28th May 2011

Legal distinctions

Abysmally incompetent as Justice Secretary Kenneth Clarke was in attempting to describe some new thinking about the law of rape, it did not merit the outrage of those who argued that rape is rape is rape and that is the end of the question. But the law is all about distinctions.

Murder is murder is murder too, but it still has to be defined accurately and culpability assessed before justice can be done.

In 287 BC, the lêx Aquilia dealing with unlawful damage was passed in a Roman assembly. It was named after its proposer, the tribune Aquilius.

Its opening chapter referred to the unlawful killing of a ‘four-footed beast of the class of cattle’. What taxed the Roman jurist Gaius was the question: since ‘cattle’ covered cows and bulls but also other farm and domestic animals, which came under the rubric? Were sheep, goats, horses, mules and asses ‘classes of cattle’? Yes, he thought. What about pigs? Some jurists, he agreed, had wondered about pigs, but yes, he reckoned, they were too. What about dogs? No, he concluded — and even less so bears, lions and panthers. How about elephants and camels?

Tricky, that, he mused: wild they may be, but they are used as draught animals. Therefore, on balance, yes.

Having first, then, identified what was in that class, one could go on to questions of culpability and its relation to justification for and intentions involved in any action. Roman jurist were fascinated by this. What if someone carrying an excessive load, or who could not control a cart or horse through weakness or experience, killed another? Or someone who operated negligently on a slave? Yes, they would count under the lêx Aquilia. What if you annoyed a dog and it bit somebody? No, unless the person had a dog on a lead and caused it to bite someone. What if a lunatic caused damage? No. Or an infant? No, unless over seven, and able to distinguish right from wrong. And so on.

Clarke, an ex-barrister, was very properly trying to make distinctions. But if that was typical of his usual performances, no wonder he gave it up to go into something else.