SMITH Criminal Trial and Prosecution of Animals

Forthcoming in Andreas Blank (ed.), Animals: New Essays, Philosophia Verlag, Munich. Draft only. Do not cite.

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The Criminal Trial and Punishment of Animals: A Case Study in Shame and

Necessity

Justin E. H. Smith

Introduction

The fact that animals were for a long period of European history tried and punished as

criminals is, to the extent that this is known at all, generally bracketed or dismissed as a

mere curiosity, a cultural quirk. Yet as a few scholars have understood over the past two

centuries or so, this fact lies at the intersection of a number of fundamental questions of

jurisprudence, moral philosophy, philosophical anthropology (particularly the study of

ritual and sacrifice, and the relationship between humans and animals), the history of

religion and of the emergence of a secular sphere. The idea that animals are suitable for

trial and punishment strikes us today as so completely erroneous because our

jurisprudence is based on the conviction that in order to be an appropriate target of blame

and punishment, a being must be a rational, moral agent. This means in turn that in order

for the trial and prosecution of animals to make sense within a given culture, that culture

must be operating either with a very different conception of where the boundaries of such

agency lie, or it must have a very different conception of what it is we are doing when we

blame and punish. It is eminently worthwhile moreover to figure out where the difference

lies, since in doing so we may hope to gain new insight into the philosophical

commitments underlying our own conception of agency, or our own understanding of the

purpose and justice of punishment, or both.

Based on a rather different set of historical examples, Bernard Williams attempted, in his

1993 Shame and Necessity,1 to reveal the tenuous nature of the modern moral-

philosophical conviction that punishment is good to the extent that it responds to an

1 Bernard Williams, Shame and Necessity, University of California Press, 1993.


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agent's freely chosen moral transgression. Drawing inspiration from Nietzsche's

philological examination of classical Greek conceptions of justice, Williams returns to

the ancient tragedians and poets in order to reconstruct, with sympathy, a picture of the

ethical self that was not, in his view, grounded in modern illusions about the autonomy of

human action. Williams remained focused almost exclusively upon Greek attempts to

make moral sense of interactions between human beings (and also to some extent

between human beings and gods). One way of deepening and strengthening his general

project, as I would like to begin to do here, is to extend our focus to the history of

interactions between human beings and non-human animals, in particular to the history of

their trial and punishment in medieval and modern Europe.

To consider the history of animal trials through the lens of Williamss critique of the

myth --on which much modern moral philosophy is based-- of the triumph of agency and

autonomy over shame and necessity, not only enables us to make anthropological sense

out of a cultural practice otherwise easily dismissed as curious; it also helps us to

understand why this practice could not survive unaltered in modern European legal

systems (even if there is, as I will argue, another important sense in which the

punishment of animals continues unabated). And in understanding this we in turn come to

understand something very important about the moral-philosophical foundations of those

systems.

1. Why Did Premodern Europeans Try and Punish Animals?

The great bulk of scholarship on animal trials is now more than a century old;2 just as

2 Some of the more significant contributions to this period of scholarship include Carlo

d'Addosio, Bestie delinquenti, Naples, L. Pierro, 1892; mile Agnel, Curiosits

judiciaires et historiques du Moyen Age: Procs contre les animaux, Paris, J. B.

Dumoulin, 1858; Karl von Amira, Thierstrafen und Thierprocesse, Mitteilungen des

Instituts fr sterreichische Geschichtsforschung 12, Innsbruck, Wagner, 1891; Jacques

Berriat-Saint-Prix, "Rapport et recherches sur les procs et les judgements relatives aux


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cultural changes in the mid-17th century brought it about that the trials themselves no

longer made sense, further changes in the early 20th century seem to have brought it

about that the study of the trials could yield no answers to serious questions of

jurirsprudence or moral philosophy. The principal change in scholarship seems to have

been a turn away from the understanding of the study of legal history as a study of

cultural practices that shares to a significant degree the methods and aims of cultural

anthropology. In the past two decades or so, there has been a partial return to such an Animaux," in Memoires de la Socit Royale des Antiquaires de la France, vol. VIII,

Paris, 1827, 403-450; Augustin Chaboseau, Procs contre les animaux, Paris, 1888; E. P.

Evans, The Criminal Prosecution and Capital Punishment of Animals, London, William

Heinemann, 1906; E. Gele, "Quelques recherches sur l'excommunication des animaux,"

Mmoires de la Socit Acadmique d'Agriculture, des Sciences, des Arts et Belles

Lettres du Dpartement de l'Aube 29 (1865); Walter W. Hyde, "The Prosecution and

Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times,"

University of Pennsylvania Law Review 64, 7 (1916): 696-730; Lon Mnabra, De

l'origine, de la forme, et de l'esprit des jugements rendus au Moyen-Age contre les

animaux, Chambery, 1846; Eduard Osenbrggen, Studien zur deutschen und

schweizerischen Rechtsgeschichte, ch. VII. "Die Personificirung der Thiere," Basel,

Benno Schwabe Verlagsbuchhandlung, 1881; Antonio Pertile, Gli animali in giudizio, in

Atti del Reale Istituto Veneto di Scienze, Lettere, ed Arti, series XI, vol. IV, Venice, 1884-

85; E. Robert, "Procs intents aux animaux," in Bulletin de l'Association Gnrale des

tudiants de Montpellier 1 (1888): 169-181; A. Sorel, Procs contre les animaux et

insectes suivis au Moyen-Age dans la Picardie et le Valois, Compigne, 1827; Gustav

Tobler, Thierprocesse in der Schweiz, Bern, 1893; Barnab Ware, "Procs-

condamnations, excommunications contre des animaux et les cloches," in Curiosits

judiciaires historiques, anecdotiques, recueillies et mises en ordre par B. Ware, Paris,

Adolphe Delahays, 1859, 440-442. As a late coda to this generation of scholarship we

may count Hans Albert Berkenhoff, Tierstrafe, Tierbannung und rechtsrituelle

Tierttung im Mittelalter, Akademische Abhandlungen zur Kulturgeschichte, Reihe 7,

Bonn, 1937.


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approach in legal scholarship.3 One particularly noteworthy contribution to this new trend

is William Ewald's work in comparative law. His 1994 article, "What Was It Like to Try

a Rat?," Ewald asserts, reasonably, that "if one is to understand a foreign legal system

well enough so that one can communicate with foreign lawyers, one needs to know how

they think."4 In learning how they think, moreover, the primary object of study for

comparative law should be the philosophical principles that lie behind the surface of the

rules.5 In Ewalds view, moreover, the best way to arrive at these philosophical

principles is to engage in a sort of ethnological inquiry (though this is not the way he

himself describes it) into alien legal practices, such as the medieval animal trial, by which

we will be jolted out of habitual ways of thinking.6

Now of course it is of no particular concern to us here how 'foreign lawyers' think, yet

Ewalds general approach is in fact of more interest than this, and it is one that in its

broad outlines we intend to follow here. At the same time, however, there is a valuable

lesson to be learned from the earlier wave of scholarship on animal trials, particularly in

its French and German expressions, which did not take the ways of thinking involved in 3 See in particular Paul Schiff Berman, "Rats, Pigs, and Statues on Trial: The Creation of

Cultural Narratives in the Prosecution of Animals and Inanimate Objects, NYU Law

Review 69 (1994): 288-327; Paul Schiff Berman, "An Observation and a Strange but True

Tale: What Might the Historical Trials of Animals Tell Us about the Transformative

Potential of Law in American Culture?," in Hastings Law Journal 52, 1 (November,

2000): 123-180. See also Esther Cohen, "Law, Folklore, and Animal Lore," Past &

Present 110 (1986): 6-37; Katie Sykes, "Human Drama, Animal Trials: What the

Medieval Animal Trials Can Teach Us about Justice for Animals," in Animal Law 17, 2

(2011): 273-312.

