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Liability for Animals: An Historico-Structural Comparison

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Abstract

This account of civil liability for animals in a range of ancient, mediaeval and modern legal systems (based on a series of studies conducted early in my career: (s.1)) uses semiotic analysis to supplement the insights of conventional legal history, thus balancing diachronic and synchronic approaches. It reinforces the conventional historical sensitivity to anachronism in two respects: (1) (logical) inference of underlying values from concrete rules (rather than attending to literary features of the text) manifests cognitive anachronism, an issue manifest in biblical scholarship’s discussion of the stoning of the homicidal ox in Exod. 21:28 (s.2); (2) similarly, we see from analysis of Exod. 21:35 that the application of modern notions of literal (rather than narrative) meaning not only manifests a semiotic anachronism but here also obscures the institutional origins of many of the rules in a system heavily reliant on self-help and informal settlement (s.3). At the same time, we find in the patterning of remedies exemplification of a basic Saussurean principle: the meaning of a term (here, a rule) is a function of its relationship to other terms in the same semantic system. In this context, there is a structural principle which correlates degrees of remedy with degrees of fault. However, in the history of their literary reception from the ancient sources, we find that particular rules (particularly where liability is based on scienter) take on new meanings in the context of the system into which they are received (s.4). In addition to the goring ox/pauperies/scienter/traditions, the legal systems here studied also offer remedies for depasturation. The relationship between the two sets of remedies is discussed in terms of a Greimassian-inspired analysis of the “narrative typifications of action” which underlie them, and which help to explain (at a factual or narrative, rather than doctrinal level) why some cases appear “easy” while others present themselves as “hard” (s.5). This is distinguishable from the doctrinal formulations of the distinctions between these sets of remedies, which in both the Jewish and Roman sources import an Aristotelian, teleological conception of nature (reflecting contingent social values, themselves analysable, in semiotic terms, as modalities), which only in later times was modified in favour of a more purely descriptive conception. These doctrinal accounts reflect professionalisation not only in their forms of discourse, but also in the institutional structures they presuppose (s.6). I conclude (s.7) with an attempt more precisely to formulate this correlation between the semiotic and institutional development, insisting that professional dogmatic discourse should not be understood simply as reflecting a higher level of cognitive development, but must also take account of the pragmatics of the particular professional discourse.

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Notes

  1. The material is discussed from a semiotic viewpoint in Jackson [43, pp. 18–25], Jackson [46, pp. 106–11], Jackson [51, pp. 159–62], Jackson [51, pp. 440–42], Jackson [52, pp. 187–93], and Jackson [53, pp. 255–90].

  2. To Greenberg [19], I replied in Jackson [28, ch. 1]. See further Jackson [53, Appendix to ch. 4].

  3. Phillips [63, p. 90]: “The animal, which had appropriated its victim’s blood, was probably regarded as being possessed by an evil demon, which would have been laid by its execution.”

  4. For literature on the history of trials of animals, see Jackson [28, pp. 109–10 n. 5], Fensham [15, pp. 85–86] and, most extensively, Finkelstein [13, pp. 229–230], who maintains that “the trial and punishment of animals and inanimate objects is a phenomenon entirely peculiar to Western civilization, deriving its moral categories from the Bible, with its anthropocentric orientation, and its rhetoric derived from the Classical world, which laid down, among much else that still lives in modern discourse, that ‘man is the measure of all things’,” and criticises [13, p. 230 n.195] the comparative work of J. G. Frazer: “he does not in fact adduce a single authenticated instance of a juridical procedure against an animal in a non-western social context.” See also Finkelstein’s treatment of the issue at Finkelstein [14, pp. 48-85], concluding with a section on “Animal Trials in the United States”. On rabbinic sources which do assume that a trial is intended, see Loewenstamm [55].

  5. A distinction not always observed in the literature. Sprinkle [70, p. 125] rightly notes that the attribution of such guilt to the animal does not entail attribution of “criminal intent”, since biblical law regards human beings as in principle liable for homicide even without such intent.

  6. Some, who follow the view of Greenberg and Finkelstein that a hierarchy of values informs biblical law, see this reflected in the fact that the ox is left alive in Exod. 21:35–36: see, e.g. Sprinkle [70, pp. 123, 125–26]. But that too may reflect a utilitarian evaluation: if it merely attacks another animal, it is not so dangerous that it has to be put down. Rabbinic exegesis later insists that an ox which is mu‘ad (warned) for another animal is not thereby mu‘ad for a human being: see Mishnah Baba Kamma 4:2; Tosefta Baba Kamma 4:4.

  7. In this context, Westbrook [74, p. 86] rightly argues that the inference from the Mesopotamian provisions that nothing was there done to the ox is an argumentum e silentio, which “assumes a lack of common sense on the part of the Mesopotamian authorities”.

  8. For Finkelstein [13, p. 269] “The Laws of the Bible and the ‘Code’ of Hammurapi belong to two utterly disparate universes of classification and conceptualization”, to such an extent that their underlying principles would have been mutually incomprehensible. Thus, he observes [14, p. 34] that even if the Israelite author had in front of him LH 229–32, he “would have been able to see only the bare statement; he could not have comprehended the classificational system that determined the shape and the form of expression of the principle underlying such a statement. To these basic elements, he, as a representative of a culture with an entirely different mode of apprehension, was as one congenitally deaf and blind.”

  9. In fact, at the end of his 1973 essay, he offers some substantial qualifications to his thesis: see Finkelstein [13, pp. 280–281].

