Law plays an important role in society not only in the regulation of human relations and transactions but also in providing a sense of order and continuity amid change. As such, law works as a tradition in its theoretical as well as practical orientation. It makes a claim to be the keeper of time-tested (historically rooted) conventions and principles that serve the good of society. Simultaneously, however, law has to adjust itself to changing circumstances, to demonstrate the relevance of the principles and guidelines with which it works and to continue to function as a shared reference in society. One may argue that without the coercive power of state authority, a legal tradition or system would achieve little. However, my interest lies in that ‘little’ space, where law can produce peaceful solutions to problems and conflicts based on its own conceptual and procedural resources.

Instances that test a legal tradition's capacity in this regard can shed some light on the ways in which law works or fails to work as an autonomous force mediating between change and continuity in society. Several articles in the present volume, including mine, discuss such instances within the realm of property relations, which are particularly vulnerable to developments in society. Most of the articles are about or written with an eye to modern Western legal practices.

INTRODUCTION

European legal and political theory has long debated the historical genealogy of its distinction between dominium/property and imperium/sovereignty. With roots in Roman law, the distinction has been described as blurred in medieval Europe; one author writes that dominium came ‘to denote both proprietary right and governmental authority’ by the twelth and thirteenth centuries. But from the fourteenth century onwards arguments were advanced to reinstate the distinction as central to law and political theory. In the course of these arguments a central problem emerged: the origin of property. The search for an ultimate origin means that from John of Paris and Ockham in the fourteenth century, through the Spanish scholastics of the sixteenth century to Grotius and John Locke in the seventeenth century, jurists and political theorists argued about an origin outside historical time in a state of nature or in an original delegation by God to Adam. The same topoi of argument were deployed from the seventeenth century to justify a truly extravagant construction of private property as the prior condition for political freedom. Thus by the eighteenth century, European legal and political thought had embraced a veritable ideology of property often far removed from the complex, relational character of property law itself. It was the political ideology of property which asserted the absolute division of owner/person from object/thing.

INTRODUCTION

James is the fictionalized name adopted by Mark Mathews, author of the autobiographical book The Horseman: Obsessions of a Zoophile. Mark Mathews is the pseudonym adopted by George Wilbur, an “out” zoophile, founder of Zoophile Outreach Organization and featured subject of both a BBC documentary, Hidden Loves, and an episode of the Jerry Springer show. Cherry, if it isn't obvious, is a horse that James/Mark/George owns. The passage quoted comes at the end of a book in which the narrator recounts his path from self-loathing to self-acceptance. Guided by a sympathetic psychologist, the author comes to realize that he and other members of the zoophile community practice a “nonthreatening alternate behavior.” The aim of the book is to point the way toward greater social acceptance. The author analogizes the struggle of zoophiles to the historical struggles of African-Americans and gays and lesbians. “I am not normal,” he writes.

With our examination of Walter Harper's struggles with the authorities over the invasion of his body and occupation of his mind we seem to have come a long way from the landslides in Malibu and mineral exploration in northern Minnesota with which this survey began. In a sense we have. The troubles surrounding mental illness and psychopharmacology and their relationship to constitutionally protected interests in bodily integrity, at first impression, have little to do with slope failure, civil engineering, and standards of negligence. On the other hand, these and the intervening sites in our trajectory are versions of each other – at least when viewed through the commonplace abstractions of nature talk. In each of these trouble cases we have seen the repetition of a stock set of organizing tropes and images and the deployment (and counterdeployment) of familiar distinctions. In each we have seen variations on a small set of themes in the practice of making sense of power and experience with “nature,” its surrogates and conventional oppositions. In many of the contexts, similar fears and aspirations animate the engagements. In most, the renderings of nature and humanness are connected to physical interventions and to transformations in the material world. In the arguments about passions and scientific reasoning, infertility and extinction, violence and treatment, we encounter iterations of the same social, cultural, and political practices of line drawing.

INTRODUCTION

Paul Gruchow, writing in Boundary Waters: The Grace of the Wild, describes moments of a solo venture in the Boundary Waters Canoe Wilderness Area of northern Minnesota:

These words are evocative, but they are, after all, only words. We cannot feel the ache or hear the sparrow. We do not vanish.

INTRODUCTION

Before law, before justice, before rights and duties, responsibility and interpretation, before even life: there was nature. Imagine we never were, or not yet are. All is matter and energy; pure physicality. Earth differs from other planets and heavenly bodies only in the details of how matter and energy work themselves into configurations of form and process. On this watery, tilted planet – the planet with soil – wind, water, and ice; gravity, inertia, and seismic pressures; evaporation and condensation; freeze and thaw were all at work long before footprints appeared; long before egg or bone. And even now, if humans and all of the animals and plants were to disappear, the forces of nature would continue to cut, lift, push, and drop. Following a total ecological collapse winds would blow, rain would fall and gather into tree-shaped networks, waves would beat against and reshape beaches and bluffs. Rock, sand, silt, and clay would be put into motion and laid to rest. Our works would be buried, their elements reclaimed. These earth-shaping forces and processes and the forms that they produce are emblems of nature at its most autonomous, indifferent, and enduring. All cause and effect; no reason or purpose. These are the elements: earth, air, fire, and water. Nature shapes itself gently, continuously; abruptly or episodically – blindly or, we might say, senselessly.

Imagine we never were. Or, imagine yourself standing before a prehistoric, prehominid diorama at a natural history museum.

INTRODUCTION

What is it like to drill into the shaved head of an unanesthetized baboon who is strapped to a table? As a workaday task what are the challenges, the dangers, or rewards? Is it best done, do you suppose, in the early morning or, perhaps, late in the afternoon? What is it like to be the baboon? Is that an intelligible question? Who's to say?

Sociologist Arnold Arluke conducted an ethnographic study of different primate laboratories and found a variety of ways of situating oneself with respect to captive animals (Arluke and Sanders 1996). Some laboratories had developed a culture of abuse and terror where technicians – or “cowboys” as they called themselves – related to monkeys in a manner not unlike sadistic prison guards to inmates. In Arluke's view a principal task in these laboratories was maintaining the difference between “them” and “us” through continual displays of dominance. In other laboratories, however, he found a culture more like that of a nursery school in which the technicians formed emotional bonds with specific animals. They played together, ate meals together, and cared for each other. The relationships here were patterned on the nurturing relations of human adults and children. Technicians in these laboratories professed strong ambivalence about the whole enterprise of primatology.

Films distributed by People for the Ethical Treatment of Animals (PETA) such as Unnecessary Fuss depict episodes of gratuitous abuse of primates (Francione 1995).