nonhuman rights and climate change

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Nonhuman Rights and Climate Change

Foundations in Early European Natural Justice

Vanessa Burns

A thesis submitted in fulfilment of the requirements for the degree of

Masters of Arts (Research)

University of New South Wales

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I certify that the Library deposit digital copy is a direct equivalent of the final

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Acknowledgements

The production of this thesis was achieved with the help of a number of

people whom I would like to acknowledge and thank for their contributions.

I have appreciated the help and professionalism of the staff of various research

institutions including the National Library of Australia, the Mitchell Library

and State Library of NSW. Particular thanks go to staff of the British Library in

London and the various Bodleian libraries in Oxford, UK. I would also like to

extend my thanks to the archivists at the Inns of Court in London and the

British National Archives in Richmond, UK.

I would particularly like to thank Stephen Gapps for editorial comments and

proofreading, and Beth Stone for her invaluable support through the writing

stages. I would also especially like to thank my son Solomon for being so

understanding, supportive and independent while I was away doing research.

And finally, my supervisors Stephen Muecke and Stephen Healy have been

crucial to this thesis. Most importantly, their insightful comments,

suggestions and intellectual discussion have been invigorating and inspiring

and I warmly thank both for their contributions to this project.


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Table of Contents

Originality Statement """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" #Copyright Statement """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" $

Authenticity Statement """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" %

&'()*+,-./-0-)12 """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 3

Glossary of Legal Terms """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 4

Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 5Archives and Research Methodologies""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6#

Literature Review""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63

Roman Texts """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63 English Medieval Texts """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63 English Legal History John Seldon and the Seldon Society Publications""""""""""""""""""64 Contemporary Legal Theory"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""67 International Environmental Law """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""65Contemporary Social Theory """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#8 Divine Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#7

Res Sanctus- City Walls ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++!. Res Sacrae Sacred Things and Places ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++%# Res ReligiosaeTombs, Funerals and Burial Grounds.++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++%&

Chapter Two: The Right to Stand? Nonhumans in Early Legal Procedure """"""""%#

Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%# Pauperies Four-footed Animals """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%3 Substitution in Roman Law """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""36 Towards Due Process: Analysis of Roman Procedure"""""""""""""""""""""""""""""""""""""""""""""""""""""""3$ Medieval European Procedure """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""37Religion and the Natural World """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9# Procedure in Medieval England """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9% The Symbolic Use of Objects in English Legal Procedure""""""""""""""""""""""""""""""""""""""""""""""""94 Conclusion """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""48 An Historical overview of Natural Law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""43 Roman Legacies in Medieval English Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""78

Gratian ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++.%

Bracton +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++.& Customary Law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""5# Secularisation""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""53 Establishing a New Source of Natural Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""55

In Conclusion: Latours Parliament of Thingsand the Problem of

Anthropocentrism in Global Climate Governance """""""""""""""""""""""""""""""""""""""""""""""""686

Bibliography"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 687


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Glossary of Legal Terms

0123* 4 1(5* 267389*9 9*:262)2;6< ;: 3*=(3 )*>?< )1>;8=1;8) )1* )1**;(9 (69 )2783(> )*>?< )1() 6**9 26)>;987)2;6+

damages: The money paid or awarded to a claimant (in the UK) or a plaintiff (in the

US) in a civil action.

decretum:A decree of the senate.

defendant: In civil proceedings, the party responding to the complaint; one who is

sued and called upon to make satisfaction for a wrong complained of by another. In

criminal proceedings, the accused.divinis jurisor divine law: Divine law was a division of Roman legal instruments

under the law of things, further catagorised under res nullius (things belonging to no-

one). It can be thought of as a form of natural justice, given by God, and ruling over

specific things (set out in the corpis juris civilis) that were understood as particularly

sacred or important in some way. Divine law was, in some primary sources, also

conflated with natural justice as the theoretical basis for natural law practice.

due process: This term is used in two ways. Firstly in its legal context it denotes an

order of procedure set out under law. This can apply to any kind of procedure related

to the practice of law including court procedure, or punishments. Latour also uses the

term due process in a different sense as an empirical methodology that might

implement his political theory of things at an institutional level.

extra-patrimonium: Things that are not in commerce, or are owned commonly

inter alia: "Among other things." Used in pleadings before a court or opinions of a

court. ie. "The defendant claims, inter alia, that the plaintiff fails to establish . . ."

iura in rem: Latin the rights of things

iuris or juris: Latin law

jurisprudence: Theory and philosophy of law, which determines appropriate goals

and methods of justice.

jus civile: Latincivil law.

jus gentium: Latin, the law of nations.

locus standi: The right to stand before a court of law and bring or participate in

proceedings.


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natural justice: In its Roman context natural justice was an early form of

jurisprudence that argued for the existence of moral ways of behaving that were given

by various sources, including God and logic. This is different from the modern

interpretation of natural justice as the duty to act fairly that is effectively conflated

with natural law. When I refer to natural justice I use it in its original sense. The word

natural in this context is not associated with the modern term nature. Instead it

denotes a logic of right action or responsibility that was understood to be already in

existence and therefore not a product of human society.

natural law: natural law can be understood in early jurisprudence as a response to the

responsibilities set out by natural justice, expressed in the form of rules and laws that

govern right and just action.

patrimonio: Latin belonging to someone

plaintiff: A party bringing a suit in civil law against a defendant; accusers.

plea: A statement made by the defendant as to his/her guilt or innocence to the charge

made against him or her.

positive law: Man-made law, that is, law established by governmental authority,

especially that which has been codified into a written form (statutory law).

precedent: Judicial decision that serves as an example for how to rule in similar cases

prima facie: Latin for "At first sight." Self-evident; obvious. A prima facie case is

where the plaintiff presents enough evidence to win outright barring any defences or

additional evidence presented by the defendant.

res: Latin thing

res nullius: Things belonging to no one.


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In your opinion, then, it is not in the edict of the magistrate, as the majority of

modern lawyers pretend, nor in the Twelve Tables, as the ancients maintained, but in

the sublimest doctrines of philosophy, that we must seek for the true source and

obligation of jurisprudence Cicero1

Introduction

Theorists Bruno Latour and Alfred North Whitehead have both criticised the

conceptual separation of Nature and Society as something to be remedied in political

theory. Latour and Whitehead argue that the historical origins and development of this

separation reveal a way of viewing the world - from a human centre - that isproblematic. From a theoretical position this problem concerns social organisation.

Yet these theoretical contexts only begin to elucidate the empirical project - one of

addressing this separation in new methodologies at an institutional level.2

#D27*>;@ E+ F+ !"# !%#&'()#) *+ ,- !- .(/#%* *0 !"# 1&'2%# *+ !"# 3*4)5 60 7(8(0&'(*05 60 9&'#5 60

'"# :#;2=* I*33 (69 N;6O N) D;5*6) M(>9*6 #./-+

!K();8>@ P#CC%@ !""&Q+ Whitehead, (1968, p. 74)Latour suggests that the terms nature and society do not designate domains of reality; instead,

they refer to a quite specific form of public organization. Latour terms this way of historically


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Anthropocentrism has recently been acknowledged as a problem affecting the fields

of environmental law and global climate governance. Existing methodologies are

criticised as incapable of protecting nonhuman interests in areas such as resource

management and climate change governance. In light of this, emergent legal theory

argues for the development of legal instruments that give rights to nonhumans.