  10. Greenberg [19, p. 7]. See further Jackson [52, pp. 173–75].

  11. Finkelstein [14, pp. 7–14, 46]. For his formulation of the effect of different world views on the substantive rules, see Finkelstein [14, p. 39].

  12. For discussion of contrary arguments, see Jackson [53, p. 261 n.38].

  13. Finkelstein [14, pp. 26–27]. For my critique of this argument, see Jackson [53, pp. 261–266].

  14. Finkelstein [14, pp. 27–28], Cf. [13, pp. 180–181] where he describes stoning as the penalty “reserved for the gravest capital crimes, affecting the well-being of the community, such as the worshipping of foreign gods (Deut. 13:10) and any other type of sacral crime, e.g. violation of the sabbath (Num. 15:32–36). Such crimes, inasmuch as they constitute offences against the divinely ordained order, amount to ‘high treason’ against God. The goring of a person to death by an ox is a variety of ‘high treason’ against the divinely ordained hierarchy of creation, wherein man is the lord of terrestrial life, and constitutes therefore a crime of the gravest magnitude”, contrasting this with the (mere) shedding of human blood by other human beings.

  15. See further Jackson [52, pp. 187–189].

  16. Daube [10, pp. 85–88] argued that the whole of the third section, vv.35–36, where the ox kills another ox, is secondary, an example of the ancient drafting technique of addition at the end, rather than interpolation in the logical place. See further Jackson [53, p. 267 n.52] on the later literature.

  17. As Finkelstein points out [14, p. 39], they were in LE 53–55.

  18. For Finkelstein this reflects the Bible’s (then) unique view of personhood, based on a different cosmology from that of the ancient Near East (see Finkelstein [13] and Finkelstein [14]). But this cosmological version of Greenberg’s postulates has to force the evidence, as regards the sanctions variously applied, as well as in respect of the arrangement of the collection. See further Jackson [53, pp. 188–189]. See also Levinson [54, p. 146].

  19. Finkelstein [14, p. 37]: “The predominant element here [Exod. 21:28-32] is one of moral disapprobation; this, with one exception, precludes restitution as a mode of adjudication. In instances in which there was no human victim the moral element is conspicuously absent; instead, the writer is at pains to signal his intent that no one is to be condemned even when the owner of the goring ox is presumed liable for a negligent omission. . . This break in the sequence is very telling. The biblical author is, in effect, warning us that those cases in which the victim of the goring ox was another ox are of an entirely different legal order from those cases in which the victim was human.”

  20. Finkelstein [13, pp. 190–191] and Finkelstein [14, p. 37]. More recently, E. Otto has divided the collection in a similar way, and to the same effect as regards the goring ox laws: the homicidal ox falls within a collection of “Körperverletzungsfälle” (Exod. 21:18–32), the bovicidal within a group of “yeshallem-Gesetze” (Exod. 21:33-22:14): see, e.g. Otto [61, pp. 12–13], and Jackson [53, p. 268 n.57] for further literature.

  21. They are also problematic in other respects. Finkelstein has to explain the position of Exod. 22:1–2 (MT), the law relating to killing the intruding thief, as “gear-shifting” Finkelstein [13, pp. 191–192] and Finkelstein [14, pp. 38–39, 41].

  22. Thus, where the ox is the perpetrator (Exod. 21:28–32), the norms are arranged in declining order of the status of the victim, while where the ox is the victim (21:33–36), the norms are arranged in declining order of the status of the perpetrator. A similar principle is persuasively applied by Paul [62, pp. 106–111] to the entire sequence of Exod. 21:12-22:16.

  23. (1:26) Then God said, “Let us make man in our image, after our likeness; and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth.” (1:27) So God created man in his own image, in the image of God he created him; male and female he created them. (1:28) And God blessed them, and God said to them, “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth.”

  24. On the source-critical problems, see Jackson [53, p. 265 n.46].

  25. Not eaten, but the Bible is familiar with the concept of reconquest of the blood in revenge for the killing, the very idea underlying the expression go’el hadam (“redeemer of blood”): see Daube [10, pp. 122–124].

  26. See further Jackson [53, pp. 263–266].

  27. On this relationship (and that with the Deuteronomic and Levitical dietary restrictions), see Houtman [23, pp. 235–36] arguing that the original taboo was based on a fear that the wild animal in Exod. 22:30 had infected its prey with its nature; so too in 21:28 there is a fear of such infection from eating the predator itself. On this reasoning, there is no comparable issue in relation to the ox in Exod. 21:34; more difficult, however, is the case of the bovicidal ox in Exod. 21:35–36, whose victim does not appear to be regarded as terefah in this sense.

  28. Yaron [76, p. 292]), and see literature there cited.

  29. But possibly not contemporaneous with their promulgation: Yaron [76, pp. 19–20].

  30. See further Jackson [53, pp. 280–282].

  31. Finkelstein [14, p. 21]. He acknowledges (at n.5) JEN 4 341, a document from Nuzi where an oxherd defends himself against liability for loss of an ox by claiming that another ox had killed it (rightly associating this with the theme of the liability of herdsmen, in LH 264–67). He notes also that the goring of a person by an ox is mentioned in Old Babylonian omens. On the argument from silence, see Barmash [3, p. 145].

  32. As in the example given by Maimonides, Hilkhot nizke mamon 1:3: (tr. Klein): “Thus, if an ox worth one hundred denar gores an ox worth twenty and kills it and the carcass is worth four, the owner of the ox must pay eight, this being half of the residual damage.” In this case, a literal application of Exod. 21:35 would have given each party fifty denar plus half the actual carcass, thus considerably profiting the owner of the dead ox. For a detailed analysis of the applications of the rule to oxen of different relative values, see Jackson [53, pp. 287–290].

