Animal Studies Bibliography
Cohen, Esther. 1986. Law, Folklore, and Animal Lore. Past and Present 110: 6-37.
Anthropologists understand law as an ever-changing interaction of various levels of practice (royal legislation, local ordinances, custom, etc.) and as a product of its cultural context. European animal trials illustrate this interaction since they existed in between elites' legal theories and popular custom and belief. There were two types of animal trials--secular and ecclesiastical. Secular trials were held against domestic animals who had killed a person. They began in 13th century France and spread to Germany and Italy. Pigs were the most commonly accused animal, since they often killed babies; others included oxen, cows, horses, and dogs. The trials involved a careful following of legal procedure, with animals having similar rights and punishments as did humans. Ecclesiastical trials were used against pests that could not be tried individually (e.g. locusts or rats). They began in Switzerland and spread first to surrounding areas, then much more widely, passing through Church lines. These trials also followed court procedure, including assigning defense lawyers for the animals. Arguments in these church trials debated whether humans had the right to excommunicate animals, whether animals had survival rights, and whether humans had jurisdiction over animals at all. The first and third issues were decided for the Church, on the basis of the Biblical hierarchy of the universe in which man was on top of animals/nature. The second concern was harder to decide, and trials sometimes decided that the animals had to be provided for in some way (e.g. given a different area to live in). Although all believed animals were insensate, the focus on justice meant that they were less often found guilty than were animals in secular trials. Punishments were usually excommunication or exorcism. Both kinds of trials became informal village practices and then died out in the 18th century. The Western idea of universal hierarchy and important distinctions between people and animals, upon which these trials are based, is quite different from the beliefs of most other societies, which consider humans and other animals to be on the same plane. 19th century scholars trying to explain the practice on animal trials have argued that they were a case of childish revenge or are a relic of primitive cultures. However, the intense legalism of the trials and the failure to distinguish between the two types of trials makes these explanations doubtful. These explanations are most brought into question by the fact that the trials peaked during the late Middle Ages, with the resurgence of rationalism, Roman law, and literacy, timing which contradicts any notion of linear progression or a culture outgrowing anima trials. Finkelstein argues that the trials were a Judeo-Christian practice to punish animals who had overstepped their place in the hierarchy. His conclusion, however, is based on his limited conception of law and trials that leads him to miss evidence of the trying of animals in other cultures. Further, his theory fails when we recognize that actual legal practice rarely coincides with ideology, so we cannot explain practice, especially something occurring over such a long period of time, with reference to Biblical theories. If we examine records from the times, we can see that there is both defense and condemnation of animal trials. Local reports were matter-of-fact, suggesting that animal trials occurred often enough before written records that they did not merit discussion. Some secular thinkers at the time argued that animals should not be tried because crime required intent, which animals could not have. Thomas Aquinas also argued against animal trials, arguing that animals are God's creatures and therefore acting out God's will, meaning that cursing them would be blasphemy. Alternatively, if animals were the Devil's agents, the punishment should be against the one who had willed the crime, not the animals, who were unreasoning agents (21). Such criticisms were part of a 13th century trend among elites to eliminate popular ideas about animals. The public believed animals had reason and will and told stories about animals holding trials among themselves, animals participating in human legal procedures, and magical half-animal, half-human beasts. Animal trials continued, however, in spite of this elite effort to inculcate rationalism into the public. The (mostly implicit) defense of the practice came from both secular and church sources. Most supporters of animal trials did not bother to write any defense of the practice; instead, they simply continued to hold the trials. One French defense, however, is worthy of note because it cites a its basis Christian theology. This is noteworthy because at the time, all other legal practices were being codified and explained on the basis of Roman law. Roman law, however, offered no precedent for animal trials, specifying instead that in cases of an animal causing human death, the animal would be transferred to the injured parties--in other words, an exchange of property as compensation. This problem meant that most customals (the codifications of customs to help people practice the law and to deal with the problem that laws were always changing) ignored animal trials altogether, since they could not offer a Roman law justification. Boutillier's invocation of Biblical law was likely then a last resort. Whereas secular trials could go on without much concern over this lack of defense of the practice, church trials had to be based on clear reasoning. Church elites' defense of animal trials occurred at the same time as the witch trials, and the two types of trials must be understood together. The fact that very similar exorcism rites were used in both cases in noteworthy and suggests that people connected the phenomena, believing that demonic influences were at work both within witches and within offending animals. Further, the two types of trials occurred at the same times and places. This belief in demons inside the animals being tried brought back the popular ideas about the animal world that 13th century scholars had tried to eliminate. While church scholars justified the trials based on maintaining the hierarchy of the universe, their teachings about demonology, spread to the public through the witch trials, seeped into animal trials and revived old popular beliefs about mythical animals and the like. Animal trials persisted for so long, then, because both elites and popular beliefs supported them, though for different reasons. Further, the served important social functions of reinforcing animal-human relations, helping the society believe in itself as just, and offering opportunities, in church trials, for ritual purification. Animal trials thus show how the practice of law is formed through complex interactions of multiple levels of custom and doctrine.
