HOMO IMPERFECTUS
Human Exceptionalism and the Prosecution of Pigs in Late Mediaeval France
Research Master’s Thesis
presented to the Department of History
to obtain the degree of Research Master of Arts at the University of Groningen
in accordance with the Teaching and Examination Regulations set forth by the Board of Examiners of the
Classical, Medieval, and Early Modern Studies programme
submitted on 31 August 2020 by
Sven Gins
S3032574 born on 22 August 1995 in Brussels, BelgiumDr. B.S. Hellemans
Second Reader
Prof. Dr. S. Vanden Broecke
Director of Studies
Prof. Dr. S. Corbellini“One man’s life or death were but a small price to pay for the acquirement of the knowledge which I sought for the dominion I should acquire.”
— Mary Shelley
“But if we could communicate with the mosquito, then we would learn that he floats through the air with the same self-importance, feeling within itself the flying centre of the world.”
— Friedrich Nietzsche
“They say that great beasts once roamed this world. As big as mountains. Yet all that’s left of them is bone and amber. Time undoes even the mightiest of creatures.”
v
C
ONTENTS
Abbreviations v
Illustrations vii
Preface and Acknowledgements viii
Introduction: The Unfinished Man 1
Pigs in a Poke: A Historiography of the Nonhuman Trials 13 Everything but the Squeal: Pigs in the Livre des propriétés des choses 34 Casting Justice Before Swine: Seven Pigs on Trial in Savigny-sur-Étang, 1457 64
Conclusion: A New Narrative 89
Glossary 100
Appendix 1: Transcriptions 105
Appendix 2: Trial Records 117
vi
A
BBREVIATIONS
BnF Bibliothèque Nationale de France, Paris.
Casanatense Casanatense Library, Rome
Fitzwilliam Fitzwilliam Museum, Cambridge
LDP Le livre des propriétés des choses
SCPP Sentence contre des petits pourceaux
SCT Sentence contre une truie
vii
I
LLUSTRATIONS
FIGURE 0.1. Bee Orchid 12
FIGURE 1.1. Motivations for nonhuman animal trials 31
FIGURE 2.1. Visualisation of the LDP’s taxonomy of terrestrial animals 39
FIGURE 2.2. Depiction of terrestrial animals in BnF fr. 9140 45
FIGURE 2.3. Illumination of two pigs in BnF fr. 9140 49
FIGURE 2.4. Illumination of a domestic pig in BnF fr. 9140 53
FIGURE 2.5. Illumination of a porcupine in BnF fr. 218 53
FIGURE 3.1. Woodcut of a Jew between two dogs (1548) by Johannes Stumpf 82
FIGURE 3.2. Illumination of a slaughtered pig in Casanatense MS 4182 82
viii
P
REFACE AND
A
CKNOWLEDGEMENTS
The topic studied here was something I did not know I sought until I found it by chance. Some years ago, Facebook’s algorithms must have picked up on my interest in animal consciousness, because the platform suggested that I should read a popular article concerning Europe's history of prosecuting and executing nonhuman animals. Though I initially questioned its veracity, fascination quickly eclipsed my suspicion. As studying multiple cases in-depth was beyond the scope of this dissertation, I decided to investigate the trial of a sow and her sucklings in Savigny-sur-Étang (1457) as the
incipit of a broader study. The original procès verbal thus far eludes my searches, so I
here rely on Jacques Berriat-Saint-Prix’s transcriptions in Rapport et recherches sur
les procès et jugemens relatifs aux animaux (1829)—cited fully in Appendix 2. I hope
to eventually recover the original trial records and revisit my conclusions if necessary. Simply viewing the accused pigs as nonhuman animals did not seem helpful to me, so I sought to get a clearer picture of what pigs as a species meant to people at the time. This led me to the Livre des propriétés des choses which, sometimes obliquely, had much to say about pigs. Unfortunately, because of the vast, encyclopaedic size of this tome, none of the current critical editions are complete and none of them appear to feature those specific chapters that I wanted to investigate. I hence decided to make my own transcriptions in Appendix 1. All translations—including those from the trial records—are my own, unless otherwise indicated. Though daunting at first, the Livre’s wealth of knowledge made transcribing the text highly intriguing so that decoding the
Livre remained a satisfying pastime—even after I had finished the required chapters—
during several months of national quarantine. I am therefore profoundly indebted to the people of the Bibliothèque nationale de France whose efforts ensure that manuscripts such as the ones I studied can freely, conveniently, and sustainably be consulted in high resolution at all times through their digital library Gallica.
Gratitude is also due to the organisations that have been kind enough to provide me with a platform to share my ideas and gain invaluable perspectives while developing this thesis. I thank the Royal Dutch Institute of Rome (KNIR) for hosting the masterclass “Travelling Cultures”, where I benefited from valuable discussions with Mieke Bal about the importance of historical adequacy. I am also grateful to the Dutch Research School for Medieval Studies, which provided me with the opportunity to present my ideas during the International Medieval Conference at Leeds, UK, in 2018. The kind comments of the people that attended my presentation humble me, and I specifically wish to thank Irina Metzler, whose remarks helped me refine my thesis statement. Additionally, I would like to thank Whitney Bauman and Kocku von Stuckrad from Counterpoint: Navigating Knowledge for allowing me to participate in their symposium “Bio-Cultural Diversity and Hegemonic Power” in 2019. The fruitful
ix discussions in which I took part that day solidified my conviction that the Humanities have a crucial role to play in facing the present ecological and biocultural challenges.
In some ways, this dissertation is the product of a conjunction of most of what I have learned thus far. I am therefore grateful to more people than I can name for teaching me valuable lessons along the way. Special thanks go to Babette Hellemans for her tireless patience, the inspiring and wide-ranging (meta-)discussions, and above all her endorsement of taking the road less travelled. Additionally, I have had the privilege of learning invaluable skills from the insightful minds of Catrien Santing, Megan Williams, Mathilde van Dijk, Raingard Esser, Sabrina Corbellini, Hans Jansen, Konstantin Mierau, and Vera Alexander. I also thank my mentors from the University of Ghent, without whom I never would have ended up in Groningen. I am particularly indebted to Steven Vanderputten, who encouraged me to be ambitious, and to Thomas Donald Jacobs, for being the kind of teacher a student wants to impress and for inviting me to present some of my work on historical adequacy and mediaevalism during the American Indian Workshop at Ghent in 2018. Last but not least I thank Steven Vanden Broecke, doctor mirabilis, for galvanising my interest in the splendours of unconventional topics.
Writing can be an isolating process—especially during a national quarantine— so I am thankful for the many people who have touched my life and kept the walls of my scriptorium from closing in on me. Sander Ootjers has been my patient rock and partner in crime; his alacrity to intellectually spar with me often helped me refine what I wanted to say. Aurélie Debaene and Giel Maan have been vital sources of comfort throughout the highs and woes of my dissertational process. I am also grateful to Eva Tulner, Jurand Haveman, Kirsten Deboelpaep, Gaétan De Glorie, Céline Deveux, Aline Douma, Hendrik Visser, Hannah Spencer, Elvira Perdomo Fassrainer, Jeroen Goudkuil, Lysbeth de Boer, Diethard Vlaeminck, Amber Vallance, Misha Verdonck, Alexander de Ridder, and Sean McGrath for their interest, their kind encouragements, and for reminding me that all research and no play makes Jack a dull boy. Additionally, I thank my dedicated co-workers at the Office for Student Affairs for their flexibility, encouragement, and their eagerness to set my graduation procedure in motion.