  33. Mekhilta ad Ex. 21:35 (Lauterbach ed., iii.95): “You must reason thus: What is the rule for those who cause damage? Are they to gain or to lose? Of course you are to admit that they are to lose.” In the light of this difficulty, the Rabbis modernised the remedy, but at the expense of requiring a calculation which might well lead the parties into dispute and thus entail adjudication by a court. The offending animal was to be sold, and its price divided, only if its value and that of its victim happened to be exactly the same: M. B.K. 3:9, T. B.K. 3:3, Mek. ad Ex. 21:35 (Lauterbach iii.95–96); for only then, under the old system, would the victim be compensated to the extent of half his loss. In the more common case, where the values of the animal and its victim did not happen to coincide, the owner’s liability was to pay the victim one half of his actual loss, i.e. the difference between the animal’s value before and after the incident, to a maximum represented by the full value of the offending animal—or, as the Rabbis put it, “half damages from its body” (M. B.K. 1:4, Mek. ad Ex. 21:29 (Lauterbach iii.82–83)).

  34. For further discussion of this approach, and its application, inter alia, to this text, see Jackson [51], [52] pp. 75–81.

  35. Rothenbusch [67, p. 330] takes the use of the verb nagaf to suggest a fight between two animals of approximately equal strength.

  36. Finkelstein [14, p. 36]. Cf. Finkelstein, [13, p. 261 and n.286].

  37. Perhaps even the gorer itself. Custom would no doubt have regulated whether this would have been acceptable.

  38. Finkelstein [13, p. 261] comments that this is the prototype of a principle used in modern insurance (itself designed to avoid litigation), where the insurer acquires possession of the object for which he has paid the insured on the basis of “total loss”, although this right is not usually invoked. Finkelstein [14, p. 36] argues that retention of the carcass by the defendant means that the plaintiff does not make a profit and the defendant does not suffer a penalty. But this again makes assumptions regarding the relative values of the dead ox and its replacement.

  39. For the same reason, I reject the argument of Malul [56, p. 138] that we must infer from this that the rule was “ideal and utopic”, and thus purely literary, having “nothing to do with the actual legal practice of the time”. On the contrary, my approach indicates a highly practical origin for the rule, though not one which assumes a “legislative” reading within institutional dispute resolution. See also Jackson [48, pp. 72–75] and Jackson [52, pp. 77–80, 83].

  40. VIII.2: Si quadrupes pauperiem <faxit> <<<ni sarcit, noxae dato>>>, as reconstructed by Crawford [9, II.680] based in part on Ulpian in Justinian’s Digest, 9.1.1.pr., who provides an account which is thought to quote some expressions (here underlined) from the original Twelve Tables text: see Warmington [73, vol.iii p. 478]: Si quadrupes pauperiem fecisse dicetur, actio ex lege XII Tabularum descendit, quae lex voluit aut dari id quod nocuit , id est id animal quod noxiam commisit, aut aestimationem noxiae offerri.

  41. Plutarch, Solon 24:3, Xenophon, Hellenica II, 4, 41, discussed in Jackson [37, p. 123]. Both the Roman rule and that attributed to Solon describe the animal as a “quadruped”.

  42. Dig. 9.1.1.12–16; Jackson [37, p. 135]. The older literature not uncommonly interpreted noxal surrender as a form of vengeance against the animal. See Williams [75, pp. 7ff., 265ff., 272]; Zimmermann [77, pp. 1099–1100]; Girgen [18, p. 120], citing Holmes [22, p. 2].

  43. To use the terminology adopted in mediaeval English law, when it received the (semitic) distinction between an animal whose vicious propensity was known from a previous incident, and one whose vice was not so known. See further text at nn.69–77, below.

  44. Dig. 9.1.1.4, 7; 9.2.9.13; 9.2.52.2, Jackson [37, p. 135 n.88].

  45. “If an ox if it passes along a street has gored a man and causes his death, that case affords no cause of action.”

  46. “When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear.”

  47. “If an ox (was) a gorer and the ward (authorities) have had it made known to its owner, but he did not guard his ox and it gored and killed a man,—the owner of the ox 2/3 of a mina silver shall weigh out.”

  48. “But if the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. If a ransom is laid on him, then he shall give for the redemption of his life whatever is laid upon him.”

  49. “If the man’s ox is wont to gore and his district has notified him that (it is) wont to gore and he has not screened its horns (or) has not tied (it) up and that ox has gored the son of a (free) man and so has caused (his) death, he shall give one-half maneh of silver.”

  50. “If it gores a man’s son or daughter, he shall be dealt with according to this same rule.”

  51. That the ox here and in v.32 is warned is a matter of inference, in all three sources, from the discourse structure of the paragraph, and the use in Exod. 21:32 of the definite article, “the ox” (ha-shor).

  52. “If a slave it gored and killed,—15 shekels of silver he shall weigh out.” (The paragraphing indicates that this is a modification of the situation in LE 54, thus a case where a warning has been given.).

  53. “If (the victim is) the slave of a (free) man, he shall give one-third maneh of silver.”

  54. “If the ox gores a slave, male or female, the owner shall give to their master thirty shekels of silver, and the ox shall be stoned.”

  55. “If an ox gored and killed an ox, the price of the live ox and the carcass of the dead ox both ox owners shall divide.”

  56. “When one man’s ox hurts another’s ox, so that it dies, then they shall sell the live ox and divide the price of it; and the dead beast also they shall divide.”