Legal theorist Christopher Stone suggests that this method of decentering the human

in legal frameworks has the potential to achieve greater environmental justice through

broader (more democratic) representation of the interests - both human and nonhuman

- in legal frameworks.3

This thesis presents an historical survey of nonhuman rights, procedures and legal

ethics in early western law aimed at informing such projects. Evidence from the

Roman and medieval periods show that early Western societies had a more connected

and inclusive understanding of humans and things (res) in methods of social

organisation. The legal evidence examined in this thesis shows that this inclusivity of

nonhuman interests is reflected in both the jurisprudence and legal instruments of

both periods. Early jurisprudence included nonhumans in ideas of justice, in their own

right. This meant that nonhuman interests could be considered independently of

human interests. Evidence shows that this understanding in jurisprudence also

underpinned the development of legal instruments, and due process in court, that

allowed for nonhuman representation, trial and punishment. This sets out an important

precedent in Western law for emerging theory and practice in the fields of

environmental law and climate governance.

While Roman and medieval history might seem a remote source for a comparative

analysis of contemporary environmental law and governance, there are certainly

similarities between the jurisprudence (in relation to natural justice), legal instruments

and due process used in early societies, and those being considered in emergent legal

theory to implement rights for the environment.4While these histories certainly do

organising public life between things and people the old Constitution, arguing that by dividing

public life into two incommensurable houses, the old Constitution led only to paralysis. p. 53.%R*9=S*33@ Catherine (1996, 99). Stone, Christopher (1972, 2010).&Stone, 2010.


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frameworks. I argue that the move towards (re)establishing contemporary legal

instruments, that give some rights to nonhumans, calls for many of the same uses and

principles found under the historical examples of early law. I contextualise these ideas

within a political ecology framework (Bruno Latour, Jane Bennett and others), and

make an argument for how greater representation of things (res) in policy and law

will benefit the broader project of environmental governance. Moreover, I consider

the agency of things, how this contributed to their inclusion in premodern law, and

what their reemergence in contemporary legal theory might mean. These

considerations are engaged with political theorist Jane Bennetts question: 1;S

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Literature Review

Roman Texts

Various attempts were made throughout the Roman era to gather and simplify

existing laws, beginning with the law of the Twelve Tables. The Twelve Tables arethe first known written records of Roman law and dated from the mid fifth century

BC. The original ivory tablets were destroyed when the Gauls sacked Rome in 390BC

and reconstructions are based on unofficial editions, the format of which is generally

considered unreliable.

While the reconstruction of the Twelve Tables forms an important basis for Roman

legal ideas, by far the most successful effort to collate Roman laws was that of

Justinian I, whose code superseded all previous laws and formed the Roman Empires

legal legacy. Justinians Code, formerly known as the Corpus Jus Civilis(Body of

Civil Law) is made up of four books examined here; The Codex Constitutionum

(Codex) a reconsolidation of all known Roman laws written by ten Roman jurists;

theDigestaor Pandectae(the Digest) drawn in 530-533 c.e. - consisting of the jurists

comments; theInstitutiones(The Institutes) - a complete exposition of the elements of

Roman law; and theNovellae Constitutiones Post Codicem(The Novels) - containing

several collections of new regulations issued by Justinian himself.

Matters of inheritance, contracts, property and persons remained the main categories

of a revised English use of Roman law in the eleventh century. However, Justinians

Code contains books on other important categories such as some under the law of

things (of which property law is a part) and divine law. These concepts found

primarily within theDigest contain the main body of laws involving nonhuman rights

and standing.

English Medieval Texts

The establishment of early English law in the twelfth and thirteenth centuries

produced a regular demand for what became the standard texts of study. These were

the Roman Corpus Iuris Civilis (introduced above) and the Corpus Iuris Canonica

(body of canon law). The later consisted of the Twelfth centuryDecretum collected

by Gratian to theDecretalsof Gregory IX (1234) as well as theLiber sextus,


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Constitutiones Clementinae, Extravagantes Johannis XXII,andExtravagantes

communes of his successors.

Around these texts, various layers of commentary were built up during the thirteenth

and fourteenth centuries, whether as marginal glosses or as separate volumes.

Scholars such as Azo and Accursius in civil law, and the canonists Bernardus de

Botone of Parma and Johannes Andreas produced commentaries which achieved their

own status as the standard supplementation to the main texts.

The first collections of English Law include the twelfth century text (exact date

unknown) Treatise on the laws and customs of the Kingdom of England written by

justice to the court of Henry the II Ranulf Glanville as well as BractonsDe Legibus

et Consuetudinibus Angliae(The Laws and Customs of England), composed primarily

before 1235.9These are the two main texts attributed with establishing a system of

English law. Both exhibit careful study of the main Roman texts and therefore act as

intermediaries between the earlier interpretation of the Roman texts and the later

development of English law. The differences between the two (written roughly one

hundred years apart) are that Bracton shows an interest in interpreting Roman law in

the creation of English legal practice, while Glanville is mainly concerned with

replicating Roman ideas and practices.

Also important to the literature on English medieval law were the yearbooks, which

were books of legal cases or reports published annually in England from the thirteenth

to the sixteenth century. The development of English common law was based on the

law of the case something similar in premise to the legal principle of precedent.

Lawyers and courts relied on previous court decisions that involved similar issues of

law and fact. The law of the case could not take hold, however, until cases were

recorded, reported, and eventually published. The English Year Books, which were

created in about 1290, are the first example of a reporting system. Though they were

informal and often contained running commentary about the judges' personalities and

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the lawyers' quips, the Year Books were referred to increasingly by judges and

lawyers.

During the reign of King Edward I (1272-1307) legal material began to be collected

into separate books for each year. During this early period the Year Books were very

informal. They contained accounts by anonymous scribes and law students of

courtroom proceedings and arguments that helped explain the judicial decision. The

quality of the reports varied according to the abilities of the note takers. Despite these

shortcomings, the reports conveyed basic procedural information to lawyers and

students, but they stated few rules of law.

The Summa Aureawas another important work written by the academic and

ecclesiastical lawyer William of Drogheda in the 13th century. It is concerned solely

with legal practice, procedures and forms for canon law, and presenting and winning a

case. The Summais very incomplete, and appears to consist of the first of the six

projected books of the work.

English Legal History John Seldon and the Seldon Society Publications

The publications of The Seldon Society, established under the patronage of Queen

Victoria in 1887, makes up the main historiography of early English law. The society

has published prolifically since its establishment, mainly with the aim of printing

extensive edited collections of manuscripts from various archives, including the

national archives and many borough archives. The focus of the collections vary and

include the history of the law, the development of legal ideas, the legal profession, the

courts and legal institutions, individual judges and lawyers, as well as legal literature

and records.

The society was based around the work of its namesake, the 17 thcentury English legal

historian John Seldon. Many of Seldons original works are held in the Duke

Humphries reading room at the Bodleian in Oxford. Seldons collection of works give

a detailed account of English legal history with particular interest given to the period

prior to the Norman conquest of England in 1066. The value of the texts, for my

purposes, were their close accounts of the transitions in legal thought over the

medieval period. They also form an important compilation of English law from its


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formal origins in the twelfth century to around the fifteenth century when legal ideas

and practices had begun to be influenced by Renaissance thought.

Interestingly, the broader body of Seldon Society publications consulted during

research contained no evidence of a continuation of nonhuman rights or standing in

English law: this despite primary sources of early English jurisprudence (Bracton and

Glanville) containing many references to the Roman law of things. 10In Bractons

The Laws and Customs of Englandthis included a complete reproduction of the

Roman categories under the law of things, alongside original interpretations of natural

justice and its application to nonhumans (see Chapter Three, pp. 80-89).

