Nonhuman Rights and Climate Change

Foundations in Early European Natural J ustice

Vanessa Burns







A thesis submitted in fulfilment of the requirements for the degree of

Masters of Arts (Research)

University of New South Wales




2u11










2







Originality Statement

I hereby declare that this submission is my own work and to the best of my
knowledge it contains no materials previously published or written by another person,
or substantial proportions of material which have been accepted for the award of any
other degree or diploma at UNSW or any other educational institution, except where
due acknowledgment is made in the thesis. Any contribution made to the research by
others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged
in the thesis. I also declare that the intellectual content of this thesis is the product of
my own work, except to the extent that assistance from others in the projects design
and conception or in style, presentation and linguistic expression is acknowledged.



Signed ..............................................................................

Date ..............................................................................










S




Copyright Statement

I hereby grant to the University of New South Wales or its agents the right to archive
and to make available my thesis or dissertation in whole or part in the University
libraries in all forms of media, now or hereafter known, subject to the provisions of
the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also
retain the right to use in future works (such as articles or books) all or part of this
thesis or dissertation. I also authorise University Microfilms to use the abstract of my
thesis in Dissertations Abstract International (this is applicable to doctoral theses
only). I have either used no substantial portions of copyright material in my thesis or I
have obtained permission to use copyright material; where permission has not been
granted I have applied/will apply for a partial restriction of the digital copy of my
thesis or dissertation.


Signed ..............................................................................

Date ..............................................................................









4






Authenticity Statement


I certify that the Library deposit digital copy is a direct equivalent of the final
officially approved version of my thesis. No emendation of content has occurred and
if there are any minor variations in formatting, they are the result of the conversion to
digital format.


Signed ................................................................

Bate ..............................................................................















S



Acknowledgements


The production of this thesis was achieved with the help of a number of
people whom I would like to acknowledge and thank for their contributions.

I have appreciated the help and professionalism of the staff of various research
institutions including the National Library of Australia, the Mitchell Library
and State Library of NSW. Particular thanks go to staff of the British Library in
London and the various Bodleian libraries in Oxford, UK. I would also like to
extend my thanks to the archivists at the Inns of Court in London and the
British National Archives in Richmond, UK.

I would particularly like to thank Stephen Gapps for editorial comments and
proofreading, and Beth Stone for her invaluable support through the writing
stages. I would also especially like to thank my son Solomon for being so
understanding, supportive and independent while I was away doing research.

And finally, my supervisors Stephen Muecke and Stephen Healy have been
crucial to this thesis. Most importantly, their insightful comments,
suggestions and intellectual discussion have been invigorating and inspiring
and I warmly thank both for their contributions to this project.






6

Table of Contents

Originality Statement"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" #
Copyright Statement""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" $
Authenticity Statement""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" %
&'()*+,-./-0-)12 """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 3
Glossary of Legal Terms"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 4
Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 5
Archives and Research Methodologies""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6#
Literature Review""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63
Roman Texts """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63
English Medieval Texts"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""63
English Legal History John Seldon and the Seldon Society Publications """"""""""""""""""64
Contemporary Legal Theory"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""67
International Environmental Law """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""65
Contemporary Social Theory """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#8
Divine Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#7
Res Sanctus - City Walls...................................................................................................................... 28
Res Sacrae Sacred Things and Places........................................................................................ S1
Res Religiosae Tombs, Funerals and Burial Grounds............................................................. S4
Chapter Two: The Right to Stand? Nonhumans in Early Legal Procedure""""""""%#
Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%#
Pauperies Four-footed Animals """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""%3
Substitution in Roman Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""36
Towards Due Process: Analysis of Roman Procedure"""""""""""""""""""""""""""""""""""""""""""""""""""""""3$
Medieval European Procedure """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""37
Religion and the Natural World """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9#
Procedure in Medieval England """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""9%
The Symbolic Use of Objects in English Legal Procedure""""""""""""""""""""""""""""""""""""""""""""""""94
Conclusion """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""48
An Historical overview of Natural Law""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""43
Roman Legacies in Medieval English Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""78
Gratian........................................................................................................................................................ 8S
Bracton....................................................................................................................................................... 84
Customary Law""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""5#
Secularisation""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""53
Establishing a New Source of Natural Law"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""55
In Conclusion: Latours Parliament of Thingsand the Problem of
Anthropocentrism in Global Climate Governance""""""""""""""""""""""""""""""""""""""""""""""""" 686
Bibliography"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 687



7

Glossary of Legal Terms

While I have incluueu uefinitions of legal teims thioughout the thesis, theie aie
some bioau anu some paiticulai teims that neeu intiouuction.
damages: The money paid or awarded to a claimant (in the UK) or a plaintiff (in the
US) in a civil action.
decretum: A decree of the senate.
defendant: In civil proceedings, the party responding to the complaint; one who is
sued and called upon to make satisfaction for a wrong complained of by another. In
criminal proceedings, the accused.
divinis juris or divine law: Divine law was a division of Roman legal instruments
under the law of things, further catagorised under res nullius (things belonging to no-
one). It can be thought of as a form of natural justice, given by God, and ruling over
specific things (set out in the corpis juris civilis) that were understood as particularly
sacred or important in some way. Divine law was, in some primary sources, also
conflated with natural justice as the theoretical basis for natural law practice.
due process: This term is used in two ways. Firstly in its legal context it denotes an
order of procedure set out under law. This can apply to any kind of procedure related
to the practice of law including court procedure, or punishments. Latour also uses the
term due process in a different sense as an empirical methodology that might
implement his political theory of things at an institutional level.
extra-patrimonium: Things that are not in commerce, or are owned commonly
inter alia: "Among other things." Used in pleadings before a court or opinions of a
court. ie. "The defendant claims, inter alia, that the plaintiff fails to establish . . ."
iura in rem: Latin the rights of things
iuris or juris: Latin law
jurisprudence: Theory and philosophy of law, which determines appropriate goals
and methods of justice.
jus civile: Latin civil law.
jus gentium: Latin, the law of nations.
locus standi: The right to stand before a court of law and bring or participate in
proceedings.

8
natural justice: In its Roman context natural justice was an early form of
jurisprudence that argued for the existence of moral ways of behaving that were given
by various sources, including God and logic. This is different from the modern
interpretation of natural justice as the duty to act fairly that is effectively conflated
with natural law. When I refer to natural justice I use it in its original sense. The word
natural in this context is not associated with the modern term nature. Instead it
denotes a logic of right action or responsibility that was understood to be already in
existence and therefore not a product of human society.
natural law: natural law can be understood in early jurisprudence as a response to the
responsibilities set out by natural justice, expressed in the form of rules and laws that
govern right and just action.
patrimonio: Latin belonging to someone
plaintiff: A party bringing a suit in civil law against a defendant; accusers.
plea: A statement made by the defendant as to his/her guilt or innocence to the charge
made against him or her.
positive law: Man-made law, that is, law established by governmental authority,
especially that which has been codified into a written form (statutory law).
precedent: J udicial decision that serves as an example for how to rule in similar cases
prima facie: Latin for "At first sight." Self-evident; obvious. A prima facie case is
where the plaintiff presents enough evidence to win outright barring any defences or
additional evidence presented by the defendant.
res: Latin thing
res nullius: Things belonging to no one.








9



In your opinion, then, it is not in the edict of the magistrate, as the majority of
modern lawyers pretend, nor in the Twelve Tables, as the ancients maintained, but in
the sublimest doctrines of philosophy, that we must seek for the true source and
obligation of jurisprudence Cicero
1

Introduction

Theorists Bruno Latour and Alfred North Whitehead have both criticised the
conceptual separation of Nature and Society as something to be remedied in political
theory. Latour and Whitehead argue that the historical origins and development of this
separation reveal a way of viewing the world - from a human centre - that is
problematic. From a theoretical position this problem concerns social organisation.
Yet these theoretical contexts only begin to elucidate the empirical project - one of
addressing this separation in new methodologies at an institutional level.
2


1
Ciceio, N. T. !"# !%#&'()#) *+ ,- !- .(/#%* *0 !"# 1&'2%# *+ !"# 3*4)5 60 7(8(0&'(*05 60 9&'#5 60
'"# :#;2<=(/5 60 '"# >&?)5 &04 *0 @'&04(0A +*% '"# .*0)2=)"(;B p. 4uS. Tianslateu anu euiteu by
C.B. Yonge, B.A, Lonuon: ueoige Bell anu Sons, Yoik St Covent uaiuen 1876.
2
Latoui, (199S, 2uu4). Whitehead, (1968, p. 74)
Latour suggests that the terms nature and society do not designate domains of reality; instead,
they refer to a quite specific form of public organization. Latour terms this way of historically

1u

Anthropocentrism has recently been acknowledged as a problem affecting the fields
of environmental law and global climate governance. Existing methodologies are
criticised as incapable of protecting nonhuman interests in areas such as resource
management and climate change governance. In light of this, emergent legal theory
argues for the development of legal instruments that give rights to nonhumans.
Legal theorist Christopher Stone suggests that this method of decentering the human
in legal frameworks has the potential to achieve greater environmental justice through
broader (more democratic) representation of the interests - both human and nonhuman
- in legal frameworks.
3


This thesis presents an historical survey of nonhuman rights, procedures and legal
ethics in early western law aimed at informing such projects. Evidence from the
Roman and medieval periods show that early Western societies had a more connected
and inclusive understanding of humans and things (res) in methods of social
organisation. The legal evidence examined in this thesis shows that this inclusivity of
nonhuman interests is reflected in both the jurisprudence and legal instruments of
both periods. Early jurisprudence included nonhumans in ideas of justice, in their own
right. This meant that nonhuman interests could be considered independently of
human interests. Evidence shows that this understanding in jurisprudence also
underpinned the development of legal instruments, and due process in court, that
allowed for nonhuman representation, trial and punishment. This sets out an important
precedent in Western law for emerging theory and practice in the fields of
environmental law and climate governance.

While Roman and medieval history might seem a remote source for a comparative
analysis of contemporary environmental law and governance, there are certainly
similarities between the jurisprudence (in relation to natural justice), legal instruments
and due process used in early societies, and those being considered in emergent legal
theory to implement rights for the environment.
4
While these histories certainly do

organising public life between things and people the old Constitution, arguing that by dividing
public life into two incommensurable houses, the old Constitution led only to paralysis. p. 53.
S
Reugwell, Catherine (1996, 99). Stone, Christopher (1972, 2010).
4
Stone, 2010.

11
not form a precedent in the legal sense of the word (once obsolete, a law cannot be
used), I argue that the logic behind these aspects of premodern law could usefully
inform emergent contemporary legal practice particularly in the development of
legal procedures.

In Section One I consider what cultural logic underpins laws relating to nonhumans in
the main Roman texts through an analysis of legal frameworks and language. The
purpose of this review is to show historical evidence from this period of three
important factors I argue are relevant to contemporary legal theory; a more inclusive
and functional understanding of the law of things; evidence of nonhuman rights in
institutional practices; and evidence of a more integrated concept of humans and
nonhumans.

Section two looks at legal procedure involving nonhumans during the Roman and
medieval periods in Europe. In particular it examines nonhuman standing before the
court, comparing evidence of cases involving nonhuman defendants with the
establishment of procedure in early English law. The lack of evidence of a
continuation of Roman procedures in English law points to a radical shift in
understanding nonhuman rights that underpinned the development of modern law.

In Section Three I make an argument for an expanded concept of Natural J ustice that
includes nonhuman interests. This argument considers legal instruments developed
under divini juris (divine law), that best represented nonhuman interests in Roman
law. I argue that, empirically speaking, divine law provided many legal instruments
that allowed for some level of democratisation of humans and nonhumans through a
less anthropocentric distribution of rights. I also look at the transition of legal
principles and ethics underpinning the Roman law of things (a section of laws under
divini juris) during the establishment of early English law. This traces the breakdown
of nonhuman rights in jurisprudence and the loss of many legal instruments relating to
nonhumans during the secularisation of the law and the rise of positive law in
England.

In conclusion, I examine emergent legal theory that is engaged with the difficulties of
addressing contemporary environmental concerns using anthropocentric legal

12
frameworks. I argue that the move towards (re)establishing contemporary legal
instruments, that give some rights to nonhumans, calls for many of the same uses and
principles found under the historical examples of early law. I contextualise these ideas
within a political ecology framework (Bruno Latour, J ane Bennett and others), and
make an argument for how greater representation of things (res) in policy and law
will benefit the broader project of environmental governance. Moreover, I consider
the agency of things, how this contributed to their inclusion in premodern law, and
what their reemergence in contemporary legal theory might mean. These
considerations are engaged with political theorist J ane Bennetts question: how
woulu political iesponses to public pioblems change weie we to take seiiously the
vitality of (nonhuman) bouies.'.
S


Archives and Research Methodologies

The research aim of this thesis was to draw from early European natural justice, to set
out an argument for nonhuman representation in contemporary environmental law and
governance. My comparative analysis of the material compares similarities and
differences in the historical evidence to contemporary social and environmental
theory, as well as normative values around nonhuman representation.
6
This required
careful analysis and interpretation of the historical material: not only evidence of
jurisprudence and legal practices, but what insight these might give into broader
cultural norms.

Particular to both legal practice and cultural history, I am interested in evidence
suggesting a lack of concept around the separation of Nature and Society (something
Latour attributes to the Modernist Constitution) underpinning the greater
representation of things in early legal frameworks.
7
I am also interested in the
establishment of the Great Divide between Nature and Society, as shown in bodies
of early legal evidence.
8


S
Bennett (2u1u) p. viii
6
I use the term representation here with reference to Bruno Latours ideas around making things
public (1993, 2004) (that is, to understand them as part of the public collective), as well as J ane
Bennetts work on thing-power (2010, 2011) which refers to the agency of things in public life as
well as its empirical legal sense.
7
Latoui, 199S.
8
C<(4-

1S

Legal records often provide a very (sometimes the only) consistent body of evidence
of a premodern society. As legal scholar Laurence M. Larson states:

The laws of a race provide a record of its progress which is in many respects
more enlightening than most other documentary survivals. Though primarily a
statement of ethical principles, the law must of necessity be concerned with
all the many varieties of human relations and consequently enters into the
entire scheme of organized life.


The social relations and organisations, to which Larson refers, became the most
important basis in my research for considering how the evidence might contribute to
understandings of normative values in Roman and early English society. Legal
evidence of how things and people interacted reveal a far more integrated concept of
nonhumans in these societies. Additionally, evidence of nonhuman representation
gives important empirical evidence of how ideas of natural justice were applied
through the development of legal procedures such as due process.

The archival research carried out for the production of this thesis focused on
nonhuman rights and standing in early jurisprudence and case records. Close study of
primary sources of Roman and medieval European law was conducted in several
archives and libraries. My focus on English medieval law meant that most of this
research was conducted in the collections at the Bodleian Library in Oxford, as well
as the British Library in London. I also accessed the libraries of the Inns of Court in
London, and the UK National Archives in Richmond.

As Oxford was historically the main centre for the study of law in medieval England,
the Bodleian Libraries form an important series of archives relevant to the
establishment of the formal study and practice of law in England during the early
medieval period. However, manuscripts at the Bodleian were dispersed throughout
several collections with no clear category for early law manuscripts. Because of the
vastness of the collection, there were a large number of uncatalogued manuscripts
throughout different collections and the remaining majority were listed in catalogues
dating between the fourteenth and seventeenth centuries, written in French or Latin.

14

This made a thorough study of manuscripts in the collection difficult. Therefore, I
identified themes of interest and key texts mentioned in the better-known manuscripts
and used key words as a guide for canvassing random manuscripts from all known
possible sources of legal material in the various collections. This method uncovered
consistent themes and ideas in medieval English law texts and teaching material, such
as the study and reproduction of key Roman texts.

The Duke Humphries reading room, along with Bodleian Special Collections held
much of the material. However Oxford University college libraries, such as the
Codrington Library at All Souls College and The Fellows Library at J esus College,
also held important legal manuscripts. Some reproductions and secondary material
was also accessed in the Bodleian Law Library.

The British Library held the main collection of manuscripts and these were well
catalogued in the Manuscripts and Rare Books collection. The collection was relevant
to the wider practice of law throughout England, Scotland and Wales during the later
medieval and early Renaissance periods. The collection included case notes,
jurisprudence, legal study and personal accounts. The collection of case notes was
limited in scope and it is understood that the early case notes may still be held in
archives in the various boroughs throughout England. This research was
unfortunately outside the scope of the project.

Case notes in the Inns of Court were mainly later records and not particularly useful.
The material in the National Archives has been mostly printed in the Seldon Society
publications, meaning access was through secondary edited sources. It should be
noted that I focused mainly on civil law manuscripts. A similar study of canon law
would form an interesting comparison in regard to nonhuman rights and standing,
particularly as different systems of law often intersected one another during the
medieval period in Europe.

1S
Literature Review
Roman Texts
Various attempts were made throughout the Roman era to gather and simplify
existing laws, beginning with the law of the Twelve Tables. The Twelve Tables are
the first known written records of Roman law and dated from the mid fifth century
BC. The original ivory tablets were destroyed when the Gauls sacked Rome in 390BC
and reconstructions are based on unofficial editions, the format of which is generally
considered unreliable.

While the reconstruction of the Twelve Tables forms an important basis for Roman
legal ideas, by far the most successful effort to collate Roman laws was that of
J ustinian I, whose code superseded all previous laws and formed the Roman Empires
legal legacy. J ustinians Code, formerly known as the Corpus Jus Civilis (Body of
Civil Law) is made up of four books examined here; The Codex Constitutionum
(Codex) a reconsolidation of all known Roman laws written by ten Roman jurists;
the Digesta or Pandectae (the Digest) drawn in 530-533 c.e. - consisting of the jurists
comments; the Institutiones (The Institutes) - a complete exposition of the elements of
Roman law; and the Novellae Constitutiones Post Codicem (The Novels) - containing
several collections of new regulations issued by J ustinian himself.

Matters of inheritance, contracts, property and persons remained the main categories
of a revised English use of Roman law in the eleventh century. However, J ustinians
Code contains books on other important categories such as some under the law of
things (of which property law is a part) and divine law. These concepts found
primarily within the Digest contain the main body of laws involving nonhuman rights
and standing.
English Medieval Texts
The establishment of early English law in the twelfth and thirteenth centuries
produced a regular demand for what became the standard texts of study. These were
the Roman Corpus Iuris Civilis (introduced above) and the Corpus Iuris Canonica
(body of canon law). The later consisted of the Twelfth century Decretum collected
by Gratian to the Decretals of Gregory IX (1234) as well as the Liber sextus,

16
Constitutiones Clementinae, Extravagantes Johannis XXII, and Extravagantes
communes of his successors.

Around these texts, various layers of commentary were built up during the thirteenth
and fourteenth centuries, whether as marginal glosses or as separate volumes.
Scholars such as Azo and Accursius in civil law, and the canonists Bernardus de
Botone of Parma and J ohannes Andreas produced commentaries which achieved their
own status as the standard supplementation to the main texts.

The first collections of English Law include the twelfth century text (exact date
unknown) Treatise on the laws and customs of the Kingdom of England written by
justice to the court of Henry the II Ranulf Glanville as well as Bractons De Legibus
et Consuetudinibus Angliae (The Laws and Customs of England), composed primarily
before 1235.
9
These are the two main texts attributed with establishing a system of
English law. Both exhibit careful study of the main Roman texts and therefore act as
intermediaries between the earlier interpretation of the Roman texts and the later
development of English law. The differences between the two (written roughly one
hundred years apart) are that Bracton shows an interest in interpreting Roman law in
the creation of English legal practice, while Glanville is mainly concerned with
replicating Roman ideas and practices.

Also important to the literature on English medieval law were the yearbooks, which
were books of legal cases or reports published annually in England from the thirteenth
to the sixteenth century. The development of English common law was based on the
law of the case something similar in premise to the legal principle of precedent.
Lawyers and courts relied on previous court decisions that involved similar issues of
law and fact. The law of the case could not take hold, however, until cases were
recorded, reported, and eventually published. The English Year Books, which were
created in about 1290, are the first example of a reporting system. Though they were
informal and often contained running commentary about the judges' personalities and

9
u.B.u. Ball (Eu.) 196S !"# !%#&'()# *0 '"# >&?) &04 .2)'*D) *+ '"# :#&=D *+ E0A=&04 .*DD*0=F
.&==#4 3=&08(==# Claienuon Piess, 0xfoiu, 0K.
Ball notes that both the uate anu the authoiship aie unceitain howevei it is likely to have been
wiitten in the time of Beniy II between the uates of 1187-89.


17
the lawyers' quips, the Year Books were referred to increasingly by judges and
lawyers.

During the reign of King Edward I (1272-1307) legal material began to be collected
into separate books for each year. During this early period the Year Books were very
informal. They contained accounts by anonymous scribes and law students of
courtroom proceedings and arguments that helped explain the judicial decision. The
quality of the reports varied according to the abilities of the note takers. Despite these
shortcomings, the reports conveyed basic procedural information to lawyers and
students, but they stated few rules of law.
The Summa Aurea was another important work written by the academic and
ecclesiastical lawyer William of Drogheda in the 13th century. It is concerned solely
with legal practice, procedures and forms for canon law, and presenting and winning a
case. The Summa is very incomplete, and appears to consist of the first of the six
projected books of the work.
English Legal History John Seldon and the Seldon Society Publications
The publications of The Seldon Society, established under the patronage of Queen
Victoria in 1887, makes up the main historiography of early English law. The society
has published prolifically since its establishment, mainly with the aim of printing
extensive edited collections of manuscripts from various archives, including the
national archives and many borough archives. The focus of the collections vary and
include the history of the law, the development of legal ideas, the legal profession, the
courts and legal institutions, individual judges and lawyers, as well as legal literature
and records.

The society was based around the work of its namesake, the 17
th
century English legal
historian J ohn Seldon. Many of Seldons original works are held in the Duke
Humphries reading room at the Bodleian in Oxford. Seldons collection of works give
a detailed account of English legal history with particular interest given to the period
prior to the Norman conquest of England in 1066. The value of the texts, for my
purposes, were their close accounts of the transitions in legal thought over the
medieval period. They also form an important compilation of English law from its

18
formal origins in the twelfth century to around the fifteenth century when legal ideas
and practices had begun to be influenced by Renaissance thought.

Interestingly, the broader body of Seldon Society publications consulted during
research contained no evidence of a continuation of nonhuman rights or standing in
English law: this despite primary sources of early English jurisprudence (Bracton and
Glanville) containing many references to the Roman law of things.
10
In Bractons
The Laws and Customs of England this included a complete reproduction of the
Roman categories under the law of things, alongside original interpretations of natural
justice and its application to nonhumans (see Chapter Three, pp. 80-89).