  57. “Or if it is known that the ox has been accustomed to gore in the past, and its owner has not kept it in, he shall pay ox for ox, and the dead beast shall be his.”

  58. Jackson [28, pp. 141–152]. Van Seters [71, p. 122] remarks that Exod. 21:36 “is not represented in the extant Mesopotamian legal tradition, so it is probably an innovation of this jurist” (though to him such an “innovation” does not imply an earlier version of the present text). See further Jackson [53, p. 267 n.52] on the later literature.

  59. See http://www.dogbitelaw.com/PAGES/propensity.htm#research, including the history in the US.

  60. See n.45, above.

  61. Indeed, in classical law the action was excluded where a negligence action was available: Dig. 9.1.1.4–5. Cf. 9.1.1.3: “Pauperies is damage done without any legal wrong on the part of the doer (sine iniuria facientis)” (Watson translation).

  62. See further Jackson [28, pp. 122–127], arguing that the original biblical text may well have imposed an obligation to kill the animal after its first offence (accepting the reading yashmidenu in preference to the MT’s yishmerenu, although liability was probably strict even on the MT reading).

  63. R. Meir still held that liability was strict, but it was the view of R. Judah, that an escape despite proper precautions was a defence, which ultimately prevailed: see Mishnah Baba Kamma 4:9; Jackson [28, p. 126]. For later acceptance of R. Judah’s view, see Maimonides, Hilkhot Nizke Mamon 7:1.

  64. Mishnah Baba Kamma 3:9 (interestingly, accepting noxal surrender where the offending animal was worth exactly half the damage it had caused). Cf. the example given by Maimonides, Hilkhot nizke mamon 1:3.

  65. Dig. 9.1.1.4, cf. Inst. IV.9.pr.

  66. IV.2. For a translation, see text at n.88, infra. See also the 8th cent. Canones Wallici, discussed in Jackson [38, pp. 87–88, 39, p. 43].

  67. Ancient Laws of Ireland (Dublin: A. Thom, 1865–1901), III.411, 413.

  68. Ancient Laws of Ireland (Dublin: A. Thom, 1865–1901), III.269. In the absence of such knowledge, a half-fine is payable provided that the injury was “done through wickedness”: see further Jackson [38, p. 90] and Jackson [39, p. 45].

  69. Lib. 53:3. For texts and discussion, see Jackson [38, pp. 88–89] and Jackson [39, pp. 43–44].

  70. Lib. 53:6; Jackson [38, pp. 88–89] and Jackson [39, pp. 43–44].

  71. See Jackson [38, pp. 91–93] and Jackson [39, pp. 45–46].

  72. Si consuetus fuerit canis mordere ita quod tres homines ante mordiderat (et dominus canis hoc sciverit), sed tamen dominus canis eum propter hoc non interfecerit… The bracketed clause was added in Latin Recension E, of the 14th century: see Jackson [38, p. 96] (where a line from the bees law (see n.75) is erroneously transposed into this text); Jackson [39, pp. 47–48].

  73. Si apes hominem occiderint, apes occidantur, et mel pro earum facto reddatur. Si autem possessor apum, postquam hoc sciat, iterum eas mellificare permiserit, pro galanas omnino respondeat: see Jackson [38, pp. 97–98, 39, p. 48]. On the influence of a similar rule in the Irish penitentials on a classical canon law compilation, the Decretum of Burchard, see Jackson [38, p. 90].

  74. On Ivo’s Panormia and Decretum, Bernard of Pavia’s compilatio prima and the Decretals of Gregory IX, see Jackson [38, p. 91] and Jackson [39, pp. 46–47].

  75. On local costumals which distinguish between first and subsequent offences, without explicitly mentioning knowledge, see Jackson [38, pp. 97–98].

  76. Quare quosdam canes ad mordendam oves consuetos scienter retinuit (of 1367): see Milsom [59, p. 218], Jackson [38, p. 100].

  77. Si bos vel vacca alium occiderit, vivus ac mortuus in commune dominorum existant: Jackson [38, pp. 87–88].

  78. Lib. 53 cap.7: see Jackson [38, p. 88 n.29].

  79. See Jackson ([38, p. 90; 39, p. 45]). In the case of oxen which injure ploughmen, there is a “half-fine” in the absence of the owner’s presence and knowledge—also reminiscent of the rabbinic interpretation of Exod. 21:35.

  80. Decretum XVI.350, V.72: see Jackson ([38, p. 91; 39, p. 46]).

  81. Item, si bos alicuius bovemalterius vulneraverit et ille bos vulneratus mortuus fuerit bos percutiens debet vendi et precium eius unacum cadavere mortuo inter dominos eorum dividi: Jackson [31, pp. 337–339; 39, pp. 49–50]. The rule here is apparently an exception to the more general rule regarding damage caused by animals, based on the pauperian action: see n.86, below.

  82. 1.15.1: Si quadrupes pauperiem fecerit damnumve dederit quidve depasta sit, in dominum actio datur, ut aut damni aestimationem subeat aut quadrupedem dedat. See Jackson [38, p. 93]. The apparent inclusion here of depasturation (quidve depasta sit) may reflect the editor’s attempt in this section (headed “Si quadrupes damnum intulerit”) to summarise the whole law of damage caused by quarupeds. See further Jackson [37, p. 124]. However, Watson [72, p. 159 n.16] has argued that the reference here, apparently to spontaneous grazing by the sheep, may not be to the actio de pastu.

