What was it like to try a rat?(Comparative Jurisprudence, part 1)

PART ONE

I. THE RATS OF AUTUN

PART TWO

II. COMPARATIVE JURISPRUDENCE

A. Remarks on Strategy

B. The Boundaries of Comparative jurisprudence

1. Criteria for a New Subject

2. Distinguishing Comparative jurisprudence

from the Philosophy of Law III. THE PRESENT STATE OF COMPARATIVE LAW

A. The Malaise

B. The Traditional Approaches to Comparative Law

1. Casebooks and Pedagogy

2. Works of Scholarship

3. The Problem of Public Law IV. THE INTELLECTUAL ORIGINS OF GERMAN LEGAL THOUGHT

A. Introduction

B. Kant

C. Herder

D. Savigny

E. Conclusion V. THE DEVELOPMENT OF THE CIVIL CODE

A. The Influence on Constitutional Law

1. Kant and the Rechisstaat

2. Gierke, Herder, and the Social State

3. Conclusions on Constitutional Law

B. The Influence on Private Law

1. The Classical Model

2. Gierke's Criticisms

3. The BGB

4. Conclusions on Private Law

C. The Ignorance of Romulus

PART THREE

VI. CONCLUSION: A NEW SUBJECT?

A. Two Hunches

B. A Fresh Start

1. Loose Ends

2. Historical Origins of Comparative Law

C. The Master Argument

1. Rules and Principles

2. Principles and the Master Argument

D. The Axiom of Practicality

E. The justification of Comparative Law

Alle Begriffe, in denen sich ein ganzer Prozefi semiotisch zusammenfa[beta]t, entziehen sich der Definition; deftnierbar ist nur das, was keine Geschichte hat.(1)

The following Article attempts to describe and defend a new approach to the study of foreign law. The core idea is easy to state, although surprisingly difficult to carry out; we shall find that it leads through numerous briar patches before culminating in new and unexpected landscapes. Briefly put, the central claim is this: if comparative law is appropriately combined with legal philosophy the result is a substantially new discipline, "comparative jurisprudence," which is capable of furnishing, not just new knowledge, but a new kind of knowledge about foreign legal systems.

Strange to say, comparative lawyers have neglected to scrutinize the foundations of their discipline or to think with sufficient rigor about the essentially philosophical question: How can we best come to understand law in cultures other than our own? And this neglect has impoverished the entire subject. Indeed, as one leafs through the journals one encounters a malaise that is scarcely to be found in any other branch of the law. Comparative law, as we shall shortly see, is said by its leading scholars to be superficial and unsystematic, dull and prone to error. In part this malaise is the product of disappointed hopes; for if any subject in the legal curriculum promises to bring home the Wealth of the Indies, it is comparative law. The variability of law from culture to culture and from age to age is an epic theme, and should be a bugle call to scholarship. Alan Watson, perhaps the deepest critic of the subject, recalls that the idea of comparative law fascinated him since he began to study law: "My notion was that the study of legal developments in a number of states would, by uncovering patterns and divergences, best reveal societal concerns, and how law responds.(2) But he quickly discovered that the subject was bent on other goals. Needless to say," he observed, when, as a beginning student, I read the books available to me, such as H. C. Gutteridge, Comparative Law, or Rudolf B. Schlesinger, Comparative Law, I found nothing to my purpose. My concerns were not their concerns."(3)

Perhaps the most scrious problem with comparative law has been identified by Arthur von Mehren, who speaks of its dispersed' and "scattered" quality and of its inability to congeal into a stable academic discipline:

Most subject matters in our curriculum, given focus by the needs

of the practicing profession, experience no difficulty in establishing

a core of information and theory that is carried forward,

developed, and refined by succeeding generations of scholars.

Work in comparative law, on the other hand, tends to be scattered

and diffuse as to topic, legal system, and purpose. Although much

excellent scholarship has been achieved, no shared body of

information and theory, no scholarly tradition susceptible of

transmission to succeeding gencrations has emerged. One has the

uneasy feeling that comparative-law scholarship is always beginning

over again, that comparatists lack a shared foundation on which

each can build.(4)

Indeed, to judge from the words of comparative lawyers themselves, it can sometimes seem that the animating spirit of comparative law has been the Muse Trivia--the same Goddess who inspires stamp collectors, accountants, and the hoarders of baseball statistics.

I argue below that what von Mehren calls the "dispersed" quality of comparative law, its tendency to heap up random particles of information, is the consequence of certain deep philosophical assumptions about law. Those assumptions were explicit in the minds of the scholars who founded the modern academic discipline at the end of the nineteenth century. For a time these philosophical ideas gave useful guidance to the new subject, supplying it with a powerful methodology appropriate to the problems of the day. But gradually the range of problems has shifted; the assumptions have been forgotten; and yet the old methodology lingers on. And in this fact, I argue, lie the roots of the present malaise.

If this argument is correct, then a philosophical re-examination of comparative law offers the best hope for a remedy. The issues here are complex, and our investigation will have to proceed on a number of different levels. One level will largely be critical. We shall need to identify the shortcomings in existing comparative law; to examine the intellectual underpinnings of the subject, and attempt to understand the way in which it has been shaped by its tacit philosophical presuppositions. The second level of investigation can then be more constructive. If we can give a precise and explicit statement of the ends to be served by comparative law; if we can tie the subject to other academic disciplines, such as legal philosophy and legal history; if we can identify certain core questions; if we can explain why certain kinds of understanding are more fundamental than others; if we can develop a rigorous methodology; if we can, in short, establish solid foundations for the subject, then perhaps on this groundwork it will be possible to construct a systematic and cumulative body of knowledge.

In this Article I propose to embark on the project of rethinking comparative law. I say "embark" because, as we shall see, the task is too large to be compassed within a single article; but at least it will be possible to show why a prolonged rethinking is necessary and to indicate a direction for future investigations.

The basic idea, which I have already mentioned, is not new. Von Mehren, in fact, years ago suggested that comparative law will become a more rewarding field of study and a more coherent academic discipline, if it is pursued in tandem with legal philosophy.(5) But I do not believe that the significance of his hint has been appreciated or that its implications have been adequately explored; certainly its influence on the behavior of most mainstream comparative lawyers has been negligible.

I also concede the oddity of the suggestion, which at first glance appears more likely to increase the problems of comparative law than to diminish them. But it seems to me that the defects of legal philosophy and comparative law are in important ways not parallel but complementary and that each can be used to correct the shortcomings of the other. If philosophy is often blamed for being "all sail and no anchor," for losing itself in theory at the expense of facts, the principal problem with comparative law is that it has immersed itself too deeply in the legal minutiae. It has in consequence become all anchor and no sail: it lacks theoretical direction. So perhaps we can hope for an improvement if we bring the two subjects together.

This is a long article; before we begin, a few remarks about strategy may be in order. The principal task in what follows is to argue that the malaise of comparative law can be traced to a complicated network of philosophical mistakes. It is widely assumed, for instance, that, because comparative law is intended to serve the needs of practicing attorneys, it should be geared toward studying the sorts of thing that concern practicing attorneys; and that, because the sorts of thing that concern practicing attorneys are the authoritative rules of the positive law, it should therefore concern itself with a comparative study of the authoritative rules of the positive law.

On these assumptions most comparative lawyers are agreed; but at this point the theoreticians diverge into two camps, depending on the conception they hold of legal rules. One camp asserts that comparative law should study "rules in books," that is, the blackletter text; the other, that it should study "rules in action," that is, the way rules function in their social and economic context. The theoretical arguments about comparative law have tended to oscillate between these two poles, text versus context; and, at the extremes, each theoretical position has given rise to a characteristic style of comparative scholarship.

Textualism, in its purest form, lies at the root of a familiar kind of comparative study that may be illustrated by the following example. The largest gathering of comparative legal scholars is the International Congress of Comparative Law, a quadrennial event which most recently was held in Athens. The two opening sessions of the Congress, with panels of twenty and fifteen national reporters respectively, were devoted to the topics "Recent Developments in Extinctive Prescription" and Current Development Concerning the Form of Bills of Lading."(6) The idea seems to be that working lawyers need information about such specific matters of doctrine, and that the primary business of comparative law is to give it to them.

Contextualism, in contrast, takes a more theoretical approach; but it, too, has produced a somewhat curious literature. It is not difficult to find, even in eminent American law reviews, articles describing, say, Japanese or German banking law, giving impressive lists of data and developing an economic model. But when one looks closely one finds that the information has been culled exclusively from sources published in English; that the author does not, in fact, read the foreign language; and that there has consequently been no effort to comprehend the foreign legal system as it appears from inside.

No doubt such examples represent an extreme case; but they are hardly uncommon, and their very existence raises doubts about underlying assumptions. How could a scholar write about a foreign legal system without first learning the language? How could Bills of Lading seem a significant topic for comparative research? What is being assumed here about the correct way to study a foreign legal system? To be sure, such studies can be conducted well or ill, relative to certain background standards of scholarship. But the question we must face concerns the background standards themselves.

The following Article argues that the debate between textualism and contextualism is itself misconceived; that both approaches are flawed, and that the flaws are to be traced to the seemingly innocuous assumption both camps share in common, namely, that because comparative law is meant to serve the needs of attorneys, it should therefore study legal rules. This assumption rests on a silent philosophical theory about legal reasoning and the nature of law, and in particular overlooks the crucial logical distinction between rule and principles.(7) As a consequence of its failure to heed this distinction, the silent theory, in both its textualist and contextualist guises, looks on a foreign legal system externally--as a kind of thing, an objective social fact that is to be described by an outside observer. Comparative law then becomes a matter of piling up a certain body of factual information, whether about rules or social contexts.

If the argument in this Article is correct, then this external perspective embodies a fundamental logical mistake. Understanding a foreign legal system cannot--in a very strong sense of "cannot"--be obtained solely by heaping up nuggets of information.

For understanding is a matter, not just of assembling a stock of data, but of mastering a certain kind of ability--roughly, the ability to think like a foreign lawyer. Logically speaking, these are two very different kinds of enterprises: one is a matter of learning that, and the other, of learning how.

