DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATANAM, A P., INDIA

RESEARCH TITLE:
THE JURISPRUDENTIAL MEANING OF THE ANIMAL: A CRITIQUE
OF THE SUBJECT OF RIGHTS IN THE LAWS OF SCIENTER AND
NEGLIGENCE

SUBJECT:
JURISPRUDENCE
NAME OF FACULTY:
P. BAYOLO KIRAN

NAME OF STUDENT:
P.MAHESH BABU
ROLL NO.:

1|Page
 20LLB083
3ND SEMESTER

ACKNOWLEDGEMENT

I would like to express my gratitude towards my jurisprudence teacher .P. BAYOLO KIRAN
for helping me when I needed his ,and for guiding me towards the right path. I have done this
project by collecting information and deducing facts to the best of my knowledge.

TABLE OF CONTENTS

ABSTRACT……………………………………………………3

SYNOPSIS…………………………………….………………4

INTRODUCTION…………………………………………….5

ANIMALS AND THE WORK OF JURISPRUDENCE……6

A LESS FIGURATIVE SUBJECT OF RIGHTS…………..6

LAWFULNESS OF ANIMALS…………………………….10

A HOME WITH IN OR WITHOUT JUDGEMENNT…..14

MODIFICATION IN JURISPRUDENCE…………………17

CONCLUSION……………………………………………….19

2|Page
BIBLIOGRAPHY…………………………………………….20

ABSTRACT

How does the animal appear in literature and in law? Amongst the various meanings, values
and significations that animals make to us in different social and textual forms, a study of the
legal or jurisprudential meaning of the animal remains a somewhat elusive task. It is true that
animals make very complex signs that are not always easy to read outside of their finite
worlds. This is perhaps why great authors often have a capacity to make animals appear to us
in a context that is by no means arbitrary – lending meaning to the animal that may carry a
profound specificity and of course an often-dangerous reality.
In literature an author can play at narrating and dramatizing the plurality of perspectives
under which an animal may have some meaning, often without the need to install a moral
judgment at the heart of this vision, and thus delighting us with characters who reveal some-
thing necessary in their cruelty just as much as in their compassion. Or one might even need
as an author to adopt the perspectives and subject- positions of animals themselves as in
many of Franz Kafka’s stories, where only an animal seems cap able of narrating the
contours to a life that would otherwise remain thoroughly un- narrate able.

The animal stands for something and that something may be more or less dangerous; more
or less profound. But with law on the other hand, one begins with quite a different set of
imperatives and limitations. In legal discourse and in jurisprudence, the animal does not seem
to be afforded the same luxury of figuration, the same allegorical refugees it is in literature.
The letter of the law is not content with leaving someone to die s imply ‘like’ a dog.2 It starts
and ends instead with very strict and sober significations, rigorous and stringent
specifications, long-established forms of judgment, and the literary craft is – not really to
extend the metaphors – but to find the means of further limiting these to jurisdiction.

3|Page
SYNOPSIS

Objective of the study

The primary objectives of this research paper are:

1. The researcher will try to analysis the the jurisprudential meaning of animals.
2. The researcher also wants to examine the subject of rights in the laws of scienter and
negligence.
3. The aim of this research paper is to study jurisprudential meaning of animals and A
critique of the subject of rights in the laws of scienter and negligence.

Scope of study
The scope of the research paper is limited to the jurisprudential meaning of animals and A
critique of the subject of rights in the laws of scienter and negligence.

Literature review
The researcher has taken information from various websites, books, articles, acts, journals and
cases.

Research methodology
In nature, this research project is doctrinal and historical. Since it is primarily focused on
secondary source, and while making this project, no analytical method or field study has been
performed. Both references and materials were taken from different websites and from some of
the articles referred from the internet.

4|Page
Significance of the study
The study helps us to understand the jurisprudential meaning of animals and A critique of the
subject of rights in the laws of scienter and negligence

INTRODUCTION-

Jurisprudence it seems, rather than playing at multiple fictional meanings and perspectives,
instead crafts an increasingly particular and definite meaning for things. In one sense, it creates a
purely technical meaning that. doesn’t necessarily exist outside law, even though it is not
reducible to it. This technicality is often put to the service of a kind of normative vision that, far
from being based primarily in common sense, morality or even custom, remarkably allows and
sustains quite singular conceptions that might otherwise seem strange. A horse, sheep or pigeon
may be considered ‘cattle’ for the purposes of the tort of cattle- trespass, although not necessarily
‘cow’ for the purposes of dairy industry regulation. A creature like a porch-pine might be
considered a ‘wild’ animal in property law for an entirely different reason to the law that ascribes
civil li ability for damage. Even if the meanings crafted here are peculiar, they are not exactly
‘fictional’. At most itis a matter of a kind of pragmatism that goes along with situations. But it
might also take quite a lot to convince most people upon first glance that these makeshift
pragmatic innovations in law do not also constitute an ‘unscientific’ view of the world let alone
of the reality of animal life, and that the peculiar meaning that the animal acquires in
jurisprudence might be something as rigorous as the classification it receives in the other
sciences.