  83. See Jackson [38, p. 92] on the possibility of influence from the Breviary here.

  84. Si alicuius animal hominem laeserit, et si animal ei offertur pro sarhaet, illud habeat: see Jackson [38, p. 95 n.98], the version being the same Latin Recension E which also added mention of the owner’s knowledge to the dog law: see n.74, above.

  85. Si alienum animal cuiuscunque (?) dampnum intulerit aut alicuius fructus laeserit dominus eius aut aestimationem dampni reddat aut ipsum animal reddat: see Jackson [31, pp. 339–341; 39, p. 49].

  86. Fitzherbert, Abridgment, Barre, 290. See further Jackson [38, pp. 101–102; 39, p. 49].

  87. IV.2, my translation from the Latin; see further Jackson [38, p. 87; 39, p. 42], noting the likely dependence of secundo vel tertio on the Vulgate’s ab heri et nudius tertius.

  88. Decretum 16.350 (scienter, cf. Panormia 5.72); Decretum 16.253–54 (pauperies, based on Paul, Sent., 1.15.1, 3).

  89. At f.161b, he notes that the assize of novel disseisin would lie if a claim to land is made arando… vel pecora immittendo vel alio quocunque modo (cf. Williams [75, p. 129]); in discussing the action of replevin, brought to test the legality of a distress, his first example clearly involves an act of intentional depasturisation: immiserit contra prohibitionem, f.158a. On immittere pecus in the Roman actio de pastu, see n.112, below.

  90. Jackson [37, pp. 123–25], noting that no example of damage to land occurs in the classical fragments preserved in the Digest title (9.1) devoted to the actio de pauperie.

  91. See n.86, above.

  92. See n.82, above, followed by Sed si dominus illius bovis vulnerantis sciverit quod erat viciosus et noluerit in custodia tenere eum reddat bovem pro bove et integrum cadaver mortui bovis habeat.

  93. End of chapter Leges animalium: see Jackson [31, p. 341], based on the Cromertie MS.

  94. Practicks (c.1579), section “Anent Skaith and Damnage done be beistis, or done to beistis. Si pauperiem quadrupes fecisse dicatur.” See further Jackson [31, pp. 347–48]. See also his account of the remedies for depasturation [31, 349–350], where the landowner is allowed to recoup his loss from the animal(s) he has impounded. Again we have here a potentially limited remedy for a strict liability offence.

  95. Juri Divini Judaeorum ac Juris Civilis Romanorum Parallela (1594), t.XVIII: see further Jackson [31, pp. 350–351].

  96. Indeed, the title is entitled De damno sine iniuria facienties dato seu de pauperie ut loquuntur Iurisconsulti, sine iniuria being taken from the praetorian formula at Dig. 9.1.1.3, distinguishing the culpa-based Aquilian action.

  97. Huber [23, 6.6.27, p.ii.391] quoted in Jackson [35, p. 144] in support of the view that Stair still adhered to this combination of ancient remedies.

  98. Bankton [2, I.10.4.48, p.i.255]; see Jackson [35, pp. 148–49].

  99. O’CallaghanN.O. v. Chaplin, 1927 AD 310. P.Q.R. Boberg rightly noted in Annual Survey of South African Law 1961 (Cape Town: Juta & Co. Ltd., 1962), 191: “… the actio de pauperie is one of the few instances in our law where liability is independent of fault, but it should be remembered that in its original form that liability was not unlimited as it is today, for the alternative of noxal surrender was always available.” Hunt [25, pp. 329–330] observed: “By abolishing the alternative, we have robbed Peter to pay Paul: we have removed a source of hardship to plaintiffs whom surrender did not compensate, and inflicted one on defendants who are without fault.”

  100. Parker v. Reid, (1904) 21 S.C. 496.

  101. De iure naturae et gentium III.1.6: see Jackson [35, p. 155].

  102. Principles of Equity, 63–64: see Jackson [35, p. 151].

  103. North [60, p. 176] citing Mitchil v. Alestree (1676), 1 Vent. 295.

  104. Now codified and reformulated in the Animals (Scotland) Act 1987. On the reformulation of scienter there, see text following n.107.

  105. Donoghue v. Stephenson [1932] A.C. 562.

  106. Animals Act 1971, s.2(2), which requires that the likelihood of severe damage, due to characteristics of the particular animal not normally found in animals of that species, was known to the keeper (including the owner) of the animal. S.1 of the Act describes s.2 as a provision for “Strict liability for damage done by animals”. Cf. North [60, p. 48].

  107. See nn. 98–101.

  108. At its most general, see the Napoleonic Code Civil §1385: “Le propriétaire d’un animal, ou celui qui s’en sert, pendant qu’il est à son usage, est responsable du dommage que l’animal a causé, soit que l’animal fût sous sa garde, soit quil fût égaré ou échappé.”

  109. There is no suggestion of such extended damages under the actio de pauperie, but it came to be accepted as an interpretation of the lex Aquilia: see Justinian, Inst. 4.3.10 (loss of an inheritance on which one’s slave, killed by negligence, would have entered). Similarly, a talmudic maxim states: “if the beginning occurs through negligence but the end through accident, he is liable”: Baba Kamma 21b; see further Albeck [1, pp. 61–64].

  110. North [60, pp. 47–48, 58, 107–08, 177]. The position in Scotland appears to be similar. Though s.1 of the 1987 Act states that a person shall be liable for “any injury or damage caused by an animal”, that is restricted in s.1(c) to injury or damage “directly referable” to physical attributes or habits of the species concerned (s.1(b), quoted above).