The contextualists seem to me correct in their assertion that, to understand a foreign legal system, one needs to know more than the bare text of the rules. And the textualists seem to me correct in their assertion that the law must not simply be dissolved into its social and economic background.(8) But both miss the crucial point, which is, that if one is to understand a foreign legal system well enough so that one can communicate with the foreign lawyers, one needs to know how they think--and knowledge about how they think is not to be had simply by describing their rule books and the structure of their society.

If the argument in this Article is correct, then the primary object of study for comparative law should be the philosophical principles that lie behind the surface of the rules. This fact establishes a particularly close connection between comparative law and legal philosophy, and it follows that comparative studies grounded in economics or sociology or any other descriptive social science, although they may be helpful, are of subordinate theoretical interest: they do not get to the heart of the matter. The issues presented here are subtle, and it seems best to approach them from several directions. The following essay is therefore divided into three parts.

Much of present-day comparative law is concerned with studying the legal rules of modern industrial mass democracies. The theoretical presuppositions of comparative law do not emerge with particular clarity in such a study because the similarities of the systems are so great that one is tempted, without ever giving the matter much thought, to take many things for granted. Part One therefore seeks to go beyond the normal subject matter for comparative law, and examines the animal trials of the Middle Ages. The hope is that by considering alien legal practices of this sort we will be jolted out of habitual ways of thinking and see more clearly what is involved in studying a foreign legal system.

Part Two is concerned with more mundane matters: the theory and practice of modern comparative law. I discuss the malaise, and argue that, as a consequence of paying inadequate attention to ideas, traditional comparative law has misunderstood the very phenomena it has most sedulously sought to understand. This claim I illustrate with a long example. Comparative lawyers have devoted their greatest energies to understanding the difference between the common-law and the civil-law systems, and in particular to understanding the civil codes of France and Germany. I therefore consider in detail the German civil code; explain how its drafting was influenced by the ideas of Kant and Herder, Savigny and Thibaut, Windscheid and Gierke; and argue that, unless one understands these background ideas, one cannot understand the central issues in present-day German private law.

Part Three then attempts to address the philosophical issues directly, and to trace the malaise of comparative law to a series of mistaken presuppositions about legal reasoning, the nature of rules, and the concept of law. The three parts are deliberately disjointed both in their subject matter and in their degree of philosophical abstraction; but it is important to observe that they are all working to a common end.

It should also be borne in mind that this Article is only the first in a series, and that many issues broached here will have to be discussed more fully at a later time. This is particularly true of the discussion of Kant, whose writings on the philosophy of law have not yet in English received the attention they deserve. Other topics may seem to be treated here at excessive length. In particular the discussion of nineteenth-century German legal thought is longer than is strictly needed to establish the theses of Part Two. But the ideas of Savigny and his successors laid the foundation, not only for the theory of the civil code, but also for modern comparative law, a subject which scarcely existed before the nineteenth century. That piece of history will form the topic of a later article; but it seemed best to lay the groundwork here.

PART ONE

I. THE RATS OF AUTUN

i.

In 1522 some rats were placed on trial before the ecclesiastical court in Autun.(9) They were charged with a felony: specifically, the crime of having eaten and wantonly destroyed some barley crops in the jurisdiction. A formal complaint against "some rats of the diocese" was presented to the bishop's vicar, who thereupon cited the culprits to appear on a day certain, and who appointed a localjurist, Barthelemy Chassenee (whose name is sometimes spelled Chassenee, or Chasseneux, or Chasseneuz), to defend them. Chassenee, then forty-two, was known for his learning, but not yet famous; the trial of the rats of Autun was to establish his reputation, and launch a distinguished career in the law.

When his clients failed to appear in court, Chassenee resorted to procedural arguments. His first tactic was to invoke the notion of fair process, and specifically to challenge the original writ for having failed to give the rats due notice. The defendants, he pointed out, were dispersed over a large tract of countryside, and lived in many villages; a single summons was inadequate to notify them all. Moreover, the summons was addressed only to some of the rats of the diocese; but technically it should have been addressed to them all.

Chassenee was successful in his argument, and the court ordered a second summons to be read from the pulpit of every local parish church; this second summons now correctly addressed all the local rats, without exception.

But on the appointed day the rats again failed to appear. Chassenee now made a second argument. His clients, he reminded the court, were widely dispersed; they needed to make preparations for a great migration, and those preparations would take time. The court once again conceded the reasonableness of the argument, and granted a further delay in the proceedings. When the rats a third time failed to appear, Chassenee was ready with a third argument. The first two arguments had relied on the idea of procedural fairness; the third treated the rats as a class of persons who were entitled to equal treatment under the law. He addressed the court at length, and successfully demonstrated that, if a person is cited to appear at a place to which he cannot come in safety, he may lawfully refuse to obey the writ. And a journey to court would entail serious perils for his clients. They were notoriously unpopular in the region; and furthermore they were rightly afraid of their natural enemies, the cats. Moreover (he pointed out to the court) the cats could hardly be regarded as neutral in this dispute; for they belonged to the plaintiffs. He accordingly demanded that the plaintiffs be enjoined by the court, under the threat of severe penalties, to restrain their cats, and prevent them from frightening his clients. The court again found this argument compelling; but now the plaintiffs seem to have come to the end of their patience. They demurred to the motion; the court, unable to settle on the correct period within which the rats must appear, adjourned on the question sine die, and judgment for the rats was granted by default.

This case, and the ingenuity and learning he displayed in defending his clients, established for Chassenee a formidable reputation as a criminal defense attorney. But he was also to contribute influentially to legal scholarship. So far as I am aware, no complete catalogue of his writings exists. But in 1528 he produced two major works. The first, the Catalogus gloriae mundi, was an important Renaissance source book on questions of heraldry and aristocratic rank; it was often reprinted. (The catalogues of major American university libraries show holdings of editions from 1546, 1571, and 1579; but the list is not likely to be complete. The second was his commentary on the customary laws of Burgundy, the Commentaria super consuetudinibus Burgundiae. This work, a minor classic of legal literature,(10) was a standard work of reference for French lawyers of the Renaissance. (American libraries hold editions from 1543, 1592, 1616, 1647, 1698, and even 1747; again, the list is probably incomplete.

Chassenee is said during the 1520s, while he was engaged in his scholarly pursuits, to have continued his practitioner's interest in animals, and to have worked on several cases involving their criminal prosecution.(11) The court records do not appear to have survived; but in 1531 Chansenee himself published a book whose full tide is Consilium primum, quod tractatus jure dici potest, propter multiplicem et reconditam doctrinam, ubi luculenter et accurate tractatur questio illa: De excommunicatione animalium insectorum--which roughly translates as, A Treatise on the Excommunication of Insects. This work, like his other writings, seems to have filled a legal need, for it was reprinted at least twice: in 1581 and again in 1588.(12) This treatise discusses the full range of issues that can have been expected to arise during a trial of "insect animals": the jurisdiction of the lay and ecclesiastical courts, the proper form of the complaint, the issues of notice and of adequate representation by counsel, the procedures to be followed at trial, and the passing and execution of sentences. He cites a remarkable range of obscure and forgotten authors, as well, of course, as various relevant anathemas in the Old and New Testaments--God's cursing of the serpent in the Garden of Eden; the law in Exodus that an ox which gores a man or a woman to death is to be stoned, and its flesh not to be eaten; Jesus's malediction of the barren fig tree of Bethany; the story of the Gadarene swine. He also cites Virgil, Ovid, Cicero, Aristotle, Gregory the Great, the Institutes of Justinian, Moses, various patristic theologians, and Pico della Mirandolt: the list could easily be extended. He reports numerous examples of successful anathemas pronounced by medieval saints against sparrows, slugs, leeches, eels, and even an orchard. He considers whether animals are to be considered as clergy or as laity. (He concludes that, in general, animals should be presumed to be laity, but that the presumption can be rebutted. He tries more generally to delimit the exact boundaries separating the jurisdiction of the lay and the ecclesiastical courts; and he draws a careful distinction between punitive prosecutions of animals, and conduct.

Chassenee's fame as an attorney and a scholar continued to grow. No doubt his commentary on the customs of Burgundy contributed more to his legal eminence than did his treatise on the excommunication of insects; but the two works display the same erudition and the same tone of learned seriousness. One might be tempted to suspect Chassenee and his colleagues of an elaborate joke--gargantuan, one might say, in the manner of Rabelais--except that the joke seems to go too far. Chassenee was involved in too many such cases, and his treatise is too laboriously researched, for such an explanation to be credible. He was, after all, an eminent jurist, with many demands upon his time, and in any case the destruction of their barley fields can hardly have seemed a matter for jest to the farmers of Autun.

Chassenee seems to have treated cases involving animals and cases involving humans with equal seriousness, and fortunately we have an instance which leaves no doubt. Near the end of his life, in 1540, Chassenee, whose star had continued to rise, and who was now President of the Parlement de Provence, presided over an inquiry into the justice of an order for the extirpation of heresy.(13) Specifically, it was proposed to extirpate some local Waldenses in the villages of Cabrieres and Merindol. One of the members of the tribunal, Renaud d'Alleins, suggested that it would be unjust to exterminate the unfortunate heretics without first granting them a hearing, and permitting an advocate to speak on their behalf. After all, had not the President himself insisted upon such a right for the rats of Autun? Did not even animals have the right to assistance of counsel? There can be no doubt of the seriousness with which heresy was regarded: this would not have been an opportune time to remind the President of a joke. Chassenee was persuaded by the arguments of d'Alleins, and obtained from the king a decree that the accused Waldenses should be heard. (This outcome was by no means legally predestined; in fact, Chassenee died in 1541, and the Waldenses were thereupon exterminated, apparently without obtaining their hearing.)

ii.

It should not be assumed that the courts of Renaissance, when hearing a criminal prosecution against animals, were invariably inclined to decide for the human plaintiffs: not even when the defendants were vermin. In 1545 some wine growers in a village in the district of St. Julien instituted legal proceedings against a species of snout-beetle that infests vineyards.(14) Advocates were duly appointed for the insects. But this first case never came to trial. After consultations with counsel for both sides, the court issued a proclamation, dated 8 May 1546, which observed that God had ordained that the earth should bring forth herbs and fruits, not only for the sustenance of rational human beings, but also for the preservation and support of his lesser creatures, the insects; it would be more fitting for the humans to implore the mercy of heaven, and to seek pardon for their sins, than to proceed rashly against the beetles. The proclamation prescribed prayer, contrition, and the saying of High Mass three times in the vineyards. The insects are reported to have thereupon disappeared from the village.