The absence of any case notes or evidence of legal procedures reflecting these aspects
of early English jurisprudence in the extensive Seldon Society publications certainly
suggest substantial inconsistencies either in the empirical use of these ideas in
jurisprudence, or in the Society publications themselves (see Chapter Two, pp. 62-
64). As indicated in several of the editors prefaces (reference here), the Society
publications may have been selective in the material published in order to maintain an
editorial focus on the development of laws and practices that have more contemporary
relevance.

Although it is likely that there was a decrease in the practice of nonhuman standing,
further research may reveal a writing out of this practice from English legal
historiographies. Although outside the scope of this thesis, establishing such a claim
would involve revisiting the archives holding the primary sources translated and
published by The Seldon Society - in particular the borough archives where
customary practices would most likely to have been mentioned in records.
Contemporary Legal Theory
Contemporary environmental legal theory could be thought of as starting with
Christopher Stones 1972 edition of Should Trees Have Standing: and other essays on
law, morals and the environment. This pivotal text generated a body of work from
various authors questioning the anthropocentrism of Western legal frameworks. Most

1u
The Seluon Society publications vieweu incluueu any woiks ielating to the 11
th
- 14
th
centuiy
(see bibliogiaphy foi a full list).

19
notably was the work of Professor of International Law, Catherine Redgwell
(University College London) and Professor of International Law and Human Rights,
Francesco Francioni (European University Institute). Redgwell (1996, 99) and
Francioni (1996, 2006, 2008) both argue for legal instruments in international
environmental law that rely on inherent rights for nonhumans under law in order to
better protect natural and cultural heritage. This work spurred my original interest in
early law instruments and the evidence of nonhuman rights existing in early western
legal frameworks. My interest was also based in an understanding that throughout
history the law has reflected normative social values.

Thus I formed my research question; are Redgwell and Francionis calls for new legal
instruments plausible when we consider these instruments must be based in ideas that
are contrary to social norms? And, is the emergence of this and other theory (Latour,
Whitehead), which calls for a decentring of the human in public life, a sign of
ecological actors forcing social change?

International Environmental Law
The surviving manuscripts and documents of early law are not just the domain of
legal history. They are also important as empirical evidence for other disciplinary
analysis, particularly the social sciences. As the Seldon Society has noted of English
history the only continuous records have been legal records, [and] there is in them a
wealth of incidental information on every aspect of contemporary life and conditions
to be found in no other source.
11
Legal historiographies are already familiar with
interdisciplinary approaches to the extensive body of legal historical material.

Any comparative analysis of this material with contemporary law requires an
extensive survey of the main fields of environmental law. This is critical in assessing
the legal instruments used in cultural and natural heritage laws and treaties, as well as
contemporary jurisprudence, and in contextualising the emergent legal theory
discussed above.


11
http://www.selden-society.qmw.ac.uk/ accessed 30/10/11.

2u
My reading here was based around the following themes: international environmental
law and law-making (including international politics of the environment); the
principles of environmental law; the implementation and enforcement of international
environmental law; non-compliance procedures; nature conservation and biodiversity
with specific reading on the Ramsar convention on wetlands (Ramsar, Iran, 1971),
the World Heritage Convention (UNESCO, 1972), the Biodiversity Convention (Rio
de J aniero, 1992) and its supplementary convention, the Cartagena Protocol on
Biosafety (2000); and lastly, climate change, with specific analysis of the United
Nations Framework Convention on Climate Change (FCCC,1992), the Kyoto
Protocol, 1997, the FCCC Conference of Parties in Bali, (2007), the 15th Conference
of Parties (COP-15) in Copenhagen (2009), and the COP Cancun Agreements (2010)
which together form the main basis of international climate regime.

Contemporary Social Theory

I have already mentioned the work of Bruno Latour and Alfred North Whitehead as
important in guiding the conceptual approach of the thesis. More recent work includes
that of Isabelle Stengers (2010), J ane Bennett (2010), Donna Haraway (2008) and
Nigel Clarke (2011). In engaging with Latours Politics of Nature (2004) which
may be generally considered as a politics of things - Stengers and Bennett set out a
broad theoretical framework for political theory that develops some of Latours key
ideas. They move Latours connectedness of things into political thought as a way of
reforming institutional practice. This is highly relevant to my comparative analysis of
legal instruments based in nonhuman rights and to any call for these rights to be
institutionalised in international law practice.

Haraway develops an argument for an ethics of participation and inclusion of
nonhumans that is in fact a useful basis for thinking about the inclusion of nonhumans
in the ethical frameworks not just of contemporary society, but how this might have
operated in past societies. Clarke takes Latours re-constitution of people and things
further and considers this in an environmental context of earth processes such as
climate change and natural disaster. These theoretical developments were most useful
in framing the conclusion of my thesis where I consider how early law - because of its

21
more inclusive politics around nonhumans - could prove significant in reforming the
current institutional governance of environmental concerns.

























22


Chapter One - The Law of Things: Nonhuman Rights in Roman Law


Introduction
The eleventh century saw the first production of scholarly, legal texts that defined an
English system of civil and canon law. This process was aimed at consolidating and
revising Roman laws and integrating them with the customary laws of Indigenous
Britons. This project continued throughout the medieval period and underpinned the
legal frameworks of Britain, its expanding colonial empire, and much of the worlds
legal systems.
12


Yet while many of the legal institutions and instruments developed by the Romans
persisted in English civil law, many other laws that applied to nonhumans did not.
The main English legal texts after the Norman Conquest of 1066, and other related
manuscripts, show that this was particularly true as secularisation developed during
the early Renaissance in Europe.
13
The gradual separation of Church and State and
the rise of positive law saw nonhuman rights (that had been protected under divine
law) and some ethical concepts that underpinned natural law abolished.
14


12
Piioi to the ieuiscoveiy of }ustinian's Coue in Byzantine uuiing the 11
th
Centuiy, English law
ielieu on a mix of the Roman Theouosian Coue compileu between 429-4S8AB, as well as Anglo-
Saxon anu ueimanic customaiy law. Stein, Petei (1999) pp. S2. Siiks, A. }. B., (2uu7).
1S
I iefei mainly to the woiks piouuceu by Biacton anu ulanville, while English manusciipts
fiom the peiiou weie also consistent with this.
14
Positive law is a teim that uesciibes 'man-maue' law, as opposeu to natuial law, which aie laws
alieauy unueistoou to be in existence. See glossaiy foi full uefinitions.

2S

Roman law had made provisions for the various roles and functions of nonhumans in
early Roman society under the so-called law of things. This codification of laws
relating to the nonhuman world included inanimate objects and animals, and was
underpinned by concepts of rights for nonhumans in natural jurisprudence.
15
While
contemporary law is still familiar with the law of things (res) it now relates almost
exclusively to real and personal property. What has been lost from modern
adaptations of Roman law is the right of a thing to stand before the court or to hold
rights of its own.

In contemporary Western law the nonhuman exists in legal frameworks only in
relation to human rights. Importantly, this poses significant problems in contemporary
environmental law whereby a thing cannot be protected in its own right, unless it
can be aligned with human uses or values.
16
Legal mechanisms that maintain a
dependence on human interests in order to uphold the interests of a thing (such as a
rainforest or glacier) struggle to adapt the logic of human interest to the more
remote ecologies of climate geographies, among other concerns. There are no legal
instruments in place that can protect ecologies critical to the global environment in
their own right even given the implications for human societies if these ecological
systems were to fail.

This has been one of the reasons that the question of nonhuman rights, including
rights to stand before the court, has once again emerged as a theme in jurisprudence.
Among others, legal scholars Christopher Stone and Catherine Redgwell have been
interested in new mechanisms that rely on the concept of nonhuman rights. Stone
explores these ideas in a recontextualised sense of natural justice. Redgewell asks
how nonhuman rights might be used to expand and strengthen natural and cultural
heritage laws. Stone and Redgwell both argue for a mechanism that does not rely on
human rights frameworks, but instead establishes the intrinsic rights of nonhumans in
certain contexts.
17
Such concepts of nonhuman rights might provide the basis for
theorising the rights of ecological and earth systems (such as those driving global

1S
}uiispiuuence unueipinning the uevelopment of natuial law (see glossaiy foi uefinitions).
16
Foi example, heiitage laws iest on intei-geneiational iights that piotect the human use of a
natuial oi cultuial site oi iesouice in the futuie.

24
climate) that are more remotely connected to human interests. This would potentially
give environmental law a rights based framework able to protect natural systems
critical to global climate, and address questions of human (and nonhuman)
intergenerational justice.

From this position concerned with environmental protection, early Western law
informs contemporary legal thought by providing evidence of arguments within
jurisprudence, and the development of legal procedures, that included the concept of
nonhuman rights. This chapter interrogates the logic underpinning laws relating to
nonhumans in the main Roman texts through an analysis of legal frameworks and
language. It highlights historical evidence from this period of three important facets I
argue are relevant to contemporary legal theory: a more inclusive and functional
understanding of the law of things; evidence of nonhuman rights in institutional
practices; and evidence of a more integrated concept of humans and nonhumans.

Early Roman Law: An Overview
Roman law dealt with matters of succession (or inheritance), obligations (including
contracts), property (including slaves), and persons. Although the rulings of
magistrates were important, most laws were passed by assemblies dominated by the
patrician families or Roman nobility. Later, Emperors bypassed these forms and
issued their own decrees. As legal frameworks further developed under the early
Roman Imperial era (44 BC to 117AD) the interpretations of individual jurists also
became important in shaping law, and many of the texts compiled towards the fall of
the Empire (395-476 AD) were contributed to, or overseen by, prominent jurists.
18


Over the course of Roman history, from the Republic to the Empire, there were many
phases of legalistic development. Jus civile, or civil law, developed during the period
of the Republic (75331 BC) and was based on custom (unwritten laws) or legislation
(written laws). While civil law applied only to Roman citizens, the expansion of the
Roman Empire gave rise to the other major legal framework inherited by modern

17
Reugwell, Catheiine (1996, 99). Stone, Chiistophei (1972, 2u1u).
18
W. W. Bucklanu, (1921).

2S
Western law - jus gentium, or the law of nations, which applied to matters of justice
involving foreigners.

Roman legal texts were consolidated in two major commissions; the first under
Theodosius II published in 438AD, and later under J ustinian I published in 534AD.
19

Together these major works documented Roman law as it was practiced from the
time of the founding of the city in 753BC until the fall of the Western Empire in the
fifth century AD.
20
They hold a comprehensive and comparative history of Roman
jurisprudence that now forms the basis for the law codes of most countries of
continental Europe and derivative systems elsewhere.
21


The Law of Things
The Roman law of things (res) was divided into the law of property (things in a
restricted sense), the law of succession and the law of obligations.
22
While the law of
things survives today as a cardinal feature of modern civil law, things are
understood as economic assets only, showing a greatly reduced set of principles far
removed from their original jurisprudence. An examination of the Roman law of
things reveals a broader, more complex set of principals, and a logic that sort to
include concepts of nonhuman rights as a mechanism that could be used to protect or
manage broader social interests.

Legal historian William Buckland notes that main classifications used in the Corpus
Juris Civilis groups things according to the rights existing over them. They were
either patrimonio (belonging to someone) or extra-patrimonium, meaning things that
are not in commerce, or are owned commonly.
23
Within the grouping extra-
patrimonium there are the following classifications:




19
Sirks, A. J . B., (2007).
20
However it remained in use in the Eastern, or Byzantine, Empire until 1453. Buckland, W.W. (1921)
pp. 33-41.
21
Roman law also forms the basis of legal frameworks in some countries, such as Germany, that were
never part of the Roman Empire. Ibid
22
http://www.notarypublic.ie/download/Roman%20Law.pdf

26

Table 1. First Categorisation of Res from Justinians Corpus Juris Civilis.
Category Translation
Res communes common property
Res publicae public property
Res universitatis property of a corporation
Res nullius property belonging to no one

Buckland notes that J ustinian also gives a second classification of res below:
Table 2. Second Categorisation of Res from Justinians Corpus Juris Civilis.
Category Examples
res corporales que tangi possunt things which can be touched
for e.g. physical objects.
res incorporales que tangi non possunt - things which cannot be
touched for e.g. abstract conceptions, notional
things and rights.
24


The later categorisations are closer to those definitions given by the pagan jurist Gaius
who, writing circa 161AD, distinguished between things subject to either divine or
human right - further categorised as corporeal and incorporeal things.
25
Buckland
notes of the second classification, above, that res incorporales did not include rights
relating to humans but instead iura in rem, or the rights of things. However, it is the
first system of classification that is more consistently referred to throughout the
Corpus Civilis. While Iura in rem is not referred to directly under this classification, I
argue that the concept of nonhuman rights is established under the various
subcategories of divine law, itself a subcategory of res nullius, as set out below:






2S
Bucklanu, (1921).
24
Ibid, p.187.

27
Table 3. Categories of Res Nullius in Justinians Corpus Civilis
Category Subcategory Examples
res sacrae Things consecrated by priests, like
churches, their contents and sites.
res sanctus The gates and walls of a city.
divini iuris
[divine law]

res religiosae Tombs and burial grounds.
Wild animals humani iuris
(Relates to the
acquisition of things
formerly res nullius)
No subcategories
Abandoned property

The way laws were categorised provides some important insights into the social
structures and cultural logics of the time. In particular, it highlights the conceptual
approaches used in the development of early jurisprudence and their complexity -
challenging the widespread idea that early law was irrational. The following
sections address each category of divini iuris (divine law), from Table 3., and pay
close attention to the ways in which laws under these catagories were applied in
different scenarios.

This comparative analysis develops a detailed study of the roles nonhumans were
understood to have in Roman in society, and how jurisprudence and the law
developed to reflect these roles and their associated rights. This section also builds a
basis for examining how these ideas influenced the establishment of English law,
which is explored further in Chapter Two. Given the remoteness of early law to
contemporary legal logic it is important to focus on the cultural relativity of early law
- on how the law resolved conflicts and managed the social concerns of the time. As
the broad aim of this thesis is to consider how early law might inform contemporary
legal theory, there is a greater focus on material that highlights the conceptual
approaches toward addressing social and political concerns, rather than the concerns
themselves.

2S
Gaius, The Institutes, Book 2.

28
Divine Law
Res Sanctus - City Walls
Res sanctus (sanctioned things) was a principal applied most commonly to the gates
and walls of a city. The fact that these structures were categorised under divine law
and indeed were considered under a separate subcategorypoints to their social and
cultural importance in Roman society. The divisions of space represented by such
structures were integral to a complex range of social functions and understandings
from the defence of a city to more abstract ideas such as the separation of pure and
impure, civilised and uncivilised spaces.
26


The importance of city walls is reinforced by evidence that the punishments for
breaking laws protecting their sanctity were severe. As Buckland has noted, it was
a capital offence to commit any outrage on them and was punishable by death.
27


The Roman jurist Sextus Pomponius described this in detail:

it is an offense punishable with capital punishment to violate city walls, for
example, by moving ladders and climbing over or by any other means. It is
unlawful for Roman citizens to use any other egress than the portals; [gates]
for to do so is a hostile act and an abomination. Indeed the tradition is that
Romuluss brother Remus was slain on the very ground that he tried to climb
out over the city wall.
28


It is highly likely that city walls and gates were protected under law for reasons to do
with security. Yet, their protection under the category of res sanctus poses some
interesting questions: were these structures considered sacred and why: and if so what
did this mean empirically for the security of the city?

Pomponius notions of violation and abomination suggest that the act of climbing city
walls is not just a hostile act pertinent to security concerns, but transgressive in other
ways. The connotations of irreverence and hatred certainly suggest that the wall, or
what it represents, was considered to be altered or defiled by the act. In a different
sense, the Roman Emperor Martian notes that fourth century historian Sabinus gave

26
Sealey, (2006) p.25.
27
Bucklanu (1921) p. 18S.
28
J ustinians Digest Vol. 1.

29
the correct opinion that in the case of municipalities also [as well as the city of Rome]
the walls are sanctified and that there ought to be a prohibition on building onto them
[by which he means using the city wall as the basis for other structures to be built
around or on top of it].
29
The circumstances for this happening ostensibly include the
expansion of the city. This suggests that not only was an act of violation against the
city walls offensive in a wider social sense to the citizens of Rome (as Pomponius
implies), but that the act violated the structure itself which was understood as sacred
in some autonomous sense perhaps even after it had served its purpose.

Evidence in law pre-dating the Roman era may elucidate the conceptual foundations
of res sanctus, as well as the broader social functions of city walls. One example is
found in Athenaion Politeia where Aristotle refers to the trial of animals, stating that:

If a beast of burden or other animal kills someone...let the relatives open actions
at law for homicide... and when the animal has been defeated in the trial, let
them kill it and throw it beyond the borders of the land.
30


Similarly, Plato wrote about the trial of inanimate objects, stating that:

If an inanimate thing deprives a man of life... when the thing has been
defeated in the trial, let it be expelled beyond the borders just as in the case of
animals.
31


These examples show what was a common form of punishment: as legal scholar
Raphael Sealey argues of Platos statement, the defendant was considered polluted by
an act of violence and sentenced to exile from the city.
32
The examples point to the
complex role of borders in upholding social boundaries between law and lawlessness
- and more broadly between concepts of civilisation and wilderness. Moreover,
Sealeys argument points to the role of borders in dividing pure and impure spaces
an act that I suggest has distinct religious underpinnings. This connects structures
acting as borders to the kinds of ideas around sanctity underpinning divine law in
general and res sanctus in particular. Evidence of the different roles city walls had

29
Rules, Book IV.
Su
Sealey (2006) p. 25.
S1
Plato in the Laws, 9.873E874A. in Sealey (2006).

Su
to play in the pre-Roman era but particularly as borders between conflicting ideas
sets the precedent for their specific mention under the Roman law of things. The later
Roman evidence suggests that these historically established functions of city walls
became increasingly important evident in the specific laws dealing with public acts
of violation against them. An expanded understanding developed that included, as
Sabinus suggests, the concept of the city walls being inherently sacred in an
autonomous and representative sense, that warranted protection under res sanctus.

While the evidence shows that the legal principle of res sanctus developed because of
political and cultural ideas to do with social boundaries, the principle itself had a
unique function. It acted as an instrument that could protect the city walls a
nonhuman entity - without relying on laws pertaining to human rights. While the city
walls certainly represented ideas that were important to human society, in practice
these interests were relatively remote. Subject to the principals under res nullius, city
walls were classified as belonging to no one entity or indeed, even a common entity.
Buckland has noted how there are no obvious reasons why the ownership of walls
might not have been regarded as vested in the city.

Therefore, in practice, the law protected city walls in their own right. A lack of
concept of ownership in this particular example is consistent with other objects
protected under divine law (as discussed below) that rationalised the integral rights
and autonomous status of these structures under law.
33
Yet distinct from other
principles under divine law, Res sanctus could be understood as an instrument that
protected important human interests, such as security. If one considers the possibility
that the ultimate purpose of the instrument was to protect human these interests, then
the logic of res sanctus protects these interests by removing all legal recourse to them.

I suggest this forms an important example of how legal instruments that engage with
concepts of nonhuman rights, such as those being considered in contemporary
environmental theory, might be used to protect nonhuman entities. Furthermore,
protecting these entities in their own right, could be central to protecting human

S2
Sealey auus that the idea of pollution is a secondary elaboration upon the primary desire for
retribution (2uu6) p. 2S.
SS
Bucklanu, W. W., (1921) p. 42.

S1
interests. On this basis, I suggest that res sanctus could inform the development of
new legal instruments in environmental law for particular use in the governance of
climate change. Evidence shows that the principal of res sanctus is particularly robust
in situations where the rights of the nonhuman conflict with human interests or
rights (such as the right of passage and building rights). I suggest this is an important
historical precedent in Western law that could also inform the dilemma of either;
protecting nonhuman entities that cannot be directly linked to human interests or
rights under law; or protecting nonhuman entities whose rights or interests conflict
with human rights and interests.
Res Sacrae Sacred Things and Places

While res sanctus shows that structures could maintain independent rights under
Roman law, res sacrae shows not only sites and objects holding rights of their own,
but in many cases these rights taking precedence over human rights. This is
particularly evident when private property rights were overridden. Once a site had
been sanctified it ceased to be in commerce and could no longer be owned, either
privately or collectively. Furthermore, if through sanctification a site became
significant to the public, the owner of the surrounding land was required under law to
provide access.
34


Firstly, it is important to consider the legal guidelines for sanctification under Roman
law. For example the third century Roman jurist Ulpian states that it must be
understood that a public place only becomes a sacred one when the Emperor has
dedicated it or has granted a power of dedicating it. This statement contradicts that
made by Roman Emperor Martian (450457AD) that things sacred must be made so
by an act of the whole people rather than an individual... this would instead make the
thing profane.
35


While these accounts do vary, they both point to res sacrae as a legal instrument that
protects the public use of such sites through the creation of what is effectively a

S4
}ustinianG !"# C0)'('2'#), p. 26
SS
C<(4-


S2
commons. Ulpian adds that sacred places are those which are dedicated to the people
whether within the civitas or in the countryside.
36


Yet, unlike a commons that protects a site as the common property of a select group,
in Book III of The Institutes (Corpus Juris Civilis) an excerpt from Martian refers to
buildings such as churches, consecrated sites and objects as things sacred or religious
or sanctified are no ones property. So while a sacred place might in effect behave
like a commons in terms of public access, divine law provides an instrument that
protects the site from misuse by institutionalising the site as res nullius.

Distinct from the legal concept of terra nullius, or unclaimed land, a sacred site
protected under res nullius is claimed on behalf of no-one as a proxy to absolve
human rights over a site or thing. This is a unique instrument that protects a
nonhuman by separating this right of ownership from the framework of human
rights. Yet as consecration was understood as permanent, and importantly could be
transient across different sites (as referred to below), this instrument both establishes
itself as autonomous, while also being firmly included within the common legal
frameworks used for everyday matters of human society.

It is worthwhile considering the commons as a legal instrument under res nullius in
relation to what later became known by ecologist Garrett Hardin as the tragedy of the
commons. In short, this tragedy was the depletion of a finite common resource by
its collective owners based on each individual acting in self-interest, and without
regard for the sustainability of the resource as a whole. While a commons is often
aligned with ideas of social justice because of equitable access to the resource, there is
no legal instrument in place that protects the resource itself. A comparison between a
sacred site sanctioned under res sacrae as no-ones property, and a site owned
commonly such as grazing lands, shows that while the resource of the two differs
considerably, both allow human access and use of that resource. Yet, only the
instrument under res sacrae has the power to protect the resource itself because it has
effectively established the autonomous rights of that resource.