At stake in jurisprudence – more so perhaps than in philosophy and the philosophical sciences –
has always been the possibility of having recourse first of all to a technical language and
knowledge cap able of accounting for what something can do and only secondarily to the kind of
knowledge that inquiries into the truth or essence of what it is. It would be no surprise if such a
language, above all, remained meaning-less outside of the ‘cases’ and ‘problems’ that sustain it.
There are problems that seem trivial from the perspective of disciplines other than jurisprudence.
Problems like those which Gilles Deleuze notices are indispensable the empiricist David Hume:
5|Page
who has the better right to a rabbit when one person has chased it to the point of exhaustion and
another who happens to be closer by picks it up for himself?

ANIMALS AND WORK OF JURISPRUDENCE

1
What jurisprudence makes of cases is something not reducible to the meaning given to us by
judges and legislate-tors, not to mention their philosophical doubles, who tend to recoup the
rubric of ‘right’ under the form of universalism and transcendentalism. It seeks the humor that
belongs properly to cases; offers relatively modest devices and technical innovations adapted
solely to cases, and therefore cri-toques in advance the still too high- minded concept of the
universal ‘subject ‘of rights. Deleuze refers to the fundamental link between ‘the most serious
and the most frivolous’.2When a stampede of circus elephants injure a side-show of dwarves
after being startled by another’s dog,3 or when someone’s bull charges at a stranger who happens
to be wearing a red shirt,4 jurisprudence does away with contexts and reasons that are themselves
not always accidental: the inadequate working conditions for the circus performers for example.
It’s not that these questions aren’t also serious and important; it’s that if one attended to them all
at once, one would miss the sometimes very fine point of law that only the case can make visible.
‘Right’ in jurisprudence is an immanent form of invention. And one has to always begin with
and return to the case in order to extract this concept of right, not so much as a rule, principle or
judgment, but as that singular meaning (a certain generosity) which a thing may alone be
afforded in jurisprudence.

A LESS FIGURATIVE SUBJECT OF RIGHTS

Naturally, the meaning of the animal and its right is made especially prob-nematic by the fact
that the contemporary discourse of ‘animal rights’ has oddly enough tended to neglect the
1
See Gilles Deleuze, Empiricism and Subjectivity: An Essay On Hume’s Theory ofHuman Nature, Trans. Constantin
V. Boundas (New York: Columbia UniversityPress, 1991), pp. 60–61; David Hume, A Treatise of Human Nature:
Books II andIII (London: Fontana, 1972), p. 235.
2
Deleuze, Empiricism and Subjectivity, p. 61.
3
See Behrens v. Bertram Mills Circus Ltd [1957] 2 QB 1
4
See Hudson v. Roberts (1851) 155 ER 724 discussed in Glanville Williams,Li ability for Animals: An Account of the
Development and Present Law of TortiousLi ability for Animals, Distress Damage Feasant (Cambridge: The
University Press,1939), p. 289.7

6|Page
technical discipline of jurisprudence. This may be so without mention even of the rival
conceptions of right received by way of their European heritages: the analytic and the casuistic,
the civil and the common law, the metaphysical and the vocational accounts of jurisprudence.
‘Animal rights’ gives us an engagement which is quits imply polemical; a critique of the human
as the center of the ethical unit-verse and a movement of moral reform carried out in the name of
an animal. Both of these ‘critical’ outlooks may have remained relatively circumspect in
themselves were it not for the tendency also to crudely transport them into juridical institutional
forms and presumptions by means of advocacy.

One of these contested forms is the juridical concept of the ‘subject of rights. Foraminal rights
discourse, the problem of who is (or can be) the subject of rights is vehemently, sometimes
militantly, contested. But the tools for such critique of the subject of rights (of ‘man’ or ‘human’
as the natural subject of rights) and of the corresponding technical question of legal personality,
are usually left unaddressed or poorly appropriated. It is not that the impetus for this type of
critique would be too ‘radical’ to be taken up in jurisprudence. On the contrary: the kinds of
subjects of rights that have been sus-trained and are cap able of being sustained in jurisprudence
are more radical than we normally think – such as the subject of the ‘right not to be born’ or
‘rights of the unborn’ in so- called wrongful life suits.5 The concept of ‘the animal’ as one of
these subjects of rights in fact appears distinctly unremarked-able next to those kinds of purely
juridical inventions. Animal rights dis-course therefore rarely acknowledges that the critique of
the subject of rights that it pursues in the name of the animal or ‘nature’ may be situated less in
an ethical or moral call upon law or in its need for reform, than in the relatively s impels but
elusive pragmatics of jurisprudence. Within the context of these relatively recent predicaments –
t3he moralizing discourse of ‘animal rights’, the sacralization of the animal in juridical language,
the purported dismantling of the subject of rights in the name of ‘nature’ – this chapter seeks to
attend to a slightly more modest develop-mint. The aim is to explore the particular meaning that
the animal may take on in jurisprudence. To do this, one treads a more sober path and can for the
moment put brackets around the typical philosophical reference points to address the question of
right on the same ground and through the same cases that jurisprudence, in this case common
law jurisprudence, situates the problem.