Forty-one years later, however, in April of 1587, the infestation returned; and this time the animals were actually brought to trial. The court proceedings fill twenty-nine folia, which are preserved in the archives of St. Julien. The legal maneuverings and the arguments about the legal status of animals continued into the summer. In June a compromise was proposed by the advocate for the plaintiffs. A piece of ground, distant from the vineyards, precisely described in its location and dimensions, and well-supplied with plants and herbs, was to be reserved for the use of the beetles in perpetuity. The plaintiffs would retain easements to use the springs on the land, and to cross it without doing detriment to the animals' means of subsistence; they also retained the right to shelter there in time of war, and the right to work the mines of ocher--again, so long as in so doing they did not interfere with the pasture of the animals. (Both parties, it should be observed, agreed that the insects had a legal right to life, and to an adequate share of the earth's bounty: this issue was not in dispute.)(15)

The attorneys for the insects did not accept this offer. They argued that the land was in fact barren; moreover, that the mining rights, if exercised by the plaintiffs, would be detrimental to the pasturage of the defendants. The court proceedings continued for many months more. The final outcome of the case is uncertain, the last pages of the court records having subsequently been eaten by some bugs or rats.(16)

How frequent were such trials? From the ninth century to the nineteenth, in Western Europe, there are over two hundred well-recorded cases of trials of animals, with the majority falling in the fifteenth, sixteenth, and seventeenth centuries.(17) However, trial records for the medieval period are notoriously spotty, and the actual number must have been much larger. In Elizabethan England such trials were evidently common enough so that Shakespeare could allude to them and expect his audience to understand what he was talking about:

Thy currish spirit Governed a wolf, who, hanged for human slaughter, Even from the gallows did his fell soul fleet, And whilst thou layest in thy unhallowed dam, Infused itself in thee; for thy desires Are wolfish, bloody, starved, and ravenous.(18) The animals known to have been placed on trial during this period include: asses, beetles, bloodsuckers, bulls, caterpillars, chickens, cockchafers, cows, dogs, dolphins, eels, field mice, flies, goats, grasshoppers, horses, locusts, mice, moles, pigeons, pigs, rats, serpents, sheep, slugs, snails, termites, weevils, wolves, worms, and miscellaneous vermin.(19)

Within this list it is important, as a legal matter, to distinguish wild animals from domestic. As a general rule, the wild animals came within the jurisdiction of the ecclesiastical courts (unless there had been shedding of blood, which could raise complex legal issues),(20) whereas domestic animals came within the jurisdiction of the ordinary criminal courts.(21) The cases I have discussed so far have been cases of vermin, and the primary purpose of the trial was to rid the region of infestation by the threat of anathema or excommunication. In the lay courts, in contrast, the purpose, as a rule, was to punish the animal for its criminal acts: not deterrence, but retribution.(22)

An example is the decision of the Law Faculty of Leipzig condemning a milk cow to death for killing a pregnant woman, one Catharina Fritzchen, on 20 July 1621.(23) German law faculties in the seventeenth century and after, under the institution known as Aktenversendung, would often be asked to render judgment in difficult cases.)(24) The cow, condemned as a "monstrous animal" ("als abschewlich thier"), was ordered to be transported to a remote, desolate spot, and there executed and buried.(25)

Among criminal cases of this sort, there are many instances of pigs being condemned to death for infanticide.(26) A typical specimen is the trial of a sow and her six pigs at Savigny-sur-Etang in 1457; they were charged with murdering and partly devouring an infant.(27) She was found guilty and, like Shakespeare's wolf, was sentenced to death by hanging. Nearly a month later her six pigs were brought to trial. Because of their youth, because their mother had set a bad example, and because the evidence was not sufficient to convict, they were acquitted of the crime.

In cases of bestiality the animal was regularly put to death with the man. It is reported by Cotton Mather that in New Haven, Connecticut, on 6 June 1662, a man named Potter, aged sixty, was hanged with a cow, two heifers, three sheep, and two sows.(28)

Animals condemned to death were executed in various ways. Some were burnt at the stake; others merely singed and then strangled before the body was burned. Frequently the animal was buried alive. A dog in Austria was placed in prison for a year; at the end of the seventeenth century a he-goat in Russia was banished to Siberia.(29) Pigs convicted of murder were frequently imprisoned before being executed; they were held in the same prison, and under substantially the same conditions, as human criminals.(30)

iii.

These are the phenomena I should like to understand. They perplex and disturb me on a number of different levels. They seem to bespeak a different attitude, on the part of our not-very-remote ancestors, to such matters as: crime, guilt, pain, the person, animals, suffering, truth, death, responsibility, trials, justice, and law. What were they up to, these punishers of animals? What was the point?--I am not sure; and the longer I dwell on the question, the more uneasy and uncertain I become. The issues here are subtle; perhaps we will do best to approach them in stages.

To begin with, I am not satisfied by the explanations, whether medieval or modern, that have been produced for these trials. (Observe that the issue here is the trial, that is the criminal prosecution of the animal by the same formal legal procedures employed for humans: what needs to be explained is not why one would put down a dangerous cow, but why one would first bring the matter to the Law Faculty of Leipzig.)

One explanation of animal punishment was given by the great canon lawyer Gratian in the twelfth century.(31) He held that animals are punished, not because of their guilt (culpa), but so that the hateful act might be forgotten.(32) Another explanation from the sixteenth century takes an opposite approach: animals are punished to inspire in humans horror of the deed, and to keep its memory alive.(33) But neither explanation is satisfactory. The explanation of Gratian raises the question why the animals are to be put on trial and given a gruesome and memorable death rather than simply got rid of and forgotten as quickly as possible. The other explanation raises the question why the particular animal that did the deed is to be punished: if the purpose is to inspire horror in humans, why not kill the animal that will suffer most memorably? And why, indeed, kill just one? Would not a general slaughter be better remembered?

At bottom the problem with both explanations is the same. They sever the nexus between guilt and punishment; Gratian explicitly, and the other approach implicitly. They both assert that (i) injuries caused by animals have nothing to do with culpa, but rather are to be counted among "things that happen"; and, (ii) the purpose of animal punishment is to produce certain psychological effects in humans. But now it becomes difficult to understand why the same reasoning cannot be extended to inanimate objects. Why does one not place on trial the murderous axe, or execute an animal to make vivid to oneself the horror of an avalanche? We have arrived at a reductio ad absurdum for these two lines of justification; or so it would appear.

Another explanation is given by Leibniz in his Theodicie.(34) He says that one would be justified in imposing capital punishment on beasts if in so doing one could deter other beasts from evil. (He notes that in Africa lions were crucified to drive away other lions; that wolves were hanged in Germany for the same reason; and that peasants nail birds of prey to the doors of their houses.) Leibniz himself phrases his explanation in the subjunctive mood, and appears sceptical about the deterrent value of capital punishment for animals; but in any case this explanation and his examples would explain only why one kills the beast and displays its body--not the principal issue, which is why one first puts it through the ritual of a formal criminal trial.

Another view of animals was given by an eighteenth-century Jesuit, Guillaume-Hyacinthe Bougeant, in his Amusement philosophique sur le langage des bestes of 1739;(35) this work was translated into English in the same year. Bougeant does not directly discuss the animal trials; he was troubled instead by the following problem.(36) As Christianity spreads to pagan regions, and as infants are baptized at birth, the supply of humans available for habitation by devils will constantly diminish. But devils are immortal; where then are they to dwell? Bougeant answers that the majority of devils are incarnate in the brutes of all kinds. This conclusion he supports by another argument. Pace Descartes, animals are not automata, but exhibit thought, knowledge, and feeling; yet they do not have immortal souls, and are not, qua animals, destined either for Heaven or for Hell. But if they are neither persons nor automata, then they must be some third thing; and the only remaining possibility is that they are devils. For this reason, he says, the Christian church has never taken the animals under its protection, or urged kindness towards them. On the contrary, animals have been provided to us by a benevolent God for our use and entertainment. The suffering they endure is part of God's punishment of devils; and when a dog is beaten, or a pig slaughtered, it is the embodied demon that actually suffers. "If it be said that these poor creatures, which we have learned to love and so fondly cherish, are foreordained to eternal torments," he says,

I can only adore the decrees of God, but do not hold myself

responsible for the terrible sentence; I leave the execution of the

dread decision to the sovereign judge and continue to live with my

little devils, as I live pleasantly with a multitude of persons, of

whom, according to the teachings of our holy religion, the great

majority will be damned.(37)

Bougeant's views, however, are not medieval: they date from the eighteenth century, more than two centuries after the trial at Autun. His theory that animals exhibit rational thought flew in the face of the received scholastic wisdom; and his theory that animals are in fact demons seems to have been regarded by the Church as highly questionable, if not actually heretical.(38) His arguments are not internally consistent, and in any case do not suffice to explain why, if one knows that an infanticidal pig is a devil condemned to suffer at human hands, one would ever put it through the formal ceremony of a criminal trial.

Some even later writers have seen the purpose of these trials, not in their deterrent effect on other animals, but in their deterrent effect on human beings.(39) But this is a modern explanation; I do not believe it is to be found in the writings of thinkers like Chassenee. Nor does it seem to provide a particularly strong argument for animal trials. Punishing a killer sow seems unlikely to deter a human from infanticide; and when we consider rats or grasshoppers the analogy seems to break down entirely.

Other modern writers have tried to explain these trials by appealing to a theory of personification. They assert that in the Middle Ages domestic animals were regarded as members of the household, and were under certain circumstances even permitted to appear in court as witnesses; from these facts it is inferred that animals were regarded as rational beings, capable of acting as responsible agents.(40) These authors conclude that the purpose of the animal trials and of the subsequent punishment was not so much deterrence as retribution: animals, like humans, are to be held responsible for their actions. But this explanation, too, is problematic. Perhaps it has some limited plausibility for higher mammals, like pigs or dogs; but it hardly seems to work for rats or grasshoppers.

