oa Fundamina : A Journal of Legal History - Actio de pauperie : anthropomorphism and rationalism
Unlike modern law, antique law provided for the possibility of an animal, itself, being responsible for its harmful act, whereby the animal was treated not only as an object, but, to a certain extent, as the subject of the law. The regime of the actio de pauperie points to the fact that the idea of delictual liability of an animal was not unfamiliar to the Romans. This is indicated primarily by the noxal character of the action, and also by some other features of its legal regime which could be traced as follows: The actio de pauperie was initially applied in cases where a domestic quadruped from the category of pecudes or res mancipi had caused damage on slaves and livestock. The application of the action was extended to cover all domestic quadrupeds, such, as, for instance, the dog. The praetors' activities contributed to the introduction of the actio utilis, based on which the application of the action was extended to incorporate other domestic non-quadrupeds. It is also likely that the term pauperies acquired its legal-technical meaning - damage caused by a domestic animal. Republican jurists, Quintus Mucius Scaevola, Servius Sulpicius Rufus and Alfenus Varus dealt with the problem of circumstances under which an animal caused damage. The unique conclusion deriving from the examples was that the domestic animal should cause damage by its own instinctive behaviour. Servius named it sudden rage - feritas commota. Relying on his predecessor, Ulpian formulated the famous principle contra naturam. It is difficult to negate a certain anthropomorphism among the Romans in their approach to animals despite many attempts of criticism in romanistic literature. In ethics and law different anthropomorphic and supposedly rational concepts concerning animals existed side by side in the past. And it is still so today having in mind especially contemporary struggle for animal rights.
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