Should Animals Be Prosecuted?
Tauriq Moosa is a tutor in ethics, bioethics and critical thinking at the University of Cape Town, South Africa. He is currently pursuing a Masters degree at the Centre for Applied Ethics, Stellenbosch University. He has published essays and articles on practical ethics, focusing on subjects like free expression, killing, sex, and religion in public life. He debated religion with Archbishop Desmond Tutu in the BBC documentary, the Tutu Talks, and has been featured on local radio shows. He is also an avid comic book writer and reader.
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Drew Nelles has written a fascinating article detailing our species’ history of tackling “criminal activity” of animals. Today, we commonly hear of everyday stories of dangerous animals being “put down”. “The discussion surrounding these attacks has been limited to the immediate and the pragmatic,” says Nelles. “Should we put killer animals down? Should we curb tourism in places where wild things roam? Should we outlaw exotic pets, or circuses, or aquariums, or zoos?” But the history of tackling “dangerous” animals is far more engaging than you would surmise from today’s responses.
In the past, we have pondered their criminal agency and taken their lives in bold displays of crude retributive justice; we have wondered whether they are punishments from God or Satan’s minions… In Medieval Europe, [we had] the animal trial: the practice of dragging a creature accused of committing a crime—like killing a child or destroying a crop—before an actual court of law, and subsequently executing, exiling or absolving [the accused anima].
This was not some occasional enterprise. Lawyers could make their entire career on defending these voiceless clients.
A sixteenth-century French jurist named Bartholomew Chassenée made his name as the counsel to some rats who were accused, in an ecclesiastical trial in Autun, of decimating the area’s barley crops. Rats being rats, Chassenée could hardly rely on his clients’ sympathetic qualities to get them off the hook. So, like numerous lawyers before and since, he built his argument on technicalities: the defendants couldn’t be expected to appear in court, as Evans says, “owing to the unwearied vigilance of their mortal enemies, the cats, who watched all their movements, and, with fell intent, lay in wait for them at every corner and passage.”
What makes this fascinating is that it undermines our ideas of personhood. After all, why did it matter to bring animals to court instead of just execution? We’ve treated fellow humans worse with lynch-mobs, mass extermination and so on. Why during this time in Europe and in America, when people were being accused of witchcraft and killed (not on the scale many think though), without any due process, were rats allowed sophisticated defenders, trials and court-dates?
I can only surmise that the depth of evil (in the Christian sense) of a human was perhaps viewed as worse than any an animal could reach. Thus, if the evil of a human is worse, we more than likely won’t take chances lest that evil spread. But this actually can't be true, either, since we still did put people through trials even though witch-hunts also occured. It seems like something else was happening in relation to people's responses to evil.
Scapegoats and Evil
As writers like Susan Neiman have argued, evil was and is used as a way to makes sense of the world: earthquakes caused by mass promiscuity; diseases for deserting God; and even 9/11 was caused by the sin of homosexuality, according to Jerry Falwell. To make sense of evil in the world beyond human-caused evil, like murders, believers have often linked chaotic or natural evil, like earthquakes, with human action and inaction, or with scapegoats who either embodied types of actions or were types of people (witches, Muslims/Christians, etc.).
While animals have been and continue to be killed en masse, giving them a trial individually for crimes treated them more like persons than we often do today. This isn’t necessarily a good thing, since by making them more into persons, we can more easily use them as scapegoats for evil. If they were merely machina automata, then it would be like imputing evil into a waterfall. No, it is necessary to put them on an equal moral level - if only so we can impute evil and, thus, get “rid of” the evil by getting rid of the animals.
So though, for Nell, “the most bizarre aspect of the whole strange phenomenon is the fact that it put man and beast on nearly the same level”, we can surmise why this was the case.
Justice during this time hardly had anything to do with corrective or restorative focuses – you want to get rid of evil, not massage it into good. It was about how quickly you could send someone to the gallows, to the torture chamber, to death.
This changed with the Enlightenment, however.
Animal trials began to die off when Enlightenment ideals shouldered aside physical torture in favour of psychological penalties: lifetime incarceration, death row, [etc.] …. As European legal systems sought to fashion themselves as something other than instruments of naked state coercion, prisons grew less physically brutal and started relying on subtler, more emotional methods. Foucault famously theorized that, during this period, the locus of punishment shifted from the prisoner’s body to his soul. And so, because animals have no soul to break, we stopped forcing them through the courts.
One need not agree that souls exist to see, descriptively, why this happened. (Furthermore, soul for Foucault probably had more to do with mind, consciousness, emotions than some ethereal Christian entity).
Nelles is correct that this history is fascinating. But it ties in finally with an important moral point, even though I disagree with him about animals having "no moral compass".
What’s absurd is the idea of trying a creature that has no moral compass, no ability to differentiate between right and wrong or atone for its actions. The outcome, though, is just as brutal as any factory-farm operation: an animal led to a painful death for reasons it cannot possibly discern. Ultimately, the problem of animal trials is the problem at the heart of the relationship between humanity and the natural world: do animals exist for our use? If the answer is no, then what gives us the right to eat or destroy them? If the answer is yes, then why does it matter whether we kill them in a slaughterhouse or at the gallows? The animal doesn’t know, or care, whether we are punishing it for some crime or killing it for its meat, and any concern over the difference merely reflects the narcissism of human morality.
This is a fascinating essay and well-worth reflecting on, especially since our views of animals have important ramifications for how we view ourselves.
Image Credit: "Trial of a sow and pigs at Lavegny" (source)
"Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child."
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