IN many medieval Western legal systems, the prosecution of animals was common for various offences such as murder, criminal damage, and nuisance – animals were prosecuted and convicted just like humans; although some of them, such as pigs, were the property of humans, this did not preclude them from being treated like people for the purposes of criminal liability.
This is not purely a bizarre aspect of history; the trials went on for at least a millennium, occurred in almost every European country and elsewhere, and courts took the proceedings seriously, generally following the same procedures as they did in trials with human defendants. The animals often had defence lawyers. They were sometimes dressed in human clothes to be executed and were often labelled as having human concepts of fault, intent, wickedness or cruelty. Some trials took place in ecclesiastical courts, others in the ordinary criminal courts. Some form of clemency was occasionally exercised: for example in a famous fifteenth century case in France, when a sow and her piglets were charged with murder of a baby, the piglets were later pardoned due to arguments of their youth and bad upbringing, and to doubts about whether they were truly their mother’s accomplices.
By looking at why so many states applied their full judicial process to animals we can attempt to learn from the past, and potentially to avoid its mistakes. Some present and future laws and aspects of our legal system may be viewed in a similar way to animal trials, through the lens of history. In the 13th century, Thomas Aquinas and Philippe de Beaumanoir heavily criticised the practice, and some other thinkers regarded it as ridiculous, but the evidence is that the trials were seen by most people as a normal aspect of justice. So, how were animal trials justified or explained? In the early twentieth century, commentators often simply regarded them as the product of an ‘unenlightened era’ and primitive thinking, but more sophisticated theories were advanced in earlier times, often running parallel to modern thinking about why societies prosecute and punish humans; for example Gratian, writing in the twelfth century, thought that animals were executed not for their crimes, but so that disturbing events could be forgotten and society could move on from them. Others have argued that the purpose of the trials was to rehabilitate the animals, a view which depends upon a belief that at least some animals are rational actors capable of repentance.
Part of the reason may have been the spectacle of public trial and public execution. Other hypotheses are that the trials were intended to render the animals incapable of causing further harm, or to deter them from doing so; both of these are commonly argued as purposes of punishing humans today. Most recently, scholars conceive of animal trials as a ‘search for order’. But none of these explanations wholly stands up to scrutiny. Nor does any of them explain all of the trials, their form or their penalties.
If they were due to ‘unenlightened times’, why did they apparently become more common as centuries passed, peaking in the eighteenth century? If the trials were to prevent further harm, why was a trial needed – killing the animals without trial would have been cheaper, quicker and less of a burden on the legal system. Excommunication or execution would not help the rehabilitation of the animals, and animals were not routinely in the audience of the trials or executions, so deterrence is questionable at least. Explaining tragedy through attributing fault and blame via a trial, rather than accepting that accidents happen, does not work as a reason for the trial of a cockerel for laying an egg, or the excommunication of insects. Indeed little can explain to modern minds the practice of sending warning letters to rats, instructing them to leave a house.
In modern times, animals are still sometimes prosecuted: in the 1920s a chimpanzee appears to have been convicted for smoking a cigarette in public in Indiana, and a bear for stealing honey in Macedonia in 2008. A form of trial takes place in many countries when dangerous dogs harm humans or property. Giving a bear a criminal record (in his absence) for theft and property damage was perhaps an excessively complicated mechanism for the state to give a beekeeper compensation; because the bear was a protected species and missing, other penalties were ruled out.
By looking at the history of animal trials, we can learn at least two important lessons. Firstly, our reactions to them can show us what we value about legal proceedings and justice. Secondly, laws and processes which seem absolutely normal to most people at their time may well appear incomprehensible or travesties in the future. It is dangerous to criminalise any form of behaviour, or to campaign for punishment, without having a clear idea of why and how. Otherwise we risk incredulity as the reaction of future viewers of our laws. It is likely that one day historians will regard some of our current laws as barbaric, based on unjustifiable assumptions, serving no purpose, or counterproductive, when now only a few speak out against them. The (difficult) trick is to spot those laws in advance.
*Professor Claire de Than is Director of Studies of the Institute of Law, Jersey