The absence of any case notes or evidence of legal procedures reflecting these aspects

of early English jurisprudence in the extensive Seldon Society publications certainly

suggest substantial inconsistencies either in the empirical use of these ideas in

jurisprudence, or in the Society publications themselves (see Chapter Two, pp. 62-

64). As indicated in several of the editors prefaces (reference here), the Society

publications may have been selective in the material published in order to maintain an

editorial focus on the development of laws and practices that have more contemporary

relevance.

Although it is likely that there was a decrease in the practice of nonhuman standing,

further research may reveal a writing out of this practice from English legal

historiographies. Although outside the scope of this thesis, establishing such a claim

would involve revisiting the archives holding the primary sources translated and

published by The Seldon Society - in particular the borough archives where

customary practices would most likely to have been mentioned in records.

Contemporary Legal Theory

Contemporary environmental legal theory could be thought of as starting with

Christopher Stones 1972 edition of Should Trees Have Standing: and other essays on

law, morals and the environment. This pivotal text generated a body of work from

various authors questioning the anthropocentrism of Western legal frameworks. Most

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notably was the work of Professor of International Law, Catherine Redgwell

(University College London) and Professor of International Law and Human Rights,

Francesco Francioni (European University Institute). Redgwell (1996, 99) and

Francioni (1996, 2006, 2008) both argue for legal instruments in international

environmental law that rely on inherent rights for nonhumans under law in order to

better protect natural and cultural heritage. This work spurred my original interest in

early law instruments and the evidence of nonhuman rights existing in early western

legal frameworks. My interest was also based in an understanding that throughout

history the law has reflected normative social values.

Thus I formed my research question; are Redgwell and Francionis calls for new legal

instruments plausible when we consider these instruments must be based in ideas that

are contrary to social norms? And, is the emergence of this and other theory (Latour,

Whitehead), which calls for a decentring of the human in public life, a sign of

ecological actors forcing social change?

International Environmental Law

The surviving manuscripts and documents of early law are not just the domain oflegal history. They are also important as empirical evidence for other disciplinary

analysis, particularly the social sciences. As the Seldon Society has noted of English

history the only continuous records have been legal records, [and] there is in them a

wealth of incidental information on every aspect of contemporary life and conditions

to be found in no other source.11Legal historiographies are already familiar with

interdisciplinary approaches to the extensive body of legal historical material.

Any comparative analysis of this material with contemporary law requires an

extensive survey of the main fields of environmental law. This is critical in assessing

the legal instruments used in cultural and natural heritage laws and treaties, as well as

contemporary jurisprudence, and in contextualising the emergent legal theory

discussed above.

11http://www.selden-society.qmw.ac.uk/ accessed 30/10/11.
http://www.selden-society.qmw.ac.uk/http://www.selden-society.qmw.ac.uk/


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My reading here was based around the following themes: international environmental

law and law-making (including international politics of the environment); the

principles of environmental law; the implementation and enforcement of international

environmental law; non-compliance procedures; nature conservation and biodiversity

with specific reading on the Ramsar convention on wetlands (Ramsar, Iran, 1971),

the World Heritage Convention (UNESCO, 1972), the Biodiversity Convention (Rio

de Janiero, 1992) and its supplementary convention, the Cartagena Protocol on

Biosafety (2000); and lastly, climate change, with specific analysis of the United

Nations Framework Convention on Climate Change (FCCC,1992), the Kyoto

Protocol, 1997, the FCCC Conference of Parties in Bali, (2007), the 15th Conference

of Parties (COP-15) in Copenhagen (2009), and the COP Cancun Agreements (2010)

which together form the main basis of international climate regime.

Contemporary Social Theory

I have already mentioned the work of Bruno Latour and Alfred North Whitehead as

important in guiding the conceptual approach of the thesis. More recent work includes

that of Isabelle Stengers (2010), Jane Bennett (2010), Donna Haraway (2008) and

Nigel Clarke (2011). In engaging with Latours Politics of Nature (2004) which

may be generally considered as a politics of things - Stengers and Bennett set out a

broad theoretical framework for political theory that develops some of Latours key

ideas. They move Latours connectedness of things into political thought as a way of

reforming institutional practice. This is highly relevant to my comparative analysis of

legal instruments based in nonhuman rights and to any call for these rights to be

institutionalised in international law practice.

Haraway develops an argument for an ethics of participation and inclusion of

nonhumans that is in fact a useful basis for thinking about the inclusion of nonhumans

in the ethical frameworks not just of contemporary society, but how this might have

operated in past societies. Clarke takes Latours re-constitution of people and things

further and considers this in an environmental context of earth processes such as

climate change and natural disaster. These theoretical developments were most useful

in framing the conclusion of my thesis where I consider how early law - because of its


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more inclusive politics around nonhumans - could prove significant in reforming the

current institutional governance of environmental concerns.


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Chapter One - The Law of Things: Nonhuman Rights in Roman Law

Introduction

The eleventh century saw the first production of scholarly, legal texts that defined an

English system of civil and canon law. This process was aimed at consolidating and

revising Roman laws and integrating them with the customary laws of Indigenous

Britons. This project continued throughout the medieval period and underpinned the

legal frameworks of Britain, its expanding colonial empire, and much of the worlds

legal systems.12

Yet while many of the legal institutions and instruments developed by the Romans

persisted in English civil law, many other laws that applied to nonhumans did not.

The main English legal texts after the Norman Conquest of 1066, and other related

manuscripts, show that this was particularly true as secularisation developed during

the early Renaissance in Europe. 13The gradual separation of Church and State and

the rise of positive law saw nonhuman rights (that had been protected under divine

law) and some ethical concepts that underpinned natural law abolished.14

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Roman law had made provisions for the various roles and functions of nonhumans in

early Roman society under the so-called law of things. This codification of laws

relating to the nonhuman world included inanimate objects and animals, and was

underpinned by concepts of rights for nonhumans in natural jurisprudence. 15While

contemporary law is still familiar with the law of things (res) it now relates almost

exclusively to real and personal property. What has been lost from modern

adaptations of Roman law is the right of a thing to stand before the court or to hold

rights of its own.

In contemporary Western law the nonhuman exists in legal frameworks only in

relation to human rights. Importantly, this poses significant problems in contemporary

environmental law whereby a thing cannot be protected in its own right, unless it

can be aligned with human uses or values.16Legal mechanisms that maintain a

dependence on human interests in order to uphold the interests of a thing (such as a

rainforest or glacier) struggle to adapt the logic of human interest to the more

remote ecologies of climate geographies, among other concerns. There are no legal

instruments in place that can protect ecologies critical to the global environment in

their own right even given the implications for human societies if these ecological

systems were to fail.

This has been one of the reasons that the question of nonhuman rights, including

rights to stand before the court, has once again emerged as a theme in jurisprudence.