S6
Edict, Book 68.

SS
Obviously, the Roman concept of divine law is defunct in a modern context. However
the principle of an institutionalised lack of ownership or res nullius could be
extended in useful ways in environmental law. Whether ownership of a site or thing
(or resource) under divine law in its original context could ultimately be seen to rest
in God or not is irrelevant. What is important is that a human institution established
the integral rights of nonhumans under law, while at the same time irrevocably
removing human rights (at least within that society) as a measure to control human
use of a site or thing. Given the historically close relationship between religion and
politics, the obligations of the Roman state to preserve sanctified sites or objects was
likely coupled with a political pragmatism. It seems likely then that this relationship
was in part at least, the mobilisation of religious beliefs in upholding the pragmatic
functions of this clever and highly effective legal instrument.

One of the most interesting principals of res sacrae is that the agency of a sacred
object or building to remove property rights remains even once the object or building
has been removed. For example, Martian states that once a building is consecrated
even if it is destroyed, the site on which it stood remains sacred.
37
This suggests that
ideas of sacredness were conceived in both the building/object and its space.
Sacredness was understood as an entity in itself that maintained ownership.

In terms of environmental law and climate change, Pomponius (Readings, Book 2)
statements on public property are an interesting comparison here. Pomponius stated
that just as a building erected in the sea becomes private property, so too one which
has been overrun by the sea becomes public property. This shows a complicated
understanding of what constitutes ownership and property rights. While an area of the
sea cannot be privately owned, a space can be erected and claimed above it. Yet the
sea, as public property, can reclaim private land on shore. This fluid notion of
ownership and the transience of public and private space contrasts starkly to the
comparative permanence of a sites status as res nullius under the legal instruments of
res sacrae.


S7
}ustinianG !"# C0)'('2'#), p. S6.


S4
In another example, there is a distinction made between a sacred place and a
sacrarium, where sacred objects are housed. A sacrarium can be created even on
privately owned land and to those who wish to free such a place from its religious tie
do so customarily by evocation of the sacred things there from.
38
Therefore, the
rights effectively rest with the objects themselves that have the power vested in them
to remove the property rights held over whichever piece of land they are housed. The
fact that this right is understood to be transient only increases the objects agency.
Most importantly, the right is an inherent right what might be understood as a
natural right independent of the dedication of an Emperor or other public
dedication.

Ulpian offers a third distinction stating that things need not be either sacred or
profane (as Martian suggests), but only confirmed by some sort of sanction even
though it be not consecrated to a god, as is the case with city walls.
39
Importantly
Ulpian adds that a sacred thing is not subject to pecuniary valuation. Similar to
sacred sites, sacred objects are outside commerce and therefore inconsistent with
other categories under the law of things that deal with things or sites in monetary
terms.

Res Religiosae Tombs, Funerals and Burial Grounds.

The third subcategory of divini iuris is res religiosae, or laws presiding over tombs,
funeral processions and burial grounds. Similar to the sanctification of land or objects
under res sacrae, a burial rendered a site res nullius. Burial rights were complex and
took precedence over other laws, again overriding public and private property laws.
Furthermore, the Twelve Tables of Roman law (Law XVII, Table X) states that No
one can acquire by usucaption [a method by which ownership of property can be
gained by lapse of time] either the vestibule or approach to a tomb, or the tomb itself.
This means that as was the case with sacred sites under res sacrae the site was
permanently removed from any future commerce.


S8
J ustinians Digest, Vol. 1, p. 26.
S9
Ibid p. 26.

SS
Corpses also held special rights of passage. For example, people were restricted by
the provincial governor from obstructing the transport of a body in any way.
40
The
second century Roman jurist Papinian refers to both the burial and transport of
corpses in the following statement:

There are persons who, although they cannot make a place religious,
nevertheless are entitled to seek an interdict concerning the carrying of a dead
man for burial there, for example, if the holder of the title carries or wishes to
carry a dead man for burial to a farm whose fruits belong to someone else. If
he is prevented, he is entitled to seek an interdict, as a result of which there
will be an inquiry into the rights of ownership. The same applies to a partner
who wants to carry a dead man for burial to a common farm against the wishes
of the other partner. For in the public interest, in order that corpses should not
lie unburied, we ignore the strict principle, which is quite often left out of
account in doubtful religious disputes, because the highest principle of all is
that which serves the interests of religion.
41


While there are public health concerns here, it is important to note that the pragmatic
and political uses of divine law also means that religious principle took precedence
over conflicting interests such as property disputes. A corpse, like an object under res
sacrae, could also be moved for a number of reasons creating a dilemma of how to
zone the land it had previously occupied.
42
J ustinians Digest states that the better
view is that a cenotaph [an empty tomb] also is a religious place, Virgil being a
witness to this point.
43
Of note here is the similar logic that underpins res sacrae,
whereby the site of a consecrated building remained under res sacrae even if the
building had been removed.

All these examples raise questions around what appears to have been shifting ideas of
divinity operating across transient spaces. While I have suggested that sacredness
was understood as an entity in itself that could effectively own a site under law, as
an entity it also touched and remained in the objects and sites in which it was

40
Ulpian, All Seats of Judgment, Book 9.
For example, Marcian, Institutes, book 3 states that corpses that were lawfully buried are not to be
disturbed or transported, although it may be possible to move the sarcophagus itself to a more suitable
place.
41
J ustinians Digest, Questions, Book 8.
42
It shoulu be noteu that this was only the case aftei a foimal buiial hau occuiieu ostensibly
uepenuent on conseciation of the coipse. Questions, Book 3. of the Corpis Juris Civilis states that a
corpse that is placed somewhere intending to transfer it elsewhere later means that the place remains
profane and does not take on the consecrated nature of the place of a lawful burial.

S6
invested. However the inconsistencies between practices, while quite possibly
bureaucratic, also suggest the existence of a hierarchy of cultural importance that
connects these various sites and objects. This raises the question of whether the
corpse, the ritual or the site takes precedence over the other in rendering another, or
remaining itself sacred. Furthermore, this inconsistency suggests that sanctity is a
legal entity that can shift inside this hierarchy of sites and objects giving and taking
away a things rights under divini iuris.

A comparison with a modern context is useful here. Clause 9 of the 1847 British
Cemeteries Causes Act (1847) states that:

the company shall not sell or dispose of any land which shall have been
consecrated or used for the burial of the dead, or make use of such land for
any purpose except such as shall be authorised by this or the special Act, or
any Act incorporated therewith (and) the company shall define by suitable
marks the consecrated and unconsecrated portions of the cemetery (Clause
24).

While ideas of sacredness are still evident in modern secular law, the removal of
bodies and de-consecration of land can return it to public or private use. Thus in the
modern context, sacredness is not considered to permanently remain in a site once it
has been consecrated and consecration is understood as performed by a priest rather
than the corpse itself. In its most practical form sacredness is simply attributed to a
site, or not, as a matter of town planning. Yet it does highlight how in modern law
concepts of divine law were indeed used for diplomatic and social reasons.

The fact that corpses were categorised under res nullius is intriguing. In death, a
human body becomes nonhuman or a thing (res). This has remained the case in
modern Western law. Legally, we do not own our bodies. They remain technically
nonhuman or no-ones thing. Medical ethicist Donna Dickenson suggests that the
historical precedent of this legal categorisation of the human body under res nullius
developed because human tissue had no commercial value attached to it and so the
issue simply did not arise. With recent advances in medicine this is no longer the case
and if we lose a limb or if an organ is taken from our bodies, Dickenson points out

4S
p. 25.

S7
that it is in fact not ours under law because of its technical lack of ownership under
res nullius.
44


Still, in death, a corpse is not completely disconnected from human frameworks. As
noted previously, corpses and sacred objects had their own power under Roman law
that established a site as sacred and they maintained this status even after they had
been exhumed or moved. Interestingly, Ulpian extends this same law to slaves. He
states that a place where a slave is buried is religious, highlighting a consistency of
legal interpretation across class groups.
45


Yet this interpretation is by no means consistent. For example, J ustinian notes in his
Digest that the body of no dead slave shall be anointed; nor shall any drinking take
place at his funeral, nor a banquet of any kind be instituted in his honor.
46
So too,
there were particular honours reserved, and represented by wreaths, that can appear
not to have applied to slaves:

Anyone who has rendered himself deserving of a wreath, as the reward of
bravery in war, or through his having been the victor in public contests or
games, whether he has obtained it through his own exertions or by means of
others in his own name, and by his own money, through his horses, or his
slaves, shall have a right to have the said wreath placed upon his dead body, or
upon that of any of his ascendants, as long as the corpse is at his home, as well
as when it is borne away; so that, during his obsequies, he may enjoy the
honor which in his lifetime he acquired by his bravery or his good fortune.
47




44
BBC 4, 28
th
Sept 2u1u, H*D#0B) I*2%-
4S
Ulpian Book 25.
46
The Tables are understood to have been written primarily for the plebian or lower classes so that
they would have knowledge of laws previously known exclusively within the patrician class.
47
Twelve Tables, Law XIII, Table X.
Table X of theTwelve Tables, which refers to funeral rites more generally, makes similar restrictions
without reference to slaves in particular through the following laws:

No wine flavored with myrrh, or any other precious beverage shall be poured upon a corpse
while it is burning; nor shall the funeral pile be sprinkled with wine (Law XI).
Large wreaths shall not be borne at a funeral; nor shall perfumes be burned on the altars (Law
XII).

S8
Legal matters relating to slaves fell under the law of things because slaves were
considered patrimonio, or property belonging to someone and having a monetary
value.
48
Therefore slaves were not considered strictly human in this legal context.
For example, while male and female slaves were dealt with equally in burial (which
was not the case with freemen), funeral expenses were incurred by their owners under
similar guidelines to the burial of animals.
49
Yet despite these inconsistencies in
practice, it is clear that in death a human corpse attained some level of equality under
the classification of res while still maintaining a connection to human frameworks
such as class.

In another example from J ustinians Digest Ulpian states that anyone who spends
something on a funeral is held to contract with the deceased, not with the heir.
50

While a corpse as a nonhuman thing under res nullius is clearly not able to enter into
an exchange, this example shows that a deceased (freeman) can still symbolically
participate in a commercial transaction.

This particular law suggests that divine law was exercised to restrict human rights for
diplomatic purposes. In this case res nullius prevented access to the deceased persons
estate for the reimbursement of funeral expenses. The important point to note here is
that all these examples around funerary practices all extend the definition of res
nullius and show how classifications of humans and nonhumans were at once flexible,
yet in many ways closely connected.

The transformation of funeral expenses offers further insights here. Early twentieth
century Roman scholar and translator Samuel P. Scott suggested that the "Long
Coron" or large wreaths:
would seem to refer to garlands of excessive size, exhibited by way of
pomp and ostentation at the celebration of funeral rites. The greater part of the
legislation of this Table was evidently framed for the correction of the
inordinate display of wealth and luxury already becoming prevalent at the

48
Bucklanu, p.182.
49
Ulpian, Edict, book 25, and Papian, Replies, book 3.
However, free women had some particular laws pertaining to funeral expenses. The laws governing the
burial of women were common to other property laws in that the expenses came from her dowry where
possible, the onus lying with whichever of her husband or father had received the greater sum from her
dowry after death, as per the agreements made when her husband received the dowry.
Su
Ibid.

S9
burial of the dead.
51

The legal concern with ostentatious funerary practices was long standing. In 177 BC
the Greek philosopher Celsus stated:
one ought not to bury ornaments and such like with the body, as the
uneducated do. This action, called the action for funeral expenses, is based on
considerations of justice and fairness. It only covers expenses for the sake of
the funeral.
52


In both these examples a law under res religiosae is used to restrict cultural practices
and religious ceremony. Although these restrictions were about the conservation of
wealth, it is important to consider how they were connected to social values, rather
than religious practices. Indeed, examples of these laws relating to funeral expenses
seem to dismiss many religious practices altogether. For example Law XV Table X
discourages the use of precious beverages or the burying of precious ornaments that
formed part of many Christian and pre-Christian burial ceremonies. It also states that:
Gold, no matter in what form it may be present, shall, by all means, be
removed from the corpse at the time of the funeral; but if anyone's teeth
should be fastened with gold, it shall be lawful either to burn, or to bury it
with the body.
The social and cultural value placed on both precious objects and austerity in funeral
rites often took precedence over religious ceremonial funerary practices. In effect,
divine law had many pragmatic uses that could be quite separate from religious
concerns. Although there was some inconsistency over different time periods, Roman
attitudes as expressed through legal concepts of reverence towards the dead and the
agency of corpses suggest that a hierarchy of nonhumans operated and that this
hierarchy was understood in wider Roman society.

Conclusion
This chapter has investigated three aspects of Roman law that highlight how Roman
society had a more inclusive understanding of nonhuman participation in the social
and cultural aspects of everyday life. It has focused on how modern interpretations of
Roman law have generally ignored evidence of a more inclusive and functional
understanding of the law of things. This chapter has also drawn upon evidence in

S1
Law XI, Table X.

4u
Roman law of nonhuman rights operating at an institution level and shown how there
is an important body of evidence that suggests at the root of modern Western law
there was once a series of legal frameworks that had a more integrated social
understanding of the nonhuman.

This understanding of nonhuman participation in the social and cultural was
represented in a number of ways; from strategic law making that addressed
governmental concerns, to the logic underpinning categorisations of res nullius, to
specific interpretations under divine law. These examples show a sophisticated
understanding of the need to separate human and nonhuman rights in order to manage
important natural and cultural sites and resources. Certain laws under res sanctus
suggest that a lack of formal ownership under res nullius could effectively create
autonomous rights for nonhumans. Specifically, some important examples relate to
how city walls and gates had the inherent power to negotiate human use and interests.
As instruments under res sanctus could protect something nonhuman, without relying
on human rights, I suggest this legal concept forms an important historical precedent
that could have significant implications for contemporary resource management.

The fact that rights under res sanctus are separate in law from human rights, yet still
able to negotiate human use, suggests its value as a concept that might contribute to
contemporary environmental concerns particularly current problems associated with
trans-boundary resources and the global commons. The Roman legal concept of
sanctum was a self reflexive legal instrument that not only fully recognised the logical
inclusion of nonhuman rights within the legal framework, but formed an entity that
defended and secured nonhuman rights from human interests. As Martian stated in
Rules, Book 4, whatever has been defended and secured against human mischief is
sanctified (sanctum).
53


Laws under res sacrae show evidence of sites and objects not only holding rights of
their own but in many cases these rights take precedence over human rights. A sacred
site protected under res sacrae was claimed on behalf of no-one as a proxy to
absolve human rights over a site or thing. This unique instrument protected a

S2
The True Word, (c. 177BC).

41
nonhuman by separating this right of ownership apart from the framework of human
rights.

Yet as consecration was understood as permanent and importantly, could be
transient across different sites as I will discuss below this instrument both
established an autonomy yet remained firmly included within the common legal
frameworks used for everyday matters of human society. While a sacred place might
behave like a commons in terms of public access, divine law provided an instrument
that protected the site from misuse by institutionalising the site as res nullius.

Finally, legal instruments under res religiosae mirror these principles. As was the
case with sacred sites, under res sacrae the site itself was permanently removed from
any future commerce.
54
It appears, particularly in the precedence of burial rights, that
sacredness was understood as an entity in itself that could effectively own a site
under law. It was also understood to touch and remain in the objects and sites in
which it was invested. This suggests a complex hierarchy of cultural importance
existed that connected these various sites and objects and positioned the instrument as
adaptive over time to social needs. The idea of sanctity as a legal entity shifted
along this hierarchy of sites and objects giving and taking away a things rights
under divini iuris.

Under res religiosae laws relating to funeral expenses show that nonhumans could be
under res nullius, while also remaining connected to human law or social
frameworks, such as class. In this case, the shaping of cultural practices even the
effective censoring of some religious ceremonies for the more magnanimous
purposes of conserving precious resources, controlling crowds and influencing public
behavior was related to both the human and the nonhuman.




SS
C<(4-
S4
The Twelve Tables refers to the ancient legislation that formed the basis of the law of the early
Roman Republic.

42


Chapter Two: The Right to Stand? Nonhumans in Early Legal
Procedure


Introduction
Standing or locus standi, is the legal term for the ability of a party to go before a
court, show sufficient connection to the law and bring proceedings or participate in a
case.
55
In Roman times, nonhumans such as objects or animals had the right of
standing and could be tried in a court of law for various crimes. It was most common
for nonhumans to stand as defendants in the event of their participation in some kind
of physical injury or death to the plaintiff.

Historian Darren Oldridge has noted that the careful and highly technical arguments
of the lawyers involved, along with the meticulous efforts of all concerned to ensure
the observance of due process, suggest that animal trials were not driven by
hysteria.
56
Importantly, it appears that a nonhumans right to stand did not represent a
belief that animals or objects could somehow knowingly participate in crimes. For
example thirteenth century Italian philosopher and theologian Thomas Aquinas
argued in Summa Theologica that animals themselves cannot be thought of as
responsible for their involvement in crimes.


SS
Black (1995).
56
Oldridge (2005) p. 42.

4S
Historians and legal scholars have debated the various functions and intent of
nonhuman standing before courts of law. Legal scholar Raphael Sealey has noted that
Roman trials were often an important diplomatic gesture of retribution and a
secondary consideration served to banish objects from social spaces that were
considered polluted by acts of violence. Importantly, all of the functions of nonhuman
standing are understood by Sealey to be symbolic in nature.
57


However these functions of retribution and diplomacy also indicate complex social
mechanisms at work. Indeed, legal scholar Walter Hyde suggests nonhuman standing
before the court was made possible because historically there was some
acknowledgement of the participation of the nonhuman in the broader moral fabric of
society.
58


The trial and punishment of nonhumans should not be seen as part of a pre-modern
ignorance of Enlightenment scientific and rational thought. Such a teleological view
discounts the logic at work in early legal philosophy a logic that was radically
different to post-Enlightenment thinking. The historical legal procedures of locus
standi are an important case in point here. They corroborate examples from chapter
one of the widespread rationale operating in pre-modern Europe that assumed a
greater inclusion of nonhumans in ideas of the social.

In chapter one I suggested that legal instruments under res nullius relied on the
autonomous rights of nonhumans to achieve various social and cultural aims. This
chapter interrogates nonhuman standing before the court by comparing cases
involving nonhuman defendants with the establishment of procedure in early English
law. The legal procedures examined here show how nonhuman rights might
translate empirically in early legal trials. The procedures will be examined based on
the direct trial and punishment of nonhumans under such areas of law as the Roman
laws relating to pauperies (damage caused by animals) as well as the symbolic use of
nonhuman objects in customary procedures.


57
Sealey (2006) p. 36
58
Hyde, (1916) p. 54.

44
I also examine the transitions between the practice of Roman law and the
establishment of English law in the twelfth century. The lack of evidence of a
continuation of laws and procedures relating to nonhumans in English law points to a
dramatic shift in the understanding (or lack of understanding) of nonhuman rights that
underpinned the development of modern law. Historiographies suggest that as early as
the twelfth century nonhuman rights and standing were effectively written out of
English legal procedure (although some ideas remained in jurisprudence, for example
Bractons The Laws and Customs of England).

While this effacement was indeed quite sudden and widespread in terms of the
continuity of legal texts and historical evidence, the point must be made that, given
the long history of nonhuman standing, it is probable that forms of nonhuman rights
continued in oral based customary law practices in England. If this was the case, it
would have been a practice consistent with other countries such as France, Italy and
Germany. The trial and punishment of nonhumans was in fact a widespread practice
across Europe from Ancient Greece, to the establishment of Roman law, and
examples occurred occasionally into the late seventeenth century.
59


Roman legal procedure still forms the basis for modern procedure in civil-law
countries. While many of the Roman laws discussed here are no longer in use, a
review of due process in cases involving nonhumans is important because it
provides a precedent in Western law for the procedures followed around nonhuman
rights discussed in chapter one. Furthermore, a review of due process in relation to
nonhuman standing sheds light on the practicalities of institutional procedures that
allowed the inclusion of these rights in legal frameworks.

I suggest this historical process provides some important considerations for and
connections with current dilemmas of nonhuman standing in contemporary
environmental legal theory. In particular, the historical contexts of due process serve

S9
Darren Oldridge notes for example that customary law in France, Italy and Germany permitted such
trials and the cases were recorded in Handbooks on customary law, or customals . Oldridge adds
that thirteenth century French jurist Philippe de Beaumanoir was the author of one of the earliest
customals to mention the practice. p.44.


4S
as an example of the practical possibilities of nonhuman rights, standing and the
associated institutional practices of resource management.

Pauperies Four-footed Animals
One of the instances in which a nonhuman had standing before the court under
Roman law was if a four-footed animal [was] alleged to have committed pauperies.
The sixth century Corpus Juris Civilis described pauperies as the damage done
without legal wrong on the part of the doer, adding that an animal is incapable of
committing a legal wrong because it is devoid of reasoning.
60
Furthermore, J ustinian
states that the action is available as an actio utilis if it is not a four-footed animal, but
some other kind, which committed pauperies. This radically expands the right of
standing by including all kinds of animals, regardless of circumstances.
61


By the Roman period, pauperies were already a well-established legal concept.
Oldridge notes that in the biblical text Exodus God tells Moses that if an ox gore a
man or a woman that they die, the ox shall be surely stoned and his flesh not eaten.
62

The Greek philosopher Aristotle referred to the trial of animals in Athenaion Politeia
(athenion politia):

If a beast of burden or other animal kills someonelet the relatives open
actions at law for homicide and when the animal has been defeated in the
trial, let them kill it and throw it beyond the borders of the land.
63


Legal historian Samuel Scott noted that pauperies:

was the origin of the proceedings growing out of noxa, an injurious or
unlawful act committed by an animal, a slave, or a child under paternal
control, for which the owner, master, or parent was held responsible.
Whatever caused the damage was held to be primarily liable, under the rule,
"omnes noxales actiones caput sequntur"; hence the injured party had a right

60
Ibid, p. 276.
61
J ustinians Digest, Volume 1, Book nine.
The definition of actio utilis taken from The Institutes of Roman Law (2002, Rudloph Sohm, et al. p.
181) is an action with a modified intention. It is opposed to the actio directa, in which the intentio
appears in its original form, the form namely on which the intentio of the actio utilis is modeled.
62
Oldridge p. 44.
63
Sealey (2006) p. 25.