Chassenee, to be sure, thought that the rats of Autun were entitled to notice of their case, and entitled to a hearing. Perhaps--the evidence seems to me ambiguous--he believed that, in some sense, the rats were rational creatures; perhaps, despite his erudition, he shared in a widespread superstition of the common people. But the theologians of the Middle Ages clearly deny to animals the status of rational agents, and Chassenee, at any rate in his more scholarly moods, seems to follow their analysis. Thomas Aquinas, for example, argued that only rational creatures could be the subject of a curse; if God curses an animal (or a place or a thing) the curse must be regarded, not as a curse of the animal per se, but as an indirect way of cursing a rational agent.(41) How, then, asks Thomas, are human curses of animals to be justified? If we regard animals merely as irrational brutes, then the curse would be odiosum et vanum et per consequens illicitum. And if we regard the animals as the instruments of God's will, then the human curse would be blasphemous. But a third possibility remains. If the animals are regarded, not as the agents of God, but of Satan, then they may properly be cursed and excommunicated and punished with death: for this is an indirect way of cursing the Devil. (This argument is thus crucially different from the argument of Bougeant, who regarded animals as themselves devils.) Chassenee (who, as I say, may not be entirely consistent in his beliefs on this point) seems to accept this scholastic analysis, and declares in his treatise on the excommunication of insects that the anathema of the Church is not pronounced against the animals in their own person, but through them against Satan.

We have, then, two theories that seek to explain the animal trials in terms of indirect punishment: the theory that animals are punished to intimidate humans, and the theory that they are punished to intimidate Satan. Both theories deny culpa to the animal; both sever the connection between guilt and punishment; both use the suffering of the animal to produce a psychological reaction in the true evildoer. Once again, we seem to be back at our earlier reductio ad absurdum. It is not clear why the animal punished and the animal who participated in the crime should be the same; nor why the same reasoning should not apply to inanimate objects. Aquinas and Chassenee propose to prosecute criminally and punish creatures whom they know not to have free will--the guiltless instruments of Satan. But this theory is, if anything, even less comprehensible than the trials it is supposed to explain: we seem to have arrived at the outer limits of intelligibility. For, in its essence, the suggestion of the great philosopher and the erudite lawyer is, it seems, that we should punish, not the cutthroat, but the knife.

iv.

But perhaps we have missed something. Perhaps this outcome would not strike the medievals as a reductio ad absurdum, but simply as a further implication of the theory. (It is not a logical mistake. And if we look in Blackstone, in the chapter dealing with the revenues of the Crown, we find, mixed in with the discussion of rents, profits, ecclesiastical revenues, wine-licenses, shipwrecks, mines, treasure-trove, confiscated property, and escheats of land, a passage in which Blackstone discusses the remnants of the institution known as deodand--etymologically, things given to God."(42) Under this law any personal chattel which was found by a jury of twelve to have immediately caused the death of any reasonable creature was forfeit to the king; the proceeds were to be applied to pious uses and distributed in alms by the high almoner.

Blackstone reports some curious distinctions. (1) No deodand is due if an infant fall from a cart or a horse, so long as the cart or horse is not in motion; but if an adult fall and is killed, the thing is forfeit. (2) If a horse or an ox of its own motion kill an infant or an adult, or if a cart run them over, the thing shall be a deodand. (3) "Where a thing, not in motion, is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited." (4) No deodands are due for accidents on the high sea, which is not in the jurisdiction of the common law; but if a man fall from a boat in fresh water and is drowned, the ship and its cargo are deodands.

Blackstone has evident difficulty explaining these rules. Point (4) is a simple matter of jurisdiction, and need not detain us. Point (1) he explains in religious terms. The institution of deodand, he conjectures, was originally intended to expiate the souls of the dead, and to pay for masses for those who had died suddenly and in sin. But the child seems, he says, to have been regarded as incapable of actual sin, and therefore to need no propitiatory masses for its soul. (He rejects the explanation of Sir Matthew Hale, that the infant in case (1) receives no deodand because it is unable to take care of itself, pointing out that this fact explains nothing: Hale, too, had evidently struggled to find reason behind these rules.) Points (2) and (3) he explains by "this additional reason, that such misfortunes are in part owning to the negligence of the owner, and therefore he is properly punished by such forfeiture." But the explanation appears to make him uncomfortable. Negligence seems to have played no part in the jury's determination that something was forfeit as a deodand; and Blackstone himself observes that "[i]t matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited as an accursed thing." Indeed, he prefaces his entire discussion of deodands with the remark that this species of forfeiture "arises from the misfortune rather than the crime of the owner."

The entire discussion, measured by Blackstone's usual standard, is remarkably incoherent; he struggles, but is unable to make rational sense of the existing rules. Much as Chassenee might have done, he cites without commentary the Mosaic law about stoning an ox that has killed a human; and he points out that the ancient Athenians would banish from the precincts of the city any object that had caused a man's death by falling on him.(43) But the underlying reasons seem to leave him baffled. He says that the institution of deodand appears to have had its origin in 'the blind days of popery," and to reflect the "humane superstition of the founders of the English law."(44) But, he continues, in the present day deodands are for the most part granted out as a royal franchise to the lords of manors, "to the perversion of their original design"; the clear implication is that the institution has outlived its time, and although it did not immediately disappear from English law, it was in fact finally abolished, during the reign of Queen Victoria, in 1846.(45)

v.

Armed with this information about deodands, let us return to the animal trials. The problem, recall, was to make sense of the things Aquinas and Chassenie say about the punishment of animals. We seemed to have arrived at the absurd conclusion that their theory would justify the punishment of inanimate objects; but perhaps to them the conclusion was after all not so absurd.

What light do deodands shed on the original problem? The answer, I think, is some but not very much. In the first place the geographical distribution of the two institutions is not quite right. Deodands seem to have been a creation of English common law, whereas most animal trials took place on the Continent.(46) It is not clear as an historical matter exactly how the institution of deodand arose, or what the primary intellectual sources were: even whether they were pagan or Christian. The Athenians, as Blackstone knew, would put on trial at the Prytancum three classes of objects: (i) unknown murderers, (ii) animals, and (iii) inanimate objects (stones, beams, pieces of iron) that had caused the death of a man by falling on him. These facts are recorded by Aristotle; Pericles and the famous sophist Protagoras are said to have spent a whole day debating the guilt of an inanimate object. Plato not only mentions such legal proceedings, but evidently approves of them, and in Book IX of the Laws makes provision for their inclusion among the statutes of his ideal commonwealth.(47)

But we must beware of drawing too quick analogies between the Athenians, the English, and the French. The purpose of the Athenian practice is perhaps in the end as obscure as the medieval animal trials; but it seems to have been intended to remove an impurity from the community. The original purpose of deodands (if Blackstone's conjecture is correct) was in contrast to provide prayers for the soul of the deceased. And the animal trials seem to have had yet other springs and levers. The connection in Chassenee's mind between animal trials and the cursing of inanimate objects is difficult to fathom. As we saw, he cites two such curses: Jesus's cursing of the barren fig tree of Bethany, and a medieval saint's cursing of a fruit orchard. But Chassenee, like many a lawyer before and since, made a practice of citing whatever precedent lay ready to hand; and these two precedents on inspection seem to have little to do with the institution of deodands, and to shed little light on the trials of animals. The cursing of the fig-tree was understood allegorically in the Middle Ages as a cursing, not of the tree per se, but of the Jews, whose rituals had brought forth legal foliage but not the fruit of righteousness. And the fruit orchard was cursed, not for any crime it had committed, but because its fruits were keeping the young people of the village from the saint's sermons; once attendance improved, the fruits again began to grow.

It would be an interesting historical exercise to trace these two quite different curses back to their roots, noting the similarities and divergences: one inquiry would involve a study of curses in the ancient world in general, and in ancient Judaism in particular; the other would involve a study of northern European magic and sorcery. In Chassenee's mind the two seem to have blended. But that is not the present point. For neither of these two curses of inanimate objects seems in the relevant respects analogous to the medieval trials of animals. The crucial differences--what sets those trials apart from deodand and from Greek purification rituals--is the element of punishment. The animal trials of course may have been intended (like the Greek rituals) to eradicate a religious taint, and they may also have been intended (like deodands) to give comfort to the soul of the victim. None of this do I deny (although the exact relationship to the Hebrew, Greek, Christian, and northern European rituals seems to me mysterious). But they seem to have had another purpose as well: to condemn and to punish the animals.

vi.

That at least part of the purpose of these trials was punitive can scarcely be in doubt. And it is this element, the punitive element, that I still do not understand. I said before that often the convicted animals were burned at the stake, or buried alive. Sometimes the treatment was even more inhumane, and the animal was tortured before execution. A single example will here suffice for many. In 1386 a murderous sow of Falaises that had torn the face and arms of a child was sentenced first to be mangled and maimed in her head and forelegs; the sow was then dressed in human clothes and slowly hanged in the public square by the town executioner.(48)

At this point it is tempting to fall back on the explanation offered by Blackstone, and blame the whole business on the ignorance and the brutality of the medieval world. But this line of reasoning is no less problematic than the others. Chassenee was not in any obvious sense a cruel man (think of his attitude to the Waldenses) and he had read more widely and thought more deeply about the moral standing of animals than has almost any modern attorney. In his thought (and still more in the thought of Thomas Aquinas) the questions about animals are subordinated to a complex moral theology that we may wish to reject as mistaken, but cannot dismiss as primitive.

As for the accusation that these trials were inhumane, it is important to remind ourselves that, after all, the rats of Autun won their case. So too did the snout-beetles of St. Julien. A field was reserved for their use; both parties agreed that even the least of God's creatures has a legal right to live. This attitude contrasts markedly with the modern attitude. One distinguished modern naturalist estimates that, at the present day, as a result of human activity, species of all kinds, but mostly insects, are disappearing at a rate of 27,000 per year-roughly three entire species each hour.(49) We are horrified by the brutality of the animal trials; but it does not take much imagination to see that Chassenee would be equally horrified by our wanton extermination, without trial, of God's creation.