5
See Olivier Cayla and Yan Thomas, Du droit de ne pas naître. À propos de l’affairePeruche (Paris: Gallimard, 2002)

7|Page
 It is worth assuming that this specific technical ground of jurisprudence may be the best one
upon which to take care of the questions of law and rights in relation to animals, without
reducing these questions to terms that are either entirely polemical or transcendent to the cases or
situations in which they arise. To explore this terrain, I propose to look at one historically
illustrative problem connected with the li ability for damage caused by animals and in particular
the relation between two common law actions for liability: that of scienter and that of
negligence. The contemporary problem of these two forms of li ability for animals’ paints one
illuminating picture of the place that the animal occupies in law. This picture is by no means a
new one. The unique paths that these common law actions follow from an historical perspective
have previously been unearthed and highlighted by others and my analysis differs in only a few
ways from those who have previously written on the topic.

To summa-rise these differences, one can point in two directions: First to the historical study of
legal pro cadre and second and more prominently to the ‘question ‘of the animal in law. A
Bernard S. Jackson’s work on the comparative history and semiotics of legal forms of li ability
for animals must be admired, not just for the depth and detail of its study, but for the worthiness
which the project itself seems to reveal to the scholar. 6My own chapter cannot claim hereto
build upon Jackson’s already established body of scholarship in a sub-spatial sense. It does
however attempt to leave open certain questions of methodology in which the historical work
may take on new significance. One important dimension to the study of legal actions or pro cadre
is historical and the study of legal pro cadre can be taken as not just one form of historical
inquiry but indeed a singularly indispensable form to all historically oriented forms of
knowledge. This is particularly so if one accepts that the instrument of law already confers
legitimacy on the pro-cedorol history of social forms and formations constituting a specific
archive.

On the one side then, legal pro cadre offers scholars very little if not looked at from its historical
dimension as Frederic William Maat-land for one reminds us: as a study of the impermanence
6
Bernard S. Jackson, ‘The Goring Ox Again’ (1974) 18 Journal of Juristic Papyrol-ogy 55–93; Bernard S. Jackson, ‘Li
ability for Animals in Scottish Legal Litera-ture: From the Auld Lawes to the Sixteenth Century’ (1975) 10 The Irish
Jurist334–351; Bernard S. Jackson, ‘Li ability for Animals in Scottish Legal Literature:From Stair to the Modern Law’
(1977) 22 The Juridical Review 139–163; BernardS. Jackson, ‘Li ability for Animals in Roman Law: An Historical
Sketch’ (1978)37 The Cambridge Law Journal 122–143; Bernard S. Jackson, ‘On the Origins ofScienter’ (1978) 94
The Law Quarterly Review 85–102; Bernard S. Jackson,‘Li ability for Animals: An Historico- Structural Comparison’
(2011) 24(3) Inter-national Journal for the Semiotics of Law 259–289.

8|Page
and obsolescence of instruments and forms of action which, having been buried, nevertheless
continue to ‘rule us from their graves’.7 On the other side however, historical studies that neglect
the legal and pro cedorol nature of their object and archive also tend to miss something quite
crucial; and this something I suggest is less obviously addressed historically than
‘jurisprudentially’. Sooner or later the historian will come to realize that all that one has left in
one’s archive are miscellaneous instruments for which history itself offers no adequate synthesis.
It is toward this juris-prudential dimension alone – the study of the pro cedars which attribute li
ability for damage caused by animals in so far as it provides the contours for a particular form of
legal subject – to which this chapter tries to turn its attention in addition to this quite general
attitude on method, my interest in the contemporary civil actions of scienter and negligence in
this chapter also has a specific focus directed to the legal status of the animal itself, these- called
‘question of the animal’, and its rights. In the twentieth-century work addressing the
jurisprudence of forms of action for li ability for animals – Glanville Williams’s doctoral study
being the most exhaustive conducted in common law jurisdictions8 – the primary concern has
been to assign an historical and doctrinal meaning to the civil relation between persons tied
together by the problematic conductor an animal or a type of animal.

The meaning of the animal itself however is often (and increasingly) taken to be secondary,
circumstantial or at least un important to this doctrinal relation. The animal seems to designate
no more than a kind of occasion for a harm recognized by law. So, while one may treat the rights
and obligations between persons affected by animals as an object of strict legal knowledge and
academic inquiry, one tends to doubt at the same time whether the nature, conduct, status and
rights of the animal itself may also be treated with the same juridical and intellectual prudence. It
is this potentially under-developed aspect to what one can call the ‘juridical’ and ‘jurisprudential
’signification of the animal – the specific meaning of what the animal Cando in law – which this
chapter tries to show is a serious problem for the discourses that today speak in the name of
animals and animal rights. This is so, I believe, because what the animal is cap able of doing in
law and to the text of law (for instance s imply by appearing in it) is not necessarily the same as

7
F.W. Maitland, The Forms of Action at Common Law: A Course of Lectures (Cam-bridge: University Press, 1936),
p. 1.
8
Glanville Williams, Li ability for Animals.

