Liability for Animals: An Historico-Structural Comparison

Jackson, Bernard S. (2011) Liability for Animals: An Historico-Structural Comparison. International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 24 (3). pp. 259-289. ISSN 0952-8059

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

Item Type: Article
Subjects: B Philosophy. Psychology. Religion > BM Judaism
K Law > K Law (General)
Faculty / Department: Faculty of Arts & Humanities > Theology, Philosophy and Religion
Depositing User: Susan Murray
Date Deposited: 10 Mar 2014 08:42
Last Modified: 10 Mar 2014 08:42

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