Responsibility, ‘Bad Luck’, and Delinquent Animals: Law as a Means of Explaining Tragedy

Date01 December 2009
DOI10.1350/jcla.2009.73.6.607
Publication Date01 December 2009
AuthorJesse Elvin
SubjectArticle
Responsibility, ‘Bad Luck’, and
Delinquent Animals: Law as a
Means of Explaining Tragedy
Jesse Elvin*
Abstract This article examines the phenomenon of the prosecution and
punishment of animals in medieval and early modern Western legal
systems. Animal trials are important because examining them can help us
learn more about the functions of legal proceedings. The article considers
potential explanations regarding these trials. With reference to Nicholas
Humphrey’s idea that the animal trials were the product of a search for
order, the article subsequently argues that the notion that law can make
sense of tragedies by defining them as the consequence of culpable con-
duct is illuminating in the context of contemporary English law. By
conducting an analysis of a well-known contemporary criminal law case,
the James Bulger trial, the article shows that one can plausibly interpret
the outcome of certain significant modern cases as having the function of
explaining tragedies in a relatively reassuring manner, and that this func-
tion may conflict with the requirement of ‘doing justice’.
Keywords Prosecution of animals; Functions of criminal trials
Can an animal be guilty of a criminal offence? It might seem obvious
that the criminal law applies only to ‘persons’, and that animals are not
‘persons’. In the USA, for instance, there is a legally significant distinc-
tion between ‘persons’ and animals; as the US Court of Appeals put it in
a constitutional law case involving an alleged violation of the right to
free speech of ‘Blackie the Talking Cat’, ‘although Blackie arguably
possesses a very unusual ability, he cannot be considered a “person” and
is therefore not protected by the Bill of Rights’.1Nevertheless, is it
correct to say that all systems of criminal law ‘concur that punishment is
imposed only for human action or a “human act”’?2George Fletcher
claims that the answer to this question is ‘yes’. His opinion is that all
legal systems consider it ‘barbaric to punish animals for causing harm’.3
However, certain modern legal systems do consider it appropriate to
* Lecturer in Law, The City Law School, City University London; e-mail:
jesse.elvin.1@city.ac.uk. The author would like to thank Peter Kunzlick, Nicola
Lacey, Arlie Loughnan, Claire de Than and Charlie Webb for their comments on
earlier drafts of this article.
1Miles vCity Council of Augusta, Georgia, 710 F.2d 1542 (11th Cir. 1983). See also The
Cetacean Community vBush, 386 F.3d 1169 (9th Cir. 2004), where the US Court of
Appeals held that whales, porpoises and dolphins are not ‘persons’ under various
statutes and that they therefore do not have standing under these statutes.
2 G. Fletcher, Basic Concepts of Criminal Law (Oxford University Press: New York,
1998) 44.
3 Ibid. However, he also believes that ‘it is not necessarily “barbaric” to punish legal
entities for crimes committed by the people who constitute the entity—e.g. states,
corporations, etc’ (ibid. at 56).
530 The Journal of Criminal Law (2009) 73 JCL 530–558
doi:10.1350/jcla.2009.73.6.607
punish animals.4Moreover, animals were often prosecuted in medieval
and early modern Western legal systems,5and this practice of prosecut-
ing animals survived in at least certain Western legal systems into well
into the 20th century. In 1927, for example, Joseph McNamara reported
that a few years ago (about 1924) one of the justices of the peace in a
town near South Bend tried and convicted a chimpanzee for publicly
smoking a cigarette in violation of the laws of Indiana.6
Prosecutions of animals in Western jurisdictions have received relat-
ively little attention not only in most general cultural histories of the
Middle Ages and early modern times but also in most legal histories.7
One reason for the lack of scholarly consideration of this phenomenon
of animal prosecutions may be a lack of awareness of the trials. Another
reason for the lack of academic discussion of the issue may be the lack of
anything meaningful to say at the level of theory.8How does one
explain, rather than merely describe, the trials? How does one rational-
ise the existence of the animal trials? Why did communities incur the
trouble and expense that it took to conduct criminal proceedings? After
all, it certainly would have been less time-consuming, less burdensome,
and less expensive to simply kill problem animals.9Furthermore, on
what basis did communities hold animals criminally responsible for their
behaviour? The prosecution and punishment of animals seems un-
acceptable and perhaps unfathomable from a contemporary English
perspective.10 Contemporary English criminal law takes a capacity-
based approach to liability; it apparently treats animals as lacking the
capacity to commit crime.11 Moreover, contemporary theorists of crim-
inal responsibility in England and other common law countries gen-
erally agree that responsibility for crime is found in a certain set of
capacities,12 possessed only by humans. In Nicola Laceys words, there is
a fundamentally shared idea . . . [that] the conditions of responsibility
. . . reside in fundamental aspects of human agency; in capacities for
4 In 1992, for example, a court in Tanzania jailed a goat for a week for illegally
eating crops on private property (Tanzanian Court Jails Goat, Agence France
Presse, 10 January 1992).
5 See generally E. Evans, The Criminal Prosecution and Capital Punishment of Animals
(Faber and Faber: London, 1987).
6 J. McNamara, Curiosities of the Law: Animal Prisoner at the Bar (1927) 3 Notre
Dame Lawyer 30 at 31.
7 P. Dinzelbacher, Animal Trials: A Multi-Disciplinary Approach (2002) 32 Journal
of Interdisciplinary History 405. It is instructive to consider that there is apparently
only one other British law journal article on the topic (P. Jamieson, Animal
Liability in Early Law (1988) 19 Cambrian Law Review 45), whereas there are
dozens that deal with various aspects of the Homicide Act 1957.
8 N. Humphrey, Foreword in Evans, above n. 5 at xvii.
9 J. Girgen, The Historical and Contemporary Prosecution and Punishment of
Animals (2003) 7 Animal Law 97 at 115.
10 However, there are many examples of societies where animals are held responsible
for harm (see e.g. Girgen, above n. 9 at 108).
11 There is no relevant case or statute law. However, animals are not prosecuted in
contemporary England. In a sense, English law apparently treats animals like
children; under s. 50 of the Children and Young Persons Act 1933, as amended, a
child under 10 years of age is incapable of committing crime.
12 N. Lacey, Responsibility and Modernity in Criminal Law (2001) 9 Journal of
Political Philosophy 249 at 255.
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