4 William Ewald, "Comparative Jurisprudence (I): What Was It Like to Try a Rat?," in

University of Pennsylvania Law Review 143 (1995): 1889-2149, 1896.

5 Ewald, "What Was It Like to Try a Rat?," 1896. 6 Ewald, "What Was It Like to Try a Rat?," 1897.


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animal trials as entirely 'foreign', but indeed understood them as an integral part of the

legacy of Western thinking about agency, responsibility, and punishment. Although of

course by the late 19th century animal trials were perceived in a certain sense as a

reflection of premodern benightedness, some scholars were also prepared to see this

practice as a reflection of a world-view that continues to play a role in the way Europeans

think about the human-animal boundary and about agency and responsibility, even if now

in only a submerged way. There was of course an excess of searching for expressions in

outdated practices of a true or authentic popular culture, particularly in the German

scholarship. At the same time, such antiquated ideas about national character made the

historiography more sensitive to real continuities between the past and the present. Thus

Eduard Osenbrggen remarks, for example, that the trial of animals "is not only to be

seen as an interesting curiosity, but indeed stands in connection with old ideas that are of

the greatest consequence" for our understanding of Western history.7

It would be impossible to give even a cursory summary of all of the cases, drawn from

primary sources, of animal trials in Europe from the middle ages to the early modern

period. There are several hundred such cases documented from the 9th through the 17th

centuries, most in France, and many in Switzerland, Germany, and northern Italy. An

important distinction can be made at the outset between two different kinds of case: those

involving the banishment or 'excommunication' of small, generally numerous animal

species, usually the sort that today would be dealt with by 'pest control' services; and

those that are focused on the punishment --corporal, capital, or carceral-- of individual,

generally large animals such as dogs, pigs, or oxen. According to mile Agnel, in fact,

there was a general division of punitive labor, with the punishment of large 'seizable'

creatures falling to the state, and that of small, numerous, pestilent creatures the church:

If the animal who is the perpetrator of a crime --such as a pig, a sow, a bull-- can

be seized, apprehended bodily, it is taken before a criminal tribunal, it is

summoned there personally; but if it is a question of animals that one cannot take

7 Eduard Osenbrggen, Studien zur deutschen und schweizerischen Rechtsgeschichte, 139.


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by the hand, such as insects or other beasts that are harmful to the earth, it is not

before an ordinary criminal tribunal that these unseizable [insaisissable]

delinquents are brought, but rather before an ecclesiastical tribunal.8

The implications of Agnel's claim are fascinating, though they go well beyond the

immediate concerns of the present investigation. Effectively, he is arguing that in the

middle ages the state was responsible for regulating bodies that could be seized and

manipulated, while leaving to the church the sort of bodies that it's impossible or at least

difficult to work on directly (angels, insects, etc.). It is enough for our purposes to note

that there is a dichotomy between two very different sort of phenomena generally lumped

together under the heading of 'animal trial and punishment'. It is not only that the

expulsion of little pestilent creatures is handled by the church and bears more direct

affinities to religious rituals such as excommunication, but also that the phenomena we

are dealing with here do not really look like punishment in the usual sense. To proclaim

that rats must leave a town might, in itself, be an inefficacious way of getting rid of rats.

Yet the wish to be rid of them is based in a correct belief that their presence is harmful to

human interests, and if they are in fact made to leave this is not in order to do them harm.

Rather, any harm to them is only a side effect of the rational implementation of pest

control.

In what follows we shall for the most part leave ecclesiastical pest control to the side,

though it is worth noting at least in passing that some cases of this sort provide valuable

evidence of the explicit attribution of intelligent, human-like agency to the animals in

question. It is clear from some cases that the capacity for responsible action was

explicitly attributed to the animals that were the target of legal proceedings. Thus

William Hyde describes the famous case of the rats of Autun, put on trial in 1522 and

famously defended by Barthlemy de Chasseneuz.9 As Walter W. Hyde recounts the 8 mile Agnel, Curiosits judiciaires et historiques du Moyen Age: Procs contre les

animaux, 6. 9 Contemporary sources described the intended action against the rats as an

excommunication, though this term seems to have been understood in the literal sense


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story:

Some rats were brought to trial before the bishop's vicar for having eaten and

wantonly destroyed some barley crops in that district. The culprits were cited to

appear on a certain day. As the rats failed to appear, their advocate Chassene

[i.e., Chasseneuz], trying by every means to find a loophole in the law for his

clients, pleaded that the summons had been too local and of too individual a

character, and that not some but all the rats of the diocese should be summoned.10

Rats appear to have been presumed capable of responding to legal summons, and to have

been held literally culpable for failing to do so. Of course, we may wonder to what extent

this legal ornamentation of the process of dratisation was taken seriously by those

humans involved; after all, it would not be surprising to find a pest-control ad today

calling its product the 'judge, jury, and executioner of roaches', but it would be a great

mistake for a historian of the future to suppose that in the early 20th century roaches had

a right to trial by jury. It is almost certain that in the 16th century the rat summons was

taken more seriously than the imagined anti-roach ad today, but the nuances of this

seriousness would take a tremendous work of historical ethnography to decipher.

Such ambiguity as to the degree of seriousness involved in animal trials and punishments

certainly carries over to the cases treating large seizable animals as well. In fact, one

prominent scholarly explanation of the phenomenon has taken it as a sort of parody of the

human legal system, as a Verkehrung or reversal of the symbolic scheme of our ordinary

punitive practices. Indeed, one curious work of German legal history from the late 19th of banishment from the community, and not necessarily from a 'spiritual' community.

Thus Jean Crespin relates that il y eut grande multitude de rats qui dgtaient et

mangaient les bls de tout le pays, il fut avis qu'on enverrait gens devers l'official

d'Augtun pour excommunier les dits rats (Crespin, Histoire des martyrs perscuts et

mis mort pour la vrit de l'vangile, Geneva, 1597, 136). 10 Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in

the Middle Ages and Modern Times, 706.


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century, by Otto Friedrich von Gierke, takes the punishment of animals as a clear sign of

the innate humor of the German legal tradition.11 But humor is at least as hard to

discern in the historical record as is seriousness, and its discovery depends in no small

measure on one's own sensibilities. Von Gierke, for example, finds it amusing that in

some cases where a person was raped or attacked in a house, the domestic animals that

were present and failed to respond to the commotion punished by death.12 Although this

last is clearly a disputable example, many documented cases clearly have the marks of

farce or travesty in them. Thus Hyde reports that at Falaise, in 1386, "a sow was

sentenced by the commune to be mangled in the face and maimed in the forelegs before

being hanged, because it had torn the face and arms of a child before killing it. In order to

make the travesty complete, the sow was dressed up as a human being and was then

publicly executed in the village square."13 Here, it is hard not to notice that the

degradation of the pig goes together with a certain mockery of the legal system, a certain

acknowledgement that the system should not, in its usual functioning, descend down to

the level at which this sort of being could be the focus of attention.