True, he saw animals as creatures who, like humans, could be brought to trial for their deeds and cruelly punished; but from some points of view this must be seen as a sign of moral respect. Where we see in a rat or a pig either useless vermin or a reservoir of animal protein, he saw fellow creatures who enjoyed certain basic rights that can be vindicated at law. Indeed, the entire modern vocabulary of praise and condemnation seems oddly out of place here. We speak of these trials as brutal, and praise the modern world for being more humane; but brutal, in the original sense of the word, is precisely what Chassenee was not. This shift in vocabulary is an important clue. What seems to have happened--what we call being more humane--appears to reflect not so much a greater underlying kindness, or a greater respect for the moral personality of animals, as a greater indifference and a shift in metaphysics. We no longer think of animals as creatures, that is, as created things. We have attained a greater emotional distance from them; we draw a sharper distinction between the animals and ourselves, and are more inclined to view them as automata, as parts of the material world. And when we do accord them some degree of moral respect, there has been an important change in the standard we a ply: the higher animals are not to be mistreated, not because they are the handiwork of God, but because they are like us.

At least as a first approximation we can say that Chassenee would have used a different vocabulary than we do: he would have carved up the world differently. He would have divided it, perhaps, into godly and ungodly things. Godly humans and animals appear on one side of his ledger; ungodly humans and animals on the other. This is quite different from the division (which seems to have got its start in the Renaissance) between the brutal and the humane, with all animals falling in one category, and most humans in the other.

A warning may now be in season. I do not wish to suggest that this is the only important difference between ourselves and Chassenee, and the last point about the Renaissance explains why the contrast I have just mentioned can only be a first approximation. The path that leads from Chassenee and the animal trials to ourselves and modern penal science is twisted and at many places hard to follow; perhaps some of the complexity can be brought out by the following observation. It is a common superstition about the Middle Ages that their sensibilities would have been shocked by the discovery of their biological kinship with the animals; but as we have just seen, Chassenee saw humans and animals as being alike God's creatures. He would have acknowledged a kinship, although he did not suppose it to be a biological kinship. It was the humanist philosophers of the Renaissance who first began to talk, in a new way, about the nobility of being human, and to speak of humans as uniquely created in the image and likeness of God.(50) The older view (which of course in Chassenee's day still jostled with the newer one) had counselled humility, resignation, and the insignificance of all things merely human; the newer saw humanity as participating in aspects of the divine. It was the Humanists of the Renaissance and their successors whose sensibilities would have been shocked to learn of their kinship with the apes: the older thinkers would have been surprised, to be sure, but would likely have seen in this kinship only one more deserved chastisement for a fallen human species.

It is important to notice that this difference between the Middle Ages and the Renaissance is not just a matter of new scientific theories, but also involves the discovery of the possibility of new emotional responses to the world--and the loss of some old possibilities. I spoke just now about "sensibilities." The word is important, and should remind us that the differences between ourselves and Chassenee exist, not just at the level of cognition, but also in the very constitution of our moral sentiments. To put the point another way: what separates us from Chassenee--what makes the animal trials both so elusive and so revealing--is not just a shift in a single concept, but in an entire frame of reference. We set out to study these strange legal proceedings of our ancestors; and at every turn we have been brought face-to-face with alien sensibilities, alien metaphysics. And by "metaphysics" here I mean metaphysics in its most full-blooded sense--the subject that addresses such questions as: What is a person? What is an animal? What is the essence of freedom? What is justice? How is reality constituted, and to what ends? To understand Chassenee, it seems, we need to recapture lost images, a forgotten range of experience: an entire way of thinking and feeling about the world.

vii.

So far I have been writing as though the principal task were to understand the animal trials; but this last line of inquiry raises an uneasy question, namely, how well we understand our own legal rituals. We started out to understand Chassenee, and we unexpectedly bumped into the fact that Chassenee might find our treatment of animals as callous and repellent as we find his. It is natural to wonder how deep the disagreement here lies, and whether we have any firmer grasp on our own practices than we do on his. So let us try another tack and consider how we would justify to a sceptical Chassenee some peculiarities of our modern attitude to punishment. The treatment of animals raises issues that are perhaps too difficult for a first example; so let us start with an easier and more central case--the physical mutilation and torture, as punishment, of human prisoners.(51)

I begin by observing that I, like most of the people I know, have a strong, almost physical repugnance against the sort of physical mutilation that occurred in the West until a couple of centuries ago (more recently for American slaves)--cropping a felon's nose, or amputating the hand of a thief. The repugnance has the feel of something basic, something primitive--not in the sense of being uncomplicated, but in the sense of being automatic: a learned reflex, if not actually an inborn instinct.

The problem comes when we try to go behind this reflex and supply it with reasons--when we try to explain it to Chassenee, who evidently had other reflexes. True, an amputation cannot be undone; but neither can a year in prison. Both are serious blights upon an entire human life. And indeed, from the point of view of the prisoner the loss of a hand might well be rationally preferable to a decade spent in a modern American prison. Yet we do not offer prisoners the choice.

Perhaps the reason has less to do with our solicitude for the prisoner than our solicitude for the aesthetic sensibilities of the surrounding society. A thief locked away is a thief you can forget; but a thief without a nose triggers all the familiar emotion-drenched reactions against human mutilation. But this argument too is unsatisfactory. First, it does not apply to all mutilations, but only to those that are publicly visible. (It would not apply, say, to rapists.) Second, the vividness of the reminder is an argument that cuts two ways: so long as we are merely considering the impact of the spectacle on third parties, it is not clear that the deterrent value does not outweigh the feelings of squeamish discomfort. Third, and most importantly, the argument reasons in a circle. The original question was how rationally to justify our reflexive responses; the proposed answer says nothing more than that we do not mutilate because mutilation produces the reflexive response.

Broadly speaking there exist two familiar ways of justifying a prohibition on physical mutilation: the consequentialist, and the deontological. The consequentialist arguments all seem to me in the finish to beg the question in this way. The issues are complex, but roughly the problem is this. On any plausible consequentialist measure the harm botb to the prisoner and to society of some large degree of imprisonment (say, fifty years in maximum security) will outweigh the harm of some slight degree of mutilation (the painless amputation of your little toe). If we nevertheless cling to an absolute prohibition on mutilation, the underlying reasoning cannot without great difficulty be consequentialist. To put the point another way: from the point of view of the convicted criminal it is surely better to be maimed than executed; but even the most ardent proponents of capital punishment shrink from the re-introduction of maiming. So in some respects mutilation is regarded as worse than death; the problem is to say why. Consequentialist calculations of expected pleasures and pains, I conclude, are unlikely to be what underlies the prohibition or the intense psychological reflex.

If we press the question we must therefore enter the realm of deontology, and at this point something curious seems to happen. Why do we not physically maim our prisoners? The standard answers fall back on some such phrase as: (i) respect for the integrity of the human body; (ii) a desire that punishment be made humane; (iii) respect for human dignity; or (iv) respect for the sanctity of the person. This language is a staple of all the various international resolutions on human rights, and of the literature of such organizations as Amnesty International.(52) This language is both puzzling and revealing. The first two phrases either beg the question or are equivalent to one of the last two; and I have already commented on the oddity of the word "humane." The third phrase--human dignity--appeals to a moral and religious ideal whose origins in the modern world can be dated fairly precisely, to the time of the Italian Renaissance.(53) Pico della Mirandola's Oration on the Dignity of Man, delivered in 1486, may be taken as the classic statement of the view that God had created Adam 'so that with freedom of choice and with honor, as though the maker and molder of thyself, thou mayest fashion thyself in whatever shape thou shalt prefer."(54) Pico continues:

O supreme generosity of God the Father, O highest and most

marvelous felicity of man! To him it is granted to have whatever

he chooses, to be whatever he wills. Beasts as soon as they are

born (so says Lucilius) bring with them from their mother's womb

all they will ever possess. Spiritual beings, either from the

beginning or soon thereafter, become what they are to be for ever

and ever. On man when he came into life the Father conferred

the seeds of all kinds and the germs of every way of life.(55)

These are not the tones of the Middle Ages, whose attitude is better represented by the title of Innocent III's thirteenth-century tract On the Misery of Man.(56) The fourth phrase--sanctity of life, sanctity of the person--manifestly goes back further yet, and has religious roots that extend well beyond the Renaissance.

It is curious that we moderns should fall back on this particular vocabulary. For no age has given higher place to the ideals of the sacred or of human dignity than did the Middle Ages and the Renaissance; and yet both inflicted punishments that today we regard as barbarous. This fact raises for us a double problem. ([alpha]) We must show that the ideal of human dignity can still be defended after its original religious underpinnings have dropped away; and, ([beta]) we must then show, contra Chassenee, that mutilation violates human dignity.

The closest thing to a successful attempt along these lines that I am aware of is the theory of Immanuel Kant, who makes a valiant attempt to ground a system of morality in the abstract concept of rational agency.(57) He sets an absolute value, "beyond any price," on human dignity;(58) and, like the Renaissance, he draws a sharp contrast between rational agents and animals.(59) This is not the place to enter into the details; but two features of his attempt should be noticed. First, even if Kant's argument strikes us as entirely plausible, it is not clear that it will have the same effect on Chassenee. Kant, of course, presents his conclusions as a derivation from pure reason; but the abstract arguments seem at some level less powerful than the psychological reflex. Indeed, part of the strength of Kant's argument is the way it holds together and makes sense of our native sensibilities: if instead it concluded with a triumphant vindication of torture, mutilation, and slavery, we would be inclined to suspect an error somewhere in the chain of inference. Mutatis mutandis for Chassenee. He evidently does not share our reflexes, and there is no reason to suppose that somebody whose sensibilities have not been conditioned by the historical growth of Western culture from the Renaissance onwards can be compelled, solely on abstract considerations about the concept of rational agency, to adopt our particular set of moral reflexes.(60) Second, even within the Kantian theory--that is, even if we accept everything he says about autonomy and equality and the absolute value of human dignity--there is still a problem with showing point ([beta]), that is that physical mutilation violates human dignity. Chassenee could retort that his conception no less than Kant's rests on ideas of dignity and the sanctity of the person; but that the modern era has drawn the wrong inferences. The value of dignity is served by taking the criminal seriously as a moral agent: to treat him with dignity is to regard him as a rational being, and, through the inflicting of sudden agony, to communicate to him the full wrongness of his deed. The modern conception, far from respecting human dignity, locks criminals in a cage away from sight, like dangerous beasts.

