chapter has also drawn upon evidence in
,#Law XI, Table X.
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nonhuman by separating this right of ownership apart from the framework of human
rights.
Yet as consecration was understood as permanent and importantly, could be
transient across different sites as I will discuss below this instrument both
established an autonomy yet remained firmly included within the common legal
frameworks used for everyday matters of human society. While a sacred place might
behave like a commons in terms of public access, divine law provided an instrument
that protected the site from misuse by institutionalising the site as res nullius.
Finally, legal instruments under res religiosae mirror these principles. As was the
case with sacred sites, under res sacrae the site itself was permanently removed from
any future commerce.54
It appears, particularly in the precedence of burial rights, that
sacredness was understood as an entity in itself that could effectively own a site
under law. It was also understood to touch and remain in the objects and sites in
which it was invested. This suggests a complex hierarchy of cultural importance
existed that connected these various sites and objects and positioned the instrument as
adaptive over time to social needs. The idea of sanctity as a legal entity shifted
along this hierarchy of sites and objects giving and taking away a things rights
under divini iuris.
Under res religiosaelaws relating to funeral expenses show that nonhumans could be
under res nullius, while also remaining connected to human law or social
frameworks, such as class. In this case, the shaping of cultural practices even the
effective censoring of some religious ceremonies for the more magnanimous
purposes of conserving precious resources, controlling crowds and influencing public
behavior was related to both the human and the nonhuman.
,%
C
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&!
Chapter Two: The Right to Stand? Nonhumans in Early Legal
Procedure
Introduction
Standing or locus standi,is the legal term for the ability of a party to go before a
court@
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&%
Historians and legal scholars have debated the various functions and intent of
nonhuman standing before courts of law. Legal scholar Raphael Sealey has noted that
Roman trials were often an important diplomatic gesture of retribution and a
secondary consideration served to banish objects from social spaces that were
considered polluted by acts of violence. Importantly, all of the functions of nonhuman
standing are understood by Sealey to be symbolic in nature.57
However these functions of retribution and diplomacy also indicate complex social
mechanisms at work. Indeed, legal scholar Walter Hyde suggests nonhuman standing
before the court was made possible because historically there was some
acknowledgement of the participation of the nonhuman in the broader moral fabric of
society.58
The trial and punishment of nonhumans should not be seen as part of a pre-modern
ignorance of Enlightenment scientific and rational thought. Such a teleological view
discounts the logic at work in early legal philosophy a logic that was radically
different to post-Enlightenment thinking. The historical legal procedures of locus
standiare an important case in point here. They corroborate examples from chapter
one of the widespread rationale operating in pre-modern Europe that assumed a
greater inclusion of nonhumans in ideas of the social.
In chapter one I suggested that legal instruments under res nulliusrelied on the
autonomous rights of nonhumans to achieve various social and cultural aims. This
chapter interrogates nonhuman standing before the court by comparing cases
involving nonhuman defendants with the establishment of procedure in early English
law. The legal procedures examined here show how nonhuman rights might
translate empirically in early legal trials. The procedures will be examined based on
the direct trial and punishment of nonhumans under such areas of law as the Roman
laws relating to pauperies (damage caused by animals) as well as the symbolic use of
nonhuman objects in customary procedures.
57Sealey (2006) p. 36
58Hyde, (1916) p. 54.
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&&
I also examine the transitions between the practice of Roman law and the
establishment of English law in the twelfth century. The lack of evidence of a
continuation of laws and procedures relating to nonhumans in English law points to a
dramatic shift in the understanding (or lack of understanding) of nonhuman rights that
underpinned the development of modern law. Historiographies suggest that as early as
the twelfth century nonhuman rights and standing were effectively written out of
English legal procedure (although some ideas remained in jurisprudence, for example
Bractons The Laws and Customs of England).
While this effacement was indeed quite sudden and widespread in terms of the
continuity of legal texts and historical evidence, the point must be made that, given
the long history of nonhuman standing, it is probable that forms of nonhuman rights
continued in oral based customary law practices in England. If this was the case, it
would have been a practice consistent with other countries such as France, Italy and
Germany. The trial and punishment of nonhumans was in fact a widespread practice
across Europe from Ancient Greece, to the establishment of Roman law, and
examples occurred occasionally into the late seventeenth century.59
Roman legal procedure still forms the basis for modern procedure in civil-law
countries. While many of the Roman laws discussed here are no longer in use, a
review of due process in cases involving nonhumans is important because it
provides a precedent in Western law for the procedures followed around nonhuman
rights discussed in chapter one. Furthermore, a review of due process in relation to
nonhuman standing sheds light on the practicalities of institutional procedures that
allowed the inclusion of these rights in legal frameworks.