Among others, legal scholars Christopher Stone and Catherine Redgwell have been

interested in new mechanisms that rely on the concept of nonhuman rights. Stone

explores these ideas in a recontextualised sense of natural justice. Redgewell asks

how nonhuman rights might be used to expand and strengthen natural and cultural

heritage laws. Stone and Redgwell both argue for a mechanism that does not rely on

human rights frameworks, but instead establishes the intrinsic rights of nonhumans in

certain contexts. 17 Such concepts of nonhuman rights might provide the basis for

theorising the rights of ecological and earth systems (such as those driving global

#,_8>289*67* 869*>B26626= )1* 9*5*3;B?*6) ;: 6()8>(3 3(S P2)(=* 3(S< >*]=*6*>()2;6(3 >2=1)< )1() B>;)*7) )1* 18?(6 8(3 ;> 783)8>(3 >*7* 26 )1* :8)8>*+


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climate) that are more remotely connected to human interests. This would potentially

give environmental law a rights based framework able to protect natural systems

critical to global climate, and address questions of human (and nonhuman)

intergenerational justice.

From this position concerned with environmental protection, early Western law

informs contemporary legal thought by providing evidence of arguments within

jurisprudence, and the development of legal procedures, that included the concept of

nonhuman rights. This chapter interrogates the logic underpinning laws relating to

nonhumans in the main Roman texts through an analysis of legal frameworks and

language. It highlights historical evidence from this period of three important facets Iargue are relevant to contemporary legal theory: a more inclusive and functional

understanding of the law of things; evidence of nonhuman rights in institutional

practices; and evidence of a more integrated concept of humans and nonhumans.

Early Roman Law: An Overview

Roman law dealt with matters of succession (or inheritance), obligations (including

contracts), property (including slaves), and persons. Although the rulings of

magistrates were important, most laws were passed by assemblies dominated by the

patrician families or Roman nobility. Later, Emperors bypassed these forms and

issued their own decrees. As legal frameworks further developed under the early

Roman Imperial era (44 BC to 117AD) the interpretations of individual jurists also

became important in shaping law, and many of the texts compiled towards the fall of

the Empire (395-476 AD) were contributed to, or overseen by, prominent jurists.18

Over the course of Roman history, from the Republic to the Empire, there were many

phases of legalistic development.Jus civile,or civil law, developed during the period

of the Republic (75331 BC) and was based on custom (unwritten laws) or legislation

(written laws). While civil law applied only to Roman citizens, the expansion of the

Roman Empire gave rise to the other major legal framework inherited by modern

#/R*9=S*33@ D()1*>26* P#CC-@ CCQ+ N);6*@ D1>2 P#C/!@ !"#"Q+#.0+ 0+ I87O3(69@ P#C!#Q+


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Western law -jus gentium, or the law of nations, which applied to matters of justice

involving foreigners.

Roman legal texts were consolidated in two major commissions; the first under

Theodosius II published in 438AD, and later under Justinian I published in 534AD.19

Together these major works documented Roman law as it was practiced from the

time of the founding of the city in 753BC until the fall of the Western Empire in the

fifth century AD.20They hold a comprehensive and comparative history of Roman

jurisprudence that now forms the basis for the law codes of most countries of

continental Europe and derivative systems elsewhere.21

The Law of Things

The Roman law of things (res) was divided into the law of property (things in a

restricted sense), the law of succession and the law of obligations.22While the law of

things survives today as a cardinal feature of modern civil law, things are

understood as economic assets only, showing a greatly reduced set of principles far

removed from their original jurisprudence. An examination of the Roman law of

things reveals a broader, more complex set of principals, and a logic that sort to

include concepts of nonhuman rights as a mechanism that could be used to protect or

manage broader social interests.

Legal historian William Buckland notes that main classifications used in the Corpus

Juris Civilisgroups things according to the rights existing over them. They were

eitherpatrimonio(belonging to someone) or extra-patrimonium, meaning things that

are not in commerce, or are owned commonly.23Within the grouping extra-

patrimoniumthere are the following classifications:

19Sirks, A. J. B., (2007).

20However it remained in use in the Eastern, or Byzantine, Empire until 1453. Buckland, W.W. (1921)

pp. 33-41.21Roman law also forms the basis of legal frameworks in some countries, such as Germany, that were

never part of the Roman Empire. Ibid22http://www.notarypublic.ie/download/Roman%20Law.pdf
http://www.notarypublic.ie/download/Roman%20Law.pdfhttp://www.notarypublic.ie/download/Roman%20Law.pdfhttp://www.notarypublic.ie/download/Roman%20Law.pdf


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Table 1. First Categorisation ofRes from Justinians Corpus Juris Civilis.

Category Translation

Res communes common propertyRes publicae public property

Res universitatis property of a corporation

Res nullius property belonging to no one

Buckland notes that Justinian also gives a second classification of resbelow:

Table 2. Second Categorisation ofRes from Justinians Corpus Juris Civilis.

Category Examples

res corporales que tangi possunt things which can be touched

for e.g. physical objects.

res incorporales que tangi non possunt - things which cannot be

touched for e.g. abstract conceptions, notional

things and rights.24

The later categorisations are closer to those definitions given by the pagan jurist Gaius

who, writing circa 161AD, distinguished between things subject to either divine or

human right - further categorised as corporeal and incorporeal things.25

Buckland

notes of the second classification, above, that res incorporalesdid not include rights

relating to humans but instead iura in rem, or the rights of things. However, it is the

first system of classification that is more consistently referred to throughout the

Corpus Civilis.WhileIura in remis not referred to directly under this classification, I

argue that the concept of nonhuman rights is established under the various

subcategories of divine law, itself a subcategory of res nullius, as set out below:

!%

I87O3(69@ P#C!#Q+!&Ibid,p.187.


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Table 3. Categories ofRes Nulliusin Justinians Corpus Civilis

Category Subcategory Examples

res sacrae Things consecrated by priests, like

churches, their contents and sites.res sanctus The gates and walls of a city.

divini iuris

[divine law]

res religiosae Tombs and burial grounds.

Wild animalshumani iuris

(Relates to the

acquisition of things

formerly res nullius)

No subcategories

Abandoned property

The way laws were categorised provides some important insights into the social

structures and cultural logics of the time. In particular, it highlights the conceptual

approaches used in the development of early jurisprudence and their complexity -

challenging the widespread idea that early law was irrational. The following

sections address each category of divini iuris(divine law), from Table 3., and pay

close attention to the ways in which laws under these catagories were applied in

different scenarios.

This comparative analysis develops a detailed study of the roles nonhumans were

understood to have in Roman in society, and how jurisprudence and the law

developed to reflect these roles and their associated rights. This section also builds a

basis for examining how these ideas influenced the establishment of English law,

which is explored further in Chapter Two. Given the remoteness of early law to

contemporary legal logic it is important to focus on the cultural relativity of early law

- on how the law resolved conflicts and managed the social concerns of the time. As

the broad aim of this thesis is to consider how early law might inform contemporary

legal theory, there is a greater focus on material that highlights the conceptual

approaches toward addressing social and political concerns, rather than the concerns

themselves.

!,Gaius@ The Institutes, Book 2.


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to play in the pre-Roman era but particularly as borders between conflicting ideas

sets the precedent for their specific mention under the Roman law of things. The later

Roman evidence suggests that these historically established functions of city walls

became increasingly important evident in the specific laws dealing with public acts

of violation against them. An expanded understanding developed that included, as

Sabinus suggests, the concept of the city walls being inherently sacred in an

autonomous and representative sense, that warranted protection under res sanctus.

While the evidence shows that the legal principle of res sanctusdeveloped because of

political and cultural ideas to do with social boundaries, the principle itself had a

unique function. It acted as an instrument that could protect the city walls a

nonhuman entity - without relying on laws pertaining to human rights. While the city

walls certainly represented ideas that were important to human society, in practice

these interests were relatively remote. Subject to the principals under res nullius, city

walls were classified as belonging to no one entity or indeed, even a common entity.