9|Page
what the legal text itself continues to describe the animal as doing or as appearing cap able of
doing.

THE LAWFULNESS OF ANIMALS

Before pursuing this study in more detail, it is necessary to make some further remarks. The law
of scienter is by no means a typical place to begin with a critique of the ‘subject of rights’ in the
form implicated by the dis-course of animal rights. More typical may be to study the idea of
animals as legal persons: either the conferral of ‘personhood’ on various sentient animals as a
modern form of juridical protection and subjectification, or even the strange historical exposure
of animals to trials in the European criminal and ecclesiastical jurisdictions of the Middle Ages,
most comprehensively chronicled by E.P. Evans.9 Of course, the extent to which all of these
examples and contexts, in which the animal has appeared and ceased to appear within the public
architecture of the law, imply a formal disruption to the category of the ‘legal subject’ is debate
able. No doubt the phenomena in both cases provide a rich source of academic inquiry not just
for the analysis of shifting

juridical subjectivities but the history and sociology of legal institutions. But one may also be
forgiven for thinking that the more common and typical problematizations of animals in law
(both historically as well as con-temporarily) – because of the fact that they may not conjure as
clear or as radical an image of an animal ‘subject’ of the law in our minds – for the same reason
have less to tell us about the nature of the ‘subject of rights’ in relation to the meaning of the
animal. The idea of the legal subject as a human being (rather than an animal) dominates the
modern imagination. But it relies on a prejudice which actually seems to add unnecessary
comply-cation to the picture: inviting us to believe that the critique should be carried out not just
on the ‘subject of right’ but on subjectivity as such. One may even see it then as a stroke of luck
that the question of the animal in jurisprudence may be posed in a narrower sense than what this
prejudice suggests. For modern legal science, the ‘subject of rights’ is neither human being nor
an animal but a purely abstract entity: a being who may have its demands satisfied with the force

9
E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals: The LostHistory of Europe’s Animal Trials
(London: Faber and Faber Ltd, 1987)

10 | P a g e
of law, a pure extrapolation, a creature of the abstract order of law itself, while the legal ‘person’
similarly was always a purely technical contrivance, a mask through which an otherwise
immaterial interest may appear under the guise of law, a practical artifice of jurisprudence or a
juridical artefact for imputing rights and obligations.

In relation to the surface of these juridical concepts themselves, the fraught ontological
opposition between human and animal – including the contemporary philosophical calling- into-
question of this opposition – may in fact barely cause much of a ripple. Rather than retreating to
metaphysical abstraction or at the other extreme reacting to the many immediate forms of
violence that today provoke the ideological fervor of animal rights ADVO-cates, legal
scholarship is at least afforded the luxury of beginning with a more focused or technical kind of
question. The law of scienter for example, as a branch of tort law concerning civilly ability for
animals, suffers a fascinating and peculiar fate in modern juris-prudence which goes relatively
unnoticed in animal rights discourse. The sci-enter action is a common law action for legal
recovery of damages resulting from the conduct of an animal kept by another. The action brought
against the defendant is for the damaging conduct of his or her animal, and the case requires
proof – not so much of a negligent action on behalf of the defendant in relation to his animal –
but rather more s imply that he ‘knowingly kept’(scienter retinue) a vicious animal.

The wrongful conduct in an action for sci-enter is the keeping of a dangerous animal; the test for
li ability is whether the keeper was aware or should have been aware (given the specific type of
animal it is) that it had a dangerous propensity. In this way, the law makes a distinction between
animals which are for the purposes of this action ‘wild ‘and those which are ‘tame’ (i.e., those
for which a keeper will be held strictly able and those for which specific knowledge of
dangerousness must be proved). This area of law, in jurisdictions where it has not been abolished
by statute, strikes an odd complement to the modern rules of negligence which more commonly
hold a defendant responsible for reasonably foresee able harm resulting from a particular action
or omission on his own behalf. These two juridical forms – scienter and negligence – provide
different frames through which meaning is attributed to the damaging conduct of animals.

The scienter action is a much older form than the modern law of negligence. Jackson tells us that
the origins of the common law action of sci-enter go back even further than its coming on the

11 | P a g e
scene as a peculiar writ and instrument of English law in the fourteenth century.10One finds the
idea off-center in the local medieval laws of Europe, Canon law, ancient Biblical, Roman and
near Eastern legal writing and he reminds us not to neglect these various origins, their textual
transpositions and cross- pollinations, and the contingency of their historical and jurisprudential
meanings.11 The scholar of history may look back at these origins of scienter like an enduring
puzzle. And yet, with the growing legislative abolishment of the action in many common law
jurisdictions, one has to wonder whether this puzzle holds much more than a passing interest for
contemporary legal scholars.