The present task is not to say whether this argument of Chassenee's is right or wrong, but to note the depth and pervasiveness of the set of problems we have almost inadvertently backed into. Chassenee shudders at heresy, and makes light of mutilation; we make light of heresy, and shudder at mutilation. When pressed to explain, we find ourselves falling back on an intuitive appeal to the sanctity and dignity of the person, but without the metaphysical and religious underpinnings that Chassenee might have invoked. Plainly we have come a long way from our original concern with the trials of animals: what now seems to be at issue is not just our understanding of the animal trials, but the precariousness of our own moral judgments.

viii.

These reflections can produce in us a kind of mental cramp, an uncertainty about where to turn next. So let us temporarily set aside questions of understanding and justification, and ask instead how the modern point of view historically arose. What steps led from Chassenee to ourselves?

Manifestly a large change took place in legal thought in the eighteenth century. Early in the century London pickpockets were still punished by hanging; by the end, the project of criminal codification and of penal reform, led by Jeremy Bentham and Cesare Beccaria, was well under way. Punishment was to be made humane and proportional to the crime: it was to be made rational, scientific. If we open to any page of Bentham and compare it to any page of Chassenee we can see at once the change that has taken place. Where Chassenee cites the old auctoritates, Bentham appeals to observed facts, logic, quantities of pleasure and pain, precise measurements, rational design. We might conjecture that the rise of the scientific world view is the chief point of separation between Chassenee and ourselves.

I do not dispute that the changes that have occurred in the theory and practice of punishment are tied to changes in the empirical sciences. But here it is important to ask, What is the nature of the tie? Is it just an accidental link, or is there some deep, underlying affinity between modern science and modern punishment? Even if we conclude the link is merely accidental, this information will be useful in allowing us to understand something important about the differences between Chassenee and ourselves; but if the link turns out to be based on objective reasons, then we have the additional prospect of being able to explain to him, without begging the question, why our conception of punishment is superior.

Bentham would certainly have presented himself as marching in step with Science, Progress, and Reason; and he also rejected physical mutilation. But the question is whether there is any essential connection between these two positions. Perhaps the fact that the people who rejected mutilation were the same as the people who upheld Science has no deeper significance than the fact that we call certain political positions "left" and "right" rather than "top" and "bottom" or "blue" and "green." Bentham's own sentiments were opposed to the deliberate infliction of severe pain; but as I indicated earlier, these sentiments are hard to derive by scrupulous logic from his brand of hedonistic consequentialism.(61) Are we to say that an increase in scientific knowledge must necessarily bring with it an increase in general benevolence? This seems implausible, and certainly it is easy enough to imagine a certain sort of scientific temperament that would sweep aside all talk of human freedom and human dignity as so much medieval superstition, to be replaced by a rationally-based theory of punishment that would employ, where necessary, mutilation and torture.

What of Bentham himself? What reasons impelled him to reject the inhumane punishments--the maimings and the tortures--of the Middle Ages? Perhaps an answer to this biographical question will shed some light on the larger issues.

As I have already argued, Bentham's utilitarianism does not seem to me to provide an ironclad logical argument. But an anecdote may be illuminating. Bentham seems to have had an almost morbidly sensitive disposition, and from his earliest childhood to have been troubled by dreams of the Devil. When he was an undergraduate at The Queen's College, Oxford, he was given a room in the back quadrangle overlooking the cemetery of St. Edmund Hall; his fear of ghosts was so great that, from his meager funds, he paid another undergraduate to change rooms. It was at this time that he began to apply himself assiduously to the study of logic.(62) So perhaps this is the answer to the question about Bentham. Perhaps science and logic offered him a more comforting world, a world free of the fear of ghosts and devils; perhaps Bentham's personal Enlightenment was at bottom itself a kind of animal trial, a medieval exorcism carried out by other means. And perhaps we have stumbled across an answer to the larger problem as well. Perhaps this sort of incremental, evolutionary, irrational change, occurring at the level, not of abstract reason, but of the moral sentiments, repeated many thousands of times, accounts for the distance between Chassenee and ourselves. A philosopher of genius, frightened of the dark, develops a naturalistic moral theory, free of ghosts, and persuades his contemporaries to accept it; the older view gradually recedes, and is forgotten. These evolutionary changes, even taken as an ensemble, do not themselves of course constitute an argument for the truth of our moral conceptions, any more than the evolution of the poodle constitutes an argument against its ancestor the wolf. But they do offer, if not an argument, at least some kind of explanation. They explain two things: how we could have gotten from Chassenee to ourselves, and why Chassenee's world is now so difficult to access.

It will no doubt be objected that these facts constitute not reasons, but causes, and that in mentioning Bentham's morbid psychology I am committing the genetic fallacy," that is, the fallacy of confusing the truth of a theory with its psychological origins. The objection is right to label the things I have mentioned causes; but it is as causes, and not as reasons, that I offer them. I do so as a Pis aller; I would prefer reasons. But the problem is, all the reasons I can think of seem to have run out; and still I would like an explanation. What is left but to grope for causes?

ix.

These reflections can leave us with an uneasy feeling that, not only do we not understand the animal trials of the Middle Ages, but we do not even understand our own legal practices. This is a possible philosophical position; and here Nietzsche has some apposite things to say:

As for the other element in punishment, the fluid element, its "sense," in a very late condition of culture (for example, in modern Europe) the concept of "punishment" does not at all display any more a single sense, but rather an entire synthesis of "senses." The previous history of punishment in general, the history of its use for the most varied ends, crystallizes in a sort of unity which is difficult to untangle, difficult to analyze, and (as one must emphasize) is utterly indefinable. Today it is impossible to say exactly why punishment occurs: All concepts in which an entire process is semiotically condensed elude definition; only that which has no history can be defined.(63)

But notice that our earlier train of thought seems to have landed us in a place one would hardly have thought exists: in a scepticism even more extreme than that of Nietzsche. For Nietzsche thought only that modern punishment is indefinable; but not so for punishment in earlier stages of culture. (To paraphrase: in the past there were reasons; today we can give only historical causes.) But we have looked at the explanations of the animal trials provided by Blackstone and Leibniz, Gratian and Aquinas; and none seems to make sense.

Here is a possible nightmare. If we could gather together in a single room all the great thinkers who have written about animal trials--Moses, Plato, Gratian, Aquinas, Leibniz, Blackstone--and ask them to explain themselves, what would they say? What would they say to the others? What would they think to themselves? Perhaps--the possibility is not far-fetched--they would have nothing at all to say. Perhaps they would find the infliction of punishment as mysterious as we do. Maybe all that is going on here is a kind of horrible legal inertia, where rules are blindly copied from one system to another: we do these things because they are the things we do. Perhaps even Chassenee, for all his deep learning on the subject, never really understood the animal trials--nobody knows what they were for, and nobody has ever known. At any rate, Nietzsche's suggestion that our ancestors knew the secret of punishment seems overly optimistic. The ancient Romans punished parricides by casting them into the sea, enclosed in a sack, accompanied by a cock, a viper, a dog, and a monkey.(64) Can it be possible that they understood punishment any better than we?

x.

These, then, are the sources of my unease. We started with what looked like a mere caprice, an inquiry into the curious case of the rats of Autun. And we have come, by an entirely natural sequence of steps, to philosophical issues of extraordinary depth and complexity. I do not here wish to endorse any particular solution, but merely to point out the problem: we went on a lark to open an ancient tomb, and the mummies seem to have come alive.

Other kinds of philosophical problems, of course, can produce a similar sense of epistemic vertigo. David Hume famously argued that even his belief in the external world is not to be established by reason: it depends rather on habit and feeling. "After the most accurate and exact of my reasonings," he writes, "I can give no reason why I should assent to it; and feel nothing but a strong propensity to consider objects strongly in that view, under which they appear to me."(65) Perhaps the same is true here. Perhaps what separates Bentham from Chassenee is merely habit and feeling, causes but not reasons: the Middle Ages had one set of sensibilities, and the Enlightenment another; that is all.

Hume also famously pointed out a reassuring side of his doctrine, namely, that his sceptical doubts vanished as soon as he left his study. Maybe this solution will also work for us. Abstruse reasoning, he says, is less powerful than sentiment:

When we leave our closet, and engage in the common affairs of

life, its conclusions seem to vanish, like the phantoms of the night

on the appearance of the morning; and 'tis difficult for us to

retain even that conviction, which we had attain'd with difficulty.(66)

"Most fortunately it happens," he says, "that since reason is incapable of dispelling these clouds, nature herself suffices to that purpose."(67) We cannot help believing in the external world as we do; and in the end philosophy "expects a victory more from the returns of a serious, good-humour'd disposition, than from the force of reason and conviction."(68)

But this Humean solution is not, I think, available to us. For our problem is not, in the end, a philosopher's problem like the problem of the existence of the external world. It is a problem about our capacity to make sense of real, historical people; it comes with us when we leave our study. Hume, in treating the problem of the external world, can fall back on nature and habit precisely because the habits he appeals to are universal in the species. But what does a "good-humour'd disposition" have to say about the animal trials? To put the point another way: what is in question here is not just our reason, but our sentiments as well. The scepticism we encounter seems to have no bottom.

The issues raised by these meditations on the animal trials indeed appear to lie at the center of our modern attitude to the world. It seems to me utterly basic--moral bedrock--that somebody who deliberately tortures a pig must be insane or evil or both; certainly I would prefer to spend a week in the company of the lunatic who believes that the world does not exist. Both are mad, but the torturer has the additional demerit of being both threatening and nauseating. But our course of reasoning calls this modern attitude into question. Chassenee was plainly neither mad nor cruel; yet he wrote a deeply learned text that discusses, inter alia, the judicial torture of animals. We appear to have reached the limits, not just of rational intelligibility, but of emotional intelligibility as well.

xi.