Buckland has noted how there are no obvious reasons why the ownership of walls

might not have been regarded as vested in the city.

Therefore, in practice, the law protected city walls in their own right. A lack of

concept of ownership in this particular example is consistent with other objects

protected under divine law (as discussed below) that rationalised the integral rights

and autonomous status of these structures under law.33Yet distinct from other

principles under divine law,Res sanctuscould be understood as an instrument that

protected important human interests, such as security. If one considers the possibility

that the ultimate purpose of the instrument was to protect human these interests, then

the logic of res sanctusprotects these interests by removing all legal recourse to them.

I suggest this forms an important example of how legal instruments that engage with

concepts of nonhuman rights, such as those being considered in contemporary

environmental theory, might be used to protect nonhuman entities. Furthermore,

protecting these entities in their own right, could be central to protecting human

%!

N*(3*G (99< )1() the idea of pollution is a secondary elaboration upon the primary desire forretribution P!""-Q B+ !,+%%I87O3(69@ 0+ 0+@(1921) p. 42.


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interests. On this basis, I suggest that res sanctuscould inform the development of

new legal instruments in environmental law for particular use in the governance of

climate change. Evidence shows that the principal of res sanctus is particularly robust

in situations where the rights of the nonhuman conflict with human interests or

rights (such as the right of passage and building rights). I suggest this is an important

historical precedent in Western law that could also inform the dilemma of either;

protecting nonhuman entities that cannot be directly linked to human interests or

rights under law; or protecting nonhuman entities whose rights or interests conflict

with human rights and interests.

Res Sacrae Sacred Things and Places

While res sanctusshows that structures could maintain independent rights under

Roman law, res sacrae shows not only sites and objects holding rights of their own,

but in many cases these rights taking precedence over human rights. This is

particularly evident when private property rights were overridden. Once a site had

been sanctified it ceased to be in commerce and could no longer be owned, either

privately or collectively. Furthermore, if through sanctification a site became

significant to the public, the owner of the surrounding land was required under law to

provide access.34

Firstly, it is important to consider the legal guidelines for sanctification under Roman

law. For example the third century Roman jurist Ulpian states that it must be

understood that a public place only becomes a sacred one when the Emperor has

dedicated it or has granted a power of dedicating it. This statement contradicts that

made by Roman Emperor Martian (450457AD) that things sacred must be made so

by an act of the whole people rather than an individual... this would instead make the

thing profane.35

While these accounts do vary, they both point to res sacraeas a legal instrument that

protects the public use of such sites through the creation of what is effectively a

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commons. Ulpian adds that sacred places are those which are dedicated to the people

whether within the civitasor in the countryside.36

Yet, unlike a commons that protects a site as the common property of a select group,

inBook IIIof The Institutes(Corpus Juris Civilis)an excerpt from Martian refers to

buildings such as churches, consecrated sites and objects as things sacred or religious

or sanctified are no ones property. So while a sacred place might in effect behave

like a commons in terms of public access, divine law provides an instrument that

protects the site from misuse by institutionalising the site as res nullius.

Distinct from the legal concept of terra nullius, orunclaimed land, a sacred site

protected under res nullius is claimed on behalf of no-one as a proxy to absolve

human rights over a site or thing. This is a unique instrument that protects a

nonhuman by separating this right of ownership from the framework of human

rights. Yet as consecration was understood as permanent, and importantly could be

transient across different sites (as referred to below), this instrument both establishes

itself as autonomous, while also being firmly included within the common legal

frameworks used for everyday matters of human society.

It is worthwhile considering the commons as a legal instrument under res nullius in

relation to what later became known by ecologist Garrett Hardin as the tragedy of the

commons. In short, this tragedy was the depletion of a finite common resource by

its collective owners based on each individual acting in self-interest, and without

regard for the sustainability of the resource as a whole. While a commons is often

aligned with ideas of social justice because of equitable access to the resource, there is

no legal instrument in place that protects the resource itself. A comparison between a

sacred site sanctioned under res sacrae as no-ones property, and a site owned

commonly such as grazing lands, shows that while the resource of the two differs

considerably, both allow human access and use of that resource. Yet, only the

instrument under res sacraehas the power to protect the resource itself because it has

effectively established the autonomous rights of that resource.

%-Edict, Book 68.


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Obviously, the Roman concept of divine law is defunct in a modern context. However

the principle of an institutionalised lack of ownership or res nulliuscould be

extended in useful ways in environmental law. Whether ownership of a site or thing

(or resource) under divine law in its original context could ultimately be seen to rest

in God or not is irrelevant. What is important is that a human institution established

the integral rights of nonhumans under law, while at the same time irrevocably

removing human rights (at least within that society) as a measure to control human

use of a site or thing. Given the historically close relationship between religion and

politics, the obligations of the Roman state to preserve sanctified sites or objects was

likely coupled with a political pragmatism. It seems likely then that this relationship

was in part at least, the mobilisation of religious beliefs in upholding the pragmatic

functions of this clever and highly effective legal instrument.

One of the most interesting principals ofres sacraeis that the agency of a sacred

object or building to remove property rights remains even once the object or building

has been removed.For example, Martian states that once a building is consecrated

even if it is destroyed, the site on which it stood remains sacred. 37This suggests that

ideas of sacredness were conceived in both the building/object and its space.

Sacredness was understood as an entity in itself that maintained ownership.

In terms of environmental law and climate change, Pomponius (Readings, Book 2)

statements on public property are an interesting comparison here. Pomponius stated

that just as a building erected in the sea becomes private property, so too one which

has been overrun by the sea becomes public property. This shows a complicated

understanding of what constitutes ownership and property rights. While an area of the

sea cannot be privately owned, a space can be erected and claimed above it. Yet the

sea, as public property, can reclaim private land on shore. This fluid notion of

ownership and the transience of public and private space contrasts starkly to the

comparative permanence of a sites status as res nulliusunder the legal instruments of

res sacrae.

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In another example, there is a distinction made between a sacred place and a

sacrarium, where sacred objects are housed. A sacrariumcan be created even on

privately owned land and to those who wish to free such a place from its religious tie

do so customarily by evocation of the sacred things there from.38

Therefore, the

rights effectively rest with the objects themselves that have the power vested in them

to remove the property rights held over whichever piece of land they are housed. The

fact that this right is understood to be transient only increases the objects agency.

Most importantly, the right is an inherent right what might be understood as a

natural right independent of the dedication of an Emperor or other public

dedication.

Ulpian offers a third distinction stating that things need not be either sacred or

profane (as Martian suggests), but only confirmed by some sort of sanction even

though it be not consecrated to a god, as is the case with city walls. 39Importantly

Ulpian adds that a sacred thing is not subject to pecuniary valuation. Similar to

sacred sites, sacred objects are outside commerce and therefore inconsistent with

other categories under the law of things that deal with things or sites in monetary

terms.

Res ReligiosaeTombs, Funerals and Burial Grounds.

The third subcategory of divini iuris is res religiosae, or laws presiding over tombs,

funeral processions and burial grounds. Similar to the sanctification of land or objects

under res sacrae, a burial rendered a site res nullius. Burial rights were complex and

took precedence over other laws, again overriding public and private property laws.

Furthermore, the Twelve Tablesof Roman law (Law XVII, Table X) states that No

one can acquire by usucaption [a method by which ownership of property can be

gained by lapse of time] either the vestibule or approach to a tomb, or the tomb itself.

