Rights of Non‐humans? Electronic Agents and Animals as New Actors in Politics and Law
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
| Author | Gunther Teubner |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00368.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 4, DECEMBER 2006
ISSN: 0263-323X, pp. 497±521
Rights of Non-humans? Electronic Agents and Animals as
New Actors in Politics and Law
Gunther Teubner*
Personification of non-humans is best understood as a strategy of
dealing with the uncertainty about the identity of the other, which
moves the attribution scheme from causation to double contingency
and opens the space for presupposing the others' self-referentiality.
But there is no compelling reason to restrict the attribution of action
exclusively to humans and to social systems, as Luhmann argues.
Personifying other non-humans is a social reality today and a political
necessity for the future. The admission of actors does not take place, as
Latour suggests, into one and only one collective. Rather, the proper-
ties of new actors differ extremely according to the multiplicity of
different sites of the political ecology.
I. THE RATS OF AUTUN
1
In 1522 rats were placed on trial before the ecclesiastical court in Autun.
They were charged with a felony: specifically, the crime of having eaten and
497
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*
Johann Wolfgang Goethe University, Fachbereich Rechtswissenschaft,
Postfach 11 19 32, Senckenberganlage, Frankfurt am Main D-60054, Germany
G.Teubner@jur.uni-frankfurt.de
For helpful comments I would like to thank Jean Clam, Malte Gruber, and Bruno Latour
as well as the anonymous reviewers.
1 The following account is an abridged excerpt from W. Ewald, `Comparative
Jurisprudence (I): What Was It Like to Try a Rat' (1995) 143 Am. J. of Comparative
Law 1889±2149, 1898 ff. He relies on two sources, E.P. Evans, The Criminal
Prosecution and Capital Punishment of Animals (1987 [1906]) 18±20; W.W. Hyde,
`The Prosecution and Punishment of Animals and Lifeless Things in the Middle
Ages and Modern Times' (1916) 64 University of Pennsylvania Law Rev. 696±730,
706 ff. K. von Amira, Thierstrafen und Thierprozesse (1891) gives an extensive
legal historical account of animal punishment. There is some confusion over what is
meant by `legal actor'. Some people argue that no courts have ever given trees legal
standing as actors and when organizations or individuals take action on behalf of
trees, this does not turn the trees into legal actors. Of course, this depends on the
wantonly destroyed barley crops in the jurisdiction. A formal complaint
against rats of the diocese was presented to the bishop's vicar, who there-
upon cited the culprits to appear on a certain day, and who appointed a local
jurist, Barthelemy Chassenee to defend them. Chassenee in his plea cited a
remarkable range of obscure and forgotten authors, as well, of course, as
various relevant anathemas in the Old and New Testaments ± God's cursing
of the serpent in the Garden of Eden; the law in Exodus that an ox which
gores a man or a woman to death is to be stoned, and its flesh not to be eaten;
Jesus's malediction of the barren fig tree of Bethany; the story of the
Gadarene swine.
He also cites Virgil, Ovid, Cicero, Aristotle, Gregory the Great, the
Institutes of Justinian, Moses, various patristic theologians, and Pico della
Mirandola. He reports numerous examples of successful anathemas pro-
nounced by medieval saints against sparrows, slugs, leeches, eels, and even
an orchard. Upon his compelling procedural arguments, the court, unable to
settle on the correct period within which the rats must appear before the
court, adjourned on the question sine die, and judgment for the rats was
granted by default. The rats had won their case.
From the ninth century to the nineteenth, in Western Europe, there are over
two hundred well-recorded cases of trials of animals. The animals known to
have been placed on trial during this period include: asses, beetles, blood-
suckers, bulls, caterpillars, chickens, cockchafers, cows, dogs, dolphins, eels,
field mice, flies, goats, grasshoppers, horses, locusts, mice, moles, pigeons,
pigs, rats, serpents, sheep, slugs, snails, termites, weevils, wolves, worms, and
miscellaneous vermin.
The animals did not always win their case. Some animals were severely
punished, burnt at the stake; others merely singed and then strangled before
the carcass was burned. Frequently the animal was buried alive. A dog in
Austria was placed in prison for a year; at the end of the seventeenth century
a he-goat in Russia was banished to Siberia. Pigs convicted of murder were
frequently imprisoned before being executed; they were held in the same
prison, and under substantially the same conditions, as human criminals.
In medieval and Renaissance Europe and also in other cultures, the world
of law was populated with non-human beings, with ancestors' spirits, gods,
trees, holy shrines, intestines, birds' flight, to all those visible and non-
visible phenomena to which communication could be presupposed and
which included the potential to deceive, to lie, to trick, and to express
something by silence.
2
Today, under the influence of rationalizing science,
498
definition. In this article it will be argued that it is the attribution of communicative
events to an entity as `its' acts and the attribution of rights to an entity that
transforms this entity into an actor. And if an agent acts on behalf of this entity, then
the `actor' is not the agent but the entity itself.
2P.Fuchs, `Die archaische Second-Order-Society: Paralipomena zur Konstruktion
der Grenze der Gesellschaft' (1996) 2 Soziale Systeme 113±30, 120 ff.
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