  111. VIII.3, <<<glande in alieno pastum ne inmittito>>>, as reconstructed by Crawford [9, vol. II, pp. 681–682]. Two fragments of Ulpian, Dig. 10.4.9.1 and 19.5.14.3, use the expression immisso pecore, the latter in the context of an action ex lege duodecim tabularum de pastu pecoris.

  112. It is separated from the sequence of ox laws: after ox versus ox, we have the theft laws—cattle theft, I have argued, even in the case of the intruder: Jackson [27, pp. 49–50]—and then Exod. 22:4, on depasturation: ox versus fruit and vegetables.

  113. Despite the terminology of “trespass”, there is a strong original emphasis in this group of remedies on the intentional action of the owner in sending his animal across the boundary: for Jewish law, see Exod. 22:4, veshilah et be’iro; for Roman law, Ulpian (see n.112): immittere pecus. The history in English law is complicated. While there were remedies in Anglo-Saxon laws for straying animals, it appears from 13th century sources that the royal cattle-trespass writ originally contemplated intentional cattle-trespass and was extended only later. See Williams [75, p. 133] on the use of depascor, despite the argument of Milsom [59, pp. 203–204].

  114. As a Roman source puts it, here the “wildness” of the species is “aroused” (Dig. 9.1.1.4: Itaque, ut Servius scribit, tunc haec actio locum habet, cum commota feritate nocuit quadrupes, amplified in Justinian’s Institutes (IV.9.1) as lascivia aut fervore aut feritate). Houtman [23, p. 173] notes in narrative and prophetic biblical sources (Gen. 37:33, 44:28, Jer. 15:3, Hos. 13:8) a distinction between domesticated animals and wild animals and observes that as regards the latter, no one can be blamed. However, as Carmichael [8, p. 133] remarks, the homicidal ox is a domesticated animal which “uncharacteristically has behaved like a wild one.” On the uses of oxen, see Smith [68, pp. 70–72]. In rabbinic law, the owner of wild animals was deemed “warned” without actual evidence of knowledge: Mishnah Baba Kamma 1:4; Jackson [37, p. 140]. Naturally wild species, such as bears, were excluded from the actio de pauperie, at least if the harm was caused after the animal broke loose: Dig. 9.1.1.10. Species which are naturally wild and only occasionally domesticated (e.g. circus animals) enter the juristic sources after the main structures of remedies are established: on the Roman edictim de feris, see Jackson [37, pp. 129–134].

  115. Exod. 21:28–32, 35–36; Mishnah Baba Kamma 1:1 (here as an archetype), 4:1–5, 5:1, 3; Dig. 9.1.1.4 (bos calcitrosus); Book of Aicill (ALI iii.269).

  116. Eshnunna §§56–57; Mishnah Baba Kamma 2:3; Roman law had an early statute on dogs: the lex Pesolania de cane, on which see Jackson [37, pp. 128–29], but they also came to fall within the actio de pauperie (Dig. 9.1.1.5, 9.1.2); Canones Hibernenses VI.2; Laws of Alfred 23; Laws of Hywel Dda (Jackson [39, p. 47]); dogs figure particularly prominently in the early history of scienter: Jackson [38, pp. 99–100]; Jackson [39, pp. 48–49].

  117. Dig. 9.1.1.4, 7; for English law, see n.126, below; for South Africa, see n.122, below.

  118. Roman law appears to have restricted the actio de pastu to pecus: see n.112, above; Jackson [37, pp. 127–128].

  119. Mishnah Baba Kamma 2:5, 3:9; Dig. 9.1.1.4: bos cornu petere solitus. Cf. the modern South African application of the pauperian action to the goring ox, per Lawrence J. in O’CallaghanN.O. v. Chaplin, n.154 below.

  120. Mishnah Baba Kamma 2:5; Laws of Alfred 23; Laws of Hywel Dda (Jackson [39, p. 47]). Cf. modern South African applications of the pauperian action: the dog that bites a child or kills ostriches or chickens: Maree v. Diedericks, 1962 (1) S.A/231 (T). However, biting was found not to be contra naturam, and the pauperian action was therefore denied, when the animal was reacting (against its rescuer) when its hind legs were trapped in wire-mesh: see Portwood v. Svambur, n.154 below.

  121. Mishnah Baba Kamma 2:1, 5; Dig. 9.1.1.7. Cf. the modern South African application of the pauperian action to the kicking mule: S.A.R. & H. v. Edwards, 1930 A.D. 3, where de Villiers, C.J. (at 10) described such behaviour, even though here prompted by the animal’s fright at city traffic, as “not considered such as is usual with a well-behaved animal of the kind”: on this issue, see further Hunt [25, pp. 327–329].

  122. Mishnah Baba Kamma 2:2–3; Canones Hibernenses VI.2. The Scots “Winter Herding Act” of 1686 provided a special remedy for the eating/destruction of young trees and hedges: see Jackson [35, p. 147]. Cf. the modern South African denial of the application of the pauperian action to the eating of a neighbour’s green forage: per van den Heever, J.A. in Coetzee & Sons v. Smit, 1955 (12) S.A. 533 (A.D.) at 558.

  123. Mishnah Baba Kamma 2:1; for the apparent exclusion of the actio de pauperie here, see Jackson [37, p. 124].

  124. South African law has rejected the application of the pauperian action to rams which trespassed in order to serve a neighbour’s ewes, on the grounds that such activity is secundum naturam: Coetzee, n.123 above.

