The Criminal Trial and Punishment of Animals: A Case Study in Shame and Necessity

Justin E. H. Smith at

199801_10150128323694425_7944359_nThe fact that animals were for a long period of European history tried and punished ascriminals is, to the extent that this is known at all, generally bracketed or dismissed as amere curiosity, a cultural quirk. Yet as a few scholars have understood over the past twocenturies or so, this fact lies at the intersection of a number of fundamental questions of jurisprudence, moral philosophy, philosophical anthropology (particularly the study of ritual and sacrifice, and the relationship between humans and animals), the history of religion and of the emergence of a secular sphere. The idea that animals are suitable for trial and punishment strikes us today as so completely erroneous because our jurisprudence is based on the conviction that in order to be an appropriate target of blameand punishment, a being must be a rational, moral agent. This means in turn that in order for the trial and prosecution of animals to make sense within a given culture, that culturemust be operating either with a very different conception of where the boundaries of suchagency lie, or it must have a very different conception of what it is we are doing when we blame and punish. It is eminently worthwhile moreover to figure out where the differencelies, since in doing so we may hope to gain new insight into the philosophicalcommitments underlying our own conception of agency, or our own understanding of the purpose and justice of punishment, or both.

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