46
to seize the offending animal or slave, and hold it as security until his claim
was satisfied.
64


Scott noted that the emphasis on the primary responsibility of the offender was
remedied by the Lex Aquilia, thought to have been enacted in 286 BC. In this law, the
responsibility was instead placed on the owner. For example, Law I, Table VII of the
Twelve Tables (concerning crimes) states that:

If a quadruped causes injury to anyone, let the owner tender him the estimated
amount of the damage; and if he is unwilling to accept it, the owner shall, by
way of reparation, surrender the animal that caused the injury.


In another example from the Digest it was pronounced that if an animal was in the
care of a person and the act connected to negligence, then proceedings should instead
be brought against the person for wrongful damage:

if an animal should upset its load onto someone because of the roughness of
the ground or a mule drivers negligence or because it was overloaded, this
action [pauperies] will not lie and proceedings should be brought [against the
person] for wrongful damage.
65


However, despite this shift in responsibility to the human, the earlier concept that the
nonhuman itself could be accountable continued to appear in customary and civil law
in Europe until the seventeenth century. The persistence of this concept, rather than its
disappearance, demands further investigation.

Roman laws about pauperies show a number of circumstantial distinctions that
determine an animals level of accountability. These include the animals relationship
with other parties involved in the incident, and interestingly, great emphasis is placed
on perceptions of the animals wildness.

For example J ustinian stated that if a dog breaks loose on account of its wildness
the person who had the dog on the lead will be liable. J ustinian also refered to the
jurist Alfenus who states that:


64
(1932), Vol. II, p. 67.

47
when a groom was leading a horse into the yard of an inn, it sniffed at a mule.
The mule kicked out and broke the grooms leg. An opinion was sought as to
whether the owner of the mule could be sued on the ground that his mule had
committed pauperies. I answered: Yes.
66


These examples show a familiar logic not unlike many contemporary laws relating to
pauperies. However despite the fact that throughout early legal philosophy animals
are not thought to have been legally responsible for their actions, there are many early
references in which wildness itself seems to be held accountable as something
connected to, but not necessarily inherent in domestic animals. For example,
J ustinians Digest notes that the action lies when a four-footed animal does harm
because its wild nature has been excited, for example, when a horse given to kicking
actually kicks someone. This makes a subtle distinction that allows the horse itself to
be held accountable. The Digest continues:

the general rule is that this action lies whenever an animal commits
pauperies when moved by some wildness contrary to the nature of its kind.
Therefore if a horse kicks out because it is upset by pain the action will not
lie but if the horse kicked someone who was stroking it or someone who
was patting it, this action will be available.

So while it is acknowledged that an animal cant be held responsible for its actions,
and that in this example the horse has a wild nature that is accounted for with some
leniency under the law, the horse is still subject to this action when it exhibits
wildness contrary to the nature of its kind.

This logic depends on a subjective understanding of a horses nature. Additionally,
the wildness contrary to nature is ultimately defined against the logic of human
reactions. The possibility that a horses behavior may be underpinned by a logic that
extends and is separate to human logic is not considered. Thus a certain type of
wildness that which isnt understood within human frameworks is itself
accountable, as though the horse was possessed by something unnatural. The animal
is at once anthropomorphised, yet cast out of human frameworks when it exhibits
nonhuman qualities.


65
Ibid, p. 32.

48
Animals were also liable for acts committed through a third person or object. Again,
J ustinians Digest pronounced that:

The pauperies action lies regardless of whether the animal commits pauperies
by means of its own body or by means of some other thing with which it came
into contact as for example of an ox rushes someone with a cart or overturns
something on him.
67


It was also the case that if one animal provokes another into doing damage, action
must be brought on account of the one which did the provoking.
68


It should be noted that these examples refer to domesticated animals, which may
explain their high level of accountability within the moral codes of human society. By
contrast, the wildness considered unnatural and uncharacteristic in domesticated
animals was thought an acceptable part of an animals nature if it was seen as truly
wild.

For example, J ustinians Digest states that the action:

does not lie in the case of beasts which are wild by nature: therefore, if a
bear breaks loose and so causes harm, its former owners cannot be sued
because he ceased to be an owner as soon as the wild animal escaped.
Accordingly, if I kill the bear, the corpse is mine.

Here the wild animal, once returned to the wild, is ostensibly outside the moral fabric
of society and is therefore effectively outlawed free from any obligations under
law. Unlike a domesticated animal, the actions of a wild animal do not make its
captors liable under the pauperies action, unless the animal is contained. Therefore,
compared to the distinctions made around domesticated animals, this shows that the
presence of wildness itself absolved the captor of any legal responsibilities.

Later examples found in the laws of the Lombards, a Germanic tribe who ruled a
Kingdom in Italy from 568 to 774, show similar ideas relating to the hunting of wild
animals. Law 309. on wild animals states that:

66
Digest, Book 2.
67
p. 276.
68
Ibid.

49

If a wild animal has been hit by one man and in its agony it kills another man
or does other damage, then he who struck it shall pay composition for the
death or for the damage according to this provision, namely, that the liability
of the hunter shall be recognized to last so long as he or his dogs follow the
animal. But if he has abandoned the animal and has turned away from it, and
afterwards the animal causes some damage, nothing shall be required from
him who struck or incited the beast.
69


This is consistent with the Roman paupery laws relating to domestic animals.
Similarly, Law 310. on traps, states that if a wild animal caught in a trap or in a cage
causes damage to some man or domestic animal, he who set the trap shall pay the
composition again showing a continuity of practice in holding the person connected
with the event responsible.

However, the laws of the Lombards also make provisions for animals that have gone
mad, which show some similarities to Roman concepts of wildness. Law 324. on
mad dogs or other animals states that:
If a dog or horse or any other animal goes mad and does damage to man or
beast, nothing shall be required from its owner. And from him who kills such
an animal, likewise nothing shall be required.
70


This follows Law 323. on madmen which states that:

If a man, because of his weighty sins, goes mau oi becomes possesseu anu uoes
uamage to man oi beast, nothing shall be iequiieu of his heiis. If the mauman is
killeu, likewise nothing will be iequiieu, pioviueu, howevei, that he not be killeu
without cause.
71


These examples show that mauness, like Roman concepts of wiluness, woikeu to iesolve
those otheiwise iesponsible foi the peison oi animal of any legal iesponsibility.
Noieovei, the Lombaiu laws infei that something else is iesponsible foi the actions of a
mauman oi animal: eithei theii foimei self who because of theii 'weighty sins' is
alieauy being punisheu by mauness oi possession; oi alteinately, the inteivening 'spiiit'
that inflicteu the mauness oi now possesses the mauman. The law goes fuithei to state
that killing the mau animal oi peison with just cause (such as self uefence) woulu iesult
in no legal iepeicussions. Both these aspects of the laws suggest that the mau animal oi

69
The Lombard Laws Katherine Fischer Drew 1973 (trans. and introduction) Foreward by Edward
Peters. University of Pennsylvania Press, Philadelphia
70
Ibid.
71
Ibid.

Su
peison was possitioneu as incapable of 'civil behavioui', anu in some ways existeu
outsiue the law.

These examples corroborate the marked divisions between civilisation and wilderness
reflected in other areas of the law. But they also point to how animals were defined as
social actors. Animals were either morally connected or disconnected from civil
society based on their tendencies to behave in civil or uncivil ways. Distinctions
around madness and wildness establish both as qualities in their own right, much as
sacredness was conceived.

Moreover, laws making provisions for madness and wildness highlight the moral
participation of domestic animals in Roman society (who can be held accountable for
acts of wildness outside their nature). If wildness outlaws an animal both as an
uncharacteristic quality observed in a domestic animal such as a horse, as well as its
outright manifestation in a wild animal then in turn was it a domesticated animals
ability to live within certain cultural codes of behaviour that included them in law?

Animals were also subject to actions brought for acts against one another. For
example:

[if] two rams and two bulls fight and one kills the other, [Roman legal
authority] Quintus Mucius draws the distinctions that if it was the aggressor
which is killed, no action lies, but if it is the one which did not start the fight,
the action is available, on which account the owner of the beast must either
pay for the mischief or surrender his animal noxally [ie; to hand over the live
animal].
72


Interestingly, this action exhibits the same principles that underpin the distinction
between murder and manslaughter. These laws, with their provisions for self-defense,
show a consistency of logic in the application of law to both human and nonhuman
defendants.


72
7(A#)' pp. 276-277.

S1
While the animals in the case cited above are brought under law in their status as
property, other examples show an accountability that lay with the animal that was the
aggressor, rather then its owner:

liability for damage attaches to the physical corpus which caused the
damage even in the case of animals, this action lies not against the owner of
the beast at the time the damage was caused, but against whoever owns it
when action is brought. Clearly, therefore, if the animal dies before joinder of
issue, the right of action dies with it.
73


The idea that legal recourse lies with the corpse and cannot be pursued against the
animals former owner is consistent with previously cited cases of funeral expenses
held in contract with the deceased. The animal in this case assumes a legal status in
death, connected with certain actions. Again, a similar logic underpins laws relating to
both humans and nonhumans.

These cases all show how animals have some form of independent recourse to the
law. Evidence of this right to stand suggests that nonhumans were intricately
connected to the everyday lives of humans they were considered important,
independent social participants. The fact that some laws pertaining to animals and
humans followed a similar procedure highlights a substitutive logic at work in
jurisprudence at the time. Yet importantly, the pragmatic legal frameworks of Roman
pauperies made provisions for a much broader concept of citizenship under law. It
was an approach to jurisprudence that sought to reflect everyday life in a way that
recognised a greater number of participants, both human and nonhuman.

Substitution in Roman Law
The trial and punishment of an inanimate object seems an outmoded, almost non-
sensical procedure by contemporary standards. However this should not be simply
dismissed as a pre-rational concept as it holds interesting information about how an
object was understood to have some connection with, and agency in, any human
action. Under Roman law, nonhumans involved in a criminal incident could stand

7S
Ibid.

S2
before the court in the absence of a human defendant. The trial of inanimate objects
highlights a substitutive logic that operated during this period.

Prominent cases under Roman law include the trial of a murder weapon, such as a
dagger, after the authorities had failed to apprehend the murderer. Animals also
received retributive style punishments for less serious crimes. Table VII, Law XIII of
The Twelve Tables stated that:
If anyone knowingly and maliciously kills a freeman, he shall be guilty of a
capital crime. If he kills him by accident, without malice and unintentionally,
let him substitute a ram to be sacrificed publicly by way of expiation for the
homicide of the deceased, and for the purpose of appeasing the children of the
latter.

Similarly, Plato wrote about the trial of inanimate objects:

If an inanimate thing deprives a man of life when the thing has been defeated
in the trial, let it be expelled beyond the borders just as in the case of animals.
74


As suggested, the logic of substitution in early jurisprudence reflects a different, more
integrated understanding of nonhumans. It also reveals a number of interesting legal
ideas that relate to the social structures of Roman society. Firstly, substitution allows
certain retributive and symbolic procedures, which scholars such as Sealey have
argued had important social functions, to be carried out even in the absence of a
human. They had a perceived purifying effect over a social actor or space that was
considered polluted by certain crimes. When a murder weapon was expelled beyond
the city walls it was in itself symbolic of the polluted matter that was the byproduct
of the crime. This still achieved without a human agent the symbolic purification
of the social space, which is, as Sealey has suggested, the most important social
outcome. Again, the divisions of space discussed regarding city walls place them as
borders between the civil and the wild.

I suggest these trials and punishments of nonhumans should be considered in the way
they may reflect totemic or animistic beliefs. While there are clear distinctions made
between humans and nonhumans, this kind of substitution still suggests an internal
and intangible connection was understood between social actors. Cultural theorist

SS
Stephen Muecke describes totemism as a moral and material continuity running
between humans and nonhumans. Muecke suggests that animism:

attributes nonhumans with the same interiority as humans, but they are
physically different. This more anthropomorphic category sees a person in a
relation to a plant or animal as if that thing were animated by the same spirit.
The metonymy of a voodoo doll is an example.
75


Walter Hyde points to the moral continuity of these cases, but the substitutive roles of
nonhumans also show a material continuity between the two defendants. These two
animistic pathways not only connect the object to its human partner but to the broader
fabric of society. Despite what symbolic function the trials of inanimate objects may
have performed, the fact remains that a human and a nonhuman were interchangeable
in a court of law for an act they were seen as united in performing. Either could be
held accountable because, consistent with animistic beliefs, they were made of the
same internal stuff the shared essence Muecke refers to.

Murder weapons were seen as polluted by the act of murder, but more importantly,
they continued to be polluted after the act had occurred specifically because of this
shared interiority with broader society. The weapon was exiled because until it
resided outside the city walls it remained a contiguous and participatory social actor
capable of polluting others.

Towards Due Process: Analysis of Roman Procedure
Roman law was shaped in response to many historical events and cultural
understandings that are unfamiliar to us today. Yet these laws still warrant close
examination. They were the first significant legal frameworks developed in the West
and through them we see that the establishment of Western law began with simple
ideas to do with providing justice and resolving problems. As such, early law forms
an important body of material that highlights the interactions of everyday life in
societies whose histories continue to inform contemporary life, law and politics.


74
Sealey (2006), p. 43.
75
Muecke (2008) p. 38.

S4
The fact that jurisprudence was, in its early state, less formal in its procedures also
suggests an accessibility to the law that may go some way towards explaining its
empirical inclusivity. While early customary law from the Middle Ages remains the
best example of this, it is also apparent in Roman times. For example, in the early
Republic:
the plaintiff was required to call the defendant to court or to bring him by
force. A magistrate then decided whether the case should go before a judex, or
prominent layman. The judex heard arguments from advocates and questioned
witnesses; he made a decision but had no power to execute it.
76


While this practice was centrally goverened within the Republic, it still exhibits a
high level of local community involvement. Compare this to the later Republic in
which:
much greater power was placed in the hands of the magistrates and courts:
the summons was issued by the court, the trial was held only before a
magistrate, and the court became responsible for the execution of the
sentence.
77


Evidence shows that as law and procedure became more complex over time, the
formalisation of legal procedures and the centralisation of legal power resulted in a
loss of accessibility; both community access to the law, and consequently, I suggest
the laws access to everyday representations of society. It is this close representation
of the everyday in early law that I argue underpins the greater inclusion of nonhuman
interests in early law. Not only do the concerns of the everyday typify the more
democratically practiced legal procedures of the early Republic, but these laws sought
to methodically represent the everyday as a matter of due process. This methodical
approach, exemplifies premodern understandings of human/nonhuman domains and
their inter-relations.


As I have argued, many aspects of the representation of nonhumans in Roman legal
frameworks could inform contemporary legal theory particularly the use of
nonhuman rights as legal instruments for diplomatic and other purposes. I suggest that
forms of nonhuman representation in early law also present a comparison with aspects

76
Bucklanu, W. W., (1921), p. 1S.
77
C<(4-

SS
of posthumanist theory. Theorists such as Bruno Latour and J ane Bennett certainly
engage with legal concepts, historical and other, in discussing the role of nonhumans
in contemporary society. Moreover, Bruno Latours call for a greater recognition of
things in contemporary political matters encourages reflection on the politics of
things in Roman society: how might the Roman law of things be considered to have
made things public? through the methodical representation of the everyday in
jurisprudence, the laws themselves and related procedures.
78


In Politics of Nature (2004) Latour suggests due process as a means of achieving
this public recognition of things in contemporary society. Latours use of the term
due process promotes a methodical approach to representing actors within social
assemblages, that he suggests reveals the presence of nonhuman actors that are
otherwise obscured by the constructs of Modernity.
79
Alternately, the use of the term
due process in law refers to procedural rigour in court. Yet, the same procedural
logic underpinning due process in court was in some ways applied in early
jurisprudence and the development of civil laws: a methodical approach to the
representation of the everyday produced legal frameworks that evidenced a greater
recognition of nonhumans in public life.

I suggest this historic evidence is allied in part with Latours use of due process as a
procedural concept. Yet, Latour quite specifically establishes the concept of due
process as a foil; not only to the Modernist separation of Nature and Society, but also
to what he argues is a pre-modern anthropomorphism of the nonhuman. If we
consider the prominence of the nonhuman in Roman law, and its subsequent decline
in Western legal frameworks, the idea that all pre-modern concepts worked to
anthropomorphise the nonhuman is not as straight forward as Latour might suggest.
There is in fact little evidence that anthropomorphism underpinned the inclusion of
nonhumans in the moral codes that led to their representation under Roman law.
Instead, the evidence suggests that the greater inclusion of nonhumans in law was
more to do with procedural logic, and that this resulted in better representation.

78
Latoui, 199S, 2uu4. Latoui anu Weibel (eus.) 2uuS. ,&J(0A !"(0A) K2<=(/, The NIT Piess.
79
Latoui emphasizes the connectivities between humans anu non-humans, iathei than the
nonhuman object in these assemblages (2uu4).

S6
Moreover, nonhumans could exist in Roman law as things (res) in their own right,
and independent of human rights.

Political theorist J ane Bennetts concept of thing-power also considers the status of
things (res) under law. Bennett describes thing-power, with reference to Latours term
actant, as a source of action, human or nonhuman, that catalyses an event.
80
She
uses the example of forensic trial evidence to make the point that the evidence in such
trials becomes so critical to the verdict that the things themselves become legal
actants.
81
Bennett uses as examples a glass vial containing gunpowder residue, skin
cells and other substances. While these pieces of evidence do not have rights or
standing as in early law, this way of viewing nonhuman actants in law as active
participants in their own right begins to recognise an interconnectedness between
things (res) and human affairs in the contemporary legal framework. Bennetts
analysis could be seen to have followed due process, in the sense that Latour presents
the concept: her attention to representing all participants in the trial revealed that there
were nonhuman participants with critical agencies in the verdict.

Bennetts analysis of the use of scientific evidence in court extends Latours work on
the historical production of scientific evidence - and what Latour argues is the pivotal
development of nonhumans as witnesses in scientific method.
82
The emergence of
methodical rigour in scientific experimentation during the seventeenth century
provided a way of producing facts using nonhuman things - without relying on human
opinion.
83
Prior to the development of scientific method these facts were determined
in courts of law on the basis of (non-scientific) evidence. In this context, Latour
introduces the idea of nonhumans acting as 'witnesses' in the laboratory of
seventeenth century scientist Robert Boyle. Latour argues that nonhuman actants
or active variables in experimental procedure - literally act as 'witnesses', because of
their direct role in the construction of facts. Latour draws a comparison between
scientific and legal method by calling Boyles laboratory a 'court of law' in which the
construction of a scientific fact using nonhuman witnesses is comparable to a human

80
Actant is a term borrowed from literature to describe an actor who is not the source of an action but
the moving target of a vast array of entities swarming toward it (Latour, 2004, p. 43).
81
Bennett, J . Thing Power in Political Matter, 2010.
82
Latour, 1993, pp. 22-24.

S7
jury being testament (or witness) to reaching a verdict through examination
of evidence in a court of law.


In reference to a dispute between seventeenth century political philosopher Thomas
Hobbes (Leviathan) and his contemporary, scientist Robert Boyle, Latour comments
on Hobbes discontent on this development:

the law courts had seen countless human and divine trials come and go never
affairs that called into question the behaviour of nonhumans in a laboratory
transformed into a court of justice.
84


This scientific uevelopment foims a methouological compaiison between uue piocess in
law anu scientific methou. Fiistly, both methous, with theii similai methouical appioach
to iepiesentation, ieveal nonhuman agencies that weie otheiwise hiuuen. Recipiocally,
nonhumans, acting as 'witnesses' in both the couit anu the laboiatoiy, become a
methouology that uoes itself ieveal legal eviuence anu scientific facts leauing to a veiuict
oi a iesult.

I draw these comparisons from within posthumanist theory because these procedural
inclusions of nonhumans, in their varying capacities across disciplines, exercise
similar principles to the logic of due process in Roman law. To reiterate, due
process is a technical legal term that refers to procedural rigour in court. Yet, as I
have suggested, it is also a procedural logic evident in approaches to Roman
jurisprudence, law and legal procedures other than due process in court: I suggest that
this allows an approach to representing everyday social relations that resulted in the
inclusion of nonhumans in early legal frameworks.

I have argued that this use in Roman law of procedural logic and its capacity to
represent nonhumans is similar to; the concept of due process presented by Latour,
and evidenced as a method that reveals nonhuman actants in Bennetts thing-
power; and the recognition of nonhumans as witnesses in the laboratory and the

83
Latour, 1993, p. 18.
84
Latour, 1993, pp. 22-23.


S8
courtroom. Yet, I suggest that the critical difference between the Roman, Renaissance
(Hobbes/Boyle) and contemporary uses, is that pre-modern socio-political
frameworks had a greater capacity to institutionalise these nonhuman agencies.
Bennett and Latour begin to establish that nonhumans have an existence of their
own: and perhaps even have the ability to exercise interests of their own - which
moves someway towards concepts of rights.
85


Yet, Roman frameworks allowed the logic of due process to lead further: to the
institutionalising of nonhuman rights and interests in a public capacity. This strongly
suggests that to truly attempt the project of making things public in a contemporary
law context more than the concept of due process and the greater recognition of
nonhumans is necessary. Pre-modern evidence supports the idea that to achieve this
requires the reform of anthropocentricities in frameworks and institutions. This larger
project moves away from the body of posthumanist theory, towards emerging legal
and political theory, discussed in later chapters.
86


Medieval European Procedure
The direct representation of nonhumans in legal procedure continued into the
medieval period in Europe. Yet, it was far more common for nonhumans to appear as
defendants, or to take some independent role in determining the verdict (as with trials
by fire and water, discussed below). For example, in Burgundy in the year 1457 a sow
was tried and convicted for the murder of J ehan Martin. The five-year old boy had
climbed into a pen with the sow and her five piglets and was trampled to death.
Historian Darren Oldridge has noted that the case followed the normal procedure for
such a crime. Under Burgundian law, animals enjoyed legal representation and if
they were found to be guilty, professional executioners presided over their
punishment.
87



85
See Hillel Steiner on concepts of rights, as negotiated between matters of interest and choice.
Matthew Kramer, N Simmonds, Steiner, H I. A Debate Over Rights: Philosophical Enquiries. Oxford:
Oxford University Press, 1998. Steiner, H I. An Essay on Rights. Oxford: Blackwell, 1996.
86
This existence has been referred to by Isabelle Stengers (Including nonhumans in Political Theory
p.3 in Political Matter 2010)
87
Oldridge (2005) p. 41.