  125. The language of “attack” has come to play a prominent part in both South Africa under the pauperian action, where McKerron [58, pp. 252–253] speaks of the onus of proof as being discharged if the plaintiff establishes that “he was attacked by the animal”. Cf. the (pre-statutory) English scienter remedy, where the Court of Appeal in the case of a “frolicsome filly” required a “propensity to attack”, and not merely a “special propensity to cause damage” or a “malicious propensity to play” (taken as sufficient by the first instance judge): Fitzgerald v. E.D. and A.D. Cooke Bourne (Farms) Ltd. and Another [1964] 1 Q.B. 249.

  126. On the precise nature of depasturation in the context of ancient Near Eastern agricultural practices, see Jackson [33, pp. 138–140].

  127. An application of the Saussurean understanding of the relation between syntax and semantics within the structure of the sentence.

  128. This occurs at what I term the “thematic” level, which depends upon social knowledge within particular semiotic groups. See text at n.164, below.

  129. The Greimassian school is particularly interested in the superimposition of binary oppositions on one another, in order to examine the compatibilities and incompatibilities which result (e.g. Greimas [20]). See further Jackson [46, pp. 110–112; 44, 45].

  130. Cf. Jackendoff [26, pp. 198–200], arguing that language evokes an ideal situation, and the more we get away from the ideal situation into penumbral situations, the more we encounter cognitive stress and feel uncomfortable. (Thus “easy” and “hard” are not encountered as purely cognitive categories.) He argues that though the legal system can add refinements (e.g. the distinction between murder and manslaughter), each of these is itself an ideal, and has its own grey area. “The difficulties can’t be eliminated entirely by creating more precise definitions; at best they can be confined to a smaller range of cases.” He cites Solan [69] on legal issues arising from difficulties with definitions.

  131. Space does not permit a full account of the mediaeval sources on this issue. Early examples of the scienter writ manifest the same pattern: the dog “accustomed to bite sheep” (see Milsom [59, p. 218]); the bull “accustomed to gore horses” (see Williams [75, pp. 278–279]). As in s.4, the interaction of cultural traditions produces some interesting results, notably examples of importation of scienter-type concepts into the depasturation remedies (now extended beyond deliberate occasioning of trespass) and manifestations of the structural principle correlating the extent of the remedy with the degree of fault. Thus, (1) according to the Canones Wallici (A25), where hogs trespass in an acorn field, the owner pays a full grown hog if he drove them in; otherwise only a young pig; (2) according to the Scots Liber de judicibus (§§38–39), full compensation is payable where trespass is due to fault, otherwise it is limited to the offending animal (here, a pig) itself; (3) according to the Anglo-Saxon Laws of Ine (§49), the owner of intruding pigs pays one shilling if they have not previously intruded more than once; otherwise, two shillings. (4) Apparently, it was customary in Scotland to administer a public warning in church about trespassing pigs (Leges Forestarum, Cromertie MS f.124, quoted in Jackson [31, p. 346 n.69]).

  132. In the Biblical context, I have described such practices as “wisdom-laws” and discussed the process of their transition from orality to literacy: see Jackson [53]. The sense first made of written laws, such as those in the Bible, was a “narrative” rather than a “semantic” sense. The meaning of such provisions was a function of the stereotypical images which they evoked (images rooted in a knowledge of social context, and often incompletely represented by the verbal formulation, rather than everything which the meaning of the words “covered”). Cf. Bernstein’s distinction between “restricted” rather than “elaborated” code in [4, Vol.I, chs. 5–7, esp. pp. 108–09, 123–37]; see Jackson [49, pp. 93–94], 46, pp. 97–101]. For this distinction in the context of Biblical law, see further Jackson [51].

  133. Wormald v. Cole [1954] 1 Q.B. 614, since reversed by s.4 of the Animals Act, 1971.

  134. Mishnah Baba Kamma 2:2; see further Jackson [36, p. 175].

  135. Digest 9.2.52.2 (Alfenus). Two carts were following each other up the Capitoline Hill, each pulled by mules. The front cart reversed and crashed into the one behind. The latter killed the plaintiff’s slave. Alfenus ruled that the owner of the front mules was liable if they had shied (as opposed to slipped). The answer to this problem is less important than the reason why it appeared to be puzzling. Here you had unfriendly behaviour, acts more like wild than domesticated animals, but in the context of human culture, the transport business.

  136. A question not sufficiently addressed in traditional jurisprudence. See further Jackson [50, pp. 237–239].

  137. Philosophical Investigations, s.201, quoted by Marmor [57, p. 151]: “Hence there is an inclination to say: every action according to the rule is an interpretation. But we ought to restrict the term “interpretation” to the substitution of one expression of the rule for another.” See also Wittgenstein’s account of rule-following: “how is it that we agree in applying it thus and not otherwise? Through training, drill and the forms of our life”, MS 160, 51, in Baker and Hacker [5, p. 258].

  138. See Jackson [41, 42]. Particularly interesting is a series of articles by Paul Robertshaw, who has sought to identify the workings of such oppositions in both the decision-making and the legal argument of the judges in cases in England in [64, 65, 66].

  139. A not uncommon phenomenon. See the analysis of Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), at Jackson [50, pp. 241–242].

  140. See also Jackson [36, pp. 172-76; 43, pp. 22–25; 52, pp. 190–193].

  141. Mekhilta ad Ex. 22:5 (Lauterbach iii.113); Maimonides, Mishneh Torah, Hilkhot Nezikin, 1:8.

  142. Mekhilta ad Ex. 22:5 (Lauterbach iii.113); Mishnah, B.K. 2:2 (explicitly for shen, but traditionally regarded as applicable also to regel); Maimonides, Mishneh Torah, Hilkhot Nezikin, 3:1. But there is liability for “benefit” (unjust enrichment) if it occurs in the public domain: Mishnah, B.K. 2:2; Maimonides, Mishneh Torah, Hilkhot Nezikin 3:1–2.