Another possible explanation of many cases of animal trial and punishment is rooted in

the fact that much premodern thinking about animals (and to some extent about humans

as well) involved a very different metaphysics of individuality, according to which one

and the same body can serve as host for two or more individual beings. We are passingly

familiar with this idea from our knowledge of past belief in demonic possession, where a

supernatural malevolent being wrests control of the body of a natural one. In Matthew

8:31, Jesus Christ drives a herd of swine over a cliff to their deaths; his intention however 11 Otto Friedrich von Gierke, Der Humor im deutschen Recht, Berlin, Weidmannsche

Buchhandlung, 1871. 12 See von Gierke, Der Humor im deutschen Recht, 17. Osenbrggen cites a relevant

medieval law stating that man sol allez daz tten das in dem huse ist gewesen, liute und

vie, ros und rinder, hunde unde kazen, gense unde henre (Osenbrggen, Studien zur

deutschen und schweizerischen Rechtsgeschichte, 143). 13 Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle

Ages and Modern Times, 710.


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is not to kill pigs, but rather to do away with the demons that have swarmed into them.

Much punishment of animals appears explicitly or implicitly to be based on the belief that

the animals in question are not mere animals, but rather animal hosts of beings that, as

everyone who believes in them agrees, are fully capable of intelligent, human-like agency

(of the malevolent variety). Karl von Amira argues categorically that it was the

punishment of such supernatural beings, rather than of the natural ones mixed up with

them, that was the raison d'tre of medieval animal trials: "The trial of animals is the trial

of spirits."14 Von Amira argues that the judgment of animals amounts to a sort of magical

rite of banishment of demonic souls that are themselves non-identical with the punished

animal, and that "the trial is an accessory of this magic."15

Von Amira's explanation raises more questions than it answers, however, since one must

now wonder why this eminently ecclesiastical concern, the banishment of demons, has at

least in the case of large animals been turned over to the state and outfitted with a

legalistic accessory. Moreover, the primary sources simply do not justify the belief that

in every case the inherence of a demon non-identical to the animal was supposed to be

the cause of the animal's transgression. That said, there may be a broader sense in which

animals in general could have been conceptualized as agents of Satan simply to the extent

that they were not guided by a moral conscience or divine command, but by bodily 14 Karl von Amira, Thierstrafen und Thierprocesse, 55. "Der Thierprocess ist

Gespensterprocess." Osenbrggen by contrast sees the spiritual dimension of animal trial

and punishment as a relatively unimportant and local inflection of the phenomenon: "Es

mag noch hie und da in katholischen Lndern vorkommen, dass gegen schdliches

Gethier mit dem geistlichen Bann eingeschritten wird" (Osenbrggen, Studien zur

deutschen und schweitzerischen Rechtsgeschichte, 144).

15 Karl von Amira, Thierstrafen und Thierprocesse, 55. "Die Verurtheilung im

Thierprocess ist aufzufassen nicht sowohl als Verurtheilung von Thieren wie als

zauberisches Bannen von Menschen- oder Dmonenseelen und solchergestalt als

Parallele zu dem bei den klassischen und slavischen Vlkern, aber auch anderwrts

nachgewiesenen Seelenaustreiben. Eine Zubehr jenes Zaubers aber ist der Process."


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desires and by nature: the forces that, when followed by a human being without attention

to divine will, warrant the judgment of human action as sinful. As William Ewald argues

in reference to Aquinas, if we regard the animals as the instruments of God's will, then to

curse them would be odiosum et vanum et per consequens illicitum, odious and vain and,

in consequence, illicit. If we regard animals as the instruments of God's will, moreover,

"then the human curse would be blasphemous. But a third possibility remains. If the

animals are regarded, not as the agents of God, but of Satan, then the may properly be

cursed and excommunicated and punished with death: for this is an indirect way of

cursing the Devil."16 But just as one can be an agent of God without having one's body

possessed by God, a being can also be an agent of Satan without direct demonic

possession, to the simple extent that it, in its appetitiveness and its ignorance of divine

will, stands as a sort of embodiment of sin. Such a view is suggested by the Jesuit author

Guillaume-Hyacinthe Bougeant, who notes (somewhat inaccurately) that "the Christian

church has never taken the animals under its protection, or urged kindness towards them...

The suffering they endure is part of God's punishment of devils; and when a dog is beaten,

or a pig slaughtered, it is the embodied demon that actually suffers."17 Bougeant does not

seem to suppose here that every pig or dog harbors a particular demon, but only that

animals in their nature are suitable vehicles of diabolical intentions, and thus that every

punishment of an animal is potentially or symbolically a punishment of a devil. We

might suppose, pace von Amira, that there is a broad spectrum of views, from the literal

belief, as in the Gospel of Matthew, that particular demons have possessed particular pigs,

to the belief that animals 'stand for' Satan and so to punish them amounts to a stand

against evil. Here, as elsewhere, it would be tremendously difficult to determine from the

primary sources the precise positions on this continuum at which different cases lie.

The purely symbolic punishment of Satan leads us to yet another answer to the question

framing the present section: the punishment of animals as a lesson or warning to human

beings. Thus Louis Mnabra argues that these procedures amounted, in a primitive way, 16 Ewald, What Was It Like to Try a Rat?, 1909. 17 Guillaume-Hyacinthe Bougeant, Amusement philosophique sur le langage des bestes,

Paris, Gissey, 1739; cited in William Ewald, What Was It Like to Try a Rat?, 1907.


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merely to a sort of symbol, aimed at regaining the sentiment of justice."18 Von Amira as

well cites a number of cases from the 16th and 17th centuries in which the principal

purpose is to drive home to the owner of a wayward animal the need to keep tighter

control over the creatures under his responsibility. Thus for example at Viroflay in 1641,

the owner of a murderous beast is required to attend its execution.19

This interpretation is evidently the most modern so far; it may be read as complementary

to the Kantian view that animals only deserve protection from abuse to the extent that

abusing them threatens to desensitize human beings to the abuse of other humans. Both

suppose that animals are only a means to human ends. If all cases of animal punishment

were merely instrumental in this way, there would be little of philosophical interest in

unraveling what was at stake for the people who participated in the trial and punishment

of animals. However, only a small percentage of the primary sources offer such a clear

cut, instrumental account of the reasons for the practice. Most often, these reasons tend to

overlap with other ones, and disentangling them is a difficult task indeed.

Interestingly, in the Theodicy of 1714, G. W. Leibniz weighs in on the question as to

when the punishment of animals is warranted. He argues that, in addition to punishing

domesticated animals when this helps to train them (even if they are not fully rational and

capable of understanding their punishment as a response to wrongdoing), we might also

justly inflict capital punishment on animals "if this punishment could serve as an example,

or frighten other animals, in order to cause them to stop doing harm."20 Leibniz mentions

that in Africa, the carcasses of lions are sometimes hung outside of towns in order to

frighten away other lions. Here, then, we have the instrumental view of animal

punishment just elaborated, but transferred into a context where the instrumentality is

focused upon the actions of animals themselves rather than humans. In this context, the 18 Mnabra, De l'origine, de la forme, et de l'esprit des jugements rendus au Moyen-Age

contre les animaux, 400. ...ces procdures ne constituaient primitivement qu'une espce

de symbole destin ramener le sentiment de la justice. 19 Von Amira, Thierstrafen und Thierprocesse, 11. 20 G. W. Leibniz, Thodice, Paris, Flammarion, 1969, Part I, 69-70.