S9
I suggest that many of the same ideas relating to the nonhuman under Roman law are
apparent in this example. The logic of animism (p. 54) may elucidate why the sow
that killed J ehan Martin in 1457 was subject to the same legal process as a human
murderer: it had the same rights to representation, to a defense, and when it was found
to be guilty, the same due process was meticulously followed in its punishment. It is
also possible that procedural rights, such as representation, standing and due process,
were a formality that facilitated symbolic and retributive punishments, similar to the
public gestures Raphael Sealey argues were made in the Roman and pre-Roman cases
(p. 53). Yet, Darren Oldridge has noted that:

The interventions of pre-modern [medieval] courts imposed human-centred
laws on the animal kingdom; they did not abolish the distinctions between
people and beasts.
88


This suggestion certainly presents a different case to the Roman examples in which
some laws under divine law (res sanctus and res sacrae) could be argued to be laws
centered around nonhumans, and imposed on human society. Oldridge raises the
possibility that while the inclusion of nonhumans in medieval law remained important
(and I suggest certainly connected to Roman principles) the concept of the
independent rights of non-humans (such as those under divine law) may not have
translated into medieval jurisprudence.

As Raphael Sealey argues, the conceptual inclusion of nonhumans in the moral
fabric of Roman society (something I suggest is in part evidence of animistic
relationships) underpins their inclusion in legal frameworks. In a medieval context it
is important to consider whether, as Latour suggests, an anthropomorphic
understanding of nonhumans replaced animistic concepts. Anthropomorphism could
have had the result of both including nonhumans in legal frameworks, while also
encouraging greater distinctions between the more human and nonhuman, which
complicates Oldridges statement. For example, the greater inclusion of the
domesticated animal in legal frameworks might be made because it has been
conceived as more human.


88
0luiiuge p.4S.

6u
Historian J oyce Salisbury has argued that the line between humans and animals
became blurred in the late Middle Ages, when semi-human creatures such as
werewolves were increasingly prominent in popular literature. According to
Salisbury, this cultural trend coincided with the earliest animal trials.
89
This further
contradicts Oldridges claim that human-nonhuman distinctions remained clear, while
perhaps supporting Latours position that pre-modern nonhuman relations were based
in anthropomorphism.Yet, Salisbury overlooks the far earlier origins of animal trials.
I suggest instead that figures like werewolves are more likely to have been
symptomatic of a growing separation of human civilisation from nature in which
nature became feared. As Western societies transformed in the early stages of
modernity into industrial and urban places, there was a corresponding growth in
cultural and social views and ideas that posited the natural as a place of danger.
90
I
suggest that both the literature and the trials may have reflected this trend, rather than
influenced it.

The reasons for the inclusion of nonhumans in medieval legal frameworks are
debated, and if either anthropocentrism (Oldridge) or anthropomorphism (Latour)
were the basis of this inclusion, then I suggest that the basis of nonhuman rights and
standing would be significantly changed between the Roman and Medieval periods.
Yet, I suggest that the most relevant aspects remain the careful observance of legal
procedure. Not only was due process consistently observed in the trials of objects and
animals in pre-modern societies but, as medieval examples show, the exact same due
process was used regardless of whether the defendant was human or nonhuman.
Whether animism, anthropomorphism, changing socio-political landscapes or
retributive gestures underpin these procedures - representation, standing and due
process in the trials and punishments of nonhumans had the effect of institutionalising
principles of natural justice.

As I have suggested, many medieval examples suggest that concepts of the
independent rights of nonhumans, evidenced under Roman divine law, appear not to
have translated into the jurisprudence of this time. Yet, as many medieval legal

89
Oldridge, p. 51.
9u
Coates (1998), Elders (1997).

61
procedures effectively upheld the dignity of the defendant by providing a fair trial
and punishment (for example the right to representation and the use of professional
executioners) this suggests that medieval jurisprudence did uphold another form of
rights, by extending the concept of natural rights to nonhumans.

Legal theorist Susan Buck describes principles of natural justice, within which the
concept of natural rights existed, as having content that is set by nature and that
therefore has validity everywhere.
91
Natural law, often associated with God given
rights or birthrights, was a philosophical form of jurisprudence, as opposed to the
legislative, man made system of positive law that is prominent today. The inclusion
of nonhumans in concepts of natural justice recognised their independence from
human rights within early legal frameworks.

In the following Medieval example, where a plague of insects affected a town
southeastern France, natural rights might be aligned with some of the empirical uses
of divine law under the Roman system. As Oldridge described the case:

When the residents of Saint-J ulien de Maurienne in France offered a plot of
land to the flies destroying the vineyards they were not trying to negotiate with
the insects; rather, it was a technical move to acknowledge the creatures God-
given right to feed.
92


The reference here to the technical use of natural rights follows the principles of
legal instruments under divine law that, as I have shown, were often used for
pragmatic, diplomatic and political reasons under Roman law. Here the plot of land is
not only offered in the acknowledgment of the insects natural rights, but I would
argue as a technique in sustainable agriculture and land use. As was the case under
divine law, natural law provided an instrument that separated the rights of humans
and nonhumans, thus enabling the rights of nonhumans to be recognised and
protected.

Compared to the Roman period, this particular medieval example shows recognition
of not only the inherent rights of the nonhuman, but also an application of these rights

91
Buck (1998) p. 27.
92
(2005) p. 56.

62
in the interests of the insects themselves. While the desired outcome may still have
been the protection of other vineyards for human use, this example exhibits a
compromise with the nonhuman, rather than its destruction. In effect, it is a
recognition under law of the symbiotic relationship between humans and nonhumans.
I suggest this provides evidence that in medieval times the underlying ethics of both
divine and natural law could be separated from their religious underpinnings and
legal instruments using these principles could be deployed for pragmatic socio-
political reasons.

Religion and the Natural World
During the Medieval period in Europe there was a significant shift in the religious
associations and religious importance of both animal trials and the symbolic use of
nonhumans in various legal procedures and punishments. Trials for different crimes
began to be increasingly influenced by the superstition and at times zealotry that
appeared in the period known for the infamous witch trials of the various Inquisitions.
Some of these trials included the nonhuman in different ways. For example, in
Malleus Maleficarum the high medieval text of the Catholic Inquisition written in
1486, the authors describe animals possessed by the devil. French witch trials from
the same period refer to demons taking the shape of animals. Interestingly, this was
not a new practice as early as the ninth century Pope Sixtus VI had prepared holy
water to exorcise demons from various animals and insects.
93


It is difficult to extract and distinguish between the religious beliefs and practices of
the Catholic Church from politics and governance during the medieval period. Canon
law which drew on Roman divine and natural laws generally served the same
diplomatic purposes as Roman and medieval European civil law. This is well
documented in relation to the witch trials, which were conducted in Scotland and
other countries until the eighteenth century. For example, Oldridge has noted how the
public execution of humans, animals, and sometimes the execution of corpses
operated as a form of public deterrent.
94
Oldridge concludes more generally that it
was the act of attributing guilt that had the effect of alleviating social unrest
connected with certain events. Alternate examples of this principle are expressed in

93
Oldridge p. 51.

6S
relation to problems such as the plague or bad weather. A serious concern to pre-
modern societies, these phenomena occasionally became the guilty subject in
executions.
95


Oldridge has suggested that religious laws provided the context for which animals
could face judicial penalties and that the collective charges were then taken to
ecclesiastical courts. The church also had the right to curse and exorcise vermin as
was recorded by Bartholome Chassenee in 1531. So too, St Cuthbert addressed birds
devouring a crop of barley, and in Tracte des monitoires (1668) lawyer Gaspard
Bailly wrote about the anathemas [a formal curse of excommunication] pronounced
by the church as a deadly sword.
96


Occasionally, medieval cases of bestiality resulted in the animals although not
directly accused also being mutilated or executed along with the human defendant.
Oldridge has discussed an example of this occurring in New England in North
America as late as 1642, and noted its much earlier origins in the biblical book of
Leviticus; if a man lie with a beast he shall surely be put to death: and ye shall slay
the beast (Lev. 20:15). In the New England case the animals were specifically slain
before the owners eyes. In a case of bestiality reported in Edinburgh, Scotland, the
judge stipulated that the accused be burned together with the beast, according to the
Mosaical law. These examples show the same concerns with purification in Roman
practices of banishment and further illuminate how such punishments functioned as
deterrents.
97


These examples show that despite considerable changes in jurisprudence and legal
practice during the medieval period, there remain some identifiable consistencies
between Roman law and customary European laws in relation to nonhuman standing,
rights and due process. Some of the same principles and uses are evident, such as the
retributive and symbolic functions of nonhuman punishment. Moreover, evidence of
nonhuman standing being used in acts of civil diplomacy and governance, as well as

94
Ibid.
95
Ibid, p. 53.
96
Ibid p. 54.
97
Oldridge p. 43.

64
Ecclesiastical politics, shows similarities with the use of legal instruments under
divine law in the Roman Republic.

The amount of evidence relating to nonhuman trials and punishments during the
medieval period suggests that in some ways nonhumans was even more prominent in
medieval law than in Roman times. And while the animistic logic of nonhuman rights
under divine law became a more anthropomorphic principle in the medieval period,
there is some evidence that suggests that the principles of natural law and natural
rights were applied to nonhumans in more complex ways. Nonhumans continued to
be included in the developing legal ideas of the time and new applications of the law.
Importantly, this indicates that rather than nonhuman standing being mimetic of
Roman procedures, new applications of nonhuman rights reflected a continued,
though somewhat transformed understanding of their part in the moral fabric and
everyday lives of European societies.
Procedure in Medieval England
In England during the twelfth and thirteenth centuries major commissions of scholarly
works sought to establish a particular, English system of law. This project involved
the revision and consolidation of Roman laws practiced in England, and the
integration of local customary law in the creation of influential new texts. These
included English jurist Henry de Bractons De Legibus et Consuetudinibus Angliae
(The Laws and Customs of England) composed primarily before 1235, and Chief
J usticiar to Henry II, Ranulf de Glanvills Tractatus de legibus et consuetudinibus
regni Angliae (Treatise on the laws and customs of the Kingdom of England) dated
1188. These texts are now known simply as Bracton and Glanville.

Yet, while there is consistent evidence of nonhuman standing in countries such as
France and Germany throughout the medieval period, evidence of nonhuman rights
and standing is strikingly absent from these early English records. This is most
puzzling considering the cross-cultural exchanges of trade, war and migration with
neighbouring European countries, most notably France, over this period. This
complete absence of practices resembling the Roman and medieval French examples
in major English texts from the period might suggest a purposeful omission of various
sections of Roman law relating to the law of things and divine law. Given the

6S
prominence of nonhuman rights and standing in Roman law, alongside the continued
practice of nonhuman standing in neighbouring countries, it is unlikely that these laws
and practices lacked relevance to English society at the time and therefore simply
became obsolete.

In fact, a close reading of the major texts from the period suggests that the
representation of nonhumans changed notably, but that there is no indication in the
texts themselves as to why this occurred. Analysis of the relevant Selden Society
publications (Englands main body of legal historiography) shows that nonhumans
were written into these texts mainly as property in the context of feudal law. Case law
involving nonhumans in particular refers mainly to writs of right and mort dancestor
or death of an ancestor (an action regarding freehold title following the death of a
relative).
98


It is highly likely that despite changes during the establishment of English law,
nonhuman standing continued in regional customary law and that evidence of this is
either lost or has been overlooked in historiographies. As customary law was
essentially based on oral custom, evidence of such procedures as nonhuman standing
is most likely to have been recorded in case law during the twelfth and thirteenth
centuries, coinciding with the earliest written records. Also, the Selden Society
publication editors and translators were quite selective in terms of the types of cases
published therefore they do not represent a conclusive record of medieval English
trials despite the prolific translation and publication of local borough records by
the society.
99



98
Brand (1996).
99
Legal historian Mary Bateson (1904) suggests that the texts at the time of writing support the idea
that unwritten customary rules served for the guidance of borough-moots and further that custom was
included in National law as law was increasingly written down. However, Bateson adds that beyond
the narrow limits of this written law lay the many folklaws which varied from shire to shire, form
hundred to hundred, and from borough to borough suggesting again that English written law was
largely selective and pointedly ignored much of oral based custom. Moreover, in his seventeenth
century work The first book of the English JanusJ ohn Seldon is critical of histories sourced from songs
and poems, suggesting the omission of oral histories. Seldon writes how many idle stories are there
mixt with true ones, and afterwards dressed up and brought upon the stage? (p.9),



66
17
th
century jurist and legal historian J ohn Seldon did note distinct separations
between Roman and English law during the twelfth century; in the time of King
Stephen [who ruled in England between 1135-1154] the Roman laws were banisht
the Realm. Selden adds that the Barons who had appealed for this banishment did so
for their own private benefit and influenced the King. Although there was some
protest, the Barons of Parliament replied that they would be tyed up to no rules, nor
be led by the punctilioes of the Roman law, but would by their own authority pass
judgment.
100
However given the strong continuity of many other areas of Roman law
in English law before and after this period this is unlikely to have had any lasting
effect, particularly on local customary law.

If there are archival records of cases involving nonhumans in the local borough
archives, then not only were laws relating to the inherent rights of non humans
evident in Roman law written out of the early medieval texts, but the absence of case
records documenting nonhuman standing in England from the Selden publications
would constitute the continued omission of this evidence from legal historiographies.
Still, while French and German law did represent nonhuman rights and standing
during the medieval period, and continued to do so in a limited way into the
eighteenth century, there is certainly no precedent surviving today in either legal
system that could have any bearing on dilemmas in contemporary environmental
law.
101


The English omissions are significant because they constitute historically early and
resolute decision making relating to nonhuman rights and standing, in a legal system
that became the foundation of the British Empire and, broadly speaking, Western law.
Most importantly, the separation of nonhuman standing and rights from the English
legal framework formed the basis of a new ethos.

Firstly, important legal instruments were lost that allowed the separation of human
and nonhuman rights under law. This left no legal recourse to protect natural

100
Selden, J . 1683. p.68. Selden Society
101
A study of the legal humanists of 16
th
century France, who sought to reject the legal reforms of the
middle ages and return to classical Roman law (with particular concern for the authority of the Corpis
Juris Civilis), might reveal an interesting reconsideration of ideas connected to the nonhuman in the
legal theory of the Renaissance.

67
resources in their own right, without relying on human rights. Furthermore, the
ensuing logic of a legal system entirely concerned with human rights consequently
underpinned every important development in Western law. As Western law developed
during the Renaissance and the Enlightenment this loss of inherent nonhuman rights
was consolidated, and remains a characteristic of contemporary legal frameworks. As
environmental lawyer Catherine Redgwell has noted about contemporary natural and
cultural heritage laws, this absence of nonhuman rights has become a systemic logic
underpinning contemporary law today.
102



The Symbolic Use of Objects in English Legal Procedure

While the establishment of English law omitted nonhuman standing from the main
texts, legal practices that developed during this period do show a highly significant,
symbolic use of various objects and animals in trials and punishments. Of note are
what was referred to as The Ordeals, practiced between the twelfth and sixteenth
centuries, which dealt specifically with the Saxon practices of trial by fire and
water.
103
Trials by fire involved either walking across hot coals or carrying a piece of
hot iron for a certain distance. Trials by water involved either immersing a persons
arm up to the elbow, or a person being thrown into cold water.

These trials are referred to in several texts, including Glanville, which states that:

He who is accused, is bound to clear himself by the judgment of God, to wit,
by hot burning Iron, if it be a free-man; by Water, if he be a Countrey-man or
Villian.
104


Seventeenth century legal historian J ohn Seldon elaborates on this statement, stating:

that Rusticks or Vassals only were tried by Water (for Water is ascribed to the
earthly and ignoble nature, Fire to the heavenly; so that from the use of Fire

102
(1996)
103
There is evidence that trial by ordeal was practiced much earlier than the twelfth century under
canon law, although priestly cooperation in such trials were abolished by Pope Innocent III in 1215.
Vold et al (2001).
104
G.D.G. Hall (1965), p. 84.

68
peculiar to man, Firmianus Lactantius, hath fetched an argument for the
Immortality of the Soul).
105


Selden considers the historic contexts of these practices by attributing the use of fire
to the sacred in the Bible. He also points to references in Greek literature in which the
purifying properties of water and rivers are mentioned as having fallen from the
heavens. Although Seldon doubts this symbolism played a big part in The Ordeals,
he does note that these trials are consistently recorded in the histories of the Danes,
Saxons, Germans, Franks, Spaniards, in a word, of the whole Christian World,
showing the continuity and bredth of practice.
106


Selden also reflected on the origins of The Ordeals, stating that:

it is granted that these were the Saxon wayes of tryal, rashly and
unadvisedly grounded upon Divine Miracle. They do more appertain to Sacred
Rites, than to Civil Customs.
107


While these Saxon rites obviously have separate origins to the Roman divinis juris
there are important similarities in terms of nonhuman objects in this case fire or
water being seen as inherently divine and therefore having some agency of their
own in legal procedures. In the Saxon Ordeals these elements were not merely a way
of testing for innocence in front of a body of human witnesses. In fact, this agency
involved the water or fire itself in determining the verdict, and was understood as
distinct from human judgement altogether.

This eviuence ieflects back to the posthumanist aiguments foi 'things' as legal actants
(Bennett) anu nonhuman witnesses (Latoui). Bow might the piouuction of nonhuman
'witnesses' in both the couit anu the laboiatoiy, uiscusseu by Bennett anu Latoui
iespectively, be compaieu to the eviuence of nonhuman witnesses in The 0iueals. In
one sense this eviuence pie-uates Latoui's suggestion that nonhuman witnesses weie

105
Selden notes that this wasnt altogether consistent and that he recalls ancients accounted fire as
purgative, which may have been part of its purpose here. He also refers to Pythagorous theory:

that places Fire in the Centre of the Universe, where J upiter hath his Prison; which Fire some,
however the Peripateticks stiffly oppose it, would have to be in plain terms the Sun. Seldon,
(1683).
106
Ibid, pp. 85-87.
107
Selden, J . 1683, p.84. Selden Society.

69
fiist cieateu in Boyle's laboiatoiy. In anothei sense, the types of 'eviuence' consiueieu in
these tiials cleaily sets these cases apait fiom the concept of scientifically contiolleu
expeiiment. Yet, the invisible hanu of the Bivine, that was seen uuiing The 0iueals to be
manipulating the elements in these tiials suggests something else again: that Latoui's
scientist is pieceueu by a uivine figuie who foims juugements, both witnesseu anu
facilitateu by the elements of fiie anu watei. In this sense the witnessing anu
paiticipation peifoimeu by nonhumans in the legal pioceuuie is veiy similai to theii
iole in Boyle's laboiatoiy, just without the iigoui of scientific expeiiment, oi seculai
legal pioceuuie.

In other contexts, Selden has referred to the symbolic use of objects in forming legal
contracts. For example, in early Norman times:

many Lands and Estates were collated or bestowed by bare word of mouth,
without Writing or Charter, only with the Lords Sword or Helmet, or a Horn
or Cup; and very many Tenements with a Spur, with a Currycomb, with a
Bow, and some with an Arrow.
108


Selden adds that this was before the Norman system of government:

Those things I spoke of before (to wit, of Sword, Horn etc) Smell of that way
of investing into Fees which we meet in Obertus de Orto; but are very unlike
to that solemn ceremony which is from ancient time even still used in
conveying of an Estate and delivering of possession, wherein a green turf or
the bough of a growing Tree is required.
109


This use of an object once a tree bough, then a sword or helmet as a symbolic
marker of property ownership at once precedes and represents later written
agreements. But it also functions as a temporary holder of that ownership, similar in
many ways to modern trust law. The object (or trust) functions as a mediary between
two human parties and for a time the ownership effectively lies with neither human
party but the object or trust itself.

108
Ibid.
109
Ibid, p 54. Obertus de orto was a Milanese judge connected with the beginnings of feudal law.






7u

}ane Bennett has iefeiieu to the legal piinciple of 4#*4&04, which peifoims a similai
function. Bennett aigues that the 'agentic capacity' of 'things' is expiesseu in this
concept of the 4#*4&04:

a figuie of English law fiom about 12uu until it was abolisheu in1846. In cases of
acciuental ueath oi injuiy to the human, the nonhuman actant foi example, the
caiving knife that fell into human flesh oi the caiiiage that tiampleu the leg of a
peuestiian - became ueouanu (liteially, "that which must be given to uou"). In
iecognition of (') peculiai efficacy. the ueouanu, a mateiiality "suspenueu
between human anu thing" was suiienueieu to the ciown to be useu (oi solu) to
compensate foi the haim uone.

The use of objects in this context is tied to oral customary traditions and became
defunct once written contracts became standard practice. However, the objects in
effect form a language and have an agency similar to that of sacred objects under
divine law. The inherent rights of nonhumans evident under Roman law were omitted
in the establishment of English law. Yet nonhumans still maintained a certain
visibility, a definite participation, and in some cases new kinds of agency in English
legal procedure. There was a continuity of socio-cultural understandings of the
nonhuman in England that is in some ways consistent with their inclusion in Roman,
and medieval French legal procedures. Furthermore, the discontinuation of trials by
ordeal in sixteenth century England coincided with the decline of nonhuman standing
in the legal records of other European countries, providing a more logical conclusion
to the otherwise abrupt omission of nonhuman standing during the thirteenth century.
The Saxon trials highlight the prominence of customary law in the establishment of
English law, and perhaps most importantly, show that cultural practices and beliefs
broadly underpinning the law remained more consistent with neighbouring countries
during this time than the main English legal texts of the period suggest.

Conclusion
Legal historians have interpreted nonhuman standing in Roman legal practice in two
ways; either the nonhuman defendant served some symbolic purpose, or the practices
were seen as retributive gestures execution or banishment being the most common
forms of punishment. Later European examples show similar motives underpinned
laws around nonhuman standing in France, Germany and Wales during the medieval

71
period. Yet, the evidence I have examined so far expand the argument for the
exclusively symbolic or retributive basis of these practices. I have shown that
nonhumans could hold inherent rights under Roman law. I have also argued that
nonhuman rights could be used as legal instruments in the governance of broader
matters, such as security (res sanctus) and sustainable land use practices (Saint-J ulien
de Maurienne case). While there is no written evidence of nonhuman standing in
English law after the Norman invasion of 1066 there is evidence of nonhumans
having continued agency and participation in English legal proceedings in their own
right.