  143. Mishnah B.K. 6:1–2, Maimonides, Mishneh Torah, Hilkhot Nezikin 4:1. There are indications that early in the tannaitic period there were still some who held to the likely Biblical requirement that the depasturization be intentional, stressing the verb shalach in Exod. 22:4. See Jackson [29, pp. 127–130, 30, pp. 255–259].

  144. I.e. the owner has not been warned of its vicious propensity, as in Exod. 21:28 and 35 as against Exod. 21:29 and 36. The remedy for tam was payment of half damages, this being the rabbinic interpretation of Exod. 21:35.

  145. There was early dissent: Mishnah B.K. 4:9; Tosefta B.K. 5:7; Mekhilta ad Exod. 21:29 (Lauterbach iii.84), but the halakhah follows R. Judah: see Maimonides, Mishneh Torah, Hilkhot Nezikin 7:1.

  146. Mishnah B.K. 1:4, 2:2; Maimonides, Mishneh Torah, Hilkhot Nezikin 1:2, 3:1.

  147. Mishnah B.K. 2:2; Maimonides, Mishneh Torah, Hilkhot Nezikin 3:3.

  148. Mishnah B.K. 1:4; 2:1; Maimonides, Mishneh Torah, Hilkhot Nezikin 1:2.

  149. Mishnah B.K. 2:1; Maimonides, Mishneh Torah, Hilkhot Nezikin 1:5, 3:11.

  150. Dig. 9.1.1.4, cf. Inst. IV.9.pr. For the historical connection, see Jackson [37, pp. 141–142].

  151. Jackson [38, 39].

  152. Dig. 9.1.1.7, in the case of a horse which kicks someone who strokes or pats it; see further Jackson [52, p. 191].

  153. Two examples may here be given of the movement from the Aristotelian to a purely descriptive conception of nature in the jurisprudence of liability for animals: (1), Maimonides, Hilkhot nizke mamon 1:4: “The one which did an act which it is its way to do always, in accordance with the custom of its species,—that is the one (traditionally) called mu‘ad; and the one which changes and does an act which it is not the way of all its kind to do always, for example the ox which gores or bites, that is the one (traditionally) called tam”: see further Jackson [36, pp. 174–175]. (2), In South Africa, we may contrast Lawrence J.’s observation in O’Callaghan N.O. v. Chaplin (n.100, above) that “when an ox gores, the act may be regarded as a breach of the good behaviour which is its second nature” with the decision in Portwood v. Svambur, 1970(1) S.A. 144, where a Doberman Pinscher which bit a man who had just disentangled it from fencing was held not to have acted contra naturam sui generis, in the light of expert evidence that the majority of dogs thus entangled would have reacted in the same way. See Carey-Miller [6, pp. 165–167; 7, pp. 408–409]. As recently as 1962, however, Hunt [25, p. 328] still wrote: “the contra naturam concept seems, in fact, to have come to connote ferocious conduct contrary to the gentle behaviour normally expected of domestic animals.”

  154. On this Aristotelian conception, see Jackson [50, pp. 15–19]. It was described thus by Hart [21, p. 188]: “The doctrine of natural law is part of an older conception of nature in which the observable world is not merely a scene of such regularities, and knowledge of nature is not merely a knowledge of them. Instead, on this older outlook every nameable kind of existing thing, human, animate and inanimate, is conceived not only as tending to maintain itself in existence but as proceeding towards a definite optimum state which is the specific good—or end (telos [in Greek], finis) appropriate for it.”

  155. See further Daube [11, pp. 140–142] on the parallel between derekh and natura.

  156. Fruit or vegetables, not clothes or utensils: Mishnah Baba Kamma 2:2.

  157. MishnahB.K. 2:1, 6:2; ToseftaB.K. 1:5; on this and Maimonides’ modification in favour of a more strictly descriptive conception of derekh, see n.154 above and Jackson [36, pp. 172–176].

  158. For modern manifestations of these ideas, see further Jackson [52, p. 192].

  159. Principles of Equity, 63f. (2d): see Jackson [35, pp. 151–53].

  160. Fitzgerald v. E.D. and A.D. Cooke Bourne (Farms) Ltd. [1964] 1 Q.B. 249; for the position under the Animals Act 1971, see Jackson [34].

  161. See n.107, above.

  162. Wormald v. Cole [1954] 1 Q.B. 614, reversed by s.4 of the Act.

  163. Jackson [49, pp. 152–154]. Cf. George Fletcher’s [16] use of “collective images” and his earlier article [17, pp. 469ff.]; see further Jackson [40].

  164. The principal concern of my Studies in the Semiotics of Biblical Law [52].

  165. See Jackson [47, pp. 271–274].

  166. So argued in Jackson [49, pp. 75–82].

  167. But we have to await the codification of Maimonides before these issues are fully integrated into a single, articulated rational structure. See Maimonides in n.154 above, and see further Jackson [36, pp. 168–169].

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  1. Professor of Law and Jewish Studies, Liverpool Hope University, Liverpool, UK

    Bernard S. Jackson

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Jackson, B.S. Liability for Animals: An Historico-Structural Comparison. Int J Semiot Law 24, 259–289 (2011). https://doi.org/10.1007/s11196-010-9181-x

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