Finally, I wish to express my heartfelt thanks to Franziska Wiltsch, Hildegard Sarrazin, and Kirsten van Ophem who patiently listened to me and suggested helpful ways forward when the going got tough. I also thank Ann De Boeck, Carl Gins, Lidia De Boeck, Roger Martens-Vanhooghkerken, Els De Boeck, and Lieven Landrieu for their unwavering confidence in my abilities, and my extended family, Marianne Ootjers, Aaltje Hovinga, and Miriam Ootjers for their support. Two beloved people will sadly not witness the completion of my journey as a student. Marcel De Boeck and Fred Ootjers, I remember your wisdom fondly, and I hope that I have made you proud.
Sven Gins Summer 2020
1
I
NTRODUCTION
:
T
HE
U
NFINISHED
M
AN
Bent over his own chips, stones, and common plants, the anthropologist broods . . . upon the true and insignificant, glimpsing in it the disturbing, changeful image of himself.1
istory is the lifeblood of all animals; we are incomplete without it.2 Its ever
evolving abundance of artefacts and stories reveals our roots, shapes our notions of self, and teases us with a glimpse of what we could become. Scholars from varying disciplines have proposed that although we are born Homo
sapiens, being human is a perpetual process of becoming, something to ceaselessly
fashion. Humans therefore have a natural tendency to produce artifices that are extensions of themselves—history and culture, norms and laws, tools, and significant and semiotic systems such as art, spirituality, philosophy, and language. As we necessarily actualise such things in our lives, these man-made products in turn also shape us into what we are, leading the anthropologist Clifford Geertz to remark that Man is “an incomplete, an unfinished, animal” that inherently requires culture for its survival and existential realisation, thus rendering all humans, “every last one of them . . . cgultural artifacts”.3 Attempts to separate the natural order and the human mind
in a clear-cut binary should thus be treated with the greatest suspicion—the mind only develops the way it does because some of its cognitions hold evolutionary advantages.4
Indeed, the evolutionary psychologist Geoffrey Miller even claims that the human intellect, including some of its most distinctive products: “human art, music, humour, fiction, religion, and philosophy”, amounts to little more than peacock feathers—an innate, extravagant display of “courtship tools . . . to attract and entertain sexual
1 Clifford Geertz, “The Impact of the Concept of Culture on the Concept of Man,” Bulletin of the Atomic Scientists 22, no. 4 (1966): 8.
2 I subscribe to the idea that humans are animals, so I invoke ‘animals’ as a category that encompasses
all fauna—including humans. Some studies insist on the use of ‘human animals’ to underline this, but I find this unhelpful to work with so I will maintain the term ‘humans’. Likewise, I will refer to nonhuman animals as ‘nonhumans’. The extremity of a human-nonhuman distinction facilitates bringing “buried assumptions into the full light of consciousness, thus inspiring articulate contradiction”, see: Harriet Ritvo, “On the Animal Turn,” Daedalus 136, no. 4 (2007): 119.
3 Clifford Geertz, “The Impact of the Concept of Culture on the Concept of Man,” in The Interpretation of Cultures. Selected Essays (New York: Basic Books, 1973), 46-49. Marjorie Grene calls this process the
“natural artificiality of man”, see: Marjorie Grene, “People and Other Animals,” in The Understanding
of Nature. Essays in the Philosophy of Biology (Dordrecht: Springer, 1974), 358-359.
Throughout this treatise, ‘Man’ (as short form of ‘mankind’) is capitalised to distinguish references to humankind, Homo sapiens, from the gendered use of ‘man’ without capitalisation.
4 E. Donald Elliott, “Law and Biology: The New Synthesis?” Saint Louis University Law Journal 41
(1997): 615. For a general defence of the untenability of the nature-culture opposition, see: Philippe Descola, Par-delà nature et culture (Paris: Gallimard, 2005).
2 partners”.5 The mutual inclusivity of nature and culture renders the “quest for human
nature . . . itself an illusion, the result of an antiquated way of thinking about humans scientifically with culture as a veneer overlying nature”.6 Nevertheless, humans’
conceptualisations of human nature are still worth unpacking. For example, if Miller’s thesis prompts instantaneous offense or defensive ridicule, it does so because it undermines a particular notion about nature and the human mind that has long been held as unquestionably sacred: human exceptionalism, the conviction that the human brain and its rational and linguistic faculties are so unprecedented and extraordinary that our mind distinguishes us from and renders us superior to all other, nonhuman organisms, even to nature itself.7 This conceit is fundamental to anthropocentrism, the
Protagorean notion that humankind is the most important species in the universe.8 In
other words, ‘Man is the measure of all things’. However, the centricity and superiority of humankind are not a matter of fact: they are merely a specific model of humanity, a fabrication of what it means to be human (anthropopoiesis) and therefore a human artifice meant to ‘complete’ the unfinished animals that we are. The anthropologists Claude Calame and Mondher Kilani suggest that anthropopoiesis is an inherent human tendency, often expressed through ritual and narrative. These unravel how a particular idea of humanity is modelled while striving to legitimise why that specific model of humanity is the only valid one.9
Because perpetually (re)inventing our own humanity every day can feel like an onerous chore, anthropopoiesis inevitably relies on ‘others’: individuals, communities, divinities, and nonhumans.10 Drawing clear-cut barriers between Us (humans) and
Others (nonhumans) reassures us that Culture and Nature differ while offering the
5 Geoffrey Miller, The Mating Mind. How Sexual Choice Shaped the Evolution of Human Nature
(London: William Heinemann, 2000), 3-5.
6 Jonathan Marks, What it Means to be 98% Chimpanzee: Apes, People, and Their Genes (Berkeley:
University of California Press, 2003), 177-179.
7 Vicky Kirby, “Human Exceptionalism on the Line,” SubStance 43, no. 2 (2014): 50. For an extensive
philosophical critique of human exceptionalism, see: Jean-Marie Schaeffer, La fin de l’exception
humaine (Paris: Gallimard, 2007).
8 Helen Kopnina et al., “Anthropocentrism: More Than Just a Misunderstood Problem,” Journal of Agricultural and Environmental Ethics 31, no. 1 (2018): 112.
9 Claude Calame and Mondher Kilani, introduction to La fabrication de l’humain dans les cultures et en anthropologie, ed. Claude Calame and Mondher Kilani (Lausanne: Université de Lausanne, 1998), 7. 10 Francesco Remotti, “Thèses pour un perspective anthropopoiétique,” in La fabrication de l’humain,
27-28; Calame and Kilani, Introduction to La fabrication de l’humain, 10. These ‘others’ are not necessarily directly involved in the anthropopoietic process; nonhumans may be abstracted into symbolic or metaphoric vehicles that articulate human identity. For instance, as sacred intermediaries of divine entities (e.g. God’s Leviathan) or as didactive examples (e.g. Aesop’s fables), see: Annamaria Rivera, “La construction de la nature et de la culture par la relation homme-animal,” in La fabrication
3 illusory power to critique forms in which the social sphere allegedly naturalises.11 An
example of this is the humanist model, which imagines “Man as a rational animal endowed with language”.12 This universal model, which goes back to Protagoras, has
found a particularly salient expression in Leonardo da Vinci’s Vitruvian Man, an idealised embodiment of human perfection, symbolising a specific set of mental, discursive, and spiritual values that mankind should actualise. For all its apparent nobility, however, the humanist model is in fact “deeply male-centred and Eurocentric”, its fragile identity grounded in binary logics of exclusion which organise perceived differences “on a hierarchical scale of decreasing worth”.13 The more one
differs from the Vitruvian norm—i.e. pristinely white, male, able-bodied—the more ‘other’—i.e. inferior, undesirable, and disposable—one is. The humanist model is thus inherently founded on human exceptionalism: it only maintains felicity by insisting on the inferiority and irrationality of nonhumans. For instance, mediaeval exemplum literature such as the fourteenth-century Ci nous dit asserts that children must ‘lose the way of beasts’ to attain adult humanity.14 Such a “discourse of animality” not only
demeans nonhumans by assuming that they are ontologically inferior to humans, it also legitimises the erroneous notion that not all humans are inherently equal. Indeed, the allegation that subaltern humans are kinspeople of so-called lesser species has long been an insidious strategy to justify their violation and oppression.15 The domination
and objectification of nonhumans thus provides a model for the reification, hierarchisation, and subjugation of humans.16
The purpose of this treatise is to further examine anthropopoiesis vis-à-vis the nonhuman in the Middle Ages. In what ways were nonhumans entangled in constructions of the human self in the Middle Ages and how did such practices affect the quality of life of the animals they involved? The constraints of this dissertation do
11 Rivera, “La construction de la nature,” 51.
12 Rosi Braidotti, “Posthuman Humanities,” European Educational Research Journal 12, no. 1 (2013):
1, https://doi.org/10.2304/eerj.2013.12.1.1.
