Tuesday, June 25, 2013

Law Of The Jungle

THC was recently able to locate a rare copy of the out of print treatise, Law Of The Jungle, originally published at 4 National Lampoon 1973.  Authored by two Ivy League scholars, John Weidman(1) and Henry Beard(2), their work is a much-needed summary of an often neglected topic, the law of the jungle or "lex biologica", as the authors more properly refer to it.

The authors provide a useful corrective to what they refer to as a simplistic view that reduces lex biologica to:

"a pair of simple catch phrases; 'kill or be killed' and 'survival of the fittest'.  This is, of course, no more true than the proposition that all human law can be expressed in the simple solomonic principle of 'an eye for an eye and a tooth for a tooth' "

As an example of the loathsome degree of disparagement visited upon lex biologica the authors note:

"Another example of this attitude is the oft-quoted line from Dickens; 'The law is an ass".  To set the record straight, it should be noted that a number of asses have been very distinguished jurists.  For example, an ass, sitting as judge in the famous migration case, Vertebratae Americanae v Alaska Land Bridge, established the principle of the right of unlimited evolutionary spread.  In another instance, an ass wrote the celebrated dissent in Goldfinch v Bluejay (12 Ornith. 148), holding that a search of a bluejay's nest for evidence of its having eaten the eggs of the plaintiff goldfinch, a search which, as it developed, did yield incriminating evidence  . . . violated the defendant bluejay's rights since it was based not on specific probable cause but on the general knowledge that bluejays traditionally raid other birds' nests.  The principle was later accepted."

While the authors note that the lex biologica consists of two categories; plant law (lex flora) and animal law (lex fauna) and acknowledge that some cases may fall between jurisdictions, particularly between the microbe subcategory of lex fauna and plant law, citing as an example the "incalculably large number of nitrogen-fixing cases, a criminal matter taken very seriously by most vegetation", the Law Of The Jungle remains primarily focused on lex fauna which gives the work a much needed unity of purpose.

The authors take us through a brief, but illuminating, overview of the multitude of legal jurisdictions within animal law including the Vertebrate Courts, the Reptilian Courts, the Rodent Courts (administering the special codex rodenta), the Court of Common Stings and introduce us to the Marsupial Courts "a quirk produced by the early separation of the Australian land mass from the rest of the continental agglomeration" with its own unique characteristics

"to the extent that, in criminal prosecutions, evidence by the young, if they are in the pouch at the time of the commission of the alleged crime, is not admissible, and cannot be compelled."
In this section of their work, THC was delighted to learn something completely unexpected:

"Incidentally, while we're on the subject of insects, it's worth mentioning that when you hear the characteristic high-pitched noise which cicadas make on a summer day, the odds are you are hearing a Court of Small Crawls being called to order"

On a more serious note, the authors admit that while "the minutiae of all this is admittedly bewildering . . . nothing  . . . begins to compare in complexity and sheer orneriness with aquatic law" and treat us to a elegant discussion of the famous case, Seagull v Mollusk (187 Atlan. 30) in which:

"a gull, which had taken a clam from among some rocks near the seashore normally covered by high tide and had dropped it from a considerable height to break its shell, found itself charged with unlawful breaking and entering under the corpus juris maris for an act which under the jus terrestria and the jus aeris is not a crime if committed in the course of a lawful search for food.  The critical point was that the clam had been seized in an aquatic jurisdiction and when it fell, it fell into an aquatic jurisdiction, namely on a rock covered at high tide."(3)
Because the lex biologica is based, like the British legal system, on a common-law framework, the treatise also contains an overview discussion of key rights:

The Right to Eat
The Right to Breed
Freedom to Cry, Howl, Bay, and Hoot
The Right to Bare Claws
The Right to Assemble in Herds, Migrate and Stampede
The Right of All Animals to Be Secure in Their Nests

As to the first of these rights, The Right to Eat, the authors point out that "the distinction between killing to kill and killing to obtain food is paramount throughout animal law" and use the landmark case of Gazelle v Lion (245 Mamm. 198) as illustration.  In this case (which took place in the Court of Carnivore Appeals for the Northern Veldt) a plaintiff gazelle asked for a writ of habeas carcasse to be issued.  This writ, when issued, "demands the return of the remains of the preyed-upon animal and its release ex mandibilia, literally, 'from the jaws' pending determination of the legality of the predator's actions."  In this instance, the gazelle had the good fortune that an officer of the court happened to be in the vicinity as the authors note that most of these such writs are "issued post-mortem".

Unfortunately, while the gazelle initially prevailed after issuance of the writ on the grounds that just prior to attacking the gazelle, the lion had killed an antelope which it had not eaten:

"In a judgement nullifying the writ of habeas carcasse, the court, presided over by a notorious 'feeding judge', it must be noted, [found] that the lion's legitimate and protected right to eat remained intact, for at the time it killed the antelope, it could not be argued that it was not hungry, since it had not eaten the antelope it had previously killed, and, having not eaten the antelope, it could hardly be argued that at the time of its attack on the gazelle its hunger was any the less."
The next section of Law of the Jungle addresses common areas of the law including Contracts, Property or Territory Law, Torts, Classification Law and Trusts and Estates although in the last area, animals rarely execute testamentary instruments:

"since, with few exceptions, they usually have very little in the way of real property to pass on except possibly some freshly-killed food or recently gathered forage, and estates are almost always eaten up (literally) by the lawyers handling the probate."
 At the end of this admirable work one can only endorse the closing sentiment of the authors:

"It is sad indeed that legal biology has failed to gain the attention it so clearly deserves, and it is mankind, surely, who is the loser.  Think, for example, of how convenient it would be to be able to swear out a writ of nolo pestare in Insect Court against every mosquito on your property, or of how many lives could be saved if the sharks along our coasts were hit with a succession of beach warrants and cease-and-desist eating orders!"

THC highly recommends Law Of The Jungle to its readers and urges them to undertake the arduous, but rewarding, task of obtaining and reading this little-known masterpiece.

(1) John Weidman, BA Harvard, JD Yale;, Writer, Sesame Street; Author of book for three Stephen Sondheim musicals
(2) Henry Beard, BA Harvard; Co-Founder National Lampoon; Co-Author O.J's Legal Pad (1995)
(3) The seagull was eventually acquitted on a technicality based on an argument that the case "fell properly into the jurisdiction of the jus aeris and jus terrestris, jointly, because at the instant of the commission of the act . . .  namely, the moment the seagull released the mollusk from its beak with the intent that it should fall on a rock, thus breaking the shell, the seagull was in the air over dry land".

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