This means that as was the case with sacred sites under res sacrae the site was

permanently removed from any future commerce.

%.Justinians Digest, Vol. 1, p. 26.%CIbidp. 26.


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Corpses also held special rights of passage. For example, people were restricted by

the provincial governor from obstructing the transport of a body in any way.40The

second century Roman jurist Papinian refers to both the burial and transport of

corpses in the following statement:

There are persons who, although they cannot make a place religious,

nevertheless are entitled to seek an interdict concerning the carrying of a dead

man for burial there, for example, if the holder of the title carries or wishes to

carry a dead man for burial to a farm whose fruits belong to someone else. If

he is prevented, he is entitled to seek an interdict, as a result of which there

will be an inquiry into the rights of ownership. The same applies to a partnerwho wants to carry a dead man for burial to a common farm against the wishes

of the other partner. For in the public interest, in order that corpses should not

lie unburied, we ignore the strict principle, which is quite often left out ofaccount in doubtful religious disputes, because the highest principle of all is

that which serves the interests of religion.41

While there are public health concerns here, it is important to note that the pragmatic

and political uses of divine law also means that religious principle took precedence

over conflicting interests such as property disputes. A corpse, like an object under res

sacrae,could also be moved for a number of reasons creating a dilemma of how to

zone the land it had previously occupied.42JustiniansDigeststates that the better

view is that a cenotaph [an empty tomb] also is a religious place, Virgil being a

witness to this point.43Of note here is the similar logic that underpins res sacrae,

whereby the site of a consecrated building remained under res sacraeeven if the

building had been removed.

All these examples raise questions around what appears to have been shifting ideas of

divinity operating across transient spaces. While I have suggested that sacredness

was understood as an entity in itself that could effectively own a site under law, as

an entity it also touched and remained in the objects and sites in which it was

40Ulpian,All Seats of Judgment, Book 9.

For example, Marcian,Institutes, book 3states that corpses that were lawfully buried are not to be

disturbed or transported, although it may be possible to move the sarcophagus itself to a more suitable

place.JustiniansDigest, Questions, Book 8.&!4) ?(3 A8>2(3 1(9 ;778>>*9 ;


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invested. However the inconsistencies between practices, while quite possibly

bureaucratic, also suggest the existence of a hierarchy of cultural importance that

connects these various sites and objects. This raises the question of whether the

corpse, the ritual or the site takes precedence over the other in rendering another, or

remaining itself sacred. Furthermore, this inconsistency suggests that sanctity is a

legal entity that can shift inside this hierarchy of sites and objects giving and taking

away a things rights under divini iuris.

A comparison with a modern context is useful here. Clause 9 of the 1847 British

Cemeteries Causes Act (1847) states that:

the company shall not sell or dispose of any land which shall have been

consecrated or used for the burial of the dead, or make use of such land for

any purpose except such as shall be authorised by this or the special Act, or

any Act incorporated therewith (and) the company shall define by suitable

marks the consecrated and unconsecrated portions of the cemetery (Clause24).

While ideas of sacredness are still evident in modern secular law, the removal of

bodies and de-consecration of land can return it to public or private use. Thus in the

modern context, sacredness is not considered to permanently remain in a site once it

has been consecrated and consecration is understood as performed by a priest rather

than the corpse itself. In its most practical form sacredness is simply attributed to a

site, or not, as a matter of town planning. Yet it does highlight how in modern law

concepts of divine law were indeed used for diplomatic and social reasons.

The fact that corpses were categorised under res nullius is intriguing. In death, a

human body becomes nonhuman or a thing (res). This has remained the case in

modern Western law. Legally, we do not own our bodies. They remain technically

nonhuman or no-ones thing. Medical ethicist Donna Dickenson suggests that the

historical precedent of this legal categorisation of the human body under res nullius

developed because human tissue had no commercial value attached to it and so the

issue simply did not arise. With recent advances in medicine this is no longer the case

and if we lose a limb or if an organ is taken from our bodies, Dickenson points out

&%p. 25.


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that it is in fact not ours under law because of its technical lack of ownership under

res nullius.44

Still, in death, a corpse is not completely disconnected from human frameworks. As

noted previously, corpses and sacred objects had their own power under Roman law

that established a site as sacred and they maintained this status even after they had

been exhumed or moved. Interestingly, Ulpian extends this same law to slaves. He

states that a place where a slave is buried is religious, highlighting a consistency of

legal interpretation across class groups.45

Yet this interpretation is by no means consistent. For example, Justinian notes in his

Digestthat the body of no dead slave shall be anointed; nor shall any drinking take

place at his funeral, nor a banquet of any kind be instituted in his honor.46

So too,

there were particular honours reserved, and represented by wreaths, that can appear

not to have applied to slaves:

Anyone who has rendered himself deserving of a wreath, as the reward of

bravery in war, or through his having been the victor in public contests or

games, whether he has obtained it through his own exertions or by means of

others in his own name, and by his own money, through his horses, or his

slaves, shall have a right to have the said wreath placed upon his dead body, orupon that of any of his ascendants, as long as the corpse is at his home, as well

as when it is borne away; so that, during his obsequies, he may enjoy thehonor which in his lifetime he acquired by his bravery or his good fortune.47

&&IID &@ !.)1N*B) !"#"@ H*D#0B) I*2%-&,UlpianBook 25.&-The Tables are understood to have been written primarily for the plebian or lower classes so thatthey would have knowledge of laws previously known exclusively within the patrician class.&/Twelve Tables, Law XIII, Table X.Table Xof theTwelve Tables,which refers to funeral rites more generally, makes similar restrictions

without reference to slaves in particular through the following laws:

No wine flavored with myrrh, or any other precious beverage shall be poured upon a corpse

while it is burning; nor shall the funeral pile be sprinkled with wine (Law XI).

Large wreaths shall not be borne at a funeral; nor shall perfumes be burned on the altars (Law

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Legal matters relating to slaves fell under the law of things because slaves were

consideredpatrimonio,or property belonging to someone and having a monetary

value.48

Therefore slaves were not considered strictly human in this legal context.

For example, while male and female slaves were dealt with equally in burial (which

was not the case with freemen), funeral expenses were incurred by their owners under

similar guidelines to the burial of animals.49

Yet despite these inconsistencies in

practice, it is clear that in death a human corpse attained some level of equality under

the classification of reswhile still maintaining a connection to human frameworks

such as class.

In another example from JustiniansDigestUlpian states that anyone who spends

something on a funeral is held to contract with the deceased, not with the heir. 50

While a corpse as a nonhuman thing under res nullius is clearly not able to enter into

an exchange, this example shows that a deceased (freeman) can still symbolically

participate in a commercial transaction.

This particular law suggests that divine law was exercised to restrict human rights for

diplomatic purposes. In this case res nulliusprevented access to the deceased persons

estate for the reimbursement of funeral expenses. The important point to note here is

that all these examples around funerary practices all extend the definition of res

nulliusand show how classifications of humans and nonhumans were at once flexible,

yet in many ways closely connected.

The transformation of funeral expenses offers further insights here. Early twentieth

century Roman scholar and translator Samuel P. Scott suggested that the "Long

Coron" or large wreaths:

would seem to refer to garlands of excessive size, exhibited by way of

pomp and ostentation at the celebration of funeral rites. The greater part of thelegislation of this Table was evidently framed for the correction of the

inordinate display of wealth and luxury already becoming prevalent at the

&.I87O3(69@ B+#.!+&CUlpian,Edict, book 25, and Papian,Replies, book 3.However, free women had some particular laws pertaining to funeral expenses. The laws governing the

burial of women were common to other property laws in that the expenses came from her dowry where

possible, the onus lying with whichever of her husband or father had received the greater sum from herdowry after death, as per the agreements made when her husband received the dowry.,"Ibid.