I suggest this historical process provides some important considerations for and
connections with current dilemmas of nonhuman standing in contemporary
environmental legal theory. In particular, the historical contexts of due process serve
,CDarren Oldridge notes for example that customary law in France, Italy and Germany permitted suchtrials and the cases were recorded in Handbooks on customary law, or customals . Oldridge adds
that thirteenth century French jurist Philippe de Beaumanoir was the author of one of the earliestcustomals to mention the practice. p.44.
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&-
to seize the offending animal or slave, and hold it as security until his claimwas satisfied.64
Scott noted that the emphasis on the primary responsibility of the offender was
remedied by theLex Aquilia, thought to have been enacted in 286 BC. In this law, the
responsibility was instead placed on the owner. For example,Law I, Table VIIof the
Twelve Tables(concerning crimes) states that:
If a quadruped causes injury to anyone, let the owner tender him the estimated
amount of the damage; and if he is unwilling to accept it, the owner shall, by
way of reparation, surrender the animal that caused the injury.
In another example from theDigestit was pronounced that if an animal was in thecare of a person and the act connected to negligence, then proceedings should instead
be brought against the person for wrongful damage:
if an animal should upset its load onto someone because of the roughness of
the ground or a mule drivers negligence or because it was overloaded, thisaction [pauperies] will not lie and proceedings should be brought [against the
person] for wrongful damage. 65
However, despite this shift in responsibility to the human, the earlier concept that the
nonhuman itself could be accountable continued to appear in customary and civil law
in Europe until the seventeenth century. The persistence of this concept, rather than its
disappearance, demands further investigation.
Roman laws about pauperies show a number of circumstantial distinctions that
determine an animals level of accountability. These include the animals relationship
with other parties involved in the incident, and interestingly, great emphasis is placed
on perceptions of the animals wildness.
For example Justinian stated that if a dog breaks loose on account of its wildness
the person who had the dog on the lead will be liable. Justinian also refered to the
jurist Alfenus who states that:
64(1932), Vol. II, p. 67.
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when a groom was leading a horse into the yard of an inn, it sniffed at a mule.The mule kicked out and broke the grooms leg. An opinion was sought as to
whether the owner of the mule could be sued on the ground that his mule had
committedpauperies. I answered: Yes.66
These examples show a familiar logic not unlike many contemporary laws relating to
pauperies. However despite the fact that throughout early legal philosophy animals
are not thought to have been legally responsible for their actions, there are many early
references in which wildness itself seems to be held accountable as something
connected to, but not necessarily inherent in domestic animals. For example,
JustiniansDigest notes thatthe action lies when a four-footed animal does harm
because its wild nature has been excited, for example, when a horse given to kicking
actually kicks someone. This makes a subtle distinction that allows the horse itself to
be held accountable. TheDigest continues:
the general rule is that this action lies whenever an animal commits
pauperieswhen moved by some wildness contrary to the nature of its kind.
Therefore if a horse kicks out because it is upset by pain the action will notlie but if the horse kicked someone who was stroking it or someone who
was patting it, this action will be available.
So while it is acknowledged that an animal cant be held responsible for its actions,
and that in this example the horse has a wild nature that isaccounted for with some
leniency under the law, the horse is still subject to this action when it exhibits
wildness contrary to the nature of its kind.
This logic depends on a subjective understanding of a horses nature. Additionally,
the wildness contrary to nature is ultimately defined against the logic of human
reactions. The possibility that a horses behavior may be underpinned by a logic that
extends and is separate to human logic is not considered. Thus a certain type of
wildness that which isnt understood within human frameworks is itself
accountable, as though the horse was possessed by something unnatural. The animal
is at once anthropomorphised, yet cast out of human frameworks when it exhibits
nonhuman qualities.
65Ibid, p. 32.
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&.