13 Braidotti, “Posthuman Humanities,” 2. See also: Roberto Marchesini, “Posthuman Antispeciesism,”
trans. Jeffrey Bussolini, Angelaki 21, no. 1 (2016): 224; 229.
14 Pierre-Olivier Dittmar, Chloé Maillet and Astrée Questiaux, “La chèvre ou la femme. Parentés de lait
entre animaux et humains au Moyen Âge,” Images Re-vues 9, (2011) : 27, http://journals.openedition.org/imagesrevues/1621.
15 Cary Wolfe, introduction to Zoontologies. The Question of the Animal, ed. Cary Wolfe (Minneapolis:
University of Minneapolis Press, 2003), xx. See also: Jeffrey J. Cohen, “Inventing with Animals in the Middle Ages,” in Engaging with Nature: Essays on the Natural World in Medieval and Early Modern
Europe, ed. Barbara A. Hanawalt and Lisa J. Kiser (Notre Dame: University of Notre Dame Press, 2008),
42; 48.
16 Rivera, “La construction de la nature,” 56. See also: Giorgio Agamben, The Open: Man and Animal,
4 not permit a satisfactory answer to such a broad bipartite question, which is why I will operationalise my research question via a case study from late mediaeval France that I encountered in an early nineteenth-century study by the legal scholar Jacques Berriat-Saint-Prix.17 The following is my paraphrasis. On the tenth of January 1457, near the
seigneurial castle of Savigny-sur-Étang, Sustitia and her six children were charged with homicide on Jehan Martin, a five-year-old boy. The local judge, Nicolas Quarroillon, convened numerous witnesses. Meanwhile, as had been the case since their capture, Sustitia’s family was incarcerated in the prison cells of Katherine de Barnault, the Lady of Savigny Castle. The Lady’s prosecutor, Huguenin Martin, claimed that Sustitia and her children had been apprehended several weeks earlier, in the middle of murdering and devouring young Jehan, covered in his blood. Sustitia nor her children provided a sensible explanation as to why they would wantonly assault and eat the boy. The court therefore summoned the person closest to Sustitia’s family, Jehan Bailly, to vouch for their innocence. The court, eager to hear an explanation for this gruesome murder, insisted that Bailly’s defence might spare Sustitia’s family further punishment and the execution of justice. Bailly, however, responded that he had nothing to say. After due deliberation, the court pronounced its verdict: in the absence of any redeeming explanation for the circumstances in which she had been apprehended, Sustitia was found guilty of murder and manslaughter and sentenced to suffer the final ordeal and execution. This entailed that she was to be brought to a gallows-tree within Savigny-sur-Étang to be hanged upside-down by her feet. Meanwhile, awaiting confirmation of their innocence or complicity, Sustitia’s children remained in the custody of the Lady of Savigny. Shortly after, an executioner, one Etienne Poinceau, was hired to transport Sustitia to a local curved oak, to which he affixed Sustitia upside-down by her feet, where she presumably hung until death.18
Sustitia and her children were not human in the slightest. Although my initial narration of the events may suggest otherwise, all of the accused belonged to an altogether different species, namely Sus scrofa domesticus, the domestic pig.19 The
17 Throughout this dissertation, the Middle Ages refer to the period of time between the fifth century (the
fall of the Roman Empire) and the fifteenth century (the nascence of the Renaissance). The Late Middle Ages here roughly designate the fourteenth and fifteenth century. Like the Middle Ages more generally, I use this term for functional purposes. All periodisation is arbitrary, especially when considered in light of its innate anthropocentrism. What would history look like if it were written by pigs, for instance?
18 Jacques Berriat-Saint-Prix, Rapport et recherches sur les procès et jugemens relatifs aux animaux
(Paris: L’Imprimerie de Selligue, 1829), 41-44. See Appendix 2 for a reproduction of his transcriptions.
19 In current biological taxonomy, the domestic pig is considered a subspecies of the wild boar (Sus scrofa). In what follows, when I speak of ‘pigs’ or ‘suids’ I refer to the overarching species of pigs.
5 name ‘Sustitia’, a contraction of Sus and Justitia—pig and justice—, is a literary invention that I have assigned to the unnamed sow of these trial records.20 I realise
that any alteration to the source material, no matter how minute, teeters on anachronism, the historian’s favourite taboo. However, my naming of Sustitia is hardly anachronistic because some pigs at the time were already given a name of their own by human caretakers.21 Moreover, the primary reason why I have decided to name the
nameless sow of Savigny is to establish a field of creative tension within the vast spatiotemporal gap between me, a human scholar, and the world of meaning encoded in my primary source material. My intention is not to attempt yet another Rankean history Wie es eigentlich gewesen ist, but to write a history that welcomes the pre-posterous as “a way of ‘doing history’ that carries productive uncertainties and illuminating highlights”.22 To carefully examine the preposterous
is to see the presentation of an order authorized as ‘natural’ as instead rhetorically produced and to become aware of the workings of ‘smooth discourse’—the histories it forges and the authority it creates.23
Naming Sustitia enables a change in perception as it retrospectively levels the ontological playing field, even if only a little. Namelessness—at least on a literary level—reflects powerlessness.24 Unnamed animals “are objects, not subjects. They have
no history, no biography, no intentions, and no emotions”—by contrast, having a name “incorporates that creature into our social world”.25 The preposterous naming of
Sustitia therefore facilitates reading her trial counter-hegemonically: she is no longer an anonymous historical object of knowledge surrounded by human protagonists, but she has become a partner in knowledge. This matters because I here want to forego a
20 Initial inspiration for the name came from: Susana Monsó, Judith Benz-Schwarzburg, and Annika
Bremhorst, “Animal Morality: What It Means and Why It Matters,” The Journal of Ethics 22, no. 3 (2018): 283-310.
21 For instance, a pig named Verray was hanged in 1444 for killing a girl near Saint Prix, see: Lesley B.
MacGregor, “Criminalising Animals in Medieval France: Insights from Records of Executions,” Open
Library of Humanities 5, no. 1 (2019): 6; 9, https://doi.org/10.16995/olh.319.
22 Mieke Bal, Quoting Caravaggio. Contemporary Art, Preposterous History (Chicago: The University
of Chicago Press, 1999), 7. I also agree with Bal’s contention that “by endorsing the present as a historical moment in the act of interpretation itself, one can make much more of the object under scrutiny. One can learn from it, enable it to speak and to speak back, as a full interlocutor in debates about knowledge, meaning, aesthetics, and what matters about these in today’s world” (Bal, Quoting Caravaggio, 18).