Modern Western law is by design anthropocentric and only governs matters directly
relating to the rights of humans. The absence of integral rights for nonhumans is
problematic for environmental law as nonhumans only enjoy defacto protection under
human rights. This anthropocentric principle seriously limits international
environmental law in its ability to protect ecological areas in their own right. For
example there are many ecological regions critical to climate that have no recourse for
protection under law, as they do not adhere to international natural or cultural heritage
guidelines.

However the early European contexts examined here reveal legal instruments and
procedures, following the principles of natural law, which extended the legal
framework to include rights other than human rights. Most notably, divine law
provided instruments that institutionalised the separation of human interests from
nonhuman rights. Additionally, some medieval examples show these same principles
of the separation of rights, used in conjunction with nonhuman standing, in the
sustainable management of natural resources. I suggest these principals, empirically
applied in legal procedure, contributed to creating a legal system better equipped to
reflect, and therefore respond to the human and nonhuman participants of those
societies. Such histories could well inform efforts to reform contemporary legal
frameworks aimed at addressing climate change and environmental concerns.

Roman and medieval texts show that throughout the establishment and early
development of Western jurisprudence nonhumans continued to play important roles
in legal proceedings, in many cases acting in their own right. I suggest this forms an

72
important body of evidence that reflects the normative social and cultural
understandings of human-nonhuman relations at the time. As contemporary cultural
theory points to the importance of recognising things in social, political and
environmental theory (Bruno Latour, J ane Bennett and others) as a method of
reforming the nature-culture divide, this historical evidence of alternate democracies
at work in early Western societies should also be seen as a valuable precedent. It
shows that from the beginning of Western jurisprudence the law has only ever been
able to reflect and respond to the broader social and cultural beliefs and practices of
the time. As such it points to the imperative for cultural and social change if a
significant restructuring of the contemporary legal frameworks of environmental and
climate law is to be achieved.


















7S


Chapter Three The Ethics of Res Nullius: A Dilemma of
Secularism and Nonhuman Rights

Introduction

This chapter analyses the transition of legal principles underpinning the Roman law
of things during the establishment of medieval English and European law. In
particular it interrogates the principles of natural law and follows the breakdown of
nonhuman rights during the rise of secular, positive law in Europe. I argue that Greek
and Roman jurisprudence was underpinned by democratic concepts that extended to
nonhumans, while divine law and natural law produced many legal instruments that
allowed for the inclusion of nonhumans in legal frameworks. Most importantly I
argue that the legal principles underpinning natural law and divine law should have
been, and arguably still need to be, extrapolated from their religious underpinnings
and given due consideration in the development of new legal instruments.

The legal records I have examined in the last two chapters show that evidence of
nonhuman rights and standing was most prominent under Roman divine law. Also,
that natural justice was applied in original ways to cases involving nonhumans during
the medieval period. Yet, the religious associations of both divine and natural law
proved problematic as societies moved towards the eventual separation of Church and
State. I consider how the principles of divine and natural law might be separated
from their religious content. My study of the development of law during this period

74
shows that had these ideas actually enjoyed continuity in Western law (as did so many
other principles of Roman law) then we may well have inherited a legal system that
could better address contemporary environmental concerns.

In this chapter I pose several questions: Can the origins of contemporary
environmental problems be traced further back than the Renaissance and the
Enlightenment to the legal philosophy of Medieval Europe?; Can analysis of
nonhuman rights in early Western jurisprudence inform contemporary legal theory?;
And, is there now a responsibility to reconsider a more inclusive understanding of
natural justice in contemporary law?

An important preface to this analysis is that even today, the pre-modern period is
still defined as a shadowy and primitive precursor to the progress and enlightenment
of modernity. Given the continuity of legal frameworks from the Renaissance and the
Enlightenment in contemporary law, legal histories in particular have marginalised
the medieval period as irrelevant to contemporary concerns.
110
Indeed, connecting the
logic and practices of Medieval law with contemporary legal theory in any empirical
sense does seem somewhat problematic given the vastly different socio-political
contexts.

Yet, my drawing from Medieval philosophy to reflect on emergent contemporary
environmental law is not part of a tendency towards historicism. A significant part of
why Western legal history has shunned its pre-modern components is that the legal
mechanism of precedent is established as something that can only move forward. It
imposes clear boundaries with past practices, consigning them as legal history. Of
course the benefits of this mechanism are that it makes positive law an organic,
flexible system able to adjust to social change. However, it also prevents historical
practices empirically informing contemporary laws and legal theory.



110
I make this statement based on the way medieval material is presented in the great number of
Seldon Society publications for example, as well as the omissions of certain aspects of medieval legal
history that I have noted previously.

7S
An Historical overview of Natural Law

Contemporary Western law is effectively a combination of the older, pre-modern
natural laws and modern, positive law. Natural law is now an exclusively human
law, albeit with reduced power in the legal system. The modern interpretation of
natural law is quite removed from the principles and functions of its origins
particularly because of its limited ability to critique positive law. I also suggest it is
limited by its failure to apply concepts of rights to nonhumans.

The broad understanding of natural law is a law whose content is set by nature and is
thus universal. The historian A. J . Carlyle called it a law written in men's hearts,
recognised by man's reason, a law distinct from the positive law of any State.
111

As natural law is historically opposed to the positive law (or man-made law) of a
given political community, society, or nation-state, it can therefore function as a
standard by which to criticise that law. Alternately, natural law jurisprudence posits
that the validity of positive law cannot be made without its alignment with a principle
of natural law. Therefore natural law can be used to criticise statutory law, but not
necessarily the law or legal framework itself.

Early natural law jurisprudence understood that moral codes or ideas of justice were
implicit in various sources that changed throughout its history such as nature, divine
law, Reason, God, and eternal law. The development of these ideas during the Greek
period began most notably with Platos concepts of nature, which contain many of the
same ideas as natural law. In the Symposium Plato stated that moral codes are dictated
by abstract Forms derived from the order inherent in the universe, which in itself
expresses the core principles of natural law.
112


Aristotle made distinctions between nature (physis) and law or custom (nomos)
but argued for the existence of natural justice. However the development of natural
justice into the concept of natural law is attributed to the Stoics, a body of
philosophical thought that emanated from Athens in the 3
rd
century BC. While
Aristotle made the distinction that natural justice was derived from nature, rather than

111
A.J . Carlyle, (1936) p. 83.
112
Wild, J . (1953) p. 136.

76
positive (legislated) law, the Stoics rejected both sources, instead arguing that the law
was derived from the rational order of the universe. Thus natural law was understood
as the product of rational beings interacting virtuously with the rational order of the
universe.
113


During the Roman period concepts of natural law were developed further, especially
by the philosopher and statesman Cicero, generally considered an authority on natural
law. In De Legibus (On the Laws) written in the last years of the Roman Republic,
Cicero stated that both justice and law derive their origins from God.
114
This was
perhaps the greatest shift in the definition of natural law from the Greek period. While
Cicero associated natural law with God or divine law, it has been argued that his
interpretations of God in this context were closer to what early medieval theologian
Thomas Aquinas called eternal law a sublime law that existed everywhere, rather
than one written and governed by God in the singular.
115


Ciceros views on the subject significantly influenced understandings of natural law
during the medieval period including key texts on medieval law written by Aquinas
in the thirteenth century, and the twelfth century Decretum Gratiani written by the
Bolognese canon lawyer known as Gratian.
116
While Gratian conflated natural law
with divine law in the twelfth century, in the thirteenth century Aquinas reasserted its
separateness through the distinction that there were four kinds of law: eternal, natural,
human, and divine. He argued that divine law was the decree of God that governed all
creation, while natural law is the human participation in the eternal law and is
discovered by reason.
117


Therefore, Aquinas presented eternal law as quite static, and God was seen as an
indirect source of natural law. Yet many of the principals of eternal law are so
fundamental that this is not necessarily a point of criticism. Aquinas referred to
Cicero when he argued that human or positive laws were to be judged by their
conformity to the natural law. Aquinas stated that an unjust human law is not a law,

113
"Natural Law," International Encyclopedia of the Social Sciences.
114
Barham, F. (1842), p. 40.
115
Ibid.
116
Parry, S. (Trans.1969), p. 18. Corwin, E. (1955), pp. 17-18.
117
Pojman, L. (1995).

77
but merely the 'appearance' of law insofar as it is duly constituted and enforced
through due process.
118


Ciceros view that the law was derived from either nature or custom has been
remarkably influential on the development of Western jurisprudence. Of particular
note was the idea that positive law provides for the safety of citizens, the
preservation of states, and the tranquility and happiness of human life while natural
law is concerned with the good of society as a whole.
119
Cicero posited that statutory
(positive) law was often unjust and unlawful because statutes are not necessarily
aligned with truth and justice and, rather than achieving mutual benefits, are often
concerned with individual rights.
120


The formation of English law during the twelfth and thirteenth centuries produced
several influential texts that re-established many of the premises of Roman natural
law. One of these works was jurist Henry de Bractons circa 1235 De Legibus et
Consuetudinibus Angliae (The Laws and Customs of England). However Bracton also
made important changes. Most notably he brought the King under the law, rather than
the law being the will of the Prince as was the case in Imperial Rome.
121


In later developments, Sir J ohn Fortesque, an English lawyer who wrote the important
fifteenth century legal treatise De laudibus legum Angliae, wove together the debated
sources of natural law from ancient and medieval legal texts into a more
comprehensive account. Fortesques work referenced that of Aquinas and Bracton by
aligning natural law with virtue and virtuous action.

At this point in English legal history, customary law was synonymous with natural
law, conflating the Aristotelian separation of the two. Legal historian Mary Bateson
quotes a fifteenth century jurist who stated that:


118
Summa Theologicae, Q. 95, A. 2.
119
Cicero, De Legibus (Keyes translation), bk. 2, sec. 11.
120
This premise underpins the role of natural law in contemporary legal frameworks as a broad moral
standard for cross-referencing purposes. Cicero, De Legibus (Keyes translation), bk. 1, sec. 58.
121
McIlwain, C.H. (1947), pp. 71-89.

78
In all manner of causes, articles and pleas personal or real of the which there is
no special remembrance or mention made in this book, the mayor which is
judge with his brethren the jurats, shall have recourse to the laws of natural
reason, upon the which and of the which do proceed and are founded all the
laws and customs according unto the laws of England.
122


During the late Medieval era the logic of natural law could be used in customary law
cases even if the court was not familiar with the customs, or in the case that there
was no precedent for them. This shows that at the time, natural law was a flexible
form of jurisprudence able to respond to various societal needs. Yet by the end of the
Medieval period customary law had been integrated into statutory (positive) law, once
again separated from natural law. Still, it is important to note that many of the
principles of natural law evident in customary law precedents set during this time
became fundamental parts of statutory law.

The 15
th
century appearance of the term natural reason prefaces the most critical
shift in the development of natural law jurisprudence in relation to nonhuman rights.
In his sixteenth century work Doctor and Student, Christopher St. Germain stated that
English lawyers generally do not use the phrase law of nature, but rather use the
preferred synonym reason.
123
St Germains distinction was based in the twelfth and
thirteenth century ideas of Aquinas and Bracton. But his emphasis on reason as the
source of natural law and moreover his distinct distaste for the term natural law
clearly aligns St Germains work with the rise of Humanism during the
Renaissance. The principle of natural justice that had once been conceived as
universal and inclusive of nonhuman rights was now being allied with the concept of
the rational being.

Bruno Latour has noted the importance of conceptual shifts in the lead up to, and the
establishment of Modernity. Several aspects of Latours argument are important here.
Firstly, Latour argues that Modernity defines'by contiast, an aichaic anu stable past'.
124
I suggest this uiscouiages the seiious consiueiation of piemouein legal iueas in
contempoiaiy contexts. Secondly, Latour suggests that with the emergence of the
concept of the rational being, people sought to reason with nature that is, to force

122
Bateson, M. (ed. 1904) p. 59.
123
Doctor and Student, bk. 1, ch. 5.

79
their way through intimating the things literally left behind in the process: in this
case principles of justice applied to nonhumans in legal instruments.
125
Thirdly,
Latour has argued that no one is tiuly mouein who uoes not agiee to keep uou fiom
inteifeiing with Natuial Law as well as with the laws of the Republic' (199S, p. SS.). In
the context of Latoui's 'anti-moueinism' I suggest this statement iethinks aspects of
seculaiism. In paiticulai, it coulu be unueistoou to ieconsiuei the piinciples of natuial
anu uivine law, uespite theii ieligious unueipinnings.

Some of the empirical effects of the emergence of Modernist ideas, that are engaged
with Latours positions are: that some aspects of jurisprudence connected to Natural
law were abandoned as pre-modern and situated as static, historical artefacts; that
principles under divine and natural law were abandoned for their religious
underpinnings; that consequentially, and perhaps most problematically, natural law
was set in opposition to the irrational seen in both nature and religion - excluding
nonhumans from natural justice. Not only was the rational being constructed as
human (rather than divine), but the irrational was increasingly defined as a political
realm dictated by class, race and gender: it was inhabited by the lower classes,
colonised peoples, women, and most emphatically the nonhuman.

While it is true that Western law rests on the foundation of classical natural law,
modern interpretations lack the robustness of natural justice seen in early
jurisprudence. Unlike positive law, natural law is viewed as a set of classical
philosophical principles concerned with right or correct practice, rather than acting as
a fluid, active element of the law with reformative powers.

Aspects of natural law in legal frameworks today have not been able to engage with
issues concerning the nonhuman as they were able to in medieval law. While natural
law works as a means of questioning and legitimising the basis of statutory law, it has
no real power to question the law itself. It cannot be used in practice to criticise the
scope of the legal framework or change legal precedents. Nor can it be used as the

124
199S, p. 1u
12S
Politics of Nature (2004), p. 55.

8u
basis to create new laws in response to developing problems. Thus the principles of
natural justice remain static.

A problem that arises from this disabling of natural justice is the endemic
anthropocentrism of contemporary legal frameworks that prevents effective responses
to issues such as endangered species or ecologies. The long process of writing out
nonhuman rights from positive law is now so complete that there is no recourse to the
early principles of natural law that might have provided better long-term instruments
to protect ecological systems, endangered species or natural resources. As I have
suggested, an important aspect of medieval trials was the meticulous observance of
due process in the trials and punishments of nonhumans that had the effect of
institutionalising critical democratic principles. Yet here is an example where due
process also works to advance the monopoly of positive law and can therefore be
thought of as obstructive to the ideas of justice set out by Cicero and others.

The dysfunctional relationship between positive and natural law is most apparent if
we consider that a legal framework built entirely around human rights is by its very
makeup incapable of forming instruments to address ecological concerns even
when these would ultimately serve the purpose of protecting human societies in the
medium to long term. I suggest this failure is two part; the law cannot establish
instruments through statutory law that recognise nonhuman rights because of a lack of
continuity between nonhuman rights in ideas of natural justice; and, consequently
these instruments cannot institutionally separate these rights from human rights for
their empirical use in managing resources as was the case in Roman and Medieval
law. It is for this reason I argue that there is a need to re-contextualise the principles
of natural law.

Roman Legacies in Medieval English Law

European jurisprudence from the Roman and the Renaissance period is generally
understood to have formed the basis of Western law. However the importance of the
Medieval period is often overlooked in legal histories. To understand how
fundamental legal ideas at the very heart of jurisprudence translated into modern law
it is important to examine and compare key medieval texts for their interpretations of

81
Roman law principles. This period of legal scholarship saw the first formal English
and European state based civil law systems and as such can be understood to have
mediated Roman and modern law. It should, therefore, be seen as critical rather than
peripheral in the continuity of Western law.

The forms of natural justice developed during the Roman period were never fully
translated into Medieval texts. It is in fact the challenges faced by medieval legal
scholars that forms a better starting point for understanding the decline of nonhuman
rights than the early modern period where most scholarship has focused. By the
early modern period, the disappearance of any rights of nonhumans from legal
frameworks was quite complete.

Prior to the emergence of Roman law scholarship in twelfth century England, the
ruling Norman feudal system of William the Conqueror was an influential factor in
the formation of a particularly English law. Seventeenth century legal historian J ohn
Selden noted that from the invasion in 1066 William instituted a mixture of English
laws, Merchenlage [Mercian, Anglo-Saxon law], Danlage [Danish] and
Weftfarenlage.
126
Selden described how William laid aside some English laws, and
of those he kept, favoured laws that were made by the Danes: which were not unlike
those of the Norwegians, to whom William was by his grandfather allied in blood.
127

Seldon states Williams preference for Danish law, yet notes that William was later
petitioned by the Barons of England to keep their own laws and customs; in which
their fathers had lived, and they themselves had been born and bred up in. Customary
law was so embedded in English society that William was forced to accede to the
Barons demands.
128


While the English Barons struggled to keep a pre-feudal, mostly oral legal tradition in
tact, by the twelfth century a revival of interest in Roman law occurred that was to
have a dramatic effect on such laws. Legal historian Peter Stein has described how
during the first half of the twelfth century English scholars had to travel to Bologna in

126
Weftfarenlage appears to refer to a hybrid or traveling form of law.
127
Selden, J . pp. 48-49. The first book of the English Janus: From the beginning of the British story
down to the Norman conquest
128
Ibid.

82
Italy to study civil law, until in the late 1100s when civil and canon law began to be
taught in England.
129
The twelfth and thirteenth century English legal texts and related
manuscripts show an industrious consolidation of the main Roman and Greek texts
and principles.

Manuscripts produced at the University of Oxford during this period show that legal
scholarship in England was almost entirely made up of reflections on the works of
Plato and Aristotle, and on the Corpus Juris Civilis.
130
Twelfth century England was
not a period or place that produced new legal theory, but was a time of consolidation,
some important reflection and importantly here some critical censoring. The
authoritative texts under scrutiny at the time were in fact over 500 years old. Roman
texts were treated as a basis for new laws rather than a set of active concepts.

Yet despite the English focus on antiquated legal concepts and practices, there is a
familiarity with Roman concepts evident in the early texts that is likely to have been
the result of their continuity in customary law from the period of Roman rule. The
Corpus Juris Civilis was also the only surviving precedent of a comprehensive body
of European civil law at the time. Not only does this explain the importance of the
text but it also emphasises this period of medieval scholarship as the first significant
period of formal legal scholarship since the Corpis Juris Civilis was produced in the
6
th
century.

Legal historian Andrew Lewis notes that the different systems of law at the time were
highly interconnected; Ecclesiastical jurisdictions, often applying Roman notions,
anticipated and supported a number of legal developments in the Common law, for
example in the fields of guardianship and defamation.
131
In consideration of just how
influential Roman law was on the establishment of English civil law Lewis states that:

The early brush with Roman legal ideas in the Latin treatises of Glanvill
and Bracton [the two main medieval English texts] are thus shown not to
have been the isolated events they were once considered to be. An

129
It was first taught at the Cathedral schools of Exeter, Hereford and Lincoln and in the last decade of
the 12
th
century at Oxford. Ibid. p. xxii
1Su
See bibliogiaphy foi list of 0xfoiu manusciipts.
131
Lewis, A. D. E. (1994), pp. 199-208.

8S
awareness of Roman solutions though one might also say a wariness of
Roman solutions is to be found throughout the history of the Common
law down to modern times.
132


The 'wariness' of Roman law that Lewis refers to is certainly reflected in the
careful and restrained tone of English legal manuscripts at the time. But they
also show a keen interest to understand the tenets and logic of Roman
jurisprudence. The period can also be understood as experimental in its
collaborative approach to other systems of law. Although legal scholarship
during the twelfth century was largely a consolidation of legal history, the
establishment of an international scholarly community led to the intermingling
of different legal systems. This contributed a dynamic element to the otherwise
deeply conservative project to establish an English system of law.
Gratian
Lewis also suggests that canon law played a role in transferring Roman laws to the
English system, because of its greater continuity as a legal system during the seventh
to the tenth centuries. Gratians Decretum Gratiani a twelfth century collection of
six legal texts, which became known as the Corpus Juris Canonici is the main
body of canon law from the medieval period, and is comparable to J ustinians
consolidation of Roman civil laws in the Corpus Juris Civilis.

Legal historian Anders Winroth has noted that:

it is clear that Gratian I by no means strove to avoid either secular law in
general, or the Corpus Juris Civilis in particulara large part of the questio [a
section of the Decretum]is devoted to a discussion of the discrepancies
between the two laws.
133


Winroth adds that it is difficult to argue that:

Gratian represented an anti-Imperial faction of the Church, and wanted to
construct a purely canonical legal system in conscious opposition to a greatly
successful system of imperial Roman law.
134



132
Ibid.
133
Winroth, A. (2000) p. 156.
134
Ibid.

84
Winroth notes that Gratian used Roman law sparingly, and not altogether
competently despite the fact that he was active in Bologna where the study of
Roman law supposedly flourished during his lifetime. Winroth adds that a study of
the contemporary source material shows that the reputation of the early [twelfth
century] Bolognese teaching of Roman law is exaggerated.
135


Therefore it is difficult to find evidence of canon law being a major influence in
transferring Roman law to the first English legal texts. The influence is more likely to
have been due to the fact that canon law supported scholarly method in the
establishment of English law and encouraged the direct study of Roman law by
English scholars in Bologna.

As Winroth suggests:

the manuscripts of [Italian canon] law books from around the middle of the
twelfth century begin to show signs of a technical security and professionalism
not found in earlier manuscripts, which is exactly what could be expected
from manuscripts produced in an academic setting.
136


Bracton
While Canon law played an important role in the establishment of English law,
to examine the transition of nonhuman rights from the Roman to the English
medieval period, the best evidence is found in the civil law texts of the twelfth
and thirteenth centuries. In particular chapter one of Bracton includes a section
on De Rebus (of things) in which laws pertaining to nonhumans are set out in
three different divisions each with direct reference to the Corpus Juris
Civilis.

In the first division Bracton states that some [things] are within our

1SS
Ibid
While Winroth writes that During the eleventh and early twelfth centuries, the [civil] legal profession
in Northern Italy became slowly but steadily more sophisticated adding that some lawyers began to
quote J ustinians Digest, it seems that the main surviving body of canon law written by Gratian did not
reflect this same engagement with the Roman laws. Winroth also notes that the Decretum was written
at a time when this school was in its infancy, explaining Gratians comparable lack of education in
Roman Law.
136
Ibid.

