An Observation and a Strange but True “Tale”: What Might the Historical Trials of Animals Tell Us About the Transformative Potential of Law in American Culture?

Source: (2000) Hastings Law Journal. 52: 123.

As Paul Berman notes, and many before him have observed, law and legal procedure are woven deeply into American self-identity and culture. Recently, some commentators have criticized what might be called America’s abiding legal faith. In this view, the regular resort to law degrades community, consensus, and problem-solving. Berman in this paper addresses concerns about the legalistic nature of American culture. He considers the possibility that law, instead of being a necessary evil, can actually help to heal rifts in the social fabric by creating a forum for useful discussion and debate. Moreover, he suggests that this can be done without simply imposing a hierarchical social order. In other words, Berman holds up a vision for the transformative potential of law. To explore all of this, he recounts a true story from France in 1522 when villagers sought to try rats in legal proceedings for allegedly eating the villagers’ barley crops. He uses this and other similar trials to reflect upon the possible social functions that trials and legal discourse may fulfill for a community.