23 Patricia Parker, “Preposterous Events,” Shakespeare Quarterly 43, no. 2 (1992): 213.
24 Mieke Bal, Death & Dissymmetry. The Politics of Coherence in the Book of Judges (Chicago: The
University of Chicago Press, 1988), 23. Bal assigned names to the originally unnamed women of the Book of Judges to start remedying the women’s disempowerment. Bal elaborated more on this in person in a discussion during her masterclass, Travelling Cultures: Movement, Conflict, and Performance, at the Royal Dutch Institute of Rome (KNIR), 20-30 September 2017.
25 Margo DeMello, Animals and Society. An Introduction to Human-Animal Studies (New York:
6 humanist reading—which would instrumentalise Sustitia and her ordeal to celebrate that humans have abandoned the crude silliness of prosecuting nonhumans—in favour of a posthumanist understanding that decentres anthropocentrism by conjugating with the nonhuman Other and recognising the value of its alterity.26
I would be remiss if I denied that the initial reason for my interest in Sustitia and her trial was the sheer oddity of the fact that humans committed to something as outlandish as the legal prosecution of a pig. Even so, my study is decidedly no veiled attempt to deride past morals so as to exalt the alleged enlightenment of modernity. Rather, the strangeness of this pig trial has a dual importance. Firstly, confronting other people’s alterity courts curiosity which opens a gateway to alien worlds with foreign significatory systems, in this case the late mediaeval world of Burgundy. Secondly, the astonishing reality of nonhuman trials holds up a mirror that can call into question, reframe, and transform our present notions of justice, animality, and humanity. Marc Bloch famously wrote that the historian’s questions to the past inevitably arise out of the questions of the present.27 This adage arguably becomes ever
more important now that the relevance of the Humanities is all but uncontested due, in part, to the increasing economisation and corporatisation of higher education and the presupposition that mankind has already fulfilled its telos.28
There are several other grounds for a micro-examination of Sustitia’s trial. Firstly, it is but one of many historic instances in which a nonhuman has been tried, found guilty, and punished. The proliferation of this phenomenon has long puzzled scholars and over two centuries of debate appears to have yielded little consensus regarding what motivated the legal prosecution of nonhumans. A key problem that I detect in much of the existing scholarship on this subject is reductivist presentism. Many scholars bundle all known judicial proceedings—a phenomenon of many centuries—together, dividing them in two clean categories, each of which then receives a sweeping and occasionally fairly repetitive explanation. In my view, this approach suggests a mechanistic notion of human history that diminishes the historical specificity of each trial. My first chapter will extensively critique the historiography of
26 Roberto Marchesini, “Nonhuman Alterities,” trans. Elena Past, Angelaki 21, no. 2 (2016): 165. 27 Marc Bloch, Apologie pour l’histoire ou métier d’historien (Paris: Librairie Armand Colin, 1952), 27. 28 See: Zhang Longxi, “The Humanities: Their Value, Defence, Crisis, and Future,” Diogenes 58, no. 1/2
(2012): 64-74. I also subscribe to the theses of the counterpoint manifesto, see: Whitney A. Bauman and Kocku von Stuckrad, “Ten Theses on Academia, Society, and the Planetary Future: A Counterpoint Manifesto,” blogpost, 24.04.2018, Counterpoint: Navigating Knowledge,
https://www.counterpointknowledge.org/ten-theses-on-academia-society-and-the-planetary-future-a-counterpoint-manifesto/.
7 the trials to expose the fallacies that underly the sweeping generalisations that have been proffered. I will argue that nonhuman trials warrant a fine-grained approach, an inductive modus operandi that embraces the complexity of each judicial proceeding on its own terms, recognising that it was a reasonable recourse within its own context.
A second reason why Sustitia merits attention is because of her species. Pigs, especially domestic pigs, amount to more than half of all nonhuman executions in mediaeval and early modern France, leading Michel Pastoureau to remark that the pig is always and everywhere the star of the judiciary bestiary.29 Understanding the
abundance of pigs in nonhuman trials, in my estimation, warrants a deeper investigation into human-pig relationalities at the time. Some scholars have suggested that pigs were “maintained at the boundary between man and animal”.30 While it could
be tempting at first sight to position the pig in the middle of this simple binary and be done with it, I think that this assertion somewhat simplifies the complex status of pigs at the time. My second chapter will therefore situate domestic pigs in the late mediaeval human-nonhuman divide and I will contend that pigs were decidedly perceived as nonhuman ‘others’. Meanwhile, the at times unsettling proximity of pigs to Man made them suspect and ensured their infamy: here was an Other that seemed to have a way of calling into question mankind’s sense of unicity, refinement and superiority. To legitimise human exceptionalism, pigs had to be rendered utterly inferior, the objectified instrument of Man, and species boundaries had to be clearly defined and reasserted continuously. My analysis will draw attention to descriptions of certain allegedly porcine traits, which combine into what I will call ‘porcinity’.31 I maintain that
the politics of porcinity debase and ‘other’ suine animals whilst prescribing normative parameters for what it means to be a proper Christian human.32
A final reason why I single out Sustitia’s trial for a case study is because the
procès verbal of her trial is one of relatively few records of nonhuman trials that has
29 Michel Pastoureau, “Une justice exemplaire: Les procès faits aux animaux (XIIIe-XVIe siècle),” in Les rites de la justice. Gestes et rituels judiciaires au Moyen Âge occidental, ed. Claude Gauvard and Robert
Jacob (Paris: Éditions Le Léopard d'Or, 2000), 192; Michel Pastoureau, Les animaux célèbres (Paris: Bonneton, 2001), 135. Also see: Esther Cohen, The Crossroads of Justice. Law and Culture in Late
Medieval France (Leyden: Brill, 1993), 116.
30 Claudine Fabre-Vassas, The Singular Beast. Jews, Christians, and the Pig, trans. Carol Volk (New
York: Columbia University Press, 1997), 5.
31 I favour the term porcinity over pigness/piggishness because of the latter’s associations with gluttony. 32 When I speak of ‘porcine’ animals, I refer to any animal that was supposed to have pig-like features
(regardless of whether or not the animal is biologically related to suine animals). ‘Suine’ animals denotes animals that biology presently classifies in the Suidae family.
8 been preserved with such completeness.33 Moreover, her trial is considered to be a
fairly typical reflection of how most of the secular nonhuman trials proceeded at the time.34 The combination of these two factors, along with the findings of my second
chapter, will allow me to make inferences on both a micro and mesial level of interpretation. In my third chapter, I will apply my inductive approach to the records of Sustitia and her infants’ trials to claim that the legal prosecution of these pigs was an elaborate anthropopoietic ritual in which a multiplicity of motivations and narratives converged, among which that of ‘the pig’ itself—the nature of the beast and its significance within Christian culture—including what I will call the myth of the
Homo Legifer (‘Legislative Human’), the notion that humans are exceptional animals
because they exercise their allegedly unique capacity for reason and morality through the invention and enforcement of laws, by which Man purports to protect an anthropocentrically imagined universal value of Justice.35
I have already indicated my desire to read against the grain by naming the sow Sustitia. I am not doing so simply to be contrarian but because I wish to highlight an important but—in my view—still often overlooked historical pattern: the often harmful effect of anthropopoietic rituals and narratives on the quality of life of actual pigs and nonhumans more generally. In mediaeval historiography, the animal turn has thus far hardly outgrown its infancy. Most histories of agriculture, economy, and technology still treat nonhumans as little more than animated objects, pawns in the history of human welfare creation.36 Keith Thomas’ Man and the Natural World (1973) indicates
the nascence of an alternative paradigm, Human-Animal Studies (HAS), which investigates sociocultural constructions of the nonhuman in human discourse.37 An
unspoken rule in such studies appears to be that one must invoke the cliché that ‘animals are good to think with’.38 This approach privileges the functionalities of
nonhumans—“food, prey, possessions, or companions” as well as “symbols, ideas, or
33 Edward P. Evans, The Criminal Prosecution and Capital Punishment of Animals (London: William
Heinemann, 1906), 154.