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view seems to overlap with the pest-control account of animal punishment with which we

began this section: it is arguably not punishment in any real sense to kill a lion in order to

keep other lions away; the lion's 'death sentence' is a side effect of a rational project of

protecting human interests.

Another explanation for animal punishment that appears rather modern is the one that

portrays it as compensation for tort. Indeed, many of the primary sources give no more

elaborate account of the rationale behind the punishment of animals than we find in laws

concerning the destruction of a person's inanimate belongings that have done another

person harm. In both cases, as Paul Schiff Berman has well understood,21 there is an

anthropological dimension: the destruction of a cart that has rolled down a hill and struck

a child makes no instrumental sense, as this cart is no more likely to slip away in the

future than any other cart, and no one is prepared to destroy all carts. Yet to the extent

that no one, modern or otherwise, would impute wrongdoing to the cart that caused the

harm, the killing of an animal that is conceptualized on the model of tort compensation

can hardly be supposed to imply a different conception of the agency of animals than the

one we operate with today. Often, in fact, the compensation served more than just a

symbolic function, as the animal was turned over to the victim in order that he could

21 Paul Schiff Berman, An Anthropological Approach to Modern Forfeiture Law: The

Symbolic Function of Legal Actions Against Objects, in Yale Journal of Law & the

Humanities 11, 1 (Winter, 1999): 1-46.


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thereby derive a profit from it.22 Extracting work from a poorly behaved animal, as

compensation for the damage it has caused, may well appear a perfectly modern and

rational way of managing the fall-out of an incident in which, say, one farmer's bull

smothers another farmer's child. Yet attaching an economic value to an animal's life,

which in turn enables the animal to be used as a form of payment, is not necessarily to

conceptualize or to treat the animal differently than one would a human being: after all,

throughout at least the early middle ages most human beings, including freemen, had an

economic value attached to them, the Wergeld, which was the amount that had to be paid

for the loss of a human life in the case of murder or manslaughter. This is significant,

even if we can only address it in passing, since it reminds us that, even where we see

animals being treated in economic terms in the primary sources on animal trial and

punishment, we are not entitled to conclude that they are being treated in a way that

places them in a different legal category than human beings.

Many sources indicate a desire on the part of the punishers to eliminate the memory or

the legacy of the transgression involving the animal, even as they believe that strictly

speaking it does not make sense to punish a being that lacks reason. Thus Jean Duret

writes in 1573 of animals that are to be hung and strangled, as if they had reason, in

22Thus von Amira cites a case from the Coustumes et stilles de Bourgoigne: "L'on dit et

tient selon droit et la coustume de Bourgoigne que se un beuf ou un cheuau fait un ou

pluseurs homicides il nan doivent poinct morir, ne lon nen doit faire justice, feur quilz

doiuent estre pris par le seigneur en qui justice ilz ont fait le dlit ou par ses gens, et lui

sont confisquez et doiuent estre vendus et exploictiez au prouffit du dit seigneur."

Troublingly, the author adds that it is only laboring animals that should be turned over to

the profit of the victim in this way, while "if other beasts or a Jew does it, they are to be

hung by their hind feet [...mes se autres bestes ou juyf le font, ilz doivent estre pendus par

les piez derreniers]" (Von Amira, Thierstrafen und Thierprocesse, 6).


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order to erase the memory of the enormity of what theyve done.23 Similarly, in the 12th

century the canon lawyer Gratian wrote that animals are punished not because of their

guilt [culpa], but so that the hateful act might be forgotten.24

Nowhere was the need to forget a hateful act perceived to be more urgent than in the case

of bestiality, the punishment for which almost always involved death not just for the

human participant, but also for the animal or animals involved. According to von Amira,

the purpose of this severe response was that "the memory of the misdeed should be

extinguished, the impure should be removed from the practice and the pleasure of

Christians."25 Even if this is correct, it is still noteworthy that in the legal tradition in

which this expurgation of memory was carried out, authors felt the need to explicitly

acknowledge a tension between the need to restore purity and the parallel need to restrict

punishment to rational beings. Thus Gratian acknowledges that "it is asked in what way a

sheep, which is irrational, and in no way cognizant of the law, can be liable." He explains

that the entire flock is to be killed "because it is contaminated by such a disgraceful thing

[as bestiality]."26

Evidently, medieval canon law was committed to a tremendous difference between

humans and animals, and this commitment was so strong that in the law itself there was a

perceived need to account for why two such different sorts of creature warranted the

same sort of punishment. In the 19th-century German scholarship there is an opposite 23 Jean Duret, Traicte des peines et amendes, Lyon, Arnoullet, 1573; cited in David

Chauver, La personnalit juridique des animaux jugs au moyen ge, Paris, L'Harmattan,

2012, 58. 24 Cited in Hyde, "The Prosecution and Punishment of Animals and Lifeless Things in the

Middle Ages and Modern Times," 718. 25 Von Amira, Thierstrafen und Thierprocesse, 12. 26 Decretum Gratiani C. IV., "Non propter culpam, sed propter memoriam facti pecus

occiditur, ad quod mulier accedit"; cited in Osenbrggen, 147-48. "Quaeritur, quomodo

sit reum pecus, quum sit irrationale, nec ullo modo legis capax. Pecora inde credendum

est iussa interfici, quia tali flagitio contaminata, indignam refricant facti memoriam."


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interest, to show that premodern popular culture, in contrast with the top-down decrees of

the church and of canon law, had a strong tendency to 'personify' animals, and to inflict

punishment on them on the basis of a presumption of the possession of 'personality',

which may be understood broadly as the attribution of human-like agency, intentions,

character, and so on. Interestingly, much of this scholarship draws heavily on the work of

Jacob Grimm, who in the early 19th century sought to discover the premodern roots of

German national character, and seems to have supposed that in 'old times' ordinary

people conceptualized the world in more or less the same way as do the people in the folk

tales that Grimm and his brother collected. Thus he tells us, for example, that "it was

entirely normal from the viewpoint of antiquity, not only to treat servants as domestic

animals, but also to treat domestic animals as servants, and thus to make way for the

animal to have certain human rights, such as in the handling of its payment of fines and

of its Wergeld."27 Scholars such as Osenbrggen and A. H. Post28 follow a largely

Grimmian line, defending what von Amira calls an indifferentism with respect to the

human-animal boundary.29

Often, again, the primary sources seem to offer no rationale at all for the punishment of

animals, and where this is the case it may well seem that this is precisely because no

rationale was needed. Thus we find in the 13th-century Livre de jostice et de plet: "'And

if your horse or your animal, your bull, your cow, your sows, do harm to me, are you held

accountable?' 'Not at all, if it was not done by my negligence or by my poor attention. But

the animal is held accountable."30 Is, now, the absence of a rationale tantamount to 27 Jacob Grimm, Deutsche Rechtsalterthmer, Gttingen, Dieterichsche Buchhandlung,

3rd Edition, 1881, 670. Es lag ganz in der ansicht des alterthums, nicht nur knechte wie

hausthiere, sondern auch hausthiere wie knechte zu behandeln, dem thier also gewisse

menschliche rechte, namentlich in art und weise der busse und des wergeldes

einzurumen. 28 See A. H. Post, Die Grundlagen des Rechts und die Grundzge seiner Entwicklung,

1884. 29 Von Amira, Thierstrafen und Thierprocesse, 4. 30 Cited in Chauver, La personnalit juridique des animaux jugs au moyen ge, 158. "Et


16

'indifferentism'? Can it be supposed that wherever a premodern author simply presumed

that it made good sense to punish animals, he was relying on a world-view that

personified animals and ignored the human-animal dichotomy?