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burial of the dead.51

The legal concern with ostentatious funerary practices was long standing. In 177 BC

the Greek philosopher Celsus stated:

one ought not to bury ornaments and such like with the body, as theuneducated do. This action, called the action for funeral expenses, is based on

considerations of justice and fairness. It only covers expenses for the sake of

the funeral.52

In both these examples a law under res religiosaeis used to restrict cultural practices

and religious ceremony. Although these restrictions were about the conservation of

wealth, it is important to consider how they were connected to social values, rather

than religious practices. Indeed, examples of these laws relating to funeral expenses

seem to dismiss many religious practices altogether. For exampleLaw XV Table X

discourages the use of precious beverages or the burying of precious ornaments that

formed part of many Christian and pre-Christian burial ceremonies. It also states that:

Gold, no matter in what form it may be present, shall, by all means, be

removed from the corpse at the time of the funeral; but if anyone's teeth

should be fastened with gold, it shall be lawful either to burn, or to bury it

with the body.

The social and cultural value placed on both precious objects and austerity in funeral

rites often took precedence over religious ceremonial funerary practices. In effect,

divine law had many pragmatic uses that could be quite separate from religious

concerns. Although there was some inconsistency over different time periods, Roman

attitudes as expressed through legal concepts of reverence towards the dead and the

agency of corpses suggest that a hierarchy of nonhumans operated and that this

hierarchy was understood in wider Roman society.

Conclusion

This chapter has investigated three aspects of Roman law that highlight how Roman

society had a more inclusive understanding of nonhuman participation in the social

and cultural aspects of everyday life. It has focused on how modern interpretations of

Roman law have generally ignored evidence of a more inclusive and functional

understanding of the law of things. This chapter has also drawn upon evidence in

,#Law XI, Table X.


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nonhuman by separating this right of ownership apart from the framework of human

rights.

Yet as consecration was understood as permanent and importantly, could be

transient across different sites as I will discuss below this instrument both

established an autonomy yet remained firmly included within the common legal

frameworks used for everyday matters of human society. While a sacred place might

behave like a commons in terms of public access, divine law provided an instrument

that protected the site from misuse by institutionalising the site as res nullius.

Finally, legal instruments under res religiosae mirror these principles. As was the

case with sacred sites, under res sacrae the site itself was permanently removed from

any future commerce.54

It appears, particularly in the precedence of burial rights, that

sacredness was understood as an entity in itself that could effectively own a site

under law. It was also understood to touch and remain in the objects and sites in

which it was invested. This suggests a complex hierarchy of cultural importance

existed that connected these various sites and objects and positioned the instrument as

adaptive over time to social needs. The idea of sanctity as a legal entity shifted

along this hierarchy of sites and objects giving and taking away a things rights

under divini iuris.

Under res religiosaelaws relating to funeral expenses show that nonhumans could be

under res nullius, while also remaining connected to human law or social

frameworks, such as class. In this case, the shaping of cultural practices even the

effective censoring of some religious ceremonies for the more magnanimous

purposes of conserving precious resources, controlling crowds and influencing public

behavior was related to both the human and the nonhuman.

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Chapter Two: The Right to Stand? Nonhumans in Early Legal

Procedure

Introduction

Standing or locus standi,is the legal term for the ability of a party to go before a

court@


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Historians and legal scholars have debated the various functions and intent of

nonhuman standing before courts of law. Legal scholar Raphael Sealey has noted that

Roman trials were often an important diplomatic gesture of retribution and a

secondary consideration served to banish objects from social spaces that were

considered polluted by acts of violence. Importantly, all of the functions of nonhuman

standing are understood by Sealey to be symbolic in nature.57

However these functions of retribution and diplomacy also indicate complex social

mechanisms at work. Indeed, legal scholar Walter Hyde suggests nonhuman standing

before the court was made possible because historically there was some

acknowledgement of the participation of the nonhuman in the broader moral fabric of

society.58

The trial and punishment of nonhumans should not be seen as part of a pre-modern

ignorance of Enlightenment scientific and rational thought. Such a teleological view

discounts the logic at work in early legal philosophy a logic that was radically

different to post-Enlightenment thinking. The historical legal procedures of locus

standiare an important case in point here. They corroborate examples from chapter

one of the widespread rationale operating in pre-modern Europe that assumed a

greater inclusion of nonhumans in ideas of the social.

In chapter one I suggested that legal instruments under res nulliusrelied on the

autonomous rights of nonhumans to achieve various social and cultural aims. This

chapter interrogates nonhuman standing before the court by comparing cases

involving nonhuman defendants with the establishment of procedure in early English

law. The legal procedures examined here show how nonhuman rights might

translate empirically in early legal trials. The procedures will be examined based on

the direct trial and punishment of nonhumans under such areas of law as the Roman

laws relating to pauperies (damage caused by animals) as well as the symbolic use of

nonhuman objects in customary procedures.

57Sealey (2006) p. 36

58Hyde, (1916) p. 54.


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I also examine the transitions between the practice of Roman law and the

establishment of English law in the twelfth century. The lack of evidence of a

continuation of laws and procedures relating to nonhumans in English law points to a

dramatic shift in the understanding (or lack of understanding) of nonhuman rights that

underpinned the development of modern law. Historiographies suggest that as early as

the twelfth century nonhuman rights and standing were effectively written out of

English legal procedure (although some ideas remained in jurisprudence, for example

Bractons The Laws and Customs of England).

While this effacement was indeed quite sudden and widespread in terms of the

continuity of legal texts and historical evidence, the point must be made that, given

the long history of nonhuman standing, it is probable that forms of nonhuman rights

continued in oral based customary law practices in England. If this was the case, it

would have been a practice consistent with other countries such as France, Italy and

Germany. The trial and punishment of nonhumans was in fact a widespread practice

across Europe from Ancient Greece, to the establishment of Roman law, and

examples occurred occasionally into the late seventeenth century.59

Roman legal procedure still forms the basis for modern procedure in civil-law

countries. While many of the Roman laws discussed here are no longer in use, a

review of due process in cases involving nonhumans is important because it

provides a precedent in Western law for the procedures followed around nonhuman

rights discussed in chapter one. Furthermore, a review of due process in relation to

nonhuman standing sheds light on the practicalities of institutional procedures that

allowed the inclusion of these rights in legal frameworks.

I suggest this historical process provides some important considerations for and

connections with current dilemmas of nonhuman standing in contemporary

environmental legal theory. In particular, the historical contexts of due process serve

,CDarren Oldridge notes for example that customary law in France, Italy and Germany permitted suchtrials and the cases were recorded in Handbooks on customary law, or customals . Oldridge adds

that thirteenth century French jurist Philippe de Beaumanoir was the author of one of the earliestcustomals to mention the practice. p.44.


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to seize the offending animal or slave, and hold it as security until his claimwas satisfied.64

Scott noted that the emphasis on the primary responsibility of the offender was

remedied by theLex Aquilia, thought to have been enacted in 286 BC. In this law, the

responsibility was instead placed on the owner. For example,Law I, Table VIIof the

Twelve Tables(concerning crimes) states that:

If a quadruped causes injury to anyone, let the owner tender him the estimated

amount of the damage; and if he is unwilling to accept it, the owner shall, by

way of reparation, surrender the animal that caused the injury.

