Sunday, November 24, 2013

Whales, seals, and foxes

Chris Tomlins recently posted "Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America", an extended and thoughtful comment on three articles from the University of Toronto Law Journal’s symposium on ferae naturae and the law of property (by Angela Fernandez, Robert Deal, and Bruce Ziff), containing, as well, extended reflections on Moby-Dick and on Robert Ellickson's Order Without Law.

The article, and the works it discusses, have a lot to say about the legal histories of whale-, seal-, and fox-hunting. Tomlins ends with some thoughts (condensed here, and with footnotes omitted) about directions that have not been taken in these histories:
from a diligent observer
Throughout Moby-Dick, the whale remains enigmatically silent. Historians don’t think much of those who ventriloquize (speak for) silent others. It is considered better form to try to find their voices so they can speak for themselves. Still, the void is sorely tempting. We know what Ahab said to the whale, at the end, on the way down: ‘to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.’ One wonders what the whale might have had to say in reply. I fancy what we would hear would be sad and bemused: these humans, their God, His promise of redemption, His grant of dominion . . . all so unfortunately unavoidable.
Perhaps these cases may eventually help us to find our way to the animals rather than just to the law. 

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