8S
patrimony, some outside it adding that outside our patrimony are sacred
things and things owned in common.
137
This represents a direct translation of
the first level of categorisation of res from the Roman Corpus Juris Civilis,
which makes a distinction between patrimonio (belonging to someone) or
extra-patrimonium, meaning things which are not in commerce, or are owned
commonly.
138


In the second division Bracton states that some [things] are corporeal, others
incorporeal. Under this division corporeal is defined as tangible and either animate or
inanimate for example animals or land respectively. Alternately, as Bracton
explains:

incorporeal things, such as rights, are those which can be neither seen nor
touched as a right of way over anothers land, a right to drive beasts or
conduct water over it and such, which cannot be possessed only quasi-
possessed.
139


Again, this is a direct transference of an alternate classification from the Corpus Juris
Civilis that mirrors the classifications given by the pagan jurist Gaius. Writing circa
161 AD, Gaius distinguished between things subject to either divine or human right
which were further categorised as corporeal and incorporeal things.
140


In Bractons third division he states that some things are common property and that
others are public. He adds that:

others are the property of the universitas [the property of a corporation]; some
belong to no one, others, acquired for each by a causa of some kind, belong to
individual persons.
141


This division effectively represents the subdivisions made in the Corpus Juris Civilis
under patrimonio and extra-patrimonium. Common, public, universitas and property

137
P. 39.
138
Buckland, W. W. (1921).
139
Ibid
140
Ibid, p.187.
Gaius, The Institutes, bk. 2.
141
Buckland, W.W. (1921) p. 55.

86
belonging to no one (res nullius in the Roman) are categorised under extra-
patrimonium and property belonging to individuals under patrimonio.

This shows that although organised differently, and also making reference to the
alternate classification attributed to Gaius, the broad classifications of laws relating to
things are exactly the same as those made in J ustinians Corpus Juris Civilis. This
verifies that there was indeed close study of the Roman texts in England during the
thirteenth century and supports Lewiss suggestion that the influence of Roman law
on the foundational English medieval law texts was considerable, rather than marginal
as previously thought.

In other classifications of common property and property belonging to no one (res
nullius) there are differences to the Roman classifications, but also some interesting
similarities. On the subject of common property Bracton states that by natural law
these are common to allrunning water, air, the sea, and the shores of the sea
(although some things are distinctly public property such as rivers, ports, and the right
to use riverbanks, and this is understood to apply to permanent rivers only). Also,
streams that flow intermittently could be privately owned. Bracton makes the
distinction that those things are taken to be public that belong to all people, that is,
which are for the use of mankind alone while those that belong to all living things
may sometimes be called common.
142


The reference to all living things is an interpretation of the commons that clearly
shows the consideration of the natural rights of nonhumans using the principals of
natural law. As there is no mention of how nonhuman rights might be considered in
ideas of the commons in the Corpus Juris Civilis, this was an important new
interpretation based on the Roman principals. The fact that Bractons commons is
broadly defined by areas inhabited by humans and nonhumans (as distinct from public
property) is another important point: this differs considerably from later feudal
European understandings of the commons as defined by the equitable (exclusively
human) use of natural resources most typically grazing lands.


142
p. 40.

87
Bractons reference to mankind and all living things suggests a distinctly inclusive
and global way of thinking that parallels natural law concepts of universal ethics.
This way of conceiving common property is in fact far closer to concepts of the global
commons not formally established until the high seas were declared global
commons by the seventeenth century Dutch jurist Hugo Grotius. While Grotiuss
definition of the global commons was motivated by advantages and competition in
colonial trade, Bractons commons was based in principals of justice. Indeed,
Bractons concept of the commons shows an understanding of nonhuman rights and
sustainability.

This sophisticated understanding of the principles of natural law is consistent with
other examples from the medieval period such as the Saint-J ulien de Maurienne case
(p. 62.) It also indicates that while twelfth century legal scholarship was largely
driven by the close study and transcription of the authoritative texts, by the
thirteenth century there were increasing examples of the confident, scholarly, re-
appropriation of Roman principals in the creation of new legal theory.

Bractons discussion of the subcategories of res nullius (under divine law) pays close
attention to the Corpus Juris Civilis, while also extending some of its ideas. Bracton
states that:

sacred holy and inviolable things belong to no one, for what is subject to
divine law is no ones property but the property of God by the common
opinion of mankind. Sacred things are those properly consecrated to God by
priests, such as sacred and religious buildings and gifts solemnly dedicated to
the service of God.
143


Bracton gives the examples of chalices, cemeteries, churches and a sacrarium. As in
the Roman texts, there is a particular emphasis on city walls:

there are also things subject to a sanction, as the walls and gates of the city,
which are called such because capital punishment is decreed for those who
commit any outrage against them, violating them either by admitting persons
through them or by scaling them by ladders or in any other way, for it is a
hostile and disgraceful act to enter in any way except by the gates.


88
He goes on to add that no person is permitted to rebuild the city walls for his private
advantage, only for the public welfare.
144


These statements follow the same general categories as the Roman res nullius
presented in chapter one, shown again below:

Category Subcategory Examples
res sacrae Things consecrated by priests, like
churches, their contents and sites.
res sanctus The gates and walls of a city.
divini iuris
[divine law]

res religiosae Tombs and burial grounds.
Wild animals humani iuris
(Relates to the
acquisition of things
formerly res nullius)
No subcategories
Abandoned property

However, Bracton further defines the Roman categories:

things are said to be res nullius in several different ways: by nature or the
jus naturale [natural law], as wild beasts, birds and fish; by the common
opinion of mankind, as was said [above], as things sacred, religious or subject
to a sanction; by accident, as an inheritance lying vacant before it is taken
up.
145


To summarise, Bracton states that things fall under the category of res nullius either
because the principals of natural law, common opinion or accident indicate it. This
brings into question the Roman categorisation of res nullius, for which there is no
explanation in the Corpis Juris Civilis, while also making some new distinctions
regarding the category of humani iuris (the acquisition of things formerly res nullius).
Bracton asserted that natural law underpinned the category humani iuris, which under
Roman law simply categorised things that were not owned (wild animals/abandoned
property) but could be claimed by citizens under certain circumstances.


143
Ibid, pp. 40-41.
144
Ibid.

89
An important shift occurs in Bractons discussion of natural law:

things taken as derelictlapse of time, as in treasure trovewhere there is no
apparent owner of a thing, as in wreck, and the same is true of things regarded
as waif, as cattle, where there is no apparent owner, all of which formerly
belonged to the finder by natural law but are now made the property of the
prince by jus gentium.
146


Here, abandoned property effectively falls to the ownership of the state rather than
being open to claims by citizens, as was the case under Roman law. Bractons
definition reflects the nature of the feudal medieval state and an increasing
intervention of the state in precisely what constitutes public property.

Bractons distinction also connects wild animals to concepts of natural justice,
effectively establishing their freedom as a principal of natural law. Under Roman law
they were categorised as things previously res nullius, but presently acquired. The
Roman categorisation essentially lacked a way of including wild animals in legal
frameworks until they were hunted and or participated in some kind of interaction
with a human.

Bracton consolidated this argument by asserting that:

There are things that are res nullius by nature, which nature does not permit to
be anyones property, as free men. Free men are not subjects of ownership and
commerce.
147


Here Bracton also establishes a rationale for categorising both men and wild animals
under res nullius by proposing that the freedom of all men is an additional principal of
natural law. Importantly, this is the first historical reference to a human under the
laws of res nullius. This distinction follows the official abolishment of slavery in
England about one hundred years before in 1102 AD, and suggests that there was a
broader conceptual interest in freedom that Bracton also extended to wild animals.


145
Ibid, p. 40.
146
Ibid pp. 40-41.
147
Ibid pp. 40-41.

9u
Bracton does revisit the Roman humani iuris relating to the acquisition of things
formerly res nullius while making some interesting distinctions in relation to
acquiring the dominion of things under jus naturale or jus gentium. Bracton states
that:
we must explain how the dominion of things is acquired according to natural
law or the jus gentium (to start with the older law, which, with the human race
itself, proceeded from the nature of things) and then how it is acquired
according to the civil law, which came into existence later, after states came to
be founded, magistrates created and laws reduced to writing.
148


On the subject of wild beasts (de feris bestiis) he states that:

By the jus gentium or natural law the dominion of things is acquired in many
ways. First by taking possession of things that are owned by no one, and do
not now belong to the king by civil law, no longer being common as before, as
wild beasts, birds and fish, that is, all the creatures born on the earth, in the sea
or in the heavens, that is, in the air, no matter where they may be taken.
149


Interestingly, creatures can be owned when captured but if they escape they recover
their natural liberty. Of fishing, hunting and capture Bracton states that it is not the
pursuit alone that makes a thing mineit is not mine unless I capture it.
150


However on the subject of tame beasts and birds Bracton notes that:

they are taken to be ours so long as they have the intention of returning, for if
they cease to have that intention they cease to be ours. They are taken no
longer to have the intention of returning when they lose the habit of
returning.
151


But for domestic animals a third rule is applicable, that though they fly out of my
view they remain my hens and geese, no matter where they are, and he who takes
them with the intention of keeping them commits a theft.
152


There is a strong parallel here with Roman laws discussed in chapter one that make
distinctions around an animals social participation based on perceptions of its

148
Ibid, p. 42.
149
Ibid.
150
Ibid.
151
Ibid.

91
wildness. However in this example a creatures wildness is used to determine its
freedom, rather than its culpability in an act of paupery.

On the subject of homicide Bracton mentions a few points of interest that add to his
thoughts on wildness and nature. In discussing whether a death can be thought of as a
result of a proper or improper act, Bracton provides as an example of an improper act:

as where one has thrown a stone toward a place where men are accustomed
to pass, or while one is chasing a horse or ox someone is trampled by the horse
or ox, and the like, here liability is imputed to him.
153


In this case the trampling might be considered to have occurred on the basis of a
wildness that was consistent with, rather than contrary to, the nature of its kind. This
compares to the Roman distinctions made around an animals wild nature and
pauperies.

Lastly, under the heading of homicide through misadventure and accident there are
some further references to nonhumans that illuminate the logic at work here
underpinning nonhuman standing. After stating that in the case of homicide the
intention is regarded, not the result Bracton notes that:

here we distinguish the true cause (and cause in) misadventure, by animals
which lack reason, or other movable things, which provide the occasio, as a
ship, a tree that crushes and the like. Properly speaking stationary things, as a
house or a rooted tree, provide neither the cause nor the occasion, (nor do
moving things sometimes, neither a ship nor a boat in salt water, though it
may be in fresh, by mishandling), but he who conducts himself stupidly, as in
many other cases.
154


In this example moral participation and cause is assessed based on a nonhumans
ability to reason, effectively dismissing any possibility that nonhuman standing might
have continued to serve any official diplomatic purposes in the medieval period.
Although nonhuman standing under Roman law did not pretend to argue that animals
or objects were directly responsible for their actions, their trials indicated a belief in

152
Ibid.
153
Ibid, p.341.
154
Ibid, p.384.

92
their participation in the moral fabric of society. This implies a significant change in
conceptions of nonhuman standing.

Historian Paul Brand has noted that Roman law was not thought to be applicable by
the thirteenth century in England.
155
Yet as I have shown, this does not mean that
Roman laws were not incorporated into English texts, as is evident in both Glanville
and Bracton. In summary, Bracton largely follows the Corpus Juris Civilis in the
interpretation of the law of things. This shows that, consistent with scholarship at the
time, Bracton shows detailed study of the main Roman texts. The work also shows
evidence of a more sophisticated and inclusive interpretation of natural law and new
applications of natural justice, indicating important developments in the freedom and
rights of nonhumans in medieval jurisprudence.

However, Bracton shows a distinct lack of detail compared to the content of the
Corpus Juris Civilis. In particular the notes on procedure (such as standing or
punishment) involving nonhumans seem to be omitted from the text. Given the
original content and experimental ideas found in Bracton the omissions are unlikely
to be an oversight, but a matter of emphasis and weight given to various subjects in
efforts to recontextualise the consolidation of Roman laws achieved during the twelfth
century.

Customary Law

Roman law forms an important body of evidence relating to nonhuman rights and
standing. And, while there is no known written evidence of nonhuman standing in
English law, it is highly likely that English customary law practiced nonhuman
standing to some extent during the twelfth and thirteenth centuries, consistent with the
practices of neighbouring countries.


1SS
Brand, P. (1996), p.45.

9S
Paul Brand has noted that the English Common Law is itself sometimes also simply
described as being a custom. In fact, two passages in Glanville refer to the custom
of the realm.
156


Brand notes that English custom was also referred to as separate from the law:

what is most widely meant by custom in a common law context in
thirteenth century England is a special normative rule or procedural rule which
applied only within a particular area or jurisdiction, and not in the country as a
whole Typically, such customs were not written down in any authoritative
text.
157


Making a general observation of early European law, legal historian Esther Cohen
notes that the laws of subgroups i.e families clans, tribes, towns etc are included
in law as statutes, ordinances and bylaws, functioning as any other law.
158
This
suggests that there was likely to have been a cross over of English customary law in
the statutory law of the medieval period even if it was not mentioned in the main
written texts.

One of the introductory passages of Bracton states that England used both unwritten
law (jure non scripto) and custom (consuetudine).
159
Furthermore, several passages
in Glanville appear to characterise English common law as jus regni, or as jura regni,
using a term derived from classical Roman law for a body of law from both legislative
and non-legislative sources.
160


There were two important characteristics of English Common Law as custom.
Firstly it was an unwritten law, known and applied by the Kings justices who
presided over the royal courts. Court proceedings began to be recorded on official
plea rolls from the mid-1170s and from then customary law began to establish
precedents that could be used in other cases.



156
Brand, P., (1996), p.43.
157
Ibid, pp.18-19.
158
Cohen, E., (1993), p. 16.
159
p. 19.

94
Secondly, as Brand states:

although [customary law] was administered and enforced by justices appointed
by the king in royal courts, whose processes ran in the name of the king and were
specifically authorised by him, it was conceptualised not as the kings law nor as
deriving its force from authorisation by the king, but rather (as the various
modifiers already mentioned make this plain) as the law of the land or the
kingdom of England or just of England and as deriving its authority from its
acceptance by that land or kingdom and its people over time.
161


This interpretation allies customary law with the principles of natural law whereby the
law has a universal, non-legislative quality. Rather than the source being God or the
Divine, as is the case in many formal written records, the source of these customary
laws is seen as the land itself. The laws are effectively vested in their
intergenerational practice, and the peoples traditional lands much as many
traditional Indigenous systems of law might be understood today.

Writing in 1904, legal historian Mary Bateson suggested that legal historiographies at
that time supported the idea that unwritten customary rules served for the guidance of
borough-moots and that custom was included in National law, as law became
increasingly recorded. However, Bateson adds that beyond the narrow limits of this
written law lay the many folk laws which varied from shire to shire, from hundred to
hundred, and from borough to borough. In effect, English written law was largely
selective and pointedly ignored much of oral based custom.
162


In fact, Bateson noted a particular end date of any records of local customs:

[The] Domesday Book [1086 AD] makes something of this clear, though it deals
only with varieties of custom that affect the kings treasury. Such as it is, it is the
first and last record in which local customs are recorded side-by-side under one
cover. Local custom even viewed fiscally, never again was made a main issue in
governmental inquiry.
163


160
Glanville VII, 1 (p. 72); VII, 3 (pp 75, 76); VII, 17 (p. 90) VII, 5 (pp. 79-80)
161
Brand, P. (1996) pp. 24-26.
162
Bateson, M. (Ed.) 1904 pp. xiii xiv.
163
The Domesday Book is the record of the great survey of much of England and parts of Wales
completed in 1086. The survey was executed for William I of England (William the Conqueror): The
work surveyed each shire to find out what or how much each landholder had in land and livestock, and
what it was worth. The results of the book were final and there was no legal appeal against the
findings.

9S


The influence of customary law on the written texts of the medieval period is difficult
to gauge. Given the strong foundations of customary law in the establishment of
English law and its conflation with statutory law during the late medieval period
mentioned by Mary Bateson, it seems likely to have played a major role. Yet, while it
is likely that practices of nonhuman standing continued in English customary law, and
while many customary laws were integrated into statutory law, there is little evidence
of the transition of nonhuman rights to medieval law texts. Although both Bracton
and Glanville criticise the lack of acknowledgment of custom in legal systems at the
time, neither make any direct, detailed reference to particular customary laws. In
conclusion, regardless of what customs may have continued during the medieval
period, the key issue is what evidence was included in the written texts, as these came
to represent the culmination of legal ideas that continued into the modern period.

Secularisation
As I have suggested, there has been little contemporary empirical study of pre-secular
legal thought that engages with the knowledge, practices or rationale of the Medieval
period. I also suggest there is a need to re-contextualise the principles of natural law
and create legal instruments that apply to nonhumans in more robust ways. Yet, any
comparison to the pre-modern use of similar instruments is problematic, because the
religious underpinnings of these practices remain obstructive in contemporary terms.

I have suggested that St Germains subtle distinction between reason and nature
was pivotal in positioning marginal groups (women, colonised peoples, etc.) as closer
to nature, outside the framework of Reason, and consequentially outside Modern
concepts of natural justice. Yet, this distinction between reason and nature was also at
play throughout the gradual secularisation of civil law and the Church during the late
Medieval period. Bruno Latour has commented that Noueinity as humanism (the biith
anu ueath of humans) is asymmetiical because 'it oveilooks the simultaneous biith of
'nonhumanity' - things oi objects oi beasts'.
164
The conceptual oiigins of Noueinity
appaient in St ueimain's uefinition may have incieasingly incluueu maiginal human

164
199S, p. 1S.

96
gioups in this categoiy. Yet Latoui also comments on the simultaneous anu 'the equally
stiange beginning of a ciosseu out uou, ielegateu to the siuelines'.
16S


The broad humanisation of the law from the Renaissance onwards parallels a literal
decline of nonhumans in society during a period of modernisation. Working animals
are an example.
166
The realignment of the authoritative legal concepts of history with
reason may indicate more about the response of legal scholars to social change at
the time. Yet the link between this shift towards reason in jurisprudence and the
broader separation of the rational and irrational in society is more than a response
to the project of modernity. It suggests an engagement with social reform that sought
to define a new society against the Church, religious superstition and social groups
that were, in the humanist context, considered less than human.

The process of secularisation played an important role in the loss of nonhuman rights
due to their exclusive categorisation under divine law. It shows a failure of the law to
carry forward the most basic principles of justice formed in early jurisprudence, and
underpinning the inherent rights of nonhumans and their inclusion in the legal
framework. Not only were nonhumans positioned as irrational in the context of
humanism, but the association between religious superstition and the irrational was
also being shaped at this time. As such, there were two significant, transformative and
interconnected social forces that can be understood as philosophically opposed to the
frameworks of divine law and the developments in nonhuman natural justice made
during the Medieval period.
167


In order to draw upon early legal history in contemporary environmental and legal
theory we need to reconsider the secularisation of forms of natural justice connected
with divine law, along with such divisions as rational-irrational, natural-cultural,
human-nonhuman even God and man that still underpin contemporary
approaches to nonhumans. I propose this requires several steps; firstly a careful
consideration of the principles of natural justice and how they might transgress both
religious thought as well as the oppositions created by modernity; and secondly, the

165
Ibid.
166
S. Muecke, (pers. comm. 15/9/11).

97
connection established between the legal principals and instruments specific to divine
law, and God, need to be shifted to another source other than reason.
Natural Justice and Religious Thought
In chapter one I argue that divine and natural law instruments could be used for
reasons of diplomacy and governance. This demonstrates that the principles of natural
justice associated with each legal framework was understood to transgress their
religious origins.
168
As I have suggested, the use of concepts of God and the Divine in
early jurisprudence was a culturally relative expression of universal moral codes. The
fact that, even in their origins, divine law instruments transgressed religious thought
suggests that the principles of divine law are no less relevant to secular law than the
principles of natural law are today. This is particularly important given that the
principals of divine law defined the source of moral ways of behaving that
consequently set the parameters for natural law practice. Today these questions to do
with right practice are less associated with the law and more with philosophy. This
early relationship between divine and natural law can therefore be understood as one
between theory and practice, which the evidence suggests formed a much more active
partnership in early law practice than legal philosophy does today with statutory law.

Thus I believe that there is no impediment in the secularisation of modern law that
means the legal instruments under divine law cannot inform contemporary legal
thought. In fact, they form an important historical precedent that establishes that the
inherent rights of nonhumans can be utilised as a means of separating powers under
law. As the historical case studies in this thesis have shown these instruments were
used to protect, for example, physical structures such as city walls that were important
to security and governance. They were also used to sustainably manage natural
resources and important cultural sites without relying on human interests.
Natural Justice and Modernity
If nonhumans can be considered under natural law frameworks, then a reconsideration
of the coupled relationship between positive and natural law seems necessary. This is

167
Gillen, P. and Ghosh, D. (2007); Quint, D. (1985) p. 435; Berman, M. (2010); Delanty, G. (2007);
Mann (1996).
168
It might be useful at this point to repeat that divine law was seen as a theoretical approach to
jurisprudence, and that this theory was reflected empirically in the practice of natural law. For

98
important because without more weight given to natural law in this relationship any
reconsideration of applications of natural justice would fail. As legal theorist J ohn
Finnis points out, the earlier natural lawyers such as Aquinas and J ohn Locke made
no distinction between analytic and normative jurisprudence. Furthermore,
sophisticated positivist and natural law theories sometimes resemble each other more
today than their empirical use might suggest.
169


Based on natural law theories, early societies practiced a highly accessible, robust and
flexible form of law with the capability to adjust to new problems. Even if there was
no statutory instrument in place to address a particular problem the principles of
natural law provided a platform from which to act. Legal historian Esther Cohen notes
that:

The tendency to view the law as a unified whole thus belongs to modern
jurists. No medieval student of law could possibly have adopted this view, for
the multiplicity and occasional contradictions of different legal levels was the
most real and persistent characteristic of late medieval societythere was
hardly a period in European history when law, society and culture were more
closely intertwined.
170




Cohen suggests the lack of a single authoritative source and fragmentation of
institutions were two main reasons for this:

The unity of Western laws, as projected by Corpus Iuris Civilis and imagined
by modern lawyers, was many centuries away. The reality of the time was that
of multiple legal systems, all affecting each others development, defining and
being defined in a constant process of formation.
171


So not only did the development and practice of positive and natural law overlap, but
the influence of other forms of law meant they were not mutually exclusive as they
have become. Local customary law, canon law and the intermingling of legal systems
as the result of shifting territories and rule were all important in this process.


example, the continuation of natural law in contemporary jurisprudence can in some ways be seen as a
practice disconnected from its original body of theory (being divine law).
169
Finnis, J . (1997,98).
170
Cohen, E. (1993), p. 21.
171
Ibid, p. 19.