34 Esther Cohen, “Law, Folklore and Animal Lore,” Past and Present 110, no. 1 (1986): 11.
35 For example, the legal scholar Alain Supiot claims that law’s capacity to link the biological and
symbolic dimensions of humans together institutes us as “rational beings”, see: Alain Supiot, Homo
Juridicus: On the Anthropological Function of the Law (London: Verso, 2007), ix.
36 Leen van Molle, “Inleiding: Een Geschiedenis van Mensen en (Andere) Dieren,” Tijdschrift voor Geschiedenis 125, no. 4 (2012): 471.
37 Keith Thomas, Man and the Natural World: Changing Attitudes in England, 1500-1800 (London:
Allen Lane, 1983). See also: Van Molle, “Inleiding,” 471.
38 Though often attributed to Claude Lévi-Strauss, these were never his actual words. Lévi-Strauss wrote
that “natural species are chosen not because they are ‘good to eat’ but because they are ‘good to think’”, see: Claude Lévi-Strauss, Totemism, trans. Rodney Neeham (London: Merlin Press, 1964), 89.
9 images”—over their material (corpo-)reality.39 Nonhumans are “vehicles through
which human meanings are expressed” or “symbolic surrogates for people”.40
Recently, the animal turn has arguably reached adolescence via Critical Animal Studies (CAS), which rebels against the culturalism of HAS and criticises them for their failure to acknowledge nonhumans as subjective organisms that are often harmed by the very sociocultural representations and practices that HAS investigates. CAS, by contrast, strives for a historiography that acknowledges the materiality of nonhumans and recognises their interactions, entanglement, mutuality, and coevolution with humans.41 CAS thus shares posthumanism’s objectives, albeit with a specific focus on
nonhumans and a commitment to activism. Both CAS and posthumanism have garnered comparatively little attention thus far within mediaeval studies and Éric Baratay’s call for a “point de vue animal” has largely remained unanswered.42 This is
surprising, considering Bruce Holsinger’s observation that
Medieval literature is, in the most rigorously literal sense, nothing but millions of stains on animal parts. . . . To be a medievalist is to be hopelessly implicated in and to constantly witness the mass deaths of countless sheep, lambs, calves, and goats for the means of literary transmission. . . . the survival of our primary object of study depends on the myriad animals whose hides have given medieval literature the morbid life it continues to share with those who consume it”.43
Mediaeval studies’ limited engagement with the nonhumans that allow the field to exist is therefore not just striking—it is also unethical because it does not acknowledge the historical exploitation of many thousands of nonhuman bodies. Moreover, it obscures the fact that our history is not our own; it is inextricably bound, stitched, and glued together with nonhumans.
Diversifying the historiography of the Middle Ages with the acknowledgement of nonhumans’ materiality (matter-reality) and subjectivity is not only ecologically
39 Nona C. Flores, introduction to Animals in the Middle Ages, ed. Nona C. Flores (London: Routledge,
1996), ix.
40 Cohen, “Inventing with Animals,” 43; Cohen, The Crossroads of Justice, 105. 41 Van Molle, “Inleiding,” 473.
42 See: Éric Baratay, Le point de vue animal. Une autre version de l’histoire (Paris, Le Seuil, 2012); Sarah
Kay and Peggy McCracken, “Introduction: Animal Studies and Guillaume de Palerne,” Cahiers de
recherches médiévales et humanistes 24 (2012): 323-330; Anna Taylor, “Where Are The Wild Things?
Animals in Western Medieval European History,” History Compass 16, no. 3 (2018): 2, https://doi.org/10.1111/hic3.12443.
43 Bruce Holsinger, “Of Pigs and Parchment: Medieval Studies and the Coming of the Animal,” PMLA
124, no. 2 (2009): 619. See also: Sarah Kay, “Legible Skins: Animals and the Ethics of Medieval Reading,”
postmedieval: a journal of medieval cultural studies 2, no. 1 (2011): 13–32,
https://doi.org/10.1057/pmed.2010.48; Sarah Kay, Animal Skins and the Reading Self in Medieval
10 urgent; a growing body of scholarship attests that it is also possible.44 This objective is
not without methodological challenges, however. Firstly, other species are other. We cannot presume to fathom pigs’ cognition or their subjective experience because our own sensory capacities, and by extension our perception of the world (Umwelt), are different.45 Secondly, even if it were possible to interview nonhumans, mediaevalists
are still not in the business of necromancy; one cannot conjure back long deceased pigs. This leaves the historian with naught but what remains of the animals’ corporeality as well as man-made artefacts of the nonhuman: texts, images, art, folklore, all of which inevitably represent nonhumans through a human lens. Stripped from this human signification and the oppressive voice of anthropocentrism, what will remain of real pigs? Studying historical nonhumans thus might seem like trying to read tea leaves without any knowledge of tasseography.
Yet the “challenges of the undertaking do not excuse us from trying”, remarks Anne Taylor, who points to ethology as a possible way forward.46 Moreover, the
inception of all subaltern studies raised similar objections, which have never deterred these fields from performing qualitative and important research. Counter-hegemonic studies are essential as they recognise the agency of their subjects while interrogating the status quo and its oppressive conventions.47 Additionally, they encourage returning
to an analytical ground zero where nothing is self-evident. Animal studies are crucial herein: by forcing us to re-evaluate even the most fundamental suppositions, human exceptionalism’s pedestal, culture, becomes suspect. Furthermore, sources never
44 For example, see: Breaking and Shaping Beastly Bodies: Animals As Material Culture in the Middle Ages, ed. Aleksander Pluskowski (Havertown: Oxbow Books, 2007); Susan Crane, “Medieval Animal
Studies: Dogs at Work,” Oxford Handbooks Online (Oxford: Oxford University Press, 2015), 1-20, https://doi.org/10.1093/oxfordhb/9780199935338.013.103; David G. Shaw, “Horses and Actor-Networks: Manufacturing Travel in Later Medieval England,” in The Historical Animal, ed. Susan Nance (Syracuse: Syracuse University Press, 2015), 113-147; Taylor, “Where Are The Wild Things?” 1-12.
45 In the thirties, the biologist Jakob von Uexküll for instance described the radically different Umwelt
of ticks, which require warm blood to mature their eggs. Ticks are blind, deaf, and can smell all but one odour: the butyric acid in mammal sweat. In other words, the Umwelt of the tick pivots around two cornerstones: smell and the warmth of blood coursing underneath mammal skin. Like the tick, every species and every individual animal has its own particular Umwelt. Humans are no strangers to the odour of sweat or the touch of warm skin, but our Umwelt entails additional sensory capacities and different biological needs, which is why these sensations generate an altogether different kind of affect for us than they do for ticks. See: Jakob von Uexküll, “The New Concept of Umwelt: A Link Between Science and the Humanities,” trans. Gösta Brunow, Semiotica 134, no. 1 (2001): 119.
46 Taylor, “Where Are The Wild Things?” 6.
47 For instance, see: Mary Devereaux, “Oppressive Texts, Resisting Readers and the Gendered Spectator:
The New Aesthetics,” The Journal of Aesthetics and Art Criticism 48, no. 4 (1990): 337-47; Dipesh Chakrabarty, “Minority Histories, Subaltern Pasts,” Postcolonial Studies 1, no. 1 (1998): 15-29; Gregory L. Cuéllar, Voices of Marginality: Exile and Return in Second Isaiah 40-55 and the Mexican Immigrant
11 speak for themselves; it is the researcher whose questions and conceptual toolkit derive meaning from relics of the past.48 It is axiomatic for the craft of history to be aware that
one is a second-hand interpreter—or even further down the line—of previous interpreters. Accordingly, human sources bear analogy to the bee orchid from the eponymous xkcd comic, which observes that the Ophrys apifera has resorted to self-pollination as a last resort to delay extinction. The orchid is no longer pollinated by male bees because it still mimics the female genitalia of an extinct bee species. No sign of this species remains but for the orchid’s imitation of what a female bee was supposed to look like to male bees. As one character remarks, “the only memory of the bee is a painting by a dying flower”.49 Historical artefacts, too, are witnesses whose
representations—however imperfect—remain an invaluable way to catch sight of animals whose existence has otherwise been lost to the wreck of time. This being said, I do not labour under the delusion that mediaevalists can retroactively ‘free’ historical animals from the constraints of human exceptionalism. Rather, I propose that when we decode and carefully strip away human signification in historical sources, all too often we will reveal glimpses of the real suffering of animals. They cannot be saved, but their squeals deserve to be heard.