These sceptical conclusions are plainly intolerable; they may be the beginning of wisdom, but let us hope they are not its end. If we are to "dispel the clouds' of scepticism, where must we turn for assistance?

One line of argument to which I have already alluded comes from within modern analytical philosophy and would short-circuit the entire problem. The argument ultimately has its roots in Kant's distinction between questions of fact and questions of reason. The argument goes like this. What I need in order to still my doubts is reasons; but in looking at Chassenee and Bentham and the rest I have inadvertently strayed into the realm of historical causes. What I must do is clearly separate these two things: I must, on the one hand, qua philosopher, develop an abstract moral theory that will justify my beliefs and rationally explain why the torture of animals is wrong; and, on the other, qua historian, develop an empirical theory of moral pathology that will explain why Chassenee and others have gone so badly astray. These are both important projects, but logically quite distinct; and only confusion can result from mingling the two.

In developing a moral theory (the argument continues) my only option is to work from within my own conceptual scheme. There is no transcendental standpoint. I must take my moral beliefs and my emotional reflexes as I find them, and attempt to bring them into harmony with each other. Here is how John Rawls describes the method of "reflective equilibrium":

There are questions which we feel sure must be answered in a

certain way. For example, we are confident that religious intolerance

and racial discrimination are unjust. We think that we have

examined these things with care and have reached what we believe

is an impartial judgment not likely to be distorted by an excessive

attention to our own interests. These convictions are provisional

fixed points which we presume any conception of justice must

fit.(69)

We try to arrange these provisional fixed points into a coherent scheme of justice whose "justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view."(70) Some of the initial fixed points may shift in the process: they are not necessary truths. The resulting theory 'is a theory of the moral sentiments (to recall an eighteenth century title) setting out the principles governing our moral powers, or, more specifically, our sense of justice."(71)

I have no argument against this way of doing moral philosophy, and indeed for many purposes it seems to me the only possible way to proceed. My point is a different one, namely that for present purposes this style of philosophy, if taken in a certain way, seems unlikely to solve, or even to address, the problems raised by the rats of Autun.

The difficulties arise when moral philosophy makes itself relative to the inherited scheme of moral sentiments; for it is hard to see how making an orderly arrangement of our own moral sentiments can solve the original problem. Chassenee evidently has one set of moral sentiments, and we another; but there is no reason to suppose that, if we were both to construct our respective maximally coherent theories of our moral sentiments, those theories would agree even at the most basic level. The difficulty, indeed, is that the most basic moral sentiments we possess--the provisional fixed points from which we start--are precisely not things we have closely examined. We do not need to. They are, as I observed before, almost a physical reflex, part of our moral bedrock. We see some children light a cat on fire, and we see that that is wrong: it is hard to think of any mere reasons that reach deeper.

To put the point another way, the example of the animal trials brings out a latent tension between the following two propositions:

(1) The task of moral philosophy is to construct a moral theory, that is, a maximally-coherent set of moral judgments that function as reasons.

(2) The theory can appeal to no transcendental standpoint: it is to be grounded in certain basic moral sentiments that we happen, as an empirical matter, to have.

The problem is that what in (1) are treated as reasons turn out in (2) to be brute empirical facts; and it is then hard to see how they can have any grip on Chassenee.

If (1) and (2) are all that moral philosophy has to offer, then we seem to have reached an impasse. We can, of course, continue to give reasons why we do not torture animals. But those reasons, it is important to observe, are not now grounded in any a priori, transcendental Vemunft of a metaphysical and Kantian sort. They are relative to our own conceptual scheme, and ultimately seem to rest upon nothing more than the brute fact that we have inherited a particular set of reflexes. In other words, the reasons we arrive at are to be understood as reasons for us: they make no claim to constitute reasons for a medieval Samurai or a Homeric warrior.

These facts are directly relevant to the issue of historical causation with which we began. The original suggestion, recall, was that we should consign such matters as Bentham's nocturnal fears to the realm of history--the realm of mere causes--and instead develop a reasoned, philosophical theory of morality. We can now see that what underpins this suggestion is the rejection of a transcendental starting point. A subtle but natural train of thought can lead from that premise to the conclusion that the study of empirical historical causes is irrelevant to moral philosophy. The argument--call it the "immanence argument"--goes like this. We are constrained to take our considered moral sentiments as we find them: they are the only possible starting point for moral philosophy. Our task as philosophers is then to explore, from inside our inherited conceptual scheme, the contours of our shared, modern, Western sense of justice. This investigation will furnish us with a body of reasons; but those reasons are immanent reasons: the only sort of reasons that exist. We have no need (and in fact it would be an error) to base our philosophical investigations on history or on the study of the moral practices of other communities; indeed, to do so would be, in a subtle way, to try to go beneath the bedrock, to try to adopt a standpoint outside of our own conceptual scheme.

I do not know to what extent this immanence argument has consciously influenced analytical philosophers; it is rarely stated explicitly, but lurks in the background. However, it is entirely consistent with the unhistorical way analytical philosophers have practiced moral philosophy. They have explored the moral sensibilities of a twentieth-century Western industrial democracy in just the way the immanence argument would recommend, testing them against each other and against ever more imaginative thought experiments. The literature that has resulted ("Do Robots Have Rights?") is technically very sophisticated, and often employs the tools and the mathematical vocabulary of game theory or decision-theory or welfare economics. But it is important to observe that, despite the denial of a transcendental starting point, these techniques of analytical moral philosophy can only be described as being, from a methodological point of view, a priori: we are not, perhaps, as distant from Kant as one might at first suppose.

This a priori style contrasts markedly with the historicist style of moral philosophy pioneered by Kant's student Johann Gottfried Herder, and later developed, in very divergent ways, by such thinkers as Hegel and Marx and Nietzsche. In analytical philosophy there has been little attempt to probe the historical origins of our moral sentiments, or (what comes to the same thing) to subject them to empirical scrutiny.

So far, however, so good. I have no objection to casuistry, and no allergy to mathematics. But not so when the a priori style of analysis claims to be the unique way to pursue the problems of moral philosophy, and in particular when it suggests we need never look to historical causation.

The difficulties occur when we come to a phenomenon like the medieval animal trials. We seem, on the analytical approach, to end in a blank irrationalism, with one world view uncomprehendingly staring into the eyes of another. We have reached the bedrock of our moral sentiments; and if the immanence argument is correct, then nothing more can be said. But the suggestion of Herder and Nietzsche and their historicist confreres is that, even if reasons have run out, we can still look to historical causes: that something of philosophical importance is to be learned from attempting to go behind our moral sentiments, and to trace the genealogy of our moral ideas. (It is one of the many oddities raised by the trial of the rats of Autun that, at this point in the argument, Nietzsche could seem to represent an antidote to the irrationalism of analytical philosophy.)

The question we must therefore ask is whether the suggested way of short-circuiting our earlier worries--concrete historical causes in this basket, abstract philosophical reasons in that one--is philosophically tenable; and this comes down to the question of the tenability of the immanence argument.

Let us agree with the prevailing wisdom that moral philosophy is immanent and that its task is to explore the contours of our inherited conceptual scheme. It does not follow from this premise that our methods may only be mathematical and a priori. History can be immanent, too; in fact, rather more easily than game theory. For our conceptual scheme is conspicuously a product of cultural evolution, and one way to explore it is to examine the way it emerged over time. Of course, if you believe (and if you do, it can only be on a priori grounds) that the task of moral philosophy is simply to examine abstract reasons, then an inquiry into the genealogy of morals will not belong to philosophy. But this is to beg the question. I see no reason, a priori or empirical, not to adopt a more generous conception of the task of philosophy: philosophy exists not just to examine abstract reasons, but to help us understand our situation. And for that purpose we should be free to employ any tool that lies ready to hand, whether it come from mathematical economics or from history. As for the invention of illuminating thought experiments, history is evidently much better at the job than we are. The trial of the rats of Autun seems to me at least as fruitful a topic as the make-believe examples of robots and imaginatively jailed prisoners: it raises equally difficult theoretical issues, and penetrates more deeply into our way of thinking about the world.

When once we start to approach moral philosophy in this way, the sharp distinctions of the a priori analytic approach can come to seem problematic and arbitrary. Take first the suggestion that the task of moral philosophy is to construct a coherent theory of our inherited moral sentiments. Once one starts to think of this problem historically, it is natural to wonder about the precise force of the "we." Closeness in moral sensibility does not correlate perfectly with chronological closeness or geographic closeness: in many ways, Aristotle is closer to us than are Cotton Mather or the Boston Strangler. I do not mean to deny that, as a practical matter, a philosopher might attempt to construct a public conception of justice to be employed by the citizens of a particular society. But here the relevant community can be taken as given; the task is then to devise a set of principles that will command widespread acceptance. My point is a different one: that, as a philosophical matter, if the community is not given in advance, there seems to exist no criterion that does not beg the question for determining whose sentiments count, and who is to fall within the scope of our moral community. There seems no good reason to limit it to people who are presently alive (and ample reason not so to limit it). But then the original strategy for short-circuiting our sceptical doubts is in trouble. The suggestion, recall, was that we should develop a theory of our community's moral sentiments, and exclude the rat triers; but I can see no principled way to draw the line.

Similarly for the distinction between reasons and causes. As we probe into the origins of our moral sentiments it can at times be difficult to tell which is which. Reasons seem to be able to metamorphose into causes, and causes into reasons. Take an example. Hobbes wrote his Leviathan in the wake of the Thirty Years' War in Germany. He had lived in Holland for a spell, and knew from refugees the consequences of anarchy. Undoubtedly this experience left its mark on the theory of sovereignty in the Leviathan--on the argument that sovereignty must be undivided, on pain of civil war. But are we dealing here with reasons or with causes? If Hobbes's fear of civil war is a reason for his arguments in political theory, then why is not the same true for Bentham's fear of ghosts? And what of the impact of, say, Plato on subsequent political theory? He held a number of views (on slavery, on women, on the transmigration of souls) which he puts forward as reasons for his political beliefs, but which we now regard as mistaken. Is the influence on the present of what were once regarded as reasons to be counted as merely a cause of our present ideas, or as belonging to the realm of reasons? To ask these questions is to see their futility, and to despair of being able to disentangle either reasons from causes, or ourselves from the medieval triers of animals. Nor, I think, should this conclusion disturb us. It should be evident that the search for a cause can help bring to light reasons of which we were not earlier aware; and so long as the explanation sheds light, who cares what we call it? Bentham's fear of ghosts seems to us less significant than Hobbes's fear of civil war, not, perhaps, because one is a cause and the other a reason, but because the first fear explains far less than the second.