These are difficult questions, as difficult perhaps as the attempt to disentangle and

enumerate the different answers to the question that frames this section of our inquiry.

We have seen a number of answers, some partially overlapping with others, which we

might now summarize as follows:

1. Punishment is simply legal ornamentation supervening on a process much more

accurately described as pest control.

2. The punishment of animals is a farce or a parody of the human justice system.

3. Animals can be suitable targets of punishment because they sometimes serve as the

vehicles of devils or of the will of Satan. To punish animals is to punish Satan.

4. Animals are suitable targets of punishment because the spectacle of their deaths serves

as a preventative to transgression in humans.

5. Animals are suitable targets of punishment to the extent that harming them is

destruction of the property or livelihood of their owner, the true target.

6. Animals are suitable targets of punishment because killing them serves to eliminate the

taint of the crime with which they were associated.

7. Animals are suitable targets of punishment because there is no firm boundary between

the human and animal realms, such that responsibility can be attributed to all and only se ton cheval ou ta beste, ton buef, ta vaiche, tes truies, me font domage, i es-tu tenuz?

Nenil, sa ne la fet par ma ngligence ou par mauvse garde; ms la beste i est tenue."


17

human beings.

We have now spent some time investigating and summarizing the rationale behind the

trial and punishment of animals in premodern Europe, looking at both primary sources as

well as the interpretations offered in the secondary literature. Yet one of the great

shortcomings of the previous scholarship on this topic has been to take the question with

which we began this section as the only one in need of an answer in order for the matter

to be resolved. That is, it has been supposed that animal punishment poses a particular

riddle, while punishment itself, when applied in the paradigmatic instance to human

beings, makes perfect sense. Yet there is no good reason to suppose this.

3. Necessity and Tort

In the Genealogy of Morality, published in 1887, Friedrich Nietzsche offered an account

of premodern punishment that is surprisingly relevant to the scholarly discussion, going

on at more or less the same time in continental Europe, of the punishment of animals.31

Nietzsche argues that Christian guilt moves in to account for the same sort of social

exchange that was once understood in terms of Schuld, which in German can signify

either guilt or simply debt, and which, on Nietzsches view, had, in its pre-Christian

career, no particularly moral overtones. To have a Schuld toward someone, whether

because you have borrowed money from him, or whether you have, say, accidentally

mangled his arm, is simply to owe him something for what you have taken. This

something can be repaid variously in flesh or in specie, but in either case, Nietzsche

supposes, there was no sense of the indebted partys individual moral failure; there was

only an outstanding balance in the cosmic books.

We do not need to agree with Nietzsches account of the difference between ancient

indebtedness and modern morality in order to appreciate its relevance for understanding 31 Friedrich Nietzsche, Zur Genealogie der Moral, in Kritische Gesamtausgabe, ed. Giorgio Colli and Mazzino Montinari, Abteilung VI, Band 2, Berlin, De Gruter, 1967.


18

the history of animal trial and punishment. We have seen that in some contexts a Wergeld

was associated indiscriminately with humans and with animals; the killing of a horse

must be compensated just like the killing of a human being, and this generally

irrespective of the question of intent behind the actions that resulted in the killing.32 Now,

from a certain perspective it may seem that the assignment of a Wergeld to a horse is an

instance of just the sort of personification that Grimm, for example, saw as the rational

behind the trial and punishment of animals; after all, the very term Wergeld means,

etymologically, man-money. But on a Nietzschean account, we might suppose that the

similar treatment of men and animals flows not from the fact that animals were seen as

having human-like and thus as having some moral status that made punishment of them

meaningful, but rather from the fact that punishment was conceptualized simply as a

compensatory transaction, and it implied no attribution of moral status to the being

subjected to punishment.

Even if it is highly questionable as an historical account of the development of modern

morality, Nietzsches analysis nonetheless might reveal a timeless or structural feature of

punishment: all along it has been deployed not just in the aim of righting moral wrongs,

but also in the aim of compensating imbalances between parties, and in this latter

deployment it can easily make sense to apply it to animals, since there is no immediate

need to justify the punishment by reference to the moral status of the creature being

punished.

At this point it will be useful to turn to an interesting case from antiquity that is treated by

Williams in Shame and Necessity. In the second of Antiphons Tetralogies, written

toward the end of the 5th century BCE, we are told of a youth who "is practising the

javelin in the gymnasium; at the moment he throws it at the target, another boy, on an

errand, runs into its path, is hit, and is killed. No one denies that it was an accident; but 32 The payment of Wergeld for actions that resulted in the loss of human life was

gradually replaced, by the 12th century, by a legal distinction between murder and

manslaughter, and, generally, by the imposition of capital punishment at least for actions

of the former sort.


19

the question has to be answered, Who caused his death?"33 The young mans defender

reasons that in throwing the javelin he hit him, but he did not kill anyone if you consider

the truth of what he did; he incurred, through no fault of his, the aitia when someone else

harmed himself by his own mistake.34 The victim's father, in turn, argues both parties

are jointly responsible, and therefore both should have to pay a penalty. The runners

penalty was paid with his life, while the thrower, so the father argues, still needs to pay

up.35

Williams is critical of those commentators who are quick to see in the demand for the

throwers punishment evidence for an archaic, magical conception of guilt, on which

the person whose action leads to a death is held to be tainted by miasma, quite apart from

any consideration of his actual responsibility as an agent. Beginning from a discussion of

the case of Oedipus, Williams describes the concept of miasma as follows:

Miasma was incurred just as much by unintentional as by intentional killing. It

was conceived of, simply, as an effect of killing a human being, and what modern

philosophy calls the extensionality of the causal relation implies that if there are

any such effects, then an event that is a killing of a human being will have the

effect whether it is intended as a killing or not. Miasma is a supernatural effect:

and the fact that it was seen in these blankly causal terms may make us say that it

is a particular kind of supernatural effect, one that belongs with magic rather than

merely with religion.36

33 Williams, Shame and Necessity, 61. A recent case of unintentional death by javelin

occurred in Dsseldorf in 2012, when a 74-year-old javelin coach who had gone to

measure a throw was speared by a 15-year-old athlete. No fault was attributed to the

youth. See Javelin Accident Kills German Athletic Official, BBC News Europe, 27

August, 2012. http://www.bbc.co.uk/news/world-europe-19391807 34 Williams, Shame and Necessity, 61. 35 Williams, Shame and Necessity, 62. 36 Williams, Shame and Necessity, 59-60. See also Robert Parker, Miasma: Pollution and


20

Williams however is less inclined than many commentators to suppose that Greeks saw

this sort of supernatural effect as playing a role not just in myth, but in everyday

reasoning about, for example, who is to blame for a wayward javelin throw. Arguments

about this sort of question take place against a background of a magical belief,

Williams maintains, but they are not themselves concerned with magic; and they are not

stupid, even in the sense of stupid in which that is compatible with their being clever.37

In fact, in Williamss view, the sort of reasoning we see in the javelin case does not differ

much at all from the sort of reasoning that would be perfectly familiar today in the

domain of tort law:

To a considerable extent, the idea that the Greeks thought very differently from

ourselves about responsibility, and in particular more primitively, is an illusion

generated by thinking only about the criminal law and forgetting the law of torts.