Animals were also liable for acts committed through a third person or object. Again,
JustiniansDigestpronounced that:
Thepauperiesaction lies regardless of whether the animal commitspauperies
by means of its own body or by means of some other thing with which it came
into contact as for example of an ox rushes someone with a cart or overturns
something on him.67
It was also the case that if one animal provokes another into doing damage, action
must be brought on account of the one which did the provoking.68
It should be noted that these examples refer to domesticated animals, which may
explain their high level of accountability within the moral codes of human society. By
contrast, the wildness considered unnatural and uncharacteristic in domesticated
animals was thought an acceptable part of an animals nature if it was seen as truly
wild.
For example, JustiniansDigeststates that the action:
does not lie in the case of beasts which are wild by nature: therefore, if abear breaks loose and so causes harm, its former owners cannot be sued
because he ceased to be an owner as soon as the wild animal escaped.
Accordingly, if I kill the bear, the corpse is mine.
Here the wild animal, once returned to the wild, is ostensibly outside the moral fabric
of society and is therefore effectively outlawed free from any obligations under
law. Unlike a domesticated animal, the actions of a wild animal do not make its
captors liable under the pauperies action, unless the animal is contained. Therefore,
compared to the distinctions made around domesticated animals, this shows that the
presence of wildness itself absolved the captor of any legal responsibilities.
Later examples found in the laws of the Lombards, a Germanic tribe who ruled a
Kingdom in Italy from 568 to 774, show similar ideas relating to the hunting of wild
animals. Law 309. on wild animals states that:
66
Digest, Book 2.67p. 276.
68Ibid.
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,"
B*>
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,#
While the animals in the case cited above are brought under law in their status as
property, other examples show an accountability that lay with the animal that was the
aggressor, rather then its owner:
liability for damage attaches to the physical corpus which caused the
damage even in the case of animals, this action lies not against the owner of
the beast at the time the damage was caused, but against whoever owns itwhen action is brought. Clearly, therefore, if the animal dies before joinder of
issue, the right of action dies with it.73
The idea that legal recourse lies with the corpse and cannot be pursued against the
animals former owner is consistent with previously cited cases of funeral expenses
held in contract with the deceased. The animal in this case assumes a legal status indeath, connected with certain actions. Again, a similar logic underpins laws relating to
both humans and nonhumans.
These cases all show how animals have some form of independent recourse to the
law. Evidence of this right to stand suggests that nonhumans were intricately
connected to the everyday lives of humans they were considered important,
independent social participants. The fact that some laws pertaining to animals and
humans followed a similar procedure highlights a substitutive logic at work in
jurisprudence at the time. Yet importantly, the pragmatic legal frameworks of Roman
pauperies made provisions for a much broader concept of citizenship under law. It
was an approach to jurisprudence that sought to reflect everyday life in a way that
recognised a greater number of participants, both human and nonhuman.
Substitution in Roman Law
The trial and punishment of an inanimate object seems an outmoded, almost non-
sensical procedure by contemporary standards. However this should not be simply
dismissed as a pre-rational concept as it holds interesting information about how an
object was understood to have some connection with, and agency in, any human
action. Under Roman law, nonhumans involved in a criminal incident could stand
/%Ibid.
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,!
before the court in the absence of a human defendant. The trial of inanimate objects
highlights a substitutive logic that operated during this period.
Prominent cases under Roman law include the trial of a murder weapon, such as a
dagger, after the authorities had failed to apprehend the murderer. Animals also
received retributive style punishments for less serious crimes. Table VII,Law XIIIof
The Twelve Tablesstated that:
If anyone knowingly and maliciously kills a freeman, he shall be guilty of a
capital crime. If he kills him by accident, without malice and unintentionally,
let him substitute a ram to be sacrificed publicly by way of expiation for thehomicide of the deceased, and for the purpose of appeasing the children of the
latter.
Similarly, Plato wrote about the trial of inanimate objects:
If an inanimate thing deprives a man of life when the thing has been defeatedin the trial, let it be expelled beyond the borders just as in the case of animals. 74
As suggested, the logic of substitution in early jurisprudence reflects a different, more
integrated understanding of nonhumans. It also reveals a number of interesting legal
ideas that relate to the social structures of Roman society. Firstly, substitution allows
certain retributive and symbolic procedures, which scholars such as Sealey have
argued had important social functions, to be carried out even in the absence of a
human. They had a perceived purifying effect over a social actor or space that was
considered polluted by certain crimes. When a murder weapon was expelled beyond
the city walls it was in itself symbolic of the polluted matter that was the byproduct
of the crime. This still achieved without a human agent the symbolic purification
of the social space, which is, as Sealey has suggested, the most important socialo