48 Van Molle, “Inleiding,” 470-471. John Boswell’s study of mediaeval child abandonment makes a
strong argument for how historians, who deal with deceased subjects, must be both interviewers and palaeontologists in their engagement with primary source material. Interrogating documents is insufficient; like palaeontologists, the “historian, too, must learn to look for subtle traces of the soft underbelly and superficial ephemera of his subject as well as for indications of what it had been before it achieved the form embedded in fossil records”, see: John E. Boswell, “Expositio and Oblatio: The Abandonment of Children and the Ancient and Medieval Family,” The American Historical Review 89, no. 1 (1984): 11. The “tentative quality to every interpretation” is thus an occupational hazard, see: Robin Briggs, “‘Many Reasons Why’: Witchcraft and the Problem of Multiple Explanation,” in Witchcraft in
Early Modern Europe: Studies in Culture and Belief, ed. Jonathan Barry, Marianne Hester, and Gareth
Roberts (Cambridge: Cambridge University Press, 1996), 57.
49 Randall Munroe, “Bee Orchid,” 02.09.2013, web comic, https://xkcd.com/1259/.
In response to the comic, Donna Haraway observes that the bee orchid is a “speaker for the dead” and that the “practice of the arts of memory enfold all terran critters”, see: Donna J. Haraway, Staying with
13
P
IGS IN A
P
OKE
:
A
H
ISTORIOGRAPHY OF THE
N
ONHUMAN
T
RIALS
We must unlearn the constellations to see the stars.50
he notion of Sustitia’s trial and execution may now seem absurd, a comical anecdote to laugh away the oft-supposed cruelty and superstitious backwardness of the Middle Ages. Nevertheless, Sustitia’s trial constituted but one of numerous historical instances in which actual nonhumans (animals or even inanimate objects) were prosecuted. Only a minority of these trials was fictitious—satirical parodies or enchiridia for nonhuman trial procedures—and they drew from real legal precedents.51 Plato’s Laws, Aristotle’s Athenaion Politeia,
and certain stories by Pausanias and Dyo Chrysostom suggest that prosecutions of nonhumans go back at least to the classical antiquity.52 The earliest known mediaeval
instance in which humans penalised nonhumans appears to be the Council of Worms’ decree in 864 that a colony of bees, whose stings had killed a human, was to be suffocated within their hive in order to stop their moral pollution from spreading.53
Since then, formal prosecution of a wide variety of species increased, intensifying particularly on the cusp of the Late Middle Ages and Early Modernity. The majority of collected sources suggests that these practices occurred predominantly in rural regions of the geographical area currently designated as France and, to a lesser extent, in the Netherlands, Belgium, Germany, Italy, Spain, and Scotland. This periodisation and
50 Jack Gilbert, “Tear It Down,” The American Poetry Review 23, no. 1 (1994): 16.
51 One example is the seventeenth-century jurist Gaspard Bailly’s constructed trial procedure against
insects which exemplified how nonhuman trials were supposed to proceed. See: Cohen, The Crossroads
of Justice, 119; Katie Sykes, “Human Drama, Animal Trials: What the Medieval Animal Trials Can Teach
Us About Justice for Animals,” Animal Law 17, no. 273 (2011): 282-283.
For an argument about the satirical potential of nonhuman trials, see: Anne-Laure van Bruaene, “Revolting Beasts: Animal Satire and Animal Trials in the Dutch Revolt,” in The Anthropomorphic Lens:
Anthropomorphism, Microcosmism and Analogy in Early Modern Thought and Visual Arts, ed. Walter
S. Melion, Bret Rothstein, and Michel Weemans (Leyden: Brill, 2015), 23-42.
52 These sources attest that the Acropolis of Ancient Athens had a ceremonial area, the Prytaneion,
which hosted a court of law for unusual murder cases. Firstly, cases in which the murderer was unknown or could not be found; secondly human deaths caused by nonhuman objects (e.g. statues and axes); thirdly cases in which a nonhuman animal had killed a human. See: Walter W. Hyde, “The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times,” University of
Pennsylvania Law Review 64, no. 7 (1916): 696-730; Evans, The Criminal Prosecution, 172; Paul S.
Berman, “Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects,” New York University Law Review 69 (1996): 295-296; Raphael Sealey, “Aristotle, Athenaion Politeia 57.4: Trial of Animals and Inanimate Objects for Homicide,” The
Classical Quarterly 56, no. 2 (2006): 475; 477-478; Fred S. Naiden, “Bouphonia,” in The Encyclopedia of Ancient History, ed. R. S. Bagnall, K. Brodersen, et al. (Malden: Wiley, 2013), 1179.
53 Evans, The Criminal Prosecution, 9.
T
14 rather Eurocentric localisation mainly rely on the pioneering works of scholars such as Jacques Berriat-Saint-Prix, Léon Ménabréa, Karl von Amira, Carlo d’Addosio, and particularly Edward P. Evans’ oft-cited The Criminal Prosecution and Capital
Punishment of Animals, all of whom together compiled over 200 examples of
occidental trials during the Ancien Régime.54 However, the prosecution and
punishment of nonhumans was decidedly not a strictly European affair because the extra-occidental (non)existence of nonhuman prosecutions cannot be settled in exclusively empirical terms. As Esther Cohen writes, “many non-literate, non-western societies prosecuted and punished offending animals, albeit less formally than the Europeans, for their entire judicial structure was conceived in a different form”.55
Following the pioneers’ distinction, scholars generally divide the premodern occidental prosecutions according to the manner of their procedure: ecclesiastical or secular. One idiosyncrasy of ecclesiastical proceedings was that ‘the accused’ was not one specific nonhuman but rather an entire population or species of critters, often derided as noxious ‘vermin’ or ‘pests’. In 1487, for example, the Church anathemised a multitude of snails because “they nibbled and ravaged, gnawed and devastated the seeds and fruits of the lands of Autun”.56 Interestingly, ecclesiastical courts tended to
summon a human advocate to argue in nonhuman defendants’ defence. This was not really the case in secular proceedings, which prosecuted individual domestic animals such as swine, bovines, horses, and dogs for causing lethal injury to human beings.57
Cohen proposes adding a third, hybrid kind of process: instances wherein individual nonhumans were tried by secular courts for spiritual transgressions, preternatural and
54 Berriat-Saint-Prix, Rapport et recherches; Léon Ménabréa, De l'origine, de la forme et de l'esprit des jugements rendus au moyen-âge contre les animaux (Chambéry: Puthod, 1846); Karl von Amira, Thierstrafen und Thierprocesse (Innsbruck: Verlag der Wagnerschen Universitäts-buchhandlung,
1891); Carlo d'Addosio, Bestie Delinquenti (Napoli: Luigi Pierro, 1892); Evans, The Criminal
Prosecution.