One is barely able to tell for example, whether something of the old idea itself may not be under
some sort of attack by the moves at reform. And the pressing question may be not so much about
the historical origins of this action, but about whether we may be losing something crucial in the
very process of abolishing it and consigning it to history. From the normative perspective, the
argument that in recent decades dominates this area of law may indeed seem to be a compelling
one: the modern law of negligence is thought to adequately cover virtually all situations that
were previously action able under the old scienter writ; and it covers this field without the
supposed complexity that arises in giving animals this unique status regarding the creation of
civil obligations or the confusion in trying to classify species of animals as either ‘wild’ or
‘tame’ for the purposes of determining any form of strict li ability. The primary concept of
responsibility is thought to have always been a more general duty owed toward one’s ‘neighbor’
to take reason able care: and it is only by some historical accident that one happened to place an
animal in between this concept and the artic-elation of a general principle of negligence.
Glanville Williams’s 1939 thesis on the history of common law li ability for animals
foreshadowed a headlong legislative abolishment of those peculiar actions for animals that had
been retained in law like vestiges of an old juridical sensibility: cattle- trespass ancienter in
particular. When he writes in Li ability for Animals that the Holsinger action could just as easily
10
Jackson says that the source of the introduction of the scienter writ must havebeen the Biblical rule in Exodus
21:36 and the mode of its introduction was anextension of the trespass writ to cases involving dogs. Jackson, ‘On
the Originsof Scienter’, pp. 100–101
11
Jackson, ‘On the Origins of Scienter’. Williams had suggested a more organicdevelopment of the scienter
principle as a progressive refinement made in relationto a supposedly more primitive conception of ‘thing-
responsibility’. Li ability foranimals was first a kind of ransom demanded so that the victim himself couldtake the
necessary revenge on the offending beast. It was the animal itself or itsvalue that had to be surrendered. Only later
could it begin to include a measureof personal responsibility for damage depending on the knowledge the
keeperhad of his animal. See Williams, Li ability for Animals, pp. 265–285

12 | P a g e
be consigned to the history of common law and the li ability for all animals absorbed within the
action for negligence, he happily seems to give to the future legislators and judges the right also
to relegate his own scholarship – tooth and nail – to what he himself describes as the ‘limbo of
the past’.12 For the modern reformers, the law of scienter with its artificial requirement of
classifying the animal, and holding man strictly responsible for his animal depending on whether
it is in law ‘wild’ or ‘tame’, is something of a throwback: an imperfect and antiquated expression
of the more s impel and accessible idea of negligence: a more abstract civil duty of care.

In the face of this reasoning, no- one seems to be able to maintain that the scienter action has any
real place anymore alongside the more sophisticated forms of modern tort law.13Of course there
is nothing exceptional about reforms to areas of law such as this. Old forms of action are
superseded and absorbed by newer ones that seem to appeal to a more universal juridical
sensibility and which seem to cure the defects of an otherwise cumbersome body of doctrine.
Scienter is indeed not the only modern casualty of the peculiar success of the common-law
action for negligence. But whatever significance might be attached to it, one still cannot ignore
the fact that what is sacrificed effectively here from the contours of law and jurisprudence – in
the name of juridical s implicitly and consistency – is precisely the animal itself.

One notices a kind of clarity that is supposed to be gained by a law which can articulate li ability
without resort to the confusing figure of the animal. Negligence in this sense does away with
seemingly superfluous problems which make li ability turn on the question of the nature of the
animal: an aborted lineage of case law which for a certain historical moment explored such
things as whether a pet raccoon, or a trained circus elephant should be legally considered ‘wild’
or ‘tame’; or whether a camel, normally a domesticated species around the world, could
nevertheless be considered a wild animal when kept in England.14It is true that these questions

12
Williams, Li ability for Animals, pp. 362–363
13
Williams for example argues that the ‘fundamental idea lying behind the scienteraction, in its origin, was one of
negligence.’ Since scienter was originally s implyone ‘glaring example of negligence erected . . . into a legal rule’ it
makes no sensehe suggests for there to be an action in scienter where no action exists in negli-gence. Williams, Li
ability for Animals, pp. 327–328
14
In Australia, official reports on the reform of this area provide the most detailedexamples of the modern
consciousness of the law. See e.g. the 1970 Report of theNew South Wales Law Reform Commission on Civil Li
ability for Animals andthe 1977 Queensland Law Reform Commission Working Paper on a Bill toRemove the
Anomalies Presently Existing with Respect to Civil Li ability forAnimals and to Rationalize the Existing Rules of the
Common Law for DamageDone by Animals. The cases referred to respectively are: Andrew v. Kilgour (1910)13 WLR
608; Behrens v. Bertram Mills Circus Ltd [1957] 2 QB 1; McQuaker v.Goddard [1940] 1 KB 687