We do argue legally about causality, and in not so different a style, in cases where

damage follows from what someone unintentionally brings about.38

Williamss projection back into Greek reasoning about responsibility of the modern

distinction between tort and criminal law may be useful for our understanding of the

medieval trial and punishment of animals. As some scholars have noted, in many cases of

animal punishment, there was no imputation of agency to the animal at all. In fact, the

punishment was conceptualized not on analogy to human punishment, but rather as a

variety of forfeiture of property. Thus Ewald cites medieval English laws concerning the

deodand or thing given to God in the case of damages brought about,39 variously, by Purification in Early Greek Religion, Oxford, Clarendon, 1983.

37 Williams, Shame and Necessity, 62. 38 Williams, Shame and Necessity, 63. 39 On deodand, and in general the ritual background of forfeiture law, see Jacob J. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures,

Wrongful Death and the Western Notion of Sovereignty, Temple Law Quarterly 46: 169

(1973); Jacob J. Finkelstein, "The Ox that Gored," in Transactions of the American


21

animals and by inanimate objects:

(1) No deodand is due if an infant fall from a cart or a horse, so long as the cart or

horse is not in motion... (2) If a horse or an ox of its own motion kill an infant or

an adult, or if a cart run them over, the thing shall be a deodand. (3) 'Where a

thing, not in motion, is the occasion of a man's death, that part only which is the

immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by

falling from it, the wheel alone is a deodand: but wherever the thing is in motion,

not only that part which immediately gives the wound, (as the wheel, which runs

over his body) but all things which move with it and help to make the wound

more dangerous (as the cart and loading, which increase the pressure of the

wheel) are forfeited.40

The third part of this elaboration is particularly striking, in its distinction between moving

and stationary inanimate objects. It is as if an object in motion cannot but be

conceptualized on analogy to an agent. If a stationary cart injures a child, then only the

part of the cart that directly causes the injury is responsible; if a moving cart injures the

same child, then the whole cart bears the responsibility. Attribution of real agency is not

necessary in order for the law concerning deodand to make sense; it is enough that a

creature or artefact be in motion, and capable in its motion of bringing about damages, Philosophical Society 712 (1981). See also Marilyn A. Katz, Ox-Slaughter and Goring

Oxen: Homicide, Animal Sacrifice, and Judicial Process, in Yale Journal of Law & the

Humanities 4 (1992): 249-278; Glanville L. Williams, Liability for Animals, Cambridge

University Press, 1939.

40 Ewald, What Was It Like to Try a Rat?, 1910-1911; citing William Blackston,

Commentaries on the Laws of England, vol. I, Oxford, Clarendon Press, 1765-1769, 290-

92. See also Anna Pervukhin, Deodands: A Study in the Creation of Common Law

Rules, American Journal of Legal History 47, 3 (2005): 237-256.


22

for it to be treated as an integral whole, as an entity capable as a whole of bringing about

effects, and as subject to legal measures in view of the effects it brings about.

The example of the moving cart certainly does not appear to adequately account for what

is going on in all parallel cases of animal punishment. But it does speak strongly against

the generalization of an account such as von Amiras, which would characterize all

animal punishment as rooted in demonological beliefs; or an account such as the one

weve associated with Grimm, which sees animal punishment as occurring within a folk-

cultural context in which broadly human qualities are attributed to animals. Following

Williams, we may suppose that much animal punishment occurred within a context of

what we would explain today as tort law, an account that sounds rather too mundane for

someone like Nietzsche, even if what it says amounts to substantially the same thing as

the German philosophers analysis of the transactional nature of punishment, which

supposedly characterized punishment in general prior to the rise of Christian, guilt-based

morality: what it says, namely, is that much punishment takes place under the banner of

necessity, so to speak, and presupposes no capacity on the part of the creature being

punished to have chosen to do otherwise. This is the sort of punishment that has no

pretense of being correctional, since there is no presumption of the inherence of a

damaged or malfunctioning moral sense in the creature being punished. It makes sense, in

this light, that overwhelmingly the sentence for large, seizable animals, handed down by

legal systems, is not incarceration or (mere) torture, but irrevocable death.

Today, an animal that attacks a human being is, if it can be caught, generally destroyed.

This term is revealing: in ordinary cases, objects are destroyed, while living beings are

killed. The animal that must be killed in response to violence it has done to a human

being must be reduced, in the way we talk about it, to the status of a mere thing, and one

might speculate here that this is because we, today, do not wish to see ourselves as doing

something so irrational as applying the death penalty to an animal. We redescribe what

we are doing, but the continuity with straightforward animal punishment in the

premodern period remains clear. In the contemporary case of the destruction of a dog, we

are so intent on not accounting for what we are doing as punishment, that we prefer to

reach for a verb plainly out of place in ordinary ways of talking about the range of things


23

we can do to punishable beings, which is to say, we believe, beings with a moral status

and an ability to choose, on the basis of this status, to do one thing rather than another.

Premodern Europeans do not seem to have been so concerned to keep the execution of

animals conceptually separate from the execution of humans. But, like us, they also did

not wish to think of the killing of a pig, say, as response to its killing of a child, as

retribution for the moral guilt --moral, here, in the sense Nietzsche so dislikes-- borne

by the pig. They, like the animal-control workers in the killing cell of the dog pound,

were simply acting out of a presumed necessity, and on the presumption that the animal

itself did what it did not out of some aberration in its moral sense, but out of its own

necessity, like a cart that cannot but roll down a hill.

This is, anyway, what we and they tell ourselves, that the creature in question must be

destroyed, without any regard for the question whether it could have done otherwise. This

is, as I have put it, the response to an animals violence that is played out under the

banner of necessity. But plainly this is not all there was to the criminal trial and

punishment of animals. No cart that ran over a child was ever dressed up in human garb

before being smashed to pieces. The damages wrought by pigs were sometimes seen as

flowing from necessity, but the punitive response to them undeniably presupposed their

belonging to a different ontological class of entities than do inanimate objects. The

difference here leads us inexorably to the concept of shame. Williams for his part was

principally interested in analyzing the notion of shame as a regulative principle of

conduct operating within the context of ancient morality, and to win back for it some of

the respect of which it had been deprived by moral philosophy since Kant, who saw it as

merely having to do with a concern for the way we appear to others, and thus as being

superficial. Here we are interested in shame in a somewhat different sense: the

transitive sense in which one being can shame another. Though our interests depart from

Williamss here, it is precisely this sense of shame that can help us to make sense of the

many aspects of animal trial and punishment that do not seem to be amenable to an

analysis in terms of necessity: pigs, whatever your explicit philosophical theory of their

internal natures might be, can be shamed; carts cannot be.

3. Shame and the Death Penalty


24

Destruction cannot be punishment, and as I have suggested, the imposition of the death

penalty on animals has sometimes been conceptualized as destruction in order to avoid

the implication that the animal being killed is the sort of being that can be punished. But

in another important sense, even killing a being, where that killing is conceptualized

correctly as the deprivation of a life, is not really punishment either, at least if we

understand punishment in the narrow sense of an action taken against a creature in the

aim, to speak with Foucault, of working on its soul.41 Now this is, on Foucaults analysis,

precisely what distinguishes the modern conception of punishment, that it would come to

target the soul rather than the body, but we do not need to accept or reject his account in

order to see that there is something categorically different about, on the one hand, about

an action taken against a person or an animal in the aim of setting them straight, and on

the other hand the termination of their lives. Capital punishment cannot on any possible

construal be seen as corrective, since in its wake the creature that undergoes it no longer

exists at all. This fact has, one might argue (and many have), caused the death penalty to

appear out of step with the carceral philosophy that has prevailed throughout most of the

modern era, namely, that of correction.