Should we go further and deny, not only that reasons and causes can be disentangled, but that there is any sharp and ultimate metaphysical difference between the two? The question is difficult, and fortunately we need not attempt to answer it here. I wish only to establish a case for thinking that moral philosophy may have something to gain from looking to what are often classified as mere historical causes; nothing I have said depends on the more general metaphysical claim.

The foregoing abstract argument about the unhistorical analytical approach to moral philosophy can also be looked at historically. Very roughly, at the end of the eighteenth century, Immanuel Kant, in the Critique of Pure Reason,(72) attacked the idea that truth consists in a correspondence to a transcendental, mind-independent reality; the details of his argument are immensely complex, but in essence he argued that truth is a kind of coherence of reasoned judgments with each other. Kant himself continued to accept the idea of a universal and unchanging reason; but it was natural for his student Herder to take the next step and make reason and morality relative to the particular coherencies endorsed by the national culture and the age. Once one has made reason immanent in this way, the question then arises of whether in some way reason and history can be brought back together. Precisely this problem was faced by philosophers of such different temper as Hegel, Nietzsche, and C.S. Peirce, all of whom attempted to steer a middle course between pre-Kantian transcendental realism and a thoroughgoing historical relativism: between saying on the one hand that moral truths are truths of reason, true in the same way for all times, places, and persons; and, on the other, that morality is simply the reflection of whatever the community happens to believe. The analytical approach I discussed earlier can be viewed as an attempt to step around this particular problem: the idea is to work entirely within the moral beliefs of a particular time and culture, and to explore those beliefs from inside. As I said earlier, I have no argument against this way of proceeding, so long as it is not taken to exhaust the entire subject of moral philosophy. But the animal trials of the Middle Ages seem to me to raise again, from the inside, the old metaphysical question of the relationship between reason and history; and the problems here, I have argued, cannot be solved simply by exploring more deeply the structure of our own moral beliefs. We confront in those trials the question of the limits of moral intelligibility, the question of how far we can hope to understand the world view of Chassenee both intellectually and emotionally; and if the foregoing argument is correct we need to enlist in our service not just the methods of abstract philosophy, but of history as well. The subtlety here is that the particular method we develop for addressing these problems will itself be dependent on how we answer the larger and more abstract philosophical questions about reason and history; specifically, on the answer to the philosophical questions depends the answer to how far it is possible to combine into a single view the abstract, analytical approach that hearkens back to Kant and that seeks reasons, and the concrete, historicist approach that hearkens back to Herder, and that seeks empirical causes.

These are indeed deep and difficult issues that our reflections on the rats of Autun have led us into. At this point we might encounter a different version of the short-circuiting argument. It might be objected that the questions I have raised are questions for the philosopher's study. They summon forth no pressing moral issues. Chassenee has been dead for centuries; his views on trial procedures for insects are no longer of practical significance. We may, if we choose, amuse ourselves by trying to understand the follies of the past; but each age starts afresh, and the issues that weigh upon us today are best confronted directly: not by studying rat trials, but by the best moral arguments we can muster.

I do not deny the importance of abstract moral arguments. But the point of considering the rat trials is precisely to learn something about the limits of moral intelligibility, and therefore about the limits of abstract moral argument. And the problems here are not just a theoretical puzzle about understanding the distant past. Even if we leave to one side--it is a large omission--all those present-day cultures that are non-Western and non-secular, it is an obvious fiction to speak of our shared moral sensibilities, or to speak as though those sensibilities could be disconnected from their historical origins. One need not look far to find disputes whose roots lie in the sensibilities that have survived to us from the past, and even in the sensibilities that are in evidence in the animal trials of the Middle Ages. Over the centuries the legal systems of the West have given different answers to the question of metaphysics, What is a person? It has been debated how far the concept should be extended to women, to non-Greeks, to animals, to slaves; and although few people today would propose that the legal system extend its protection to grasshoppers or snout-beetles, the same cannot be said for human embryos.

Now, it may be asserted that all issues of this sort can be resolved by a priori reasoning from our shared moral sensibilities. But the historical evidence for this assertion seems to me weak, and I am aware of no a priori argument that would establish the point. Under the circumstances it seems reasonable to take illumination wherever we can find it: in abstract philosophy if possible, but also in history. The issues here of the limits of intelligibility and of the genealogy of our moral sentiments--of where our disagreements come from, and of how they are to be understood--are not a mere historical caprice, but reach deep into the practical problems of the present; I see no way to fence them off. There are two issues here: first, we may hope that, by asking ourselves in the abstract how it is possible to come to understand Chassenee we will also learn something about how to understand the disputes of the present; second, we may hope that by actually studying the animal trials of the Middle Ages we will at the same time learn something about the contours and origins of our own moral thought. Whether one calls this historical knowledge a knowledge of reasons, or a knowledge of causes seems to me immaterial: the important question is how much light it sheds, and how far we are assisted to understand, not Chassenee, but ourselves.

xii.

Our argument has taken us in a large circle. We started by trying to make sense of the trial of the rats of Autun. But when we looked at the explanations of Chassenee and Leibniz, Blackstone and Aquinas, the reasons they offered seemed to melt. We next wondered whether our own situation is any more secure, and we turned to history for an answer. We squirm at the thought of mutilating a prisoner; Chassenee did not. Chassene'e squirms at the thought of heresy; we do not. We explain our squirming by saying we believe in human dignity, the sacredness of the person. But Chassenee, who believed in the sacredness even of insects, is much closer to the metaphysics that gave this notion its original force; he indeed saw heresy precisely as a threat to the sacred--this is why he was willing to punish it so savagely--and yet our arguments about torture and mutilation seem to be unable to find a grip on him. How, then, as a matter of reason, are we to explain how our own legal practices could have developed out of the practices of Chassenee? This question engendered a feeling of epistemic cramp. We looked to history for help, as a succedancum; but it only made our symptoms worse. Perhaps, we thought, nothing underpins the differences except blind historical causation--phenomena ultimately no more rational than Bentham's fear of ghosts. We next turned to analytical philosophy, which seemed to offer a way of shortcircuiting the entire problem. But, by degrees, we have been led to the conclusion that the problem is not, in fact, an illusion, and that the "high priori road" of analytical philosophy is unlikely to carry us to our goal: to understand ourselves, we need to know how to understand Chassenee, and to understand Chassenee we need empirical history, not just immanent reasons. And so we have come round to our original problem, but in a different and more urgent key: How are we to make sense of the trial of the rats of Autun?

xiii.

In the course of these meditations we have obtained a sense of the sprawling difficulty of the issues. It is natural now to try to cut them down to reasonable proportions. Perhaps if we start by trying to solve an easy case, we shall in time be able to make progress on the more difficult.

History and philosophy have led us into deep waters. We found ourselves overwhelmed; we were left with a sense of vertigo, with mental cramp, not knowing how to go forward. The abstractness and the sheer breadth of the issues is in part to blame; and law here perhaps can provide an antidote. The legal rules of a society are public and highly visible: its moral philosophy writ large. So perhaps it will be easier to see what is going on. Moreover, law is a concrete and practical discipline. Working attorneys must, as a matter of practical necessity, sometimes deal with the laws of another society; and the problems they must solve can be expected to bear at least a family resemblance to the more theoretical problems we encountered earlier. Perhaps if we consider, in the concrete, how an American lawyer makes sense of a French avocat or an English solicitor we shall obtain some hints about the trial of the rats of Autun.

An entire academic discipline has been devoted to just this problem: the discipline of comparative law. It has been in existence for about a century, and has generated a large and learned literature, in numerous languages, discussing how best to study law in a foreign legal system. I have searched in this literature for hints and clues, always asking: What are the prospects that this theory will assist us to understand the animal trials of the Middle Ages?--Many theories have been proposed; but they can be sorted into four main groups. None seems to offer much help. We shall see the details later; for now a brief indication of the reasons will suffice.

(1) Some scholars say you should seek understanding in the black-letter rules of the substantive law. But the rules in the animal trials seem to be clear enough: rats, if they wantonly destroy a farmer's crops, are guilty of a felony, and are to be punished, provided they have been convicted after a fair trial.

(2) Others say you should look to the legal process. But I know--or I think I do--how the animal trials worked. Not well enough, perhaps, to try such a case myself, but well enough to be able to follow the proceedings, and to say if somebody made a significant mistake. I know that insects were entitled to the appointment of counsel for their defense; that domestic animals were tried in lay courts, and wild animals in ecclesiastical ones; that the procedures used were influenced by a mixture of Roman law and canon law. But information of this sort seems rather to state my problem than to solve it.

(3) Yet other scholars have urged that comparative law is best conceived as the study of legal transplants--of how black-letter rules have been transported from one system to another. But this approach to the subject only postpones my problem. For if I do not understand the rules for deodand in seventeenth-century Germany, it does me no good to be told that those rules were borrowed from England via sixteenth-century France.

(4) We might conjecture that the problem with these first three classes of theories is that they cast their net too narrowly. They look just to the legal system itself; but perhaps we should look to a wider context. The final group of scholars does just this. They assert that the legal system is a mirror of the economic relations, or the power relations, or the social relations in the surrounding culture; they treat law principally as a sociological phenomenon. So, for example, law will be viewed as a mechanism of dispute resolution, or as a means for organizing the economy, or as a way of establishing social order. But these "functionalist" explanations, applied to the animal trials, seem to miss the point. In the first place, as we have observed, animal trials are to be found in a wide variety of societies, from Periclean Athens to Elizabethan England, and indeed well beyond Europe. …

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