The jurisprudential meaning of the animal: A critique of the subject of rights in the laws of scienter and negligence

Chapter 6

The jurisprudential meaning of the animal

A critique of the subject of rights in the laws of scienter and negligence

Ed Mussawir

Animals and the work of jurisprudence

How does the animal appear in literature and in law? Amongst the various meanings, values and significations that animals make to us in different social and textual forms, a study of the legal or jurisprudential meaning of the animal remains a somewhat elusive task. It is true that animals make very complex signs that are not always easy to read outside of their finite worlds. This is perhaps why great authors often have a capacity to make animals appear to us in a context that is by no means arbitrary – lending a meaning to the animal that may carry a profound specificity and of course an often dangerous reality. In literature an author can play at narrating and dramatizing the plurality of perspectives under which an animal may have some meaning, often without the need to install a moral judgment at the heart of this vision, and thus delighting us with characters who reveal something necessary in their cruelty just as much as in their compassion. Or one might even need as an author to adopt the perspectives and subject-positions of animals themselves as in many of Franz Kafka’s stories, where only an animal seems capable of narrating the contours to a life that would otherwise remain thoroughly un-narratable.1 The animal stands for something and that something may be more or less dangerous; more or less profound. But with law on the other hand, one begins with quite a different set of imperatives and limitations. In legal discourse and in jurisprudence, the animal does not seem to be afforded the same luxury of figuration, the same allegorical refuge as it is in literature. The letter of the law is not content with leaving someone to die simply ‘like’ a dog.2 It starts and ends instead with very strict and sober significations, rigorous and stringent specifications, long-established forms of judgment, and the literary craft is – not really to extend the metaphors – but to find the means of further limiting these to a jurisdiction.

Jurisprudence it seems, rather than playing at multiple fictional meanings and perspectives, instead crafts an increasingly particular and definite meaning for things. In one sense, it creates a purely technical meaning that doesn’t necessarily exist outside law, even though it is not reducible to it. This technicality is often put to the service of a kind of normative vision that, far from being based primarily in common sense, morality or even custom, remarkably allows and sustains quite singular conceptions that might otherwise seem strange. A horse, sheep or pigeon may be considered ‘cattle’ for the purposes of the tort of cattle-trespass, although not necessarily a ‘cow’ for the purposes of dairy industry regulation. A creature like a porcupine might be considered a ‘wild’ animal in property law for an entirely different reason to the law that ascribes civil liability for damage. Even if the meanings crafted here are peculiar, they are not exactly ‘fictional’. At most it is a matter of a kind of pragmatism that goes along with situations. But it might also take quite a lot to convince most people upon first glance that these makeshift pragmatic innovations in law do not also constitute an ‘unscientific’ view of the world let alone of the reality of animal life, and that the peculiar meaning that the animal acquires in jurisprudence might be something as rigorous as the classification it receives in the other sciences. At stake in jurisprudence – more so perhaps than in philosophy and the philosophical sciences – has always been the possibility of having recourse first of all to a technical language and knowledge capable of accounting for what something can do and only secondarily to the kind of knowledge that inquires into the truth or essence of what it is.

It would be no surprise if such a language, above all, remained meaningless outside of the ‘cases’ and ‘problems’ that sustain it. There are problems that seem trivial from the perspective of disciplines other than jurisprudence. Problems like those which Gilles Deleuze notices are indispensible for the empiricist David Hume: who has the better right to a rabbit when one person has chased it to the point of exhaustion and another who happens to be closer by picks it up for himself?3 What jurisprudence makes of cases is something not reducible to the meaning given to us by judges and legislators, not to mention their philosophical doubles, who tend to recoup the rubric of ‘right’ under the form of universalism and transcendentalism. It seeks the humour that belongs properly to cases; offers relatively modest devices and technical innovations adapted solely to cases, and therefore critiques in advance the still too high-minded concept of the universal ‘subject’ of rights. Deleuze refers to the fundamental link between ‘the most serious and the most frivolous’.4 When a stampede of circus elephants injure a sideshow of dwarves after being startled by another’s dog,5 or when someone’s bull charges at a stranger who happens to be wearing a red shirt,6 jurisprudence does away with contexts and reasons that are themselves not always accidental: the inadequate working conditions for the circus performers for example. It’s not that these questions aren’t also serious and important; it’s that if one attended to them all at once, one would miss the sometimes very fine point of law that only the case can make visible. ‘Right’ in jurisprudence is an immanent form of invention. And one has to always begin with and return to the case in order to extract this concept of right, not so much as a rule, principle or judgment, but as that singular meaning (a certain generosity) which a thing may alone be afforded in jurisprudence.