In another example from theDigestit was pronounced that if an animal was in thecare of a person and the act connected to negligence, then proceedings should instead

be brought against the person for wrongful damage:

if an animal should upset its load onto someone because of the roughness of

the ground or a mule drivers negligence or because it was overloaded, thisaction [pauperies] will not lie and proceedings should be brought [against the

person] for wrongful damage. 65

However, despite this shift in responsibility to the human, the earlier concept that the

nonhuman itself could be accountable continued to appear in customary and civil law

in Europe until the seventeenth century. The persistence of this concept, rather than its

disappearance, demands further investigation.

Roman laws about pauperies show a number of circumstantial distinctions that

determine an animals level of accountability. These include the animals relationship

with other parties involved in the incident, and interestingly, great emphasis is placed

on perceptions of the animals wildness.

For example Justinian stated that if a dog breaks loose on account of its wildness

the person who had the dog on the lead will be liable. Justinian also refered to the

jurist Alfenus who states that:

64(1932), Vol. II, p. 67.


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when a groom was leading a horse into the yard of an inn, it sniffed at a mule.The mule kicked out and broke the grooms leg. An opinion was sought as to

whether the owner of the mule could be sued on the ground that his mule had

committedpauperies. I answered: Yes.66

These examples show a familiar logic not unlike many contemporary laws relating to

pauperies. However despite the fact that throughout early legal philosophy animals

are not thought to have been legally responsible for their actions, there are many early

references in which wildness itself seems to be held accountable as something

connected to, but not necessarily inherent in domestic animals. For example,

JustiniansDigest notes thatthe action lies when a four-footed animal does harm

because its wild nature has been excited, for example, when a horse given to kicking

actually kicks someone. This makes a subtle distinction that allows the horse itself to

be held accountable. TheDigest continues:

the general rule is that this action lies whenever an animal commits

pauperieswhen moved by some wildness contrary to the nature of its kind.

Therefore if a horse kicks out because it is upset by pain the action will notlie but if the horse kicked someone who was stroking it or someone who

was patting it, this action will be available.

So while it is acknowledged that an animal cant be held responsible for its actions,

and that in this example the horse has a wild nature that isaccounted for with some

leniency under the law, the horse is still subject to this action when it exhibits

wildness contrary to the nature of its kind.

This logic depends on a subjective understanding of a horses nature. Additionally,

the wildness contrary to nature is ultimately defined against the logic of human

reactions. The possibility that a horses behavior may be underpinned by a logic that

extends and is separate to human logic is not considered. Thus a certain type of

wildness that which isnt understood within human frameworks is itself

accountable, as though the horse was possessed by something unnatural. The animal

is at once anthropomorphised, yet cast out of human frameworks when it exhibits

nonhuman qualities.

65Ibid, p. 32.


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Animals were also liable for acts committed through a third person or object. Again,

JustiniansDigestpronounced that:

Thepauperiesaction lies regardless of whether the animal commitspauperies

by means of its own body or by means of some other thing with which it came

into contact as for example of an ox rushes someone with a cart or overturns

something on him.67

It was also the case that if one animal provokes another into doing damage, action

must be brought on account of the one which did the provoking.68

It should be noted that these examples refer to domesticated animals, which may

explain their high level of accountability within the moral codes of human society. By

contrast, the wildness considered unnatural and uncharacteristic in domesticated

animals was thought an acceptable part of an animals nature if it was seen as truly

wild.

For example, JustiniansDigeststates that the action:

does not lie in the case of beasts which are wild by nature: therefore, if abear breaks loose and so causes harm, its former owners cannot be sued

because he ceased to be an owner as soon as the wild animal escaped.

Accordingly, if I kill the bear, the corpse is mine.

Here the wild animal, once returned to the wild, is ostensibly outside the moral fabric

of society and is therefore effectively outlawed free from any obligations under

law. Unlike a domesticated animal, the actions of a wild animal do not make its

captors liable under the pauperies action, unless the animal is contained. Therefore,

compared to the distinctions made around domesticated animals, this shows that the

presence of wildness itself absolved the captor of any legal responsibilities.

Later examples found in the laws of the Lombards, a Germanic tribe who ruled a

Kingdom in Italy from 568 to 774, show similar ideas relating to the hunting of wild

animals. Law 309. on wild animals states that:

66

Digest, Book 2.67p. 276.

68Ibid.


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While the animals in the case cited above are brought under law in their status as

property, other examples show an accountability that lay with the animal that was the

aggressor, rather then its owner:

liability for damage attaches to the physical corpus which caused the

damage even in the case of animals, this action lies not against the owner of

the beast at the time the damage was caused, but against whoever owns itwhen action is brought. Clearly, therefore, if the animal dies before joinder of

issue, the right of action dies with it.73

The idea that legal recourse lies with the corpse and cannot be pursued against the

animals former owner is consistent with previously cited cases of funeral expenses

held in contract with the deceased. The animal in this case assumes a legal status indeath, connected with certain actions. Again, a similar logic underpins laws relating to

both humans and nonhumans.

These cases all show how animals have some form of independent recourse to the

law. Evidence of this right to stand suggests that nonhumans were intricately

connected to the everyday lives of humans they were considered important,

independent social participants. The fact that some laws pertaining to animals and

humans followed a similar procedure highlights a substitutive logic at work in

jurisprudence at the time. Yet importantly, the pragmatic legal frameworks of Roman

pauperies made provisions for a much broader concept of citizenship under law. It

was an approach to jurisprudence that sought to reflect everyday life in a way that

recognised a greater number of participants, both human and nonhuman.

Substitution in Roman Law

The trial and punishment of an inanimate object seems an outmoded, almost non-

sensical procedure by contemporary standards. However this should not be simply

dismissed as a pre-rational concept as it holds interesting information about how an

object was understood to have some connection with, and agency in, any human

action. Under Roman law, nonhumans involved in a criminal incident could stand

/%Ibid.


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before the court in the absence of a human defendant. The trial of inanimate objects

highlights a substitutive logic that operated during this period.

Prominent cases under Roman law include the trial of a murder weapon, such as a

dagger, after the authorities had failed to apprehend the murderer. Animals also

received retributive style punishments for less serious crimes. Table VII,Law XIIIof

The Twelve Tablesstated that:

If anyone knowingly and maliciously kills a freeman, he shall be guilty of a

capital crime. If he kills him by accident, without malice and unintentionally,

let him substitute a ram to be sacrificed publicly by way of expiation for thehomicide of the deceased, and for the purpose of appeasing the children of the

latter.

Similarly, Plato wrote about the trial of inanimate objects:

If an inanimate thing deprives a man of life when the thing has been defeatedin the trial, let it be expelled beyond the borders just as in the case of animals. 74

As suggested, the logic of substitution in early jurisprudence reflects a different, more

integrated understanding of nonhumans. It also reveals a number of interesting legal

ideas that relate to the social structures of Roman society. Firstly, substitution allows

certain retributive and symbolic procedures, which scholars such as Sealey have

argued had important social functions, to be carried out even in the absence of a

human. They had a perceived purifying effect over a social actor or space that was

considered polluted by certain crimes. When a murder weapon was expelled beyond

the city walls it was in itself symbolic of the polluted matter that was the byproduct

of the crime. This still achieved without a human agent the symbolic purification

of the social space, which is, as Sealey has suggested, the most important socialo

nonhuman rights and climate change

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