Another Kind of Property Rights?
An Animal Rights Article from All-Creatures.org

FROM

Bee Friedlander, ASI Animals and Society Institute
May 2009

The following news items caught my eye recently:

21 polo ponies die suddenly; an investigation reveals that a "simple" mistake in compounding the vitamins given to the animals so that they will race better caused the tragedy. Days later, a memorial service is held for them.

Several large auto insurers in Michigan announce that they will offer, at no extra cost, coverage for companion animals who are injured or killed in car accidents. This is different than traditional separate pet insurance policies, which often cost more than $30 a month.

These two recent stories bring up a question that-were it not so serious-could be considered a kind of parlor game among attorneys and others interested in animal law: is it necessary to abolish the status of animals as property in order to accomplish the goal of improving their lives?

If you are reading this blog, you probably know that under Anglo-American law, animals are personal property, similar to the chair you are sitting in or the laptop I'm using to type this blog. The two examples above-as well as countless others-belie this notion. As far as the current treatment of animal "property" by the law, consider anti-cruelty laws; pet trusts; pet custody disputes; federal regulations (honored in the breach, unfortunately) requiring non-human primates in laboratories to be provided with environmental enrichment; the requirement that state and local disaster planning agencies provide for companion and service animals as a condition of receiving federal funds.

It doesn't take an animal rights philosopher or legal scholar to conclude that animals are, at the very least, a special and different kind of property.
This status has had serious repercussions in efforts to improve the lives of animals, whether it's called animal welfare, animal rights, animal protection, abolitionist theory or another label. Among other drawbacks, an animal may not sue on his or her own behalf (with an appropriate human guardian's assistance); most people who desire to bring a lawsuit on their own behalf are stymied; and the injury or death of an animal (and I'm referring primarily to companion animals here), judged by standard property law damages, yields pitifully small amounts of money and, with few exceptions, no ability for the human guardian (let alone the animal herself) to recover damages for emotional distress, loss of companionship and the like.

Is it necessary to advance the cause of animals, that their property status be eliminated? A very selective, cursory and un-nuanced outline follows, with brief reviews of four of the many scholars who have written on the topic presented.

Steven Wise uses the image of a "Great Legal Wall" that has "divided humans from every other species of animal in the West. On one side, every human is a person with legal rights; on the other, every non-human is a thing with no legal rights." In Drawing the Line: Science and the Case for Animal Rights, Wise sets forth a strategy for changing the property categorization, with what he terms a "modest" proposal, starting with allowing "legal personhood" to great apes and bottle-nosed dolphins.

Gary Francione is even more emphatic. His position is captured in the following interview: "If the law regarding animals is to change, it is necessary to eradