Test1-18

Deleuze, Jurisprudence and the Diagram of
Bees in Roman Law

A conception of law as founded on jurisprudence can do without any
‘subject’ of rights. —Gilles Deleuze 1

I would like to explore in this article, one perhaps underacknowledged aspect to the convergence of interests that in recent times have come under the banners of ‘antihumanism’ and ‘nonanthropocentrism’. I am thinking simply of the activity of jurisprudence. A lot of debate concerning the position of nonhuman animals with regard to law today still centres only on a single category: that of the subject of rights. It is here, we are led to believe by moral philosophers and the proponents of animal rights for instance, that we find an unshakable prejudice at the heart of law. Being blind up to now to the needs and capacities and indeed rights of various classes of nonhuman beings, we are supposed to have cast our jurisprudential construct of the ‘subject’ too narrowly. The human has been privileged over the animal, the transactional has been privileged over the ecological, the artificial over the natural, and so on. And it is as if all that stood in the way of rectifying the plight that animals—representatives of an objectified, commodified and overall mistreated natural world—would experience under the laws of modern liberal democracies, was the weight of this monumental juridical edifice of the ‘subject’: a figure which is treated no longer as a mere abstraction of legal science which it might have remained, but as a category which is at once moral and metaphysical, supposedly separating, at the heart of our legal culture, all of those who ‘count’ for law from those who don’t.

The concept of legal subjectivity, however, far from being a quality foreign to or denied to nonhumans animals, in fact finds itself distinctly shaped by the attempts to include them within particular legal institutional forms. It is not a question here necessarily of the problematic philosophical construct 244that has tended to tie the category of the ‘subject of rights’ to an image of ‘man’. We hardly need any further proof of how the centrism of the human, white, male, meat-eating subject of law operates to exclude, to oppress, to marginalise, to alienate its ‘others’. Yet when one takes on the daunting task today of decentring the image of the human from the prevailing imagination of law—for instance in the name of animal rights or ecological justice—one often only discovers a rampant inflation to the currency of this category of the ‘subject’, as though one could increasingly no longer imagine any value under the law for a being other than through holding the position of a subject or in the possibility of being ‘granted’ or having ‘recognised’ some form of legal subjectivity. It hardly matters whether legal rights are attributed by virtue of any likeness to the ‘image of man’. The category of the subject itself becomes the abstract form under which every call for a previously unrecognised capacity to hold rights in general must be made. In this way, a humanist ideology of law redoubles itself by the same force that animals, nature and so on come to claim the position of subjects. A whole humanist vocabulary of inalienable freedoms, rights of nature, inherent dignity of persons before the law and so forth finds itself rediscovered in relation to these newly recognised subjects. All the while, the distinct jurisprudential meaning of animals, arising from finite juridical problems and relations, are sidelined in favour of a new politico-metaphysical redemption: a wholesale liberation of nonhuman animals from the category of legal ‘things’ to which they have been unfairly consigned.

What I would like to suggest in this chapter is that we might find a way to counter some of the difficulties faced by the movements of antihumanism and nonanthropocentrism in law today through the detour of certain technical jurisprudential questions. As Gilles Deleuze has pointed out, not only is it possible to observe—in the practice of jurisprudence and case law—a conception of law that can do without any totalising ‘subject’ of rights, but we can also develop a philosophy of the subject that ‘presents a conception of law founded on jurisprudence’.2 We don’t often pay enough attention in this sense to the cases, to the sets of jurisprudential problems, the procedural or institutional inventions, the subtleties of interpretation in which particular forms of legal subjectivity are embedded. But we also don’t often pay enough attention to the operations in legal thought that secure for nonhuman animals a meaning and an activity that is in fact far more lively and even subversive than the ordinary circumstance of their having the status either of ‘subject’ or ‘object’. If legal thought, as Deleuze suggests, is not about ‘recognising’ rights but ‘inventing’ them: then—rather than simply polemicising our discourse of rights in relation to nonhuman animals—we can begin to observe some of the ways in which nonhuman animals, in a technical sense, provide the outline for the invention and creation of law.

245 Deleuzian Jurisprudence, the Roman Jurists and the Question of Some Bees

The particular story that I would like to tell in this chapter is one that concerns the place of some bees in a fragment of Roman civil law: a statement concerning the interpretation of an ancient statute on reparation for unlawful damage—the lex Aquilia (c. 287 BCE)—by the classical jurist Ulpian.3 The story is interesting because of the way the kind of distortion of ‘facts’ and ‘rules’ that attends the juristic expression in question comes forth and the unusual centrality of the bees to the technical operation that the jurist performs on his material. If it is possible to acknowledge the centrality that a type of animal can take as a technical element in the thought of the jurist, then we can begin to steer a clearer path through the difficulties posed by the calls to take the position of animals seriously in jurisprudence and more generally for the development of a nonanthropocentrism in law. My hypothesis here is that the bees leave an important trace of the creativity of jurisprudence in Roman law: a jurisprudence understood as Deleuze sees it, more as the thought of law, the immanent invention of right, than the abstract philosophical representation of it.

The topic of a ‘Deleuzian jurisprudence’ has been addressed in far more detail elsewhere.4 Here, I am concerned with the possibility of demonstrating something of this activity of Deleuzian jurisprudence through a close analysis of the Digest fragment in question. It is helpful to make some remarks first of all about the affinity that Deleuze’s thought on law—his emphasis on the ‘case’ and what he calls jurisprudence’s emphasis on ‘emissions of singularities and functions of extension’5—may have with the method and activity of the classical Roman jurists. It is common to think of jurisprudence today as a philosophically subsumptive and schematic activity. It is supposed to bring us from objective facts to legal principles; from concrete cases to general rules and vice versa. We tend to applaud it when it takes us from the solutions in individual cases to the principles and concepts that logically apply by analogy beyond them, or alternatively from what is posited as general, universal, a priori, to the particular instances that instead confirm it by way of example of the universality of what is given. In this way, practices of law—adjudication, legislation and so on—are supposed to claim the conceptual advantage of theory, abstraction, systematisation; while philosophy (moral, political and so on) gains the sense of an ‘applied’ science. What is striking however about Deleuze’s remarks on law is that he invites us to consider an activity and a method of jurisprudence which is, I would say, a critique of this whole conception.

246 For Deleuze, a conception of law based on ‘jurisprudence’ is a pure case-law, not so much in the sense of a system of case-based precedent like in the adjudicative analogical model of the common law, but in terms of the creative construction and association of institutions forged out of concrete situations, more akin I would suggest to Roman juristic craft. In Empiricism and Subjectivity: An Essay on Hume’s Theory of Human Nature, questions in the style of Roman casuistry become a lynchpin to Deleuze’s reading of the Scottish philosopher and his attempt to rescue both philosophy and law from the pretensions of a naturalistic or dogmatic image. The determination of rules (of possession, etc.) in Hume’s work always have to be ‘corrected’, Deleuze suggests, by ‘a casuistics and a theory of the accidental’.6 Cases in this sense are not just a collection of material ‘facts’ or contingent ‘circumstances’ over which claims are made in the name of law, the determination of which form lasting principles. They constitute a set of differences that activate the law on the terrain of its fundamental creativity, and through which alone it is possible to ‘think’ it. David Saunders remarks on the way in which Deleuze inverts the usual subordination ‘of legal case to philosophical principle’,7 allowing the case to serve as the occasion for the immanent invention of principles rather than as the occasion for the mere application of them. We don’t appeal to pre-existing principles, to pre-existing rights: we find ourselves in cases, situations. This, for Deleuze, is life.8 And to speak of jurisprudence is to speak of the mode of invention, the artifices of the law, this ‘topical’ rather than ‘axiomatic’ practice of law,9 that goes along with life. It doesn’t subsume cases under principles. It starts, we could say, as the classical Roman jurists do, from the particular case (imagined or real) and ventures to go further toward its extreme singularity, its precise uniqueness for the thought of law. It ‘dismisses the universal in favour of emissions of singularities’.10 It embeds the principles in the vicinity of an increasingly unique set of circumstances and an increasingly particular, minor, subtle and technical refinement.

If we can see the Roman jurists through these Deleuzian eyes—we see the whole object of their art and the whole effort of the intellectual craft as being to continually refine, not the principles, but the cases: cases in which the facts are remodelled, the rules stretched to their institutional limits; a method that does not seek to describe or represent the law but to isolate it in its cases; to extract the peculiar juridical and institutional shape of things like a chemist isolates compounds from more complex composites.11 With a kind of sober, antihumanitarian creativity the Roman jurists meticulously refrain from becoming moralists as much as legislators: not because, like modern formalists, they want to preserve the properly ‘interpretive’ vocation of the judge, but because—finding laws already bound up in the traditions of their ancestors—they delight in testing them and in seeing them re-emerge out of the depth of their science of ‘cases’.

247 In the following analysis, I hope to show one of the ways that a jurisprudence of this sort allows a more sensitive appreciation for the action and autonomy that nonhuman animals can acquire with respect to law. We often think of an animal simply as part of a nature beyond law, or as a contingent external circumstance with no essential relation to the essence or grammar of legal formulation. But if it is possible—as the following analysis tries to make out—to encounter the animal as inseparable from a highly crafted case to which the thought of law is tied, it is also possible to view the legal action and autonomy of animals in a new light. The animal is more than a ‘subject of right’ or a ‘metaphor’ for the subjected place that nature occupies in relation to the law. In the hands of the Roman jurist, it becomes instead an artifice, a ‘becoming’ of thought, a diagram of right, a technical modification through which the law is singularly invented, tested, extended. In this way the intelligence of law is found less in the question of reaching toward a more inclusive, a more transcendent, more cosmological ethical view of the natural world and of the legal ‘subject’. It is first of all a question of how the jurist, as a thinker, recruits an animal to serve in the inventive construction of law, in what we could call, along with Deleuze, certain ‘singularities’ or ‘cases for jurisprudence’.12 Even if this casuistry does not leave either the rule or the facts of the case unaltered, and even if the animal may appear with barely any resemblance to the image it ordinarily takes on in our social or cultural imaginary, we can at least observe the earnestness of the encounter that this animal has with the necessity of the thought of law that both bears as well as modifies it.

If, When My Bees Had Flown to Yours, You Burn Them . . .

‘If, when my bees had flown to yours, you burn them up, Celsus says that an action on the lex Aquilia lies’.13

Here is the fragment in which the classical Roman jurist Ulpian relates the opinion of Celsus on the application of the third chapter of the lex Aquilia, an ancient Roman plebiscite imposing reparation for certain kinds of unlawful harm, to the situation of the burning of some bees. The particular chapter of the lex Aquilia in question here deals with harm done to property (other than the killing of slaves and cattle) and imposed liability on whoever had unlawfully ‘burned, broken or spoiled’14 the property of another. The fragment is included in Justinian’s Digest among a series of case-scenarios in which Ulpian explores the meaning of various parts of this statute.

Among these cases, the statement in relation to the bees stands out as being particularly unusual. What do the formulations ‘my bees’, ‘to yours’ and ‘you 248burn them’ mean exactly? The reference to any actual or likely state of affairs seems especially tenuous or opaque. Is Ulpian speaking of one to two bees or a whole swarm? Does ‘to yours’ refer to the bees joining and merging with your own swarm or hive of bees? Or does it just mean flying onto your property or settling into your trees? What is the precise context and motive for ‘burning’ the bees? If there is a particular or typical case intended by this example, we find it to be unusually difficult to envisage. Bees, we might be told by naturalists, don’t typically fly off and join another swarm on their own accord. But if all that is meant by the statement is that the bees flew off from one person’s property and onto a neighbour’s property, then why—putting possible corruptions of the text aside—would the writer not bother to waste a word to specify that fact? And at the end of the day, if the intended case is so truncated and so poorly defined, what is the point of including it within a commentary on the extent of the application of the lex Aquilia? Can we dismiss it simply as a certain awkward phrasing of the point by the jurist? Can we just put it down to a poor understanding on the lawyer’s part of the typical behaviours of bees and the general troubles and concerns of beekeepers?

No. To understand the position of the bees in this fragment, it is necessary to understand something of the jurisprudential context and in particular the juristic art in which they come to take on an activity, a role and a function. We can be easily forgiven for thinking that the facts here are simply poorly described. We can be forgiven for assuming that what the jurist should have been aiming to do is to elucidate by way of clear examples, the structure of the general rule of liability under the statute. The cases that it refers to, in this sense, should be commodious to the social purpose that the law is meant to serve. It should set out examples that are commonly encountered in practice and in which the rule can be distinctly understood and easily brought to mind. The case should, in short, reflect a set of facts, a social reality that the law aims to govern. And if there is obscurity in the way the facts of this case are described, it can only be the result of a missing piece, an error, a corruption of the text, or perhaps a deficiency in the skills of communication.

Now, such an interpretation leaves us in an unhelpful position for trying to think the position of the animal in law as anything other than a passive bystander. The animal may be included under one category here, excluded from another category there—all the while reduced essentially to a natural state of affairs that the law encounters as an external reality, an object of factual representation. And yet Ulpian’s text about the bees can appear to us very differently when what we expect to see in it is not necessarily the laying down of a general rule and its application or explanation in a factual example, but rather the pursuing of a kind of scientific method of experimentation: a form of ‘testing’ the rule by bringing it into the vicinity of a tightly crafted case. In that case, the distortion that we find in the facts as described, 249can be the evidence not simply of some state of error or disrepair, but of a thought that persists on the page of law and which resists being reduced to the representation of some rule. When it comes to Roman jurisprudence—a work which amounts to little if not to an extreme care or exactness taken with the verbal forms and syntax of legal action—there is good reason to believe that the unusual form of words used by the jurist cannot be put down to any ‘muddling’ or ‘mincing’ of the terms. There is reason instead, at least at first, to treat things at face value and assume that when the legal literature gives us a case and an expression that appears distorted or not easy to locate in any objective reality, this may in fact be the product of—rather than a departure from—the precision required by this procedural literacy of the jurist. And when it’s precisely an animal that accompanies this factual distortion, we can afford to read this not so much as an objectification of animal life, and of the natural world, but as a unique opportunity to recover something of the independence that this animal acquires and maintains in the thought and technique of law.

The Apian Shape of Possession

In what sense then are the words used in this fragment exacting? And what place do the bees play in that exactness? It is helpful to first outline a few of the problems that the animal has come to be associated with in Roman law. What we should have in mind here is not just the common understanding of the animal, either as nature or as metaphor, but a certain technical legal arrangement: a juridical concept that the jurist attempts to refine with all the tools at his disposal. Deleuze and Guattari emphasise that the animal is less a ‘being’ than a ‘becoming’ affecting a certain field. They refer in this way to the banality of ‘imitating’ animals but to the profoundness of certain affects and relations that constitute the becoming-animal of something or someone: cinema, a language, an author, a patient and so forth. Becoming-animal is not, as they say, ‘content to proceed by resemblance’ but constitutes a ‘diagram, a problem’15 outside any representation, imitation, metaphor, analogy. Far from bringing us back to the centrality of ‘man’, the register of Roman casuistry only confirms this diagrammatic conception of the animal more strongly. When bees are evoked in the passage by Ulpian, as we will see, it is neither to make them stand in for something else, nor to abandon the question of law to some natural or factual state of affairs. It is neither to treat them as subject or as object but to evoke, in a certain way, the distinct set of juridical relations already bound up with bees.

In the Roman juridical literature, like in many modern systems, as E. J. Cohn acknowledges, bees tend to ‘furnish lawyers with attractive little 250problems’.16 In particular they help trace the boundaries between various forms of ownership and possession. There is an extended passage, from which our fragment from Ulpian on the lex Aquilia appears to be an abbreviation, recorded in Collatio 12.7.10, in which explicit mention is made of the opposing juristic viewpoints on the legal nature of the bees: a distinction between the views of Proculus and Celsus. The bees seem here to animate the interpretive energies of the classical jurists. Proculus for instance thought that an action under the lex Aquilia did not lie because there was no property in fleeing bees. Classified as wild rather than domesticated animals, once these bees flew away from one’s possession, they could be freely acquired and dealt with by others. Celsus, as the fragment confirms, thought on the contrary that the action did lie since bees were to be considered apparently not like other wild animals but like ‘fruits’17 and also, like doves, to have a mind to return (animus revertendi).

This discussion accords with other appearances of bees in the juridical texts where they come to test the contours of certain kinds of acquisition or occupation of property. Bees serve to qualify, in certain ways, the modes by which one is said to acquire or lose possession and ownership in things that are first considered no one’s, res nullius. In book 2 of Gaius’s Common Matters or Golden Things,18 for instance, the example of bees is used to navigate the boundary between two theories of acquisitive prescription: two theories on the question of when an individual is deemed to have acquired possession (of an animal) for the purpose of having an action against those who would interfere with that possession. First, the theory in which a wild animal will be considered ‘ours’ if it has been wounded to the point that it can be captured, so long as we are still in pursuit of it (the view favoured by Trebatius). Second, the view favoured by the majority of interpreters, according to Gaius, in which an actual capture is required in order to have a better title than any other would-be acquirer. Gaius notes then—somewhat obliquely in relation to this initial debate—that for bees which are treated as wild by nature, when ‘a swarm flies away from our hive’ it will still be considered ‘ours so long as we have it in sight and its recovery is not difficult; otherwise, it is open to the first taker’.

Bees therefore evoke the idea of a form of possession that is not absolute. We have, with the bee, an animal that is always liable to return to nature, to regain its natural liberty and be claimed by the ‘first taker’, but also one which extends in a certain way beyond boundaries by the tendency of bees to return: a form of possession which can be maintained in a sort of pursuit in which other claims to the animal can be temporarily held at bay, and a shape of ownership that extends no further than this elastic, roaming possession. Yan Thomas explains the remarkable way in which the Roman jurists were capable in this area of filing a whole philosophical discourse on ‘nature’ 251and ‘natural right’ back within the narrow institutional frame of their civil law—a point also alluded to by Schulz when he explains that the ius naturale in classical Roman jurisprudence ‘has nothing to do with legal philosophy, but is a thoroughly professional construction’.19 They treated the so-called natural liberty that the wild animal is supposed to regain by fleeing capture as itself a neat but purely juristic outline for qualifying an institutional arrangement: namely the species of possession known as pro suo (an acquisition that is not derived from another) which could, along with a number of other modes of acquisition such as gift, bequest or dowry, accrue with the passage of time into a full ownership. Nature is not an external referent here. It doesn’t provide a ‘vague reference to the idea that institutions have to conform to an order that transcends them’, as Thomas suggests.20 It is only, like with Deleuze’s reading of Hume, an association and a reflection of ideas put in the service of conventions, institutions: as a means of forging them and extending them beyond their immediate terrains.21

We get a clearer view of the significance of the bees in Ulpian’s passage then when we acknowledge the originality to the institutional meaning and technical work that the jurist reserves for them. It is not necessarily anything natural to the bee that makes it suitable for the juristic construction in question. Rather the jurist carves out a highly original meaning for nature in the guise of some bees: its meaning as institution. From a species of animal the jurist makes a species of possession. Thus, when Ulpian refers to the example of bees (built upon the discussion of Celsus and Proculus) in the context of the lex Aquilia, the choice of animal is not random. What is important is that enough of this juridical and casuistic figure of the animal can be borrowed from the law concerning the acquisition of ownership for the purposes of articulating the interpretive limits of the lex Aquilia. But what is equally important is that this analysis at the same time is able to sufficiently distinguish itself from the other (possessory) context. It has to somehow avoid preempting or subsuming the whole jurisprudence on acquisitive prescription within the narrow point of statutory interpretation that the discussion of the lex Aquilia concerns. What is the jurist to make of an ambiguity over whether one still has any relevant form of possession or ownership over some bees that have flown away for the purposes of a law that requires payment to owners of property against those who, in the words of the plebiscite itself, have done ‘damage by unlawfully burning, breaking or spoiling’ (. . . damnum faxit, quod usserit fregerit ruperit iniuria)?22 The answer is evidently not to step outside the institutional realm of law to consider such aspects as the natural propensity of bees, the economic implications for beekeepers and so on. Nor is it—one should add—to refer on the other hand the whole question of what can be considered ‘property’ subject to the protection in the lex Aquilia back to some naturalistic philosophy drawn in reverse 252from the casuistry of acquisitive prescription. The challenge is rather to meet the ambiguity one finds in the immediate institutional field with an adequate juridical abstraction drawn from another.

Burned Bees: A Procedural Estimation of Value

It is worth mentioning at this point the interpretation of Ulpian’s fragment that is offered by Bruce W. Frier in his two essays ‘Bees and Lawyers’ and ‘Why Did the Jurists Change Roman Law? Bees and Lawyers Revisited’.23 Frier puts Celsus’s approach to the problem, which he champions, down to an astute understanding of the social value of beekeeping on the part of the jurist and a flexibility with respect to the function of the rules, maintaining that it matters less in the context of this problem whether the bees ‘ “belong” (in one sense or another) to their owner’ than the fact that ‘their owner is a beekeeper, and beekeeping is a desirable and productive activity’.24 Frier’s point of view is built on a hypothesis about the nature of legal change and the flexibility of legal casuistry,25 however it is also premised on certain assumptions about the attribution of values to legal things. From his perspective, what the fragment on the bees reveals primarily is that the Roman jurists, far from being caught in their own thoroughly professional and artistic insularity, were in fact influenced to a large degree by the broader social and economic contexts of their time. What the fragment shows us, in Frier’s view, is the way the law evolves and establishes new principles to meet the needs of its society and changing circumstances. Even the Roman jurists, who are normally characterised by steadfastness in the independence of their craft, the strictness with which they held to their science and to the worth of their jurisprudence as an art for its own sake, can be depicted here by Frier as being directed, in the same way that any good common lawyer ultimately is, by judicious policy choices adopted in the penumbra of positive rules. Not even the pure artistic rigour of the Roman jurist can insulate itself from the need for law, at the end of the day, to be ‘actually socially adequate for its time and place’.26

Now, this view ascribes both a naturalistic and an economic value to the bees, in the name of a contextual reading of the law, that is in fact found nowhere explicitly in the juristic writing itself. Frier’s view is a straightforward one. Beekeeping was central to Roman economy. Bees have to fly free to some extent so that they become ‘productive’ animals for their owners. The law therefore finds good reason to treat them as a category of their own in order, unlike other wild animals, to ‘protect them in their flight’.27 It is a view that places significant stock in the universality of values tied to a determinate human economy in bees, but it is also one that potentially ignores the distinct independence that the animal can acquire in a jurisprudence that in fact has 253little interest in things as objects of nature, as economic means of production or as things-in-themselves. We should be wary in other words of dismissing too quickly the characteristic aversion that the jurists appear to show toward rationalities based merely in economic and public policy concerns. And we should be wary too of being over-confident in our own estimation of ‘values’ as to put more weight in the notion of beekeeping as a productive human activity, than to consider the detailed and detached technical reflection that the jurists themselves produced on as focused and as complex a procedural terrain as how value and loss were to be assessed under the lex Aquilia.28

Consider for a moment the much debated element of the third chapter of the law which provides for reparation according to the measure of ‘how much the thing will be in the nearest 30 days’ (quanti ea res erit in diebus triginta proximis). What did this mean? Did it mean the plaintiff could recover, in a similar way to the first chapter of the lex, the highest value that the damaged object had in the thirty days prior to the harm? Or did it mean the value of the loss as much as had accrued within thirty days following the harm? The modern interpretations of this provision are famously split. David Daube argued that it can’t be the former since then the law would find no way to distinguish between minor injury to a thing and complete destruction of it.29 Others thought that it did refer to the (highest) value that the damaged thing had in the thirty days preceding the damage, but found the need to qualify it with the suggestion that the law only covered damage to a thing that was either absolute or very serious, so that the value of such damage largely approximated the entire value of the thing itself.30

Even here, the debates are set on a rather confusing path, however, when they seek to interpret the law through methods of evaluation of ‘things’ divorced from the procedure and casuistry that takes hold of them. There is a tendency to see law as secondary to values tied somehow to the metaphysics of objects, rather than as creative of the very values that inhere in legal ‘things’. It is true for instance that the Roman jurists did not think of a res, ‘thing’, as separate from the procedure in which it was held as an object of contestation. The term res, as Yan Thomas has also pointed out, is at once a ‘thing’ as well as a ‘contested matter’: the value it represents in a proceedings.31 It is not the thing itself that must be valued then (a comparison of what it was worth ‘before’ and ‘after’ it was damaged). The thing is itself the identity in its value, an estimation: what this wrong as alleged represents in the estimation of the judge. The reference to thirty days seems likely to simply be a proximity to the wrong to which the imaginary time of reckoning is directed. When the jurist Paul remarks rhetorically for instance in Digest 9.2.24 (Edict, book 22): ‘what wound are we to value, or to what time shall we reckon back?’ in reference to the situation where a defendant had confessed under the lex Aquilia to wounding a slave but where the slave 254hadn’t actually been wounded, he’s not necessarily indicating that the thirty days are to be reckoned from the wrong backwards in time, but simply referring to the necessity for a judge to be able to put himself at an approximate point in time in order to estimate the value (of the thing, the injury) in question. The res means this thing the law understands as arising from having been ‘burnt, broken, spoiled’ as well as, at the same time, the estimate of the value this thing will be in the proceedings. In Paul’s example, it doesn’t mean the slave in him- or herself (who exists as a being and who could be valued as property), but the wound (which doesn’t exist and therefore can’t be valued at all). Through this contemporary debate, we can see just how far the reliance upon modern economic and metaphysical paradigms or contexts can tend to force and distort rather than explain the meaning of the legal text, and also just how far the technical jurisprudential register of res—far from reducing the bees to the status of commodity—remarkably insulates them from a commonplace naturalistic or liberal-economic view of their value. The casuistic thinking of Roman law refuses to accede to any objective, let alone social or economic, value of a thing derived from outside the legal procedure in which it is forged and temporarily held.

Several or a Swarm? Bees as a Diagram of Jurisprudence

Let’s return then to the words of Ulpian’s fragment and try to discern something of the nonanthropocentric function that the bees serve in the thought of the jurist. Faced with the unusualness of the expression in the fragment, Bruce W. Frier’s approach is to try to fill in some missing pieces. He has a typical case in mind: a beekeeper’s bees have flown off onto the property of his neighbour in search of pollen. The neighbour destroys them. Based on that typical case, it becomes possible to alleviate the ambiguity in Ulpian’s bees which are flying simply from mine to yours. The first thing that has gone unstated, from Frier’s viewpoint, is that the said bees must not have been, ‘at least at the first instance’, a full swarm but just one or two individual bees.32 Celsus could scarcely have constructed a legal exception out of the bees in question on the basis, had they been a full swarm, of their inclination (like doves) to return, since—as he must have known—swarming bees are not accustomed to return but swarm precisely in order to find and establish a new colony.33 What this means for Frier is that ‘to yours’ does not indicate some mixing of bee swarms (mine and yours).34 Rather he suggests that a word has gone missing. The bees, the text should read, are flying to your trees or to your property. In Frier’s view, it is necessary to reinsert these missing pieces in order to make the formulation of the rule more cogent and the text more 255readable.35 The ‘case’ is something that the jurist is concerned to address at the level of social needs, more than as a tool sharpened precisely for pursuing a type of science.

It is possible however that what we are missing is not necessarily the elements of a mis-transcribed or corrupted text, but the key to a conception of jurisprudence—a creative practice of the law—that animates the jurist and renders the peculiar truncated formulation that we find in the text into a more necessary mode of expression. It may be possible that our focus should be placed not just on what would make the statement of the principle more logical, the factual situation referred to more typical or plausible, the rule contained in it more clear and certain. We can afford, along with Deleuze, to be sceptical of a ‘dogmatic image of thought’ that has tethered the act of thinking to a goodwill, a common-sense and good-sense on the part of the thinker, rather than to the radical singularity of an encounter.36 We should be wary too of reading the work of the jurists as pursuing some unstated humanistic purpose: a form of social engineering aiming at valid human ends and fulfilling its conception of the Good through policy choices. Instead, we can focus on what must or must not be stated from a technical juridical point of view in order for the analysis to situate itself within certain precise jurisdictional limits. If, in the work of the jurist, the description of the facts of the case appear to have undergone some kind of distortion, to be wrought from some sort of misshapen mould, then we should avoid trying to simply beat it back into shape.37 We should rather use that distortion as a lens through which to account for law as a technical medium that—despite the limitations in the resources that language provides it—acts in a definite way upon the world and maintains itself at a distance from any common-sense ‘reality’.

To be more precise, the formulation ‘my bees have flown to yours’, may make better sense when we emphasise the basic legal point that what is precisely in question is the extent of what can be considered to be, for an action under the lex Aquilia, ‘burnt, broken or spoiled’. For the moment, consider the words ‘you burn them’: equally unusual from the point of view of an ordinary description of the facts. This unusualness is clearly no accident however. And it is also separate from the question of whether we can find a suitable explanation for ‘burning’ bees from the historical record of beekeeping, as Ariana Pretto-Sakmann admirably explores, seeing it probably as some failure to apply some smoke in order to pacify and capture them.38 Rather, we can see it, to borrow Alain Pottage’s description, as a kind of jurisprudential ‘stenography’.39 The facts may appear ‘surreal or bookish’ according to Frier,40 but they are at the same time the product of an attempt to focus the legal analysis. The bees are ‘burnt’ because if it were a question of ‘poisoning’ them as in the ‘case of the poor man’s bees’, described in the thirteenth Major Declamation attributed to Quintilian,41 or killing them or driving them away with ‘smoke’ 256as in Digest 9.2.49, the effect would be to leave problematised something that is decidedly not intended to be so: whether the act of the defendant was a ‘direct’ or an ‘indirect’ cause of the destruction.42 The point is that ‘burning’ comes explicitly within the (already somewhat archaic) terms of the lex Aquilia and is not in question here. Our concern is sharply focused on what sort of ownership or possession, what shape of dominium is envisaged by the terms of the plebiscite when it speaks of reparation. It is on this focused legal terrain that the bees are meant to enter the picture.

It is a short step from there to acknowledge the technical work that the other oddly formulated words of the passage perform. It is apt for the jurist to emphasise that we are not dealing with the same question as—as mentioned previously—whether one has ownership in general over such things as wild animals and bees in particular. It is not technically about whether another person can validly claim them as their own when they have flown away from your direct control. The concern is narrower. It is about the precise form of ownership or possession or control that is capable, under the terms of the lex, of being subject to the infliction of such unlawful damage (damnum facere) as ‘burning, breaking or spoiling’. The peculiar tightness of the phrase makes better sense when we acknowledge, borrowing Thomas Finkenauer’s words, the ‘concrete and associative’ rather than ‘schematic and rigid’ nature of the thought of the jurist.43 There is something that can afford to be bracketed out in the economy of the treatment. That is precisely the question: what form of ownership does one retain and acquire in bees? We don’t get very far in the interpretation (we don’t enrich it very much) to go via analogy from what would be a dogmatic position on this point in one area (they remain ours so long as . . .) to a solution which is based on that same dogmatic position applied to the lex Aquilia (they can be considered property subject to being unlawfully ‘burned’ . . .). The jurist would rather keep these sets of legal subtleties in both areas in play. He would rather discover the technical terrain upon which the precise question enclosed in the case—and only that question—can be addressed, than to subject both the case and the prior jurisprudence to the dogmatism of an abstract rule. This thought of law extracts from the figure of the bees a certain diagram—an abstract set of juridical relations and a distinct jurisprudential meaning—and puts it to work to sharpen its focus.

They have simply ‘flown to yours’. Even if we can’t exactly picture the whole distinct factual scenario alluded to here, we can understand something of the necessary juridical precision involved. The jurist is at extreme pains to avoid making, in a roundabout way, a judgement on an issue that strictly does not belong to the jurisprudence on the lex Aquilia. In just a few words, we are capable of following all of the precision of the jurist’s thought. Are we supposed to surmise that they have flown to and merged with some bees that 257you already own, before you burned them? That they have flown onto your property? To your trees? Are we supposed—in order to understand the law as it is described—to picture a clear and distinct factual basis to the case? To extrapolate that the bees must not be a full swarm but only several individual bees, since otherwise they would not have the inclination to return? These concerns are actually beside the point. The crucial thing is that any of these terms tends to already say too much for the rigour of the analysis it demands from the jurist: it sets one on an inquiry into facts that are not strictly required and which don’t help to distil the question of law. The suggestion by Pretto-Sakmann that ‘to yours’ (ad tuas) could be ‘explained as a metonymy: a mention of bees for where bees reside, and thereby a reference to “land” or “property” ’ seems plausible.44 But the bees can also afford to retain the even more independent shape they have acquired in jurisprudence. This shape is diagrammatic rather than figurative. When the jurist mentions the bees, it is the very concept of property (dominium) which is precisely in question. The reference takes a shape that can cover in one sense the actual animals themselves insofar as they are relevant to the case, and the distinct mode of possession or property which is elastic or amorphous enough to be capable of being extended from ‘mine’ to ‘yours’. In this way the bees can offer a distinct diagram for interrogating the ownership or possession of things for which the lex Aquilia imagines reparation for unlawful harm, without enclosing the animal in any naturalising discourse, and without foreclosing anything in the lively casuistry, the set of cases, in which ownership in wild animals can supposedly be lost by one and acquired by another.

The Anti-Humanism of Jurisprudence

Can we call such a jurisprudence ‘antihumanist’ or even ‘nonanthropocentric’? A typical rebuttal of the whole approach presented earlier would proceed as follows. Nothing here challenges the most basic Western anthropocentric views that Roman jurisprudence is, after all, a typical example of. The interests of no one other than humans have, for the Romans, featured in the legal estimation of value, harm, unlawfulness and so on. Nothing other than the Western, entrenched, self-ordained right of humans over the natural world and over the bees in question informs the values expressed in the passage from Ulpian. There is no question of the interests, the rights, of any animal. There is no theory of any subject of rights other than ‘man’. There is no ecological perspective on justice that is broader than that defined by the narrow, private, even petty juridical interests of the claimants.

Ok. But let’s not get carried away in the commonplaces. Let’s not confuse the pettiness of the human interests in question, with the enduring structure 258and matter of the law itself, the call and demands that it makes on thought, and the place that a humanist ideal (a respect for the rights and freedoms of all humanity) and an anthropocentric vision (making ‘man’ the kind of standard for all rights) holds or doesn’t hold in it. We shouldn’t be too quick to dismiss the significance of the animal when it appears in juristic thought, even if that animal is—for the claimants and for the jurisprudential framing of their dispute—only the object of some banal economic claim over property. A humanistic philosophy doesn’t just take stock preferentially of the claims of human subjects over others—in their profoundness as much as in their pettiness. It installs the very value of humanity, the idea that we are all human, united in our humanity and in the ‘intrinsically moral powers of human reason’, at the heart of the spirit of law.45 Legal anthropocentrism, similarly, is not just the fact that law is composed and constructed by humans for needs that they understand as uniquely their own. Nor is it the typical condition of recognising and giving preference to the rights and interests and values of humans over those of other species. It is the projection of the very idea of ‘man’, the being and the ends and destinies of ‘man’, at the centre of the vision that law has of the world in general.

It goes without saying that the Roman jurists did not challenge legal institutions in which not only animals but many men and women were treated as the property of others. And of course it can be conceded that, in the example of the bees, the jurist is in no way interested in what may be the consequences of this or that interpretation on the bees themselves as concrete moral, ethical or legal subjects. This should not simply be considered a shortcoming, a lack of progress or sophistication in their legal philosophical conceptualisation. It represents a broader detachment of the thought of the jurist from the worlds of philosophy, rhetoric and politics; worlds which it is comfortable to treat as not its own. What we shouldn’t be too quick to dismiss is the relevance of this thought for a project in law that today finds difficulty situating animals in a juridical language that is appropriate to their independence and power. If we can find a nonanthropocentric perspective in law, it need not be one that falsely stretches itself into the subject-positions of nonhumans—trees, rivers, animals, nature, the Earth or whatever—in order to represent the interests of beings that have up to now been disregarded, or valued only for what they represent for a man. The Roman law gives us a far more inventive vision. It studiously avoids the ideals of any naturalism, any transcendentalism, any abstract metaphysics, any higher-order field of rights and duties. It refuses to assess cases by anything other than the modifications these introduce to its technical constructions, its associative experiments, its diagrams of right.

In this casuistic conception of law, we can observe—at least momentarily in a fragment like Ulpian’s—a remarkable centrality of the animal to 259the thought of law. There is a privilege given by the jurist to the shape this animal offers to the elegance and refinement of their juristic constructions, over and above the all-too-human rhetorical, social, political contexts of the dispute. How does one manage to make anything creative out of the ordinary and meaningless circumstances of litigation: the mundane situation in which one person makes a claim for reparation from another? What we see the jurist, Ulpian, doing—far from attempting to respond earnestly to all the circumstances of the litigants’ situation from an all-encompassing conception of justice—is to isolate that part of the problem that alone concerns the thought of law. What we see is a disarming of the natural law philosophies that would posit, if not a universalism of man’s dominion over the natural world—the rights to the products of his own industry and so forth—then at least some transcendent natural order to which humanity and its laws, just as much as the animal world, must conform. The image of this natural order we find instead diffracted beyond recognition under the ‘topical’ force of their civil law: modified (in our case) under the refinement of a precise juridical-institutional question concerning liability under the lex Aquilia. The interpretive ends may appear banal, even trivial, but the technique is highly original. There is truly no place left in the thought of the Roman jurists for a totalising and humanising philosophy of nature. Each case in their casuistry is an artifice for the invention of right, a rehearsal of the supremacy of a uniquely jurisprudential vision of law.

Within this lightness of the jurist’s touch, the flourish of creativity and experimentation that sits effortlessly alongside a sober, technical appreciation for the forms and institutions of law, we can note the indispensable, modest and even intimate role played by the bees. Here are some animals which, for the narrow purpose that the jurist recruits them for, can uniquely test the limits of the institutions of the civil law and to extend these limits beyond their otherwise lifeless, sclerotic doctrinal terrain. The bees may not have rights. But they are themselves the technical modifications of right: bearers of an altered jurisdiction. It is only in the thought of law and not in the representation of it that we can see these bees released, as it were, both from the sterility of legal doctrine and from the naturalism and humanism that normally reduces them to metaphor and allegory.

Acknowledgements

I would like to thank the colleagues and friends at Griffith University and at the 2017 Conference of the Law Literature and Humanities Association of Australasia for their thoughts, questions and comments on earlier versions of this paper. Special thanks to Marta Madero who offered some invaluable 260insight and advice on ideas contained in this piece and to Mary Keyes whose close reading of an earlier draft helped give it shape. I would also like to express my gratitude to the editors of this volume, Simone Bignall and Rosi Braidotti, for all their care and work devoted to this text and the warm invitation to contribute.

Notes

1. Deleuze 2006, 350.

2. Deleuze 2006, 350

3. Ulpian Digest 9.2.27.12 (Edict, book 18). For references to Justinian’s Digest in English translation, refer to Watson 1985.

4. For a selection of interpretations of Deleuze’s affinity for law and jurisprudence in recent years, see, e.g., Moore 2007; Lefebvre 2008; de Sutter 2009; Braidotti, Colebrook and Hanafin 2009; de Sutter and McGee 2012; Murray 2013.

5. Deleuze 2006, 350.

6. Deleuze 1991, 62. See also, for example, Deleuze 2001, 36: ‘Hume raises unexpected questions that seem nevertheless familiar: To establish possession of an abandoned city, does a javelin thrown against the door suffice, or must the door be touched by a finder? To what extent can we be owners of the seas? Why is the ground more important than the surface in a juridical system, whereas in painting, the paint is more important than the canvas?’

7. Saunders 2012, 198.

8. Deleuze 2004b.

9. In a rare direct reference to Roman law, Deleuze and Guattari—drawing upon the work of Paul Veyne—describe Roman law as ‘topical’ as opposed to modern law which is ‘axiomatic’. Roman law, they suggest, proceeds more by way of ‘topics’ than ‘concepts’. (Deleuze and Guattari 2002, 568 [fn 44 and 50]). This general idea was made more well known in the 1950s by Theodor Viehweg 1993.

10. Deleuze 2006, 350.

11. On legal isolationism in Roman jurisprudence, see especially: Schulz 1936; and Watson 1995.

12. Deleuze uses this idea in an interview with Claire Parnet where the philosopher contrasts jurisprudence, the invention of right, as against the respect for human rights (Deleuze 2004b). For discussion, see especially Lefebvre 2008, 54–59; and Saunders 2012.

13. Ulpian Digest 9.2.27.12.

14. The actual terms are ‘usserit fregerit ruperit iniuria’. In Digest 9.2.27.13 Ulpian notes that the statute says ‘ruperit [break or rend asunder]; but almost all the early jurists understood the word to mean corruperit [spoil]’.

15. Deleuze and Guattari 2002, 233; 258.

16. Cohn 1939, 289.

261 17. Pretto-Sakmann critiques Frier’s translation of fructui as ‘source of profit’, arguing that this ignores the fact that the term ‘fruits’ (fructui) is normally read as having a technical meaning in Roman law. The conclusion is that bees may have become an exceptional case because of a cultural tendency to view them sometimes more as ‘crops’ than as ‘wild animals’ (Pretto-Sakmann 2006, 491).

18. Digest 41.1.5.

19. Thomas 1991; Schulz 1946, 137.

20. Thomas1991, 219.

21. Deleuze 1991, 37–54.

22. This phrasing, given by Ulpian in quoting the third chapter of the lex Aquilia in Digest 9.2.27.5, is generally taken to be a genuine rendition of the original.

23. Frier 1982, 1994.

24. Frier 1982, 112.

25. Frier 1994, 143–45.

26. Frier 1994, 144.

27. Frier 1982, 112.

28. Nietzsche avers I think to this detachment of the juristic conception of value when, in his Genealogy of Morality, he makes reference to what he sees as the more ‘calculating’ more ‘Roman’ conception of law reflected in the provision of the Twelve Tables which said, in relation to the principle that a creditor could cut off a certain amount of flesh from the body of his insolvent debtor, that there was no fraud if he cut off more or less (Nietzsche 1998, 50–51). Thus, even at its origins, the Roman conception of law can be reflected in a resistance to the idea of value as a pure system of equivalence (the pettiness for example in the painstaking inventory of body parts and what they are worth), rather than as invention or transvaluation.

29. Daube 1936.

30. For selection of work addressing this theme, see Jolowicz (1922), Daube (1936), MacCormack (1970), Kelly (1971), Westbrook (1995) and Zimmerman (1996).

31. Thomas 1980; Thomas 2002.

32. Frier 1982, 111.

33. The assumption for Frier is that this ‘returning’ (animus revertendi) for the jurist is a natural rather than a distinctly juridical attribute of bees. This is ultimately what makes him privilege, in his reading of the fragment, the idea of several individual bees rather than a swarm, despite the obvious insignificance of a legal action brought for the destruction of just a few bees.

34. It would be interesting to consider how far such a misreading of the Roman law influenced the drafting of the present day German Civil Code which includes four rarely used sections (961–64) dealing solely with the unique legal situation of the ownership of bees, including a whole discussion of the combinations and permutations concerning the merging and intermixture of bee swarms.

35. Frier also notably appears to replace the final word of the Collatio fragment fugiunt with remanent (Frier 1994, 135). Thus, in Frier’s reading, the bees, when they ‘flee’ or ‘take flight’ from the hand, should actually be said to still ‘remain’ at home rather than ‘flee’ or ‘take flight’ home.

262 36. Deleuze 2004a, 164–213.

37. As Pretto-Sakmann notes: ‘Frier’s interpretation is not entirely plausible in that it tries to make the bees’ nature square with the law’ (2006, 493).

38. ‘In all probability’, Pretto-Sakmann (2006, 494) concludes, ‘the ad tuas text is a case of a swarm taking off, thus losing its animus revertendi. A neighbour rather inaptly tries to use smoke to pacify the swarm and capture it, or take the honey. The attempt at pacification fails. Fire and destruction ensue’. Smoke is mentioned by Ulpian in relation to killing bees in Disputations, Book 9 (Digest 9.2.49) as not falling under the lex Aquilia since it appears ‘to have provided the cause of their death’ and not ‘to directly to have killed them’.

39. Pottage 2014, 156.

40. Frier 1994, 143.

41. Sussman 1987.

42. This point is made by Dieter Nörr in 1986, 193.

43. Finkenauer 2011, 42

44. Pretto-Sakmann 2006, 494.

45. Braidotti 2013, 13.

References

Braidotti, R. (2013). The Posthuman. Cambridge: Polity Press.

Braidotti, R., Colebrook, C., and Hanafin, P., eds. (2009). Deleuze and Law: Forensic Futures. London: Palgrave Macmillan.

Cohn, E. J. (1939). ‘Bees and the Law’, Law Quarterly Review, 55, 289–94.

Daube, D. (1936). ‘On the Third Chapter of the Lex Aquilia’, Law Quarterly Review 52, 253–68.