55 Cohen, “Law, Folklore and Animal Lore,” 18. It is highly likely that there have been several cases in
which either no written record was made, or in which the written record did not withstand the test of time. Fortunately, some scholars have found examples of extra-occidental judicial proceedings against nonhumans, see: Von Amira, Thierstrafen und Thierprocesse, 28-31; Peter Jamieson, “Animal Liability in Early Law,” Cambrian Law Review 19 (1988): 58; Jen Girgen, “The Historical and Contemporary Prosecution and Punishment of Animals,” Animal Law 9, no. 3/4 (2003): 108-109.
56 “infinita multitudo limacum ab anno citra viguerunt, & adhuc vigent, semina & fructus terrarium
roserunt et vastaverunt, roduntque & devastant,” quoted in: Bartholomé Chassenée, Concilia D.
Bartholomaei a Chasseneo, Burgundi iurisconsulti (Lyon: Nathaniel Vincentius, 1588), 19. I thank
Cohen, “Law, Folklore and Animal Lore,” 14, n. 26, for pointing me to Chassenée’s book.
57 At the time, the term ‘domestic’ (domestica) included all kinds of nonhumans that lived in and around
the house (domus) with which one was familiar, so not just pets or farm animals, but also weasels, crows, hedgehogs, et cetera. See: Michel Pastoureau, The Bear: History of a Fallen King, trans. George Holoch (Cambridge, MA: Harvard University Press, 2011), 161-162.
15 potentially diabolical behaviour.58 For instance, in the Swiss city of Basel, 1474, a
chicken with the appearance of a rooster was burned “for the heinous and unnatural crime of laying an egg” from which allegedly a basilisk, a dreadful and infernal monster, might hatch to spread death and devastation.59 The temporal and geographic
dispersion of this third type of process, as well as the kind of crimes nonhumans were charged with, suggests some relation to early modern occidental witchcraft persecutions.60 Much like those proceedings, the nonhuman trials have courted
controversy for many centuries, leading the legal scholar William Ewald to remark that even their human participants “never really understood the animal trials—nobody knows what they were for, and nobody has ever known”.61 Nicholas Humphrey, a
neuropsychologist, comments, “What help can we get from professional historians? The answer, so far as I can find it, is: almost none. . . . one reason for their embarrassed silence has been the lack, at the level of theory, of anything sensible to say”.62
Historians, as well as scholars from other disciplines, have assuredly come up with no shortage of theories, however. Considering the complexity of the arguments and the variety of approaches, I consider it worthwhile to synthesise and critique the existing explanations at length here before scrutinising Sustitia’s trial records.
One of the first known juridical works to mention legal prosecutions of nonhumans is Philippe de Beaumanoir’s influential Coutumes de Beauvaisis (1283), which condemns the notion of trying nonhumans on the basis that animals who possess neither knowledge of good and evil nor malicious intent, cannot be held responsible for their actions.63 Beaumanoir rationalises that the trials had an economic
58 Cohen, “Law, Folklore and Animal Lore,” 33-34.
59 Evans, The Criminal Prosecution, 162. Interestingly, E.V. Walter observes that in traditional China,
although chickens that passed for roosters and laid eggs were seen as dark omens, it was not they that were penalised but government officials, who were held responsible for maintaining organic harmony in the realm, see: E.V. Walter, “Nature on Trial: The Case of the Rooster That Laid an Egg,” Comparative
Civilizations Review 10, no. 10 (1985): 53-54.
60 Enders, “Homicidal Pigs,” 221-222; Girgen, “The Historical and Contemporary Prosecution,” 114-115.
Girgen also cites two similar incidents that took place in colonial Salem, Massachusetts, which is still (in)famous for its history of witchcraft persecution. To my knowledge, an in-depth comparative study of witch trials and nonhuman trials has yet to be undertaken.
61 William Ewald, “Comparative Jurisprudence (I): What Was it Like to Try a Rat?” University of Pennsylvania Law Review 143, no. 6 (1995): 1925. Anna Pervukhin even proposes that an “explanation
does not exist” because the trials, she argues, were a form of play and thus “irreducible phenomena” when following Johan Huizinga’s conceptualisation of play, see: Anna Pervukhin, “All the Lizards Stand and Say ‘Yes Yes Yes’: The Element of Play in Legal Actions against Animals and Inanimate Objects,” (Working paper, bepress Legal Repository, 2003), 20, https://law.bepress.com/expresso/eps/96/.
62 Nicholas Humphrey, “Bugs and Beasts Before the Law,” in The Mind Made Flesh: Essays from the Frontiers of Psychology and Evolution (Oxford: Oxford University Press, 2002), 245.
63 Philippe de Beaumanoir, Coutumes de Beauvaisis, vol. 2, ed. Amédée Salmon (Paris: Alphonse Picard
16 motivation, arguing that authorities that prosecuted nonhumans were the only guilty party: guilty of not being able to restrain their cupidity for personal profit.64
Nevertheless, as Sustitia’s trial records show, Beaumanoir’s authority—nor customary jurisprudence in general for that matter—appears to have had little influence on the actual practice of nonhuman trials.65 Peter Leeson has recently revisited Beaumanoir’s
explanation. Leeson, an economist who dismisses several crucial contributions from previous scholars (“noneconomists”) in a footnote, proclaims to “solve the peculiar puzzle” posed by the trials by arguing that the Catholic Church deliberately propagated and perpetuated such superstitions among the supposedly ignorant and easily manipulable common folk to increase ecclesiastical tithe revenues.66 This economic
rationale is an insufficient explanation for nonhuman trials of any sort for two reasons. Firstly, secular prosecutions of nonhumans were generally just as expensive as prosecutions of humans because incarcerating the offending nonhuman(s) was costly and the hangman’s time and travel costs had to be remunerated. Secondly, the persistence of nonhuman trials in ecclesiastical courts “was due mainly to indirect
popular pressure voiced by hired lawyers” (contrasting most theologians’ and jurists’
vehement opposition to the notion of prosecuting nonhumans).67
What I find most disconcerting about Leeson’s argument is his appeal to what he perceives to be the superstition and gullibility of people from the premodern occident, which suggests that he endorses cultural positivism to some extent. This common yet contentious type of mindset mostly figures in the pioneering studies from nineteenth- and twentieth-century commentators who attributed the prosecution of nonhumans to the supposed cruelty, irrationality, and primitive superstition of a culture lacking the intellectual rigour to be able to separate man from beast. This is indicative of what K. Patrick Fazioli calls “historical exceptionalism”, an attitude that projects everything that is deemed “antithetical to the modern world”—i.e. cruelty,
Georges Hubrecht, Coutumes de Beauvaisis. Commentaire historique et juridique (Paris: A. et J. Picard, 1974), 269.
64 Beaumanoir, Coutumes de Beauvaisis, 481; Cohen, The Crossroads of Justice, 115. 65 Cohen, The Crossroads of Justice, 119.
66 Peter T. Leeson, “Vermin Trials,” Journal of Law and Economics 56, no. 3 (2013): 812; 834. Jody
Enders similarly claims to detect in these judicial proceedings “the same kind of persecuting mentality which stimulated so many accusations of witchcraft for the purpose of economic gain, as when the property of an alleged witch was confiscated in favor of her accusers”, see: Jody Enders, “Homicidal Pigs and the Antisemitic Imagination,” Exemplaria 14, no. 1 (2002): 221.
67 Cohen, The Crossroads of Justice, 115; 126, emphasis added. Likewise, Peter Dinzelbacher states that
profit is not a sufficient explanation for neither witch, nor nonhuman trials, see: Peter Dinzelbacher, “Animal Trials: A Multidisciplinary Approach,” The Journal of Interdisciplinary History 32, no. 3 (2002): 419.