What, then, is capital punishment for? The full answer to this question lies well beyond

the scope of this short essay, yet even in beginning to answer it, we may hope to go some

way toward making sense of a number of the rationales listed in section 2 for the

punishment of animals. It may seem surprising, even, perhaps, offensive, to suggest that

something about capital punishment in general may be learned from a consideration of its

application to animals. But what we think about capital punishment and what we think

we think (to borrow a phrase from Williams) tend to be two very different things, and

even the most cursory examination of our views is enough to expose an underlying

anthropological phenomenon that, in its application, cuts indifferently across species lines.

It involves, namely, a foregrounding of what Williams called the magical background

of the way we think about responsibility and transgression, in which the primary purpose

is the symbolic driving out and elimination of a perceived source of evil. In certain

contexts, such as the modern criminal-justice system in the US, this symbolism cannot be 41 Michel Foucault, Surveiller et punir, Paris, Gallimard, 1975.


25

acknowledged without rendering explicit features of capital punishment that would reveal

it to be severely out of step with the other avowed purposes of the system. Consequently,

the death penalty is defended through a mix of empirically unsubstantiated appeals to

deterrence, and to quasi-psychological appeals to closure for the victims family. The

death penaltys patently poor fit with the explicit penological philosophy of all modern

democracies has as a result that it is alarmingly undertheorized by its supporters, and its

continuity with other, seemingly distant phenomena, particularly religious or ritual

sacrifice, goes unnoticed, or at least unacknowledged. The same point, incidentally, may

be made about the destruction of pitbulls: again, here we may suggest that the ritual

slaughter of an animal thought to be the incarnation of evil, in the aim of eliminating that

evil from the social body, is so far from how we prefer to think about the way we

maintain our social order, that we do not even wish to acknowledge by our choice of

verbs that there is a killing going on here at all.

In the contemporary context, then, the killing continues, but in a way that precludes

adequate acknowledgement of its social role. Another consequence of this disaccord

between the practice and our principles is that the practice itself becomes as sanitized as

possible, even taking on the pretense of humanism (e.g., when an inmates arm is

swabbed with alcohol prior to injection of the chemicals meant to kill him). Far indeed is

the modern execution from the sort of sublime, gruesome spectacles described by

Foucault, the public drawings-and-quarterings of would-be regicides, the elaborate

technologies of torture. This sanitization has occluded from view another important

feature of the premodern application of the death penalty (whether to humans or

animals): that the creature subjected to the punishment is a bearer of shame, and that his,

or its, execution is both an elimination of something shameful, as well as the ultimate

expression of shaming.

Even if, as Williams notes, in modern moral philosophy shame would be downgraded to

a superficial motivation for human conduct, it would nevertheless continue in this period

to play an important role in the conceptualization of the boundary between humans and

animals: animals lack a capacity for shame, and this is taken as a sure sign of their lack of

moral status in general. Thus David Hume for example argues that the absence of moral


26

turpitude or deformity42 in incest between two animals goes together with their lack of

moral principles. But others would suppose that it is precisely this incapacity to feel

shame that makes animals, so to speak, essentially shameful. Their bad behavior is that

much worse for the fact that it does not flow from a violation of inborn principles, or

from a poor choice made in a momentary lapse, but from a complete absence of moral

inhibition. This makes their transgressions all the more horrible, that they are not, from

the animals point of view, transgressions at all. As long as the transgressions remain as it

were between animals, as in the case of incest, it is possible to simply shake ones head in

dismay. But when the uninhibited animals action crosses over into human society and

wreaks its effects there, as when a pig devours a child, the lack of moral inhibition seems

to cross over from being a reason to shut animals out of moral community altogether, to a

reason for exacting the fiercest possible punishment on them, and thus in a certain sense

acknowledging moral community with them by treating them in the same way one would

treat a human being who has just committed a great moral transgression. Animals, then,

do what they do in the mode of necessity, until they do something that harms human

beings, at which point they appear in a different light, as operating in the mode of shame.

This dual nature is very much what we might expect from a consideration of the classical

ontological hierarchies, which place animals between the world of inanimate entities and

the world of human beings, between objects and agents.

In cultural settings in which the death penalty can be imposed on humans or animals

without bad conscience or moral dissonance, the desire to shame them comes through not

just as an accompaniment of the punishment, but indeed as its raison dtre. What other

purpose could there be behind the elaborate sequence of tortures that served as a prelude

to the execution of, for example, the leaders of the Anabaptist revolt in Mnster in 1536,

the pulling out of tongues, the slow burning with red hot tongues, the display of the

tortured bodies in iron cages? Even without a sophisticated science of criminology, early

modern spectators must have gathered that there was more to a spectacle such as this than

the rational end of deterrence. And what of the pig that is dressed up like a human before 42 David Hume, Treatise of Human Nature, ed. L. A. Selby-Bigge and P. H. Nidditch,

Oxford University Press, 1978, 467.


27

it is tortured to death? One might suggest, here, that the farcical element is motivated not

by a sense of humor (as von Gierke suggests), so much as by a perceived need to make

the spectacle of the pigs execution as much like that of a human being as possible, to

provide a convincing semblance of a shaming, and to banish the worry that the creature

under torture might be a mere machine of nature, incapable of shame, and therefore

incapable of really being the victim of the punishment that has been so elaborately

orchestrated for it.

This is all just conjecture, of course, but we may be fairly confident that something like a

desire to shame in at least some of the rationales for animal punishment listed in section 2.

These are the rationales that take the animal in question as, so to speak, something more

than a cart, whether because it is personified in Grimms sense, or because it is a

vehicle for the malfeasances of demons, or for some other reason. We may also be

confident, moreover, that not only is the punishment of animals not based on a single,

unified theory of guilt and responsibility; neither is it based on single, unified theory of

what an animal is.

4. Conclusion

Nietzsche wanted to tell a historical tale about how modern conceptions of guilt and

moral responsibility deviated from the ancient virtues of heroism and valor, where guilt

was conceptualized in strictly transactional terms. Williams rejects this account in favor

of one that highlights continuities between the ancient and the modern, and that sees

modern morality as having drifted less far from its ancient antecedents than we are often

able to see. Williams is critical of modern moral philosophy for supposing that whereas

the ancients were governed by primitive or superficial ideas about human motivation and

action, such as fate or shame, we ourselves have evolved into a moral-philosophical

understanding of the self as an autonomous moral agent motivated by duty. Williams's

central claim in Shame and Necessity is that the differences between us and the Greeks

"cannot best be understood in terms of a shift in basic ethical conceptions of agency,

responsibility, shame, or freedom. Rather, he continues,


28

by better grasping these conceptions themselves and the extent to which we share

them with antiquity, we may be helped to recognize some of our illusions about

the modern world... How much of a shift there has been, how much we do rely on

changed ideas of such things as freedom, responsibility, and the individual agent,

is an elusive question that in the end cannot be fully answered; to answer it would

involve drawing a firm line between what we think and what we merely think we

think.43

Williamss central concern is not punishment; and he is not at all preoccupied in this

study with the relationship between humans and animals. Yet his analysis nonetheless

proves extremely fruitful for our understanding of the history of human punishment of

animals. For here, as in the supposed contrast between ancient and modern morality, what

we find is that there is far more continuity between the past and the present than many

scholars --and indeed many scholars writing, like Nietzsche, in late-19th-century