99
This early approach to legal practice reflected social multiplicities, resulting in a more
heterogeneous legal framework that achieved greater inclusivity. The failure of
contemporary environmental law to create legal instruments to effectively respond to
the absence of nonhuman rights exposes the limitations of a unified legal system. The
most basic mechanisms of the law the relationship between positive and natural law
are not flexible enough to adapt to new problems that require fundamental reform of
the legal framework.

As legal theorist Catherine Redgwell has argued, any effective legal response to
environmental concerns requires a decentralisation of the human in legal
frameworks.
172
I would add that to achieve this, fundamental humanist ideals that
have been consolidated in modern law systems and underpin anthropocentrism should
be reconsidered in their historical contexts. The expansion of human rights over the
20th century has indeed begun to address social injustices that developed in modern
European societies, particularly since the Renaissance. If groups that have been
marginalised as irrational under the development of humanism can now enjoy a
broadening of human rights, the achievement of nonhuman rights under law also
seems possible.

Establishing a New Source of Natural Law
As I have explored, concepts of God and the Divine that were intrinsic to early
interpretations of divine and natural law were culturally relative attempts to define the
theory and practice of what was thought to be a universal ethics. While the source of
natural law changed over time (from God to Reason for example), the legal principals
of natural justice did not.
173
This suggests that religion was one of the conceptual
tools used in expressing and contextualising the principles of natural justice that were
already logically apparent to scholars of jurisprudence.

Yet as the examples of natural justice in the Roman period show, the use of these
legal instruments was not necessarily driven by religion or religious concepts. Instead
it appears that in many cases religion was mobilised as a social force to uphold the

172
Redgwell, (1996).

1uu
legal mechanism itself. Esther Cohen notes that the connections between law and
economics or statecraft were an established part of medieval historiography. The
ethical principles of natural and divine law were underpinned by religion at the time,
but the evidence suggests that were not necessarily dependant on them in the long
term.
174


The inherent rights of nonhumans under divine law were upheld by the conception of
certain animate and inanimate objects and living things as sacred. Yet, in modern
terms what the instrument achieved was an alternate form of democracy that
distributed power, as legal rights, for the purposes of better governance. No human
rights could exist over them, and so it is no surprise that this mechanism failed under
the rise of humanism. I argue that the premise of this legal instrument might prove a
significant tool in sanctioning ecological systems or structures critical to social
security, the sustainable management of resources and the protection of natural and
cultural heritage. It could better equip international environmental law to more
effectively deal with these issues.

If the principles of natural justice apparent in divine law instruments were brought
into a contemporary context, and the instruments themselves were recontextualised to
address the legal rights of non-humans, then democratic theory would seem the
logical source of these principles. As Bracton stated in the early thirteenth century,
justice is the constant and unfailing will to give to each his right. Bracton interprets
justice as residing in the Creator or in the created, positioning God as constantly and
unfailingly just, and man as capable of just action. The just man has the will to give
to each his right and thus that will is called justice.
175


Does Bractons idea of justice still stand if we substitute the concept of God with that
of democracy? It is a question that was asked by St Germain during the sixteenth
century when natural justice was reappropriated as reason. Democracy may well be
better positioned to represent the social multiplicities that contributed to the robust
and flexible forms of law in early societies.

173
How these principals were applied and to whom is a separate matter that I have argued changed
significantly over time.
174
Ibid.

1u1


In Conclusion: Latours Parliament of Things and the Problem of
Anthropocentrism in Global Climate Governance

The inclusion of nonhuman rights in early European legal frameworks shows that pre-
modern societies recognised a greater level of nonhuman participation in the moral
fabric of public life. This recognition extended from the everyday lives of citizens to
more formal governmental and institutional procedures including legal frameworks.
Early law records highlight how Western societies produced and fostered legal
frameworks that were less anthropocentric and succeeded in upholding a culturally
relative form of nonhuman rights under law.

The development of non-human rights was likely reinforced by pre-industrial
lifestyles, that by comparison maintained a closer connection to things like
domesticated and wild animals. Yet the employment of nonhuman rights in the
management of natural resources and cultural sites shows there was also a
sophisticated logic underpinning certain legal instruments, such as res sanctus. I argue
that this pre-modern use of nonhuman rights and standing could inform contemporary
environmental law: however it presents a need to re-contextualise the principles of
natural justice.

This thesis suggests that the omission of nonhuman interests from contemporary
concepts of natural justice occurred for a number of reasons. Broadly speaking, as the
constructs of Modernity developed, a separation of the Human from Nature worked to
situate nonhumans as irrational beings outside the boundaries of natural justice.

175
Thorne, S. E. (1968) Vol 2. p. 23.

1u2
Additionally, the secularisation of the law failed to separate principles of natural
justice from their religious underpinnings. Thus many instruments under divine law
(and its subcategory of natural law), such as those under res nullius, were not
translated into the foundational texts of English law. I argue that the origins of these
omissions lie in the legal scholarship of twelfth and thirteenth century England, rather
than the early Italian Renaissance.

My analysis of early legal practices explores the interfaces between pre-modern
jurisprudence relating to nonhumans, recent posthumanist analysis of the nonhuman,
and criticisms in emerging legal theory of anthropocentrism and its effects on
environmental law frameworks. As I have demonstrated, there are many areas across
these disciplines where ideas of the nonhuman interplay and provide a basis to
consider the greater recognition of nonhumans: through concepts of rights,
institutional roles, and as part of the nonmodern understanding of social networks
that Bruno Latour argues for.
176


Latours phrase a Parliament of Things calls for a greater recognition of nonhumans
in social networks.
177
This, Latour argues, will foster more democratic relations
between humans and nonhumans: a concept of the nonmodern society that, I suggest,
must precede the task of recognising nonhumans in institutional frameworks. Pre-
modern evidence shows that the inclusion of nonhumans in legal frameworks and
concepts of justice was made possible because they were already understood as part
of the moral fabric of these societies. One could also argue (in line with Latours
broader argument) that the constructs of Modernity had not yet interfered with the
visibility of nonhumans in social networks.

I suggest in this thesis that posthumanist arguments, criticisms of anthropocentricity
in legal theory, and premodern legal evidence of nonhuman rights have empirical

176
In We Have Never Been Modern, Latour explains this concept of the nonmodern, stating that:

No one has ever been modern. Modernity has never begun. There has never been a modern
world This retrospective attitude, which deploys instead of unveiling, adds instead of
subtracting, fraternizes instead of denouncing, sorts out instead of debunking, I characterise as
nonmodern (or amodern). (1993, p. 47)

177
Latour (2004).

1uS
relevance, to the long-term project of environmental governance. Climate governance
in particular forms an example where inherent naturalist and anthropocentric
ontologies are obstructive in a race against time to reconstitute human-nonhuman
relations. In current legal systems there is no recognition of any intrinsic rights for
nonhumans. Current understandings and policy is anthropocentrically biased
according to existing human societal territories, rather than regional-global climate
geographies: and terrestrially-biased rather than ocean-centric, as the climate system
really is.

The evidence I have presented sketches various empirical approaches to the problem
and anthropocentricity. From a posthumanist position, one might argue that it is a
philosophical and political project to reconstitute the conceptions of social networks.
Yet, Latour suggests, for example, that it is the observance of due process that might
allow greater participation of nonhumans in our institutions. Latour uses the term due
process not as a legal term but as a concept that advocates timely and meticulous
methodologies to be practiced in institutions as a way of facilitating social change.
178

J ane Bennett, expands this idea to include her concept of thing power, where things
such as forensic evidence are recognised as legal actants (pp. 57-58), and the
historical legal principal of deodand uses nonhumans as legal agents in acts of
compensation (pp. 70-71). I have suggested that Bennetts work goes some way
towards recognising the role of things in legal procedures.

From the position of legal theory, there has been a small body of recent work that
critiques anthropocentricity and advocates inherent rights for nonhumans. Legal
philosopher Christopher Stones 1972 essay Should Trees Have Standing? was a
pivotal early work that first questioned whether a nonhuman could be a holder of
legal rights in modern law.
179
Leading environmental lawyer Catherine Redgwell has
also argued that anthropocentrism is obstructive to effective environmental law
because current precedents force lawyers to effectively anthropomorphise nonhumans

178
Ibid op. cit.
179
Stone states that:

[this is] not to say that [the environment] should have every right we can imagine, or even the same
body of rights as human beings have. Nor is it to say that everything in the environment should have
the same rights as every other thing in the environment. Stone, C. (1972) pp. 10-11.

1u4
in order for them to be included in legal frameworks. Redgwell notes that rights have
to be positioned in relation to human needs and interests. Additionally, nonhuman
rights are often only subject to public action because of the anthropomorphic
projection of such human qualities as charisma.
180


Posthumanist and legal arguments both seek methods of empirically decentralising
humans in social networks and institutions respectively as a political project. Pre-
modern evidence of nonhuman rights suggests that these rights would most likely
only develop in contemporary law if the Modernist separation of Nature and Society
were reconstituted. Given the enormity of this project, this raises the question: is it
the case that any less anthropocentric legal or institutional practice would only
symbolically uphold the recognition of nonhuman rights because, unlike pre-modern
law, these practices would most likely remain inconsistent with social norms?

Stone refers, for example, to the rights (anthropomorphically) extended to institutions
such as the Church and State in Medieval Europe. Stone notes that these institutional
entities had a substitutive role, but adds that these roles also facilitated the succession
of rights between humans. Stone also relates this point to the intergenerational
succession of modern treaties whereby the treaty as a legal (nonhuman) entity acts as
a custodian of rights between successive generations of humans.
181
This same
principal can be seen in the symbolic use of objects in early legal agreements and
trials, and the principle of deodand (pp. 68-71). And even in Roman law, principles
such as res sanctus could employ nonhuman rights as a legal instrument for
diplomatic purposes.

I argue that a similar substitutive or custodial role could be performed by nonhuman
legal entities in the context of climate governance. The allocation of rights,
technically independent of human interests, to non-human entities such as forests
would in fact establish the independent rights of non-humans, while also acting to
protect intergenerational human rights. As was the case historically, this principle
would allow natural resources and ecosystems critical to climate to be managed and

180
This anthropomorphic practice is evident in contemporary heritage frameworks for example
(Redgewell, C. 1995).
181
Stone, C. (1972) p. 6.

1uS
potentially preserved for the current and future use of human societies. It is a strategy
that relies on the precedent of democratic governance acting as an instrument to
manage the distribution of power. Nonhuman rights are established, however it could
be argued that the right in law rather than the nonhuman itself acts as a custodian of a
position of power, with the effect of democratising the legal framework.

This symbolic use of nonhuman rights in law might empirically illustrate Latours
argument for the observance of due process, in environmental governance. This
compares favourably to the observance of due process in early legal systems. Despite
an underlying anthropocentrism, the symbolic gesture of upholding a nonhuman right
coupled with the observance of due process, could in fact become powerful tools in
creating greater democratic relations between humans and nonhumans. It could also
circumvent the much larger and difficult project of addressing broader
anthropocentric ontologies in society.

These theoretical approaches all allow the problem to inform the methodology. A
different way of saying this is that nonhumans, present in the problem, are informing
and participating in forming new methodologies. This can be seen in the climate
regime to date consisting of treaties such as the Ramsar Convention (1971) the Rio
Declaration (1992) and the Kyoto Protocol (1997) all of which necessarily respond to
the implications of environmental change.

As an oceancentric, global problem, climate change is in itself a challenge to
anthropocentrism. Therefore could climate, as an assemblage of predominantly
ecological actors, be understood to have agency in the emergence of less
anthropocentric institutional practices? Is climate change in fact participating in social
change?

The emergence of strategies for climate change governance shows clear evidence of
changing nature-culture relations. I argue this forced recognition of nonhuman
participation facilitated by climate change has indeed catalysed their emergence.
Also, this recognition clearly shows a dynamic in changing nature-culture relations
that cannot be defined in anthropomorphic or anthropocentric terms alone. In fact,

1u6
climate change decentralises the human by forcing recognition of nonhumans actors,
but also by forcing human recognition in the social assemblages of climate.

Translating the empirical implications of these climate events into working legal
instruments remains a deeply compromised project. Current legal frameworks, critical
to effective management of long-term climate change, are fundamentally ill-equipped
to create such instruments. Yet if we look at the Roman laws relating to pauperies for
example, an animals participation and responsibility in social acts was defined by the
wildness considered to be either within or contrary to its nature. As I have
suggested, this resulted in certain understandings of wildness which werent
understood as lying within human frameworks being accountable as an entity in
itself, as though the animal was possessed by something unnatural. As I have noted,
the animal is at once anthropomorphised, yet cast out of human frameworks when it
exhibits nonhuman qualities.

This conception of the anti-social a culturally relative definition of what lies
outside legal frameworks also plays out in climate scenarios. One of the most
visible signs of climate change is the increased frequency of extreme weather events,
characterised by dramatic flooding, fire and drought. Alongside sea-level rise, these
events have begun to form growing, tangible evidence in everyday life that may well
force a less geo-centric, more global understanding of the interaction of nature and
society. It is however important to note here that these acts of climate may in fact
work to exclude climate systems from conservation law because the events are
inherently anti-social. These erratic moments of climate danger are not understood
within current social definitions of behavior.

These questions of how (nonhuman) climate is perceived by (human) society are
critical to the management of climate change. This is particularly so in terms of the
rights of future generations. For Latours redefinition of the social as something that
must include things to have any broad acceptance or understanding, it must include
the future rights of both the human and nonhuman.

These rights depend on less anthropocentric strategies capable of first recognising and
then effectively responding to the highly connected, global and less geocentric nature

1u7
of the climate system. To address the problems of sustainability in the long term an
ontological shift needs to occur that empirically recognises less anthropocentric
geographies. This thesis has shown how ecological vulnerability and human resilience
to climate change became conceptually separated concerns. There is a pressing need
to ask how they can be more democratically aligned in addressing issues of climate
justice.























1u8
Bibliography




A Selection of Manuscripts

The Bodleian Library:

MSS. Rawl. B. 502,487,506
MSS. Bodl. 170,344
MS. Rawl. C. 898
MS. Rawl. C. 612b, MS. Hatton 10
MSS. E Mus. 100-102
MS. Hatton 42
MS Wood empt.23
MS. Ashmole 1146

Roman and Pre-Roman Law

Buckland, W. W. (1921). A Text-Book of Roman Law: from Augustus to Justinian,
Cambridge University Press, London.

Cicero, M. T. The Political Works of Marcus Tullius Cicero: Comprising his Treatise
on the Commonwealth; and his Treatise on the Laws. Francis Barham (trans.),
Edmund Spettigue, London.

J ustinian, Corpus Juris Civilis.

Kelley, D. (1964). de origine feudorum: the beginning of an historical problem
Speculum, vol. 39, no. 2. April.

Lewis, A. D. E. (1994). The Roman Law Tradition, Cambridge University Press,
Cambridge.

Pomponius, Readings, Book 2., Digest, Corpis Juris Civilis.

Sealey, R. (2006). Aristotle, Athenaion Politeia 57.4: Trial of animals and inanimate
objects for homicide. Classical Quarterly, 56 (2), pp. 475-485.
Scott, S.M. (1932). The Civil Law, TheCentral Trust Company Executor of the Estate
Samuel P. Scott, Deceased.
Sirks, A. J . B. (2007). The Theodosian Code, a Study, Friedrichsdorf, Germany:
Editions du Quatorze Septembre.


1u9
Stein, Peter (1999). Roman Law in European History. Cambridge University Press,
London.

Ulpian (c. 300AD). All Seats of Judgment, Book 9., The Institutes, Corpus Juris
Civilis.

Wild, J . (1953). Platos Modern Enemies and the Theory of Natural Law. University
of Chicago Press, Chicago.


English and European Medieval Law

(N.A) The trial of an ox, for killing a man: With the examination of the witnesses,
before judge lion, at quadruped court, near beast park (1820). Banbury:
Printed and sold by J .G. Rusher.

Anderson, P. and Mnster-Swendsen, M. (2009). Custom: The Development and Use
of a Legal concept in the Middle Ages Law and Custom in the English Thirteenth
Century Common Law, DJ OF Publishing, Copenhagen.

Aquinas, T. Treatise on Law, Stanley Parry (ed. 1969) Henry Regnery Company,
Chicago.

Bateson, Mary. (ed.) 1904. Borough Customs Vol. 2., The Selden Society, London.

Bracton. (circa 1235) De Legibus et Consuetudinibus Angliae

Brand, Paul (ed.) 1996. Earliest English law Reports: Common Bench Reports to
1284, Selden Society, London.

Carlyle, A.J . (1936). A History of Medieval Political Theory in the West, W.
Blackwood & Sons ltd. Edinburgh, London.

Cohen, E. (1993). The Crossroads of Justice: Law and Culture in Late Medieval
France, E.J . Brill, Leiden, New York, Kln.

Elders, P. L. (1997). The philosophy of nature of St. Thomas Aquinas: nature, the
universe, man, Frankfurt am Main, New York.

Finnis, J . (1980). Natural Law and Natural Rights, Oxford University Press, Oxford.

Finnis, J . (1998). Aquinas: Moral, Political and Legal Theory, Oxford University
Press, Oxford.

Grotius, H. (1609). Mare Liberum.

William of Drogheda (circa 1245) Summa aurea

11u

Hall, G.D.G. (Ed.) 1965 The Treatise on the Laws and Customs of the Realm of
England Commonly Called Glanville, Clarendon Press, Oxford, UK.

Hyde, W. W. (1916). The Prosecution and Punishment of Animals and Lifeless
Things in the Middle Ages and Modern Times, University of Pennsylvania
Law Review, 64 (7), p. 696.

Oldridge, D. (2005). Strange Histories: The trial of the pig, the walking dead, and
other matters of fact from the medieval and Renaissance worlds. Routledge,
London.
Seldon, J . (1683) The first book of the English Janus: From the beginning of the
British story down to the Norman conquest.

Thorne, S. E. (1968). Bracton on the Laws and Customs of England, Harvard
University Press, Cambridge, Massachusetts.



Contemporary Law

Birnie, Boyle and Redgwell, (2009). International Law & the Environment, Oxford
University Press, Oxford.

Black, Henry (1995) p. 606. Law Dictionary Containing Definitions Of The Terms
And Phrases Of American And English Jurisprudence, Ancient And Modern, 1910s
The Lawbook Exchange.

Bodansky, D., Brunnee, J . and Hey, E. (eds. 2007) The Oxford Handbook of
International Environmental Law, Oxford University Press, Oxford.

Bodansky, D. (2000). The Role of Reporting in International Environmental Treaties:
Lessons for Human Rights Supervision Alston, P. and Crawford, C. (eds), The
Future of UN Human Rights Treaty Monitoring, Cambridge University Press,
Cambridge.

Corwin, E. S. (1955). The "Higher Law" Background of American Constitutional
Law, Cornell University Press, New York.

Fitzmaurice, M. (1996). Environmental protection and the International Court of
J ustice in A. V. Lowe and M. Fitzmaurice (eds), Fifty Years of the International
Court of Justice: Essays in Honour of Sir Robert Jennings, Grotius, Cambridge.

Fitzmaurice, M. and C. Redgwell, (2000). "Environmental Non-Compliance
Procedures and International Law", D. Shelton (ed.) Commitment and Compliance:
The Role of Non-Binding Norms in the International Legal System, Oxford University
Press, Oxford.

111

Francioni, F. (1991). International Cooperation for the Protection of the
Environment: the Procedural Dimension, in W. Lang, H. Neuhold, K. Zemaneck,
(eds.) Environmental Protection and International Law, Graham & Trotman, London.

Francioni, F. (2008). The 1972 World Heritage Convention: A Commentary, Oxford
University Press, Oxford.

McIlwain, C. H. (1958). Constitutionalism: Ancient and Modern, Cornell University
Press, New York.

Palmer, G. (1992). New Ways to Make International Environmental Law American
Journal of International Law, pp. 259-283.

Redgwell, C. (1996). Intergenerational Trusts and Environmental Protection.
Manchester University Press, N.Y, Manchester.

Stone, C. (1972). Should Trees Have Standing? Towards Legal Rights for Natural
Objects. William Kaufmann, Inc. Los Altos, California.

G. Triggs, (2002). "The Rights of Indigenous Peoples to Participate in Resource
Development: An International Legal Perspective" D. Zillman et al., (eds.), Human
Rights in Natural Resource Development, Oxford University Press, Oxford.

UNFCCC, (1992) Rio Declaration on Environment and Development, Principle 15
(2000) Cartagena Protocol on Biosafety.

Vold, G. B., Bernard, T. J . and Snipes, J . B. (2001). Theoretical Criminology, Oxford
University Press.

Yamin, F. and Depledge, J . (2005). The International Climate Change Regime: A
Guide to Rules, Institutions and Procedures, Cambridge University Press, Cambridge.



Critical and Environmental Theory

Bennett, J . (2010) Thing Power Political Matter, University of Minnesota Press,
Minneapolis, London.

Berman, M.(2010). All that is solid melts into air: the experience of modernity, Verso,
London.

Buck, S. J . (1998). The Global Commons: An Introduction. Earthscan, London.

Chakrabarty, D. (2009). The Climate of History: Four Thesis, Critical Inquiry, v.
35, Winter, pp. 197-222.

112

Coates, P. (1998). Nature : Western attitudes since ancient times, Polity Press,
Cambridge.

Delanty, G. (2007). "Modernity." Blackwell Encyclopedia of Sociology, George
Ritzer (ed.), Blackwell Publishing, Malden, Massachusetts.

Gillen, P. and Ghosh, D. (2007). Colonialism and Modernity, University of New
South Wales Press, Sydney.

J ordanova , L. (1999). Nature displayed : gender, science and medicine 1760-1820,
Longman, London.

Latour, B. (2004). Politics of Nature. Harvard University Press, Cambridge, London.

Mann, N. (1996). The Origins of Humanism, Cambridge University Press.

Muecke, S. (2008). A Touching and Contagious Captain Cook: thinking history
through things Cultural Studies Review, v.14, no.1, pp. 33-42.

Peter Cox et al. (2008). 'Amazonian forest dieback under climate-carbon cycle
projections for the 21st century', Nature Vol. 453, 8 May.

Peter Cox et al. (2004). 'Increasing risk of Amazonian drought due to decreasing
aerosol pollution', Theoretical and Applied Climatology, Vol. 78.

Phillips, Oliver et al (2009). 'Drought Sensitivity of the Amazon Rainforest', Science
323, 1344.

Pojman, Louis. (1995). Ethics: Discovering Right and Wrong, Wadsworth Publishing
Company, California.

Quint, D. (1985). Humanism and Modernity: A Reconsideration of Bruni's
Dialogues, Renaissance Quarterly, pp. 423-445.