17 “violence, ignorance, backwardness, and filth”—onto a past that it frames as a distant ‘dark age’.68 Most explicit and influential in projecting such condemnation is Evans,
who argues that the trials were:
the outcome of an extremely crude, obtuse, and barbaric sense of justice. It was the product of a social state, in which dense ignorance was governed by brute force, . . . it really tended to foster [club-law] by making a travesty of the administration of justice and thus turning it into ridicule.69
Similarly, James Frazer concludes that:
in the infancy of the race . . . In that hazy state of the human mind it was easy and almost inevitable to confound the motives which actuate a rational man with the impulses which direct a beast [which is why] savages took deliberate vengeance on animals and things that had hurt or offended them; and the intellectual fog . . . still obscured the eyes of primitive legislators who, in various ages and countries, have consecrated the same barbarous system of retaliation under the solemn forms of law and justice.70
The cultural positivists merit criticism for several reasons. Firstly, they oversimplify the events by piling all records of nonhuman prosecution anecdotally together and disregarding the different forms of procedure, thus they confuse at least two distinct traditions and thereby fail to make sense of either.71 Secondly, the positivists tend to
dismiss the events as pre-Enlightenment irrationality. Evans, for instance, states that this “childish disposition to punish irrational creatures and inanimate objects, . . . is common to the infancy of individuals and of races”.72 In this manner, he continues a condescension voiced by scholars such as Berriat-Saint-Prix, who remarked that the study of these practices leads us “naturellement à la réflexion consolante, que les progrès des lumières ont fait bannir des mesures contraires à la raison et à l’humanité”.73 These dismissals fail to consider that the peak of nonhuman prosecutions lies in the fifteenth to seventeenth centuries which is, as Esther Cohen writes, “difficult to square with the picture of humanity advancing in linear progression from the superstitious middle ages to the rational nineteenth century”.74
68 K. Patrick Fazioli, The Mirror of the Medieval. An Anthropology of the Western Historical Imagination (Oxford: Berghahn, 2017), 155-157.
69 Evans, The Criminal Prosecution, 41. Evans’ argument is particularly concerning because nearly
everyone who has studied the nonhuman trials since cites his work, so his work is certainly not “greatly neglected” as Patrick Phillips claims, see: Patrick J.J. Phillips, Medieval Animal Trials: Justice for All (Lewiston: Edwin Mellen Press, 2012), 1.
70 James G. Frazer, Folk-Lore in the Old Testament. Studies in Comparative Religion, Legend and Law, Volume III (London: MacMillan, 1919), 445.
71 Cohen, “Law, Folklore and Animal Lore,” 17. 72 Evans, The Criminal Prosecution, 186. 73 Berriat-Saint-Prix, Rapport et recherches, 20.
74 Cohen, “Law, Folklore and Animal Lore,” 17. See also: Girgen, “The Historical and Contemporary
18 Ultimately, the cultural positivists’ inferences say more about the perceptions they hold of their present day than about the actual events they study. Bruno Latour exposes the politics of such an attitude in We Have Never Been Modern, contending that modernism is grounded in a dual dissymmetry. Firstly, in the pretence that modernity ruptures the regular flow of time as though modernity’s advancements have abolished its past. No longer “removed from the Middle Ages by a certain number of centuries”, modernity is distinguished by “Copernican revolutions, epistemological breaks, epistemic ruptures so radical that nothing of that past survives in them – nothing of that past ought to survive in them”.75 The second dissymmetry lies in the
parallel contrasting of past opposed to future and nature opposed to culture, suggesting that time is a battle in which modernity constitutes victory and premodernity is vanquished, thus creating “two entirely distinct ontological zones: that of human beings on the one hand; that of nonhumans on the other”.76 The past then becomes
“the confusion of things and men; the future is what will no longer confuse them”.77
This ontological separation, in my estimation, is deeply problematic as cultural positivism presupposes that premodern people were so backwards or ignorant as to sluggishly accept any nonsense the Church allegedly spoon-fed them, implying that these people thus were as savage and irrational as the nonhumans they persecuted. Two convictions make this attitude especially sinister: (1) the a priori that nonhumans are irrational or that they are slavishly docile if led by a firm hand, and (2) humans who are part of cultures with a different normative scheme and set of conventions are essentially perceived as little more than nonhumans. Consequently, modernism fuses human exceptionalism with historical exceptionalism, suggesting that any human who is imagined guilty of allegedly premodern sins is subhuman, less evolved than modern Western Man. This association is particularly disturbing because such a dehumanising teleology has been and continues to be a convenient rhetorical device in the imperialist’s and (neo)colonialist’s instrumentarium to justify the white man’s burden: to light the way for any non-Western, non-modern people towards their only possible destiny. In other words, either they assimilate into the evolutionary pinnacle of the
75 Bruno Latour, We Have Never Been Modern, trans. Catherine Porter (Cambridge, MA: Harvard
University Press, 2002), 68.
76 Latour, We Have Never Been Modern, 10-11. 77 Latour, We Have Never Been Modern, 71.
19 spatiotemporal hierarchy that is “Western-style modernity and civilization”, or they face their otherwise inevitable extinction.78
The following two explanations were also initially proposed by the cultural positivists and these arguably both fit in the category of what one might call a rationale of traditionalism. The first such theory could be summarised as ‘biblical traditionalism’ as it holds that the trials resulted from a persistent adherence to the Bible, specifically to the Mosaic laws from Exodus 21, which expounds the Biblical argument par
excellence for the prosecution of nonhumans.79 The Covenant indicates that if an ox
lethally injures any human—regardless of sex, age, or social standing (e.g. slave)—then the ox is to be killed and its meat is unfit for consumption. Additionally, the Covenant prescribes that the ox’s owner is only liable for the ox’s actions if the owner knew of the ox’s danger but failed to control the animal.80 These laws certainly provide a Biblical
precedent for the capital punishment of nonhumans, but a precedent hardly constitutes an explanation for the premodern prosecution of nonhumans. As a matter of fact, the purposes behind these laws are as debated as the ones for the nonhuman trials are.81 Moreover, to assume that the Bible’s doctrine dominated and controlled all
layers of the mediaeval world and that there was no space for other ideas would not only be contrived—it would also perpetuate the unhelpful stereotype of the Middle Ages as a dark and excessively religious temporality. In fact, Mosaic law was never cited within the judicial proceedings of the nonhuman trials and Peter Dinzelbacher remarks that the “oft-quoted prescription in Ex. 21:28 to kill the ox that gored had only peripheral importance during the Middle Ages”—as evidenced by the fact that capital punishment of nonhumans was never stoning: they were “hung, suffocated, buried
78 Fazioli, The Mirror of the Medieval, 39-40. Fazioli situates the inception of this idea of a
spatiotemporal hierarchy in the nineteenth century, when Europeans started leaning more on their perceived historical exceptionalism as a justification for colonialism than on their supposed religious, cultural, and/or racial superiority.
79 See, for instance, chapter 6, “The Ox That Gored,” in Frazer, Folk-Lore in the Old Testament, 415-445. 80 “[28] If an ox gores a man or woman to death, the ox will be stoned and its meat will not be eaten, but
the owner of the ox will not be liable. [29] But if the ox has been in the habit of goring before, and if its owner has been warned but has not kept it under control, then should this ox kill a man or woman, it will be stoned and its owner put to death. . . . [35] If anyone's ox injures anyone else's ox causing its death, the owners will sell and share the money for it; they will also share the dead animal. [36] But if it is common knowledge that the ox has been in the habit of goring before, and its owner has not kept it under control, the owner will repay ox for ox, and will keep the dead animal” (Ex. 21:28-32; 35-36).
81 Steven Wise succinctly summarises several positions of this debate, see: Steven M. Wise, “The Legal
Thinghood of Nonhuman Animals,” Boston College Environmental Affairs Law Review 23, no. 3 (1996): 485-486, including note 95.