Germany-- have been able to see. We still punish animals, often with death, and if this is

now seen to by the animal-control wing of municipal governments rather than by the

courts, this is, to cite a parallel point made by Williams about our distance from the

Greeks, because we have a different conception of law-- not, basically, a different

conception of responsibility.44 Then as now, the punishment of animals, and the

difficulty of coming up with a fully adequate rationale for what it is we are doing when

we punish animals, seems to flow from their status, again, as intermediate between

objects and agents. We treat them as governed by necessity, as subordinated to the iron

laws of their natures, until these natures erupt into the human realm and take on the

appearance of moral transgression. When this happens, sometimes indeed we continue to

treat them as mere objects, as in the case of the deodand, and the punishments we come

up with are best understood in terms of tort or forfeiture law. At other times we seem to

have no other response available than to treat them as bearers of shame, even as we resist

the conclusion that they are full moral agents, and thus guilty, in the way modern

philosophy has supposed any entity must be in order to be a suitable target of punishment. 43 Williams, Shame and Necessity, 6. 44 Williams, Shame and Necessity, 65.


29

List of Works Cited

Carlo d'Addosio, Bestie delinquenti, Naples, L. Pierro, 1892.

mile Agnel, Curiosits judiciaires et historiques du Moyen Age: Procs contre les

animaux, Paris, J. B. Dumoulin, 1858.

Karl von Amira, Thierstrafen und Thierprocesse, Mitteilungen des Instituts fr

sterreichische Geschichtsforschung 12, Innsbruck, Wagner, 1891.

Hans Albert Berkenhoff, Tierstrafe, Tierbannung und rechtsrituelle Tierttung im

Mittelalter, Akademische Abhandlungen zur Kulturgeschichte, Reihe 7, Bonn, 1937.

Paul Schiff Berman, "Rats, Pigs, and Statues on Trial: The Creation of Cultural

Narratives in the Prosecution of Animals and Inanimate Obsects, NYU Law Review 69

(1994): 288-327.

Paul Schiff Berman, "An Anthropological Approach to Modern Forfeiture Law: The

Symbolic Function of Legal Actions Against Objects," in Yale Journal of Law & the

Humanities 11, 1 (Winter, 1999): 1-46.

Paul Schiff Berman, "An Observation and a Strange but True Tale: What Might the

Historical Trials of Animals Tell Us about the Transformative Potential of Law in

American Culture?," in Hastings Law Journal 52, 1 (November, 2000): 123-180.

Jacques Berriat-Saint-Prix, "Rapport et recherches sur les procs et les judgements

relatives aux Animaux," in Memoires de la Socit Royale des Antiquaires de la France,

vol. VIII, Paris, 1827, 403-450.


30

William Blackston, Commentaries on the Laws of England, vol. I, Oxford, Clarendon

Press, 1765-1769.

Augustin Chaboseau, Procs contre les animaux, Paris, 1888.

David Chauver, La personnalit juridique des animaux jugs au moyen ge, Paris,

L'Harmattan, 2012.

Esther Cohen, "Law, Folklore, and Animal Lore," Past & Present 110 (1986): 6-37.

Jean Crespin, Histoire des martyrs perscuts et mis mort pour la vrit de l'vangile,

Geneva, 1597.

E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals, London,

William Heinemann, 1906.

William Ewald, "Comparative Jurisprudence (I): What Was It Like to Try a Rat?," in

University of Pennsylvania Law Review 143 (1995): 1889-2149.

William Ferrero, "Crime among Animals," in Forum 20 (1895): 492-498.

Jacob J. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands,

Forfeitures, Wrongful Death and the Western Notion of Sovereignty, Temple Law

Quarterly 46: 169 (1973).

Jacob J. Finkelstein, "The Ox that Gored," in Transactions of the American Philosophical

Society 712 (1981).

Michel Foucault, Surveiller et punir, Paris, Gallimard, 1975.

E. Gele, "Quelques recherches sur l'excommunication des animaux," Mmoires de la

Socit Acadmique d'Agriculture, des Sciences, des Arts et Belles Lettres du

Dpartement de l'Aube 29 (1865).


31

Otto Friedrich von Gierke, Der Humor im deutschen Recht, Berlin, Weidmannsche

Buchhandlung, 1871.

Jacob Grimm, Deutsche Rechtsalterthmer, Gttingen, Dieterichsche Buchhandlung, 3rd

Edition, 1881.

David Hume, Treatise of Human Nature, ed. L. A. Selby-Bigge and P. H. Nidditch,

Oxford University Press, 1978.

Walter W. Hyde, "The Prosecution and Punishment of Animals and Lifeless Things in

the Middle Ages and Modern Times," University of Pennsylvania Law Review 64, 7

(1916): 696-730.

Marilyn A. Katz, Ox-Slaughter and Goring Oxen: Homicide, Animal Sacrifice, and

Judicial Process, in Yale Journal of Law & the Humanities 4 (1992): 249-278.

Lon Mnabra, De l'origine, de la forme, et de l'esprit des jugements rendus au Moyen-

Age contre les animaux, Chambery, 1846.

Friedrich Nietzsche, Kritische Gesamtausgabe, ed. Giorgio Colli and Mazzino Montinari,

Abteilung VI, Band 2, Berlin, De Gruter, 1967.

Eduard Osenbrggen, Studien zur deutschen und schweizerischen Rechtsgeschichte, ch.

VII. "Die Personificirung der Thiere," Basel, Benno Schwabe Verlagsbuchhandlung,

1881.

Robert Parker, Miasma: Pollution and Purification in Early Greek Religion, Oxford,

Clarendon, 1983.

Michel Pastoureau, "Les extravagants procs des animaux," L'Histoire 172 (December,

1993): 16-23.

Antonio Pertile, Gli animali in guidizio, in Atti del Reale Istituto Veneto di Scienze,


32

Lettere, ed Arti, series XI, vol. IV, Venice, 1884-85.

Anna Pervukhin, Deodands: A Study in the Creation of Common Law Rules, American

Journal of Legal History 47, 3 (2005): 237-256.

Albert Hermann Post, Die Grundlagen des Rechts und die Grundzge seiner Entwicklung,

Oldenburg, Schulzesche Hof-Buchhandlung, 1884.

E. Robert, "Procs intents aux animaux," in Bulletin de l'Association Gnrale des

tudiants de Montpellier 1 (1888): 169-181.

A. Sorel, Procs contre les animaux et insectes suivis au Moyen-Age dans la Picardie et

le Valois, Compigne, 1827.

Katie Sykes, "Human Drama, Animal Trials: What the Medieval Animal Trials Can

Teach Us about Justice for Animals," in Animal Law 17, 2 (2011): 273-312.

Gustav Tobler, Thierprocesse in der Schweiz, Bern, 1893.

Barnab Ware, "Procs-condamnations, excommunications contre des animaux et les

cloches," in Curiosits judiciaires historiques, anecdotiques, recueillies et mises en ordre

par B. Ware, Paris, Adolphe Delahays, 1859, 440-442.

Bernard Williams, Shame and Necessity, University of California Press, 1993.

Glanville L. Williams, Liability for Animals, Cambridge University Press, 1939.

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