A less figurative subject of rights

Naturally, the meaning of the animal and its right is made especially problematic by the fact that the contemporary discourse of ‘animal rights’ has oddly enough tended to neglect the technical discipline of jurisprudence. This may be so without mention even of the rival conceptions of right received by way of their European heritages: the analytic and the casuistic, the civil and the common law, the metaphysical and the vocational accounts of jurisprudence. ‘Animal rights’ gives us an engagement which is quite simply polemical; a critique of the human as the centre of the ethical universe and a movement of moral reform carried out in the name of an animal. Both of these ‘critical’ outlooks may have remained relatively circumspect in themselves were it not for the tendency also to crudely transport them into juridical institutional forms and presumptions by means of advocacy. One of these contested forms is the juridical concept of the ‘subject of rights’. For animal rights discourse, the problem of who is (or can be) the subject of rights is vehemently, sometimes militantly, contested. But the tools for such a critique of the subject of rights (of ‘man’ or ‘human’ as the natural subject of rights) and of the corresponding technical question of legal personality, are usually left unaddressed or poorly appropriated. It is not that the impetus for this type of critique would be too ‘radical’ to be taken up in jurisprudence. On the contrary: the kinds of subjects of rights that have been sustained and are capable of being sustained in jurisprudence are more radical than we normally think – such as the subject of the ‘right not to be born’ or ‘rights of the unborn’ in so-called wrongful life suits.7 The concept of ‘the animal’ as one of these subjects of rights in fact appears distinctly unremarkable next to those kinds of purely juridical inventions. Animal rights discourse therefore rarely acknowledges that the critique of the subject of rights that it pursues in the name of the animal or ‘nature’ may be situated less in an ethical or moral call upon law or in its need for reform, than in the relatively simple but elusive pragmatics of jurisprudence.

Within the context of these relatively recent predicaments – the moralizing discourse of ‘animal rights’, the sacralization of the animal in juridical language, the purported dismantling of the subject of rights in the name of ‘nature’ – this chapter seeks to attend to a slightly more modest development. The aim is to explore the particular meaning that the animal may take on in jurisprudence. To do this, one treads a more sober path and can for the moment put brackets around the typical philosophical reference points to address the question of right on the same ground and through the same cases that jurisprudence, in this case common law jurisprudence, situates the problem. It is worth assuming that this specific technical ground of jurisprudence may be the best one upon which to take care of the questions of law and rights in relation to animals, without reducing these questions to terms that are either entirely polemical or transcendent to the cases or situations in which they arise. To explore this terrain, I propose to look at one historically illustrative problem connected with the liability for damage caused by animals and in particular the relation between two common law actions for liability: that of scienter and that of negligence. The contemporary problem of these two forms of liability for animals paints one illuminating picture of the place that the animal occupies in law.

This picture is by no means a new one. The unique paths that these common law actions follow from an historical perspective have previously been unearthed and highlighted by others and my analysis differs in only a few ways from those who have previously written on the topic. To summarize these differences, one can point in two directions: First to the historical study of legal procedure and second and more prominently to the ‘question’ of the animal in law.

a   Bernard S. Jackson’s work on the comparative history and semiotics of legal forms of liability for animals must be admired, not just for the depth and detail of its study, but for the worthiness which the project itself seems to reveal to the scholar.8 My own chapter cannot claim here to build upon Jackson’s already established body of scholarship in a substantial sense. It does however attempt to leave open certain questions of methodology in which the historical work may take on new significance. One important dimension to the study of legal actions or procedure is historical and the study of legal procedure can be taken as not just one form of historical inquiry but indeed a singularly indispensible form to all historically oriented forms of knowledge. This is particularly so if one accepts that the instrument of law already confers legitimacy on the procedural history of social forms and formations constituting a specific archive. On the one side then, legal procedure offers scholars very little if not looked at from its historical dimension as Frederic William Maitland for one reminds us: as a study of the impermanence and obsolescence of instruments and forms of action which, having been buried, nevertheless continue to ‘rule us from their graves’.9 On the other side however, historical studies that neglect the legal and procedural nature of their object and archive also tend to miss something quite crucial; and this something I suggest is less obviously addressed historically than ‘jurisprudentially’. Sooner or later the historian will come to realize that all that one has left in one’s archive are miscellaneous instruments for which history itself offers no adequate synthesis. It is toward this juris-prudential dimension alone – the study of the procedures which attribute liability for damage caused by animals in so far as it provides the contours for a particular form of legal subject – to which this chapter tries to turn its attention.

b   In addition to this quite general attitude on method, my interest in the contemporary civil actions of scienter and negligence in this chapter also has a specific focus directed to the legal status of the animal itself, the so-called ‘question of the animal’, and its rights. In the twentieth-century work addressing the jurisprudence of forms of action for liability for animals – Glanville Williams’s doctoral study being the most exhaustive conducted in common law jurisdictions10 – the primary concern has been to assign an historical and doctrinal meaning to the civil relation between persons tied together by the problematic conduct of an animal or a type of animal. The meaning of the animal itself however is often (and increasingly) taken to be secondary, circumstantial or at least unimportant to this doctrinal relation. The animal seems to designate no more than a kind of occasion for a harm recognized by law. So while one may treat the rights and obligations between persons affected by animals as an object of strict legal knowledge and academic inquiry, one tends to doubt at the same time whether the nature, conduct, status and rights of the animal itself may also be treated with the same juridical and intellectual prudence. It is this potentially underdeveloped aspect to what one can call the ‘juridical’ and ‘jurisprudential’ signification of the animal – the specific meaning of what the animal can do in law – which this chapter tries to show is a serious problem for the discourses that today speak in the name of animals and animal rights. This is so, I believe, because what the animal is capable of doing in law and to the text of law (for instance simply by appearing in it) is not necessarily the same as what the legal text itself continues to describe the animal as doing or as appearing capable of doing.

The lawfulness of animals

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