Responsibility, ‘Bad Luck’, and Delinquent Animals: Law as a Means of Explaining Tragedy

Abstract

This article examines the phenomenon of the prosecution and punishment of animals in medieval and early modern Western legal systems. Animal trials are important because examining them can help us learn more about the functions of legal proceedings. The article considers potential explanations regarding these trials. With reference to Nicholas Humphrey's idea that the animal trials were the product of a search for order, the article subsequently argues that the notion that law can make sense of tragedies by defining them as the consequence of culpable conduct is illuminating in the context of contemporary English law. By conducting an analysis of a well-known contemporary criminal law case, the James Bulger trial, the article shows that one can plausibly interpret the outcome of certain significant modern cases as having the function of explaining tragedies in a relatively reassuring manner, and that this function may conflict with the requirement of ‘doing justice’.