Forthcoming in Andreas Blank (ed.), Animals: New Essays, Munich, Philosophia Verlag.
The fact that animals were for a long period of European history tried and punished as criminals is, to the extent that this is known at all, generally bracketed or dismissed as a mere curiosity, a cultural quirk. Yet as a few scholars have understood over the past two centuries or so, the topic in fact lies at the intersection of a number of fundamental questions of jurisprudence, moral philosophy, philosophical anthropology (particularly the study of ritual and sacrifice), the history of religion, and the emergence of a secular sphere. The idea that animals are suitable for trial and punishment strikes us today as so completely erroneous because our jurisprudence is fundamentally based on the idea that in order to be an appropriate target of blame and punishment, a being must be a rational, moral agent. This means in turn that in order for the trial and prosecution of animals to make sense within a given culture, that culture must be operating either with a very different conception of where the boundaries of such agency lie, or it must have a very different conception of what it is we are doing when we blame and punish. It is eminently worthwhile moreover to attempt to figure out where the difference lies, since in doing so we may hope to gain new insight into the philosophical commitments underlying our own conception of agency, or our own understanding of the purpose and justice of punishment, or both of these.
Based on a rather different set of historical examples, Bernard Williams attempted, in his 1993 Shame and Necessity, to reveal the rather tenuous nature of the modern moral-philosophical conviction that punishment is 'good' to the extent that it responds to an agent's freely chosen moral transgression. Drawing inspiration from Nietzsche's philological examination of classical Greek conceptions of justice, Williams returns to the ancient tragedians and poets in order to reconstruct, with sympathy, a conception of the ethical self that was not, in his view, grounded in modern illusions about the autonomy of human action. Williams remained focused almost exclusively upon Greek attempts to make moral sense of interactions between human beings. One way of deepening and strengthening his general project, as I would like to begin to do here, is to extend our focus to the history of interactions between human beings and non-human animals. The benefit here arises precisely from the fact that animals are that class of entities that in the modern period never underwent the process of autonomization of which Williams is so critical, and so to some extent may stand as vestiges of a very different, premodern way of thinking about agency and responsibility in general. To think about the history of animal trials along these lines, as we will see, not only enables us to make anthropological sense out of a cultural practice otherwise easily dismissed as 'curious'; it also helps us to understand why this practice could have no place in Western legal systems after roughly the middle of the 17th century, and in understanding this we in turn come to understand something very important about the moral-philosophical foundations of those systems.