13 | P a g e
seem odd particularly when looked at from the perspective of the more complex taxonomies that
the natural sciences give us for comparing animals and their natures. But this is not the point. It
is not the strangeness of these questions that is especially interesting about the persistence and
sur-vial of the scienter action into modern law; on the contrary it is what it allows to be visible
about the meaning and status of the animal in contemporary jurisprudence, a question which
today is so difficult to cast into any sharp relief. It is one thing to say for instance, as one does in
negligence, that a defendant is or is not li able for the damage caused by his animal depending on
his own action or omission and the foresee ability of the harm that could occur from this action
or omission: – in this situation, the meaning and nature of the animal may indeed need to be
taken into account, but as no more than an outside circumstance, a non- essential question of
risk, an ace-dent which like any other the keeper has a responsibility to take reason able
measures to contain. But it is quite another thing to say that the defendant’s legal li ability may
really be determined by the kind of animal he keeps – irrespective of any other action (negligent
or otherwise) on his own behalf or any general or specific foresee ability he has about what this
animal might do.

Here the animal plays a much more integral part in the commission of the tort: this animal is not
merely one circumstance in a wider act considered wrongful at law but the element that may
legally define its wrongfulness.

HOME WITHIN OR WITHOUT JUDGEMENT

The fact that we may not yet have lost this distinctive status or capacity which tort law in
particular has constructed for the animal may turn out to be fortuitous for the possible science of
animal rights and the particular critique of the ‘subject of rights’ that this science seems to
demand. It is true that the subject-vie life of animals remains somewhat mysterious and to this
extent presents humans with ethically complex relationships.

But this problem of ethics and subjectivity in relation to animals is not easily translated, as is
sometimes attempted, into an equivalent problem of what is sometimes called ‘subjective rights’
in jurisprudence: the individual demand that an animal may have full-filled as of right by the

14 | P a g e
juridical order. The difficulty (even distortion) of assigning an inner, morally- implicating
subjective experience to animal life that would respond for instance to Jeremy Bentham’s
famous exhortation that what really matters is the capacity to suffer or to that which today
continues in animal rights discourse under the rubric of ‘sentience’, is not a difficulty shared by
the most basic suppositions of legal wisdom. As Yan Thomas has warned, one must not confuse
the subjective experience of existing individuals with the specifically juridical structure of the
subject. ‘We must resist the tendency of common sense to confuse the two registers between
which a speaking self-Anda claiming self is divided’, he writes. ‘Nothing obscures the
intelligence of law more than the mixing up of these two levels.15 To describe the ‘subjective
right’ of animals – this enforce able demand of the animal in ‘rights’ discourse– by the detour of
representation and advocacy, doesn’t magically fill the dis-trance between a non- speaking
animal and the claim that it may be afforded in-law. Indeed, as Thomas’s comment indicates, of
all disciplines law does not need to go as far as surmising and representing what the intimate
subjective desires of individuals might be, let alone animals, with or without having someone
speak on their behalf: it is content instead to admit and deploy common causes of action,
instruments that have a generalized function and application.

And this fact has rarely been acknowledged as holding much advantage for the discourse of
animal rights. In this general context, the actions for scienter and negligence reveal some-thing
noteworthy about the juridical register of the animal and its relation to the ‘subject’ of rights. If
nothing else, these forms place particular limits on our ability to judge and measure the lives of
animals. As tools, they do not arise pre- formed. They define, in all their makeshift imperfection,
the tangible reactions of a people in relation to their will to ‘know’ and ‘judge ‘each other’s
animals as a matter of course. It is risky to pass over juridical forms such as these too quickly,
particularly since – as Michel Foucault once hypothesized – it is these that so vividly describe
the bounds between which the emergence of a particular form of subjectivity can be observed.16
For Foucault, the subject is not a philosophical given which can be applied to history (let alone
law) from the outside to give it a certain direction and
15
Yan Thomas, ‘Le sujet de droit, la personne et la nature: sur la critique contem-poraine du sujet de droit’ (1998)
100 (mai- août) Le Débat 85–107.
16
See Michel Foucault, ‘Truth and Juridical Forms’ in Power: Essential Works ofFoucault 1954–1984 (London:
Penguin Books, 1994), p. 4. Foucault notes that:‘Among the social practices whose historical analysis en ables one
to locate theemergence of new forms of subjectivity, it seemed to me that the most importantones are juridical
practices.

15 | P a g e
It is itself the crude invention or outcome of certain immanent ‘games’ of truth which may be
studied even better through the petty history of local juridical practices.19 Jurisprudence
moreover cannot define what is inside or outside the domain of law in an absolute providential
sense: it can only define, with greater specificity, the various practical ways of getting around the
law.17The meaning that the animal acquires as a matter of law then; its status and capacity in
relation to the different juridical forms of action shaped out of the contingency of social and
historical forces; the technical modification that the animal seems to make to law and legal rules
in general: this meaning is no less precise and no less indispensable able in jurisprudence for its
lack of a unifying philosophical principle. Admittedly, it may not be easy to place a practical
significance on the appearance or non- appearance of the animal in these forms of action. It
seems difficult for instance to pretend that the shift between the law of scienter (in which the
animal forms one important legal element) and the law of negligence (in which it doesn’t) has
any real bearing upon what an animal can do; what its capacities and affects are; what kind of
life it might enjoy; even what kind of destruction it can cause.

When legislators have found it expedient to abolish the law of scient eras an outmoded form of
legal action, no- one imagines that the lives or the rights of animals have altered overnight, even
when one imagines this to bathe case in relation to other areas of reform such as animal welfare
etc. Instead, one empathizes with persons who may otherwise have been hello able by the
arbitrary circumstance of having kept a particular kind of animal which through no other fault
has happened to cause harm to another.

Yet, of course, when the scienter action makes the wrong depend on this kind of animal that
you’ve kept rather than on the foresee ability of the harm suffered: who can also deny that the
animal really ‘does’ something here to make a remark able difference? Who can deny that the
inclusion of the animal as a legal formulation under scienter – however strange or unnecessary it
resonates in the ears of modern jurisprudence – means after all that this animal is cap able of
something, even if this ‘something’ occurs only in law; as a matter of law? It is one thing to note
then that animal may be cap able of many things that remain seemingly outside the judgment of
law, outside of those many measures designed solely to hold ‘man’ responsible for his actions in
17
See Gilles Deleuze, Foucault, Trans. Sean Hand (London: Continuum, 1999), n. 9on p. 114

16 | P a g e
regard to others. But it is quite another thing to try and describe the particular capacity that an
animal may nevertheless retain (however contracted) for an act that may have no place other than
in law or jurisprudence. Even if this act is not, nor bears any resemblance to that of an animal
constructed or pro-jested as some ‘subject of rights.

It is not the rules which define what an animal can and can’t do. Rather, as the problem relating
to scienter and negligence shows, the animal in jurisprudence is itself a technical modification of
the rule; a determine able modification which the animal alone makes to the field of rights and
obligations, duties and capacities, yet one which cannot necessarily be attributed to any one
animal.

MODIFICATIONS IN JURISPRUDENCE

The difficulty in attending to this jurisprudential element is what today seems to add so much
confusion to the attempt to articulate relations with animals using the language of ‘rights. It may
also account for the antagonism and absolutism that unfortunately plagues the moral and political
dis-courses from all sides in liberal democracies and in relation to which the concept of ‘right’
itself has unfortunately become nothing more than a kind of polemical slogan. It is not after all
from a lack of ‘rights’ in this sense that animals suffer in contemporary society. There is little use
that an animal could make of these legal rights when one first of all can barely ascribe it a lawful
condition, a capacity or a meaning in jurisprudence.

What I have tried to suggest in this chapter is that even if it remains just one particular cultural
expression among many, the meaning which a thing acquires in jurisprudence is not s imply the
product of a wider context: social, political, literary etc. Jurisprudence crafts a meaning and a
vision which is singular; a technical meaning adapted to the singularity of cases. This is why the
literary work which jurisprudence commissions is a peculiarly sober and on- figurative one, and
why the more or less profound, figurative cultural meanings that literature in general is cap able
of constructing, only obliquely speak to that meaning whose crafting rests squarely on the

17 | P a g e
discipline of jurisprudence. When the animal appears in law with a meaning which some case
may turn upon, the fact that our understanding of the matter is limited and finite is not
necessarily a misfortune. One of the things intimated in this chapter is that, perhaps especially in
what has been recently identified as the field of ‘animal law’, it is in fact rarely the contextual
understanding of law that we find wanting. On the contrary, it is more often the doctrinal
problem which seems harder to hold on to, not to mention the certain quiet attentiveness required
for one to take stock of what may still be interesting and limited here in this doctrinal question of
the animal in law.

It is precisely the hold which doctrine places on thought that makes jurisprudence such a
necessary activity. And these questions of legal doctrine are easily passed over too quickly,
leaving the most important things to go by unnoticed and allowing us to lose sight of the
particular technical and practical sense that the meaning of an animal is afforded in
jurisprudence. The example drawn upon in this chapter concerning the forms of action that
define civil li ability for animals in the common law has provided one angle to approach the
elusive technical meaning that an animal has in juris-prudence.

The example is an ordinary legal problem and one that has rarely raised the interest of scholars
of animal law or animal rights. Yet it is pre-cicely the prudence of attending to the ordinary
appearances of the animal in and to the senses in which the animal may be something more than
an accident to the legal text and to the work of jurisprudence but a singular and necessary
juridical element within it, that the contemporary philosophies of animal rights (moral and
ethical) seem confident to bypass. Without attend-Ing to the peculiar lawful existence of the
animal, these philosophies of rights remain purely abstract.

CONCLUSION

At the beginning of the 21st century, lawsuits in the interests of nonhuman animals, sometimes
being called “plaintiffs”, became highly common. India’s constitutional animal protection
jurisprudence is predominantly rich and multifaceted, and evidences significant attention to
animal experience. In addition to the religiously influenced cow slaughter provision, cast in
terms of agricultural efficiency,the Indian Constitution imposes a “fundamental duty” on “every
citizen” and the state to “have compassion for living creatures.”

18 | P a g e
The Supreme Court of India has also previously held, applying a ‘Species Best Interest’ that,
“We have to examine the various issues raised in these cases, primarily keeping in mind the
welfare and the well-being of the animals and not from the stand point of the Organizers, Bull
tamers, Bull Racers, spectators, participants or the respective States or the Central Government,
since we are dealing with a welfare legislation of a sentient-being, over which human-beings
have domination and the standard we have to apply in deciding the issue on hand is the “Species
Best Interest”, subject to just exceptions, out of human necessity.”

Under Western jurisprudence there exists a concept called “Personhood” and its significance and
practical submission is heavily debated. It believes in the treatment of animals at par with
humans in every aspect. Including, for the purpose at hand, as having obligations and rights as
individual humans do. In certain nations, rivers and deities have also been conferred
“personhood”.In India, the concept of Animal welfare is the most commonly believed Animal
Rights jurisprudence and it is the basis of provisions in the Prevention of Cruelty Act and the
Wildlife Protection Act. Numerous petitions are being heard at this time by the Hon’ble Supreme
Court of India. These are often filed by several Animal Welfare NGOs and concerned groups
because of their concern regarding the implementation of slaughterhouse rules to ensure that
animal slaughter is performed with minimum pain and cruelty and with the highest standards of
hygiene and safety.

Certain recent companion animal cases in private law have recognized animals’ for more than
what their economic value is, the companion animal focus for these ingenuities is telling. Law is
an anthropocentric establishment.Nonhumans, slaves and humans, may indirectly be protected
by laws that are intended to protect others. However, these laws remain invisible to civil law as
they have no rights to protect directly till the time their legal personhood is duly recognized.The
biggest problem is, the interests of animals are mostly not counted at all most and if at all they
are counted, many of the practices against animals cannot possibly be fully justified.It is
important for anticruelty laws to be extended to areas that are currently exempt from them,

19 | P a g e
farming and like scientific experiment.To permit the level of suffering that is now being
experienced by billions of living creatures can never be justified.

BIBLIOGRAPHY

1) Wise, S. (2003). The Evolution of Animal Law since 1950. The State of the Animals, 2, pp.8-
12.

2) Britannica.com. (2019). Animal rights -- Britannica Online Encyclopaedia. [online] Available

at: https://www.britannica.com/print/article/25760 [Accessed 1 Jul. 2019].

3) Gary L. Francione, Animals, Property and the Law (1995).

4) Alonso, M., Mosquera, P., Hampel, H. and Vázquez, R. (2017).

https://publicaciones.ucuenca.edu.ec/ojs/index.php/maskana/article/view/1189. MASKANA,
8(1), pp.71-76.

5) Newton, J. (2015). https://digitalcommons.ciis.edu/cgi/viewcontent.cgi?

article=1079&context=ijts-transpersonalstudies. International Journal of Transpersonal Studies,
34(1-2), pp.172-186.es

6) Valcke, C. (2003). Comparative Law as Comparative Jurisprudence - The Comparability of

Legal Systems. SSRN Electronic Journal, pp.9-12.

7) Franz Kafka, ‘The Metamorphosis’, ‘A Report to an Academy’, ‘Jose-phine the Singer, or the
Mouse Folk’, ‘Investigations of a Dog’, ‘The Burrow’, ‘ASplendid Beast’ collated in English in
Franz Kafka: Collected Stories (New York:Everyman’s Library, 1993).

8) Like a dog!’ (‘Wie ein Hund!’) is the phrase incidentally used to conclude onechapter of
Kafka’s famously unfinished novel The Trial. The words are uttered asthe two assassins of the
main protagonist K stand over him watching his deathin the final scene of the chapter titled

20 | P a g e
‘End’. Gilles Deleuze and Felix Guattarinote that given the unfinished state and intermin able
nature of the novel, theactual posthumous placement of this chapter (and this phrase) as a
conclusion tothe text is dubious: it could even be included s imply as a dream which could
beplaced anywhere in the text. Gilles Deleuze and Felix Guattari, Kafka: Toward aMinor
Literature, Trans. Dana Polan (Minneapolis: University of Minnesota Press,1986), p. 44. The
limitation that seems to encounter Kafka’s text at this point isthat in literature the death can only
occur by way of metaphor: something com-pletely inadequate for law. So while the placement of
K’s execution at the end ofThe Trial may conveniently complete the act of literature the novel
represents, itdoes so only by abruptly cutting short on the other hand the work of jurispru-dence
in which the writing would instead be absolutely co- extensive with life.The significance of the
animal itself remains uncommented upon.

BOOKS

1) The jurisprudential meaning of the animal: A critique of the subject of rights in the laws of
scienter and negligence By E D MUSSAWIR

2) Law and the Question of the Animal 1st Edition 2013 Routledge Pages13 eBook
ISBN9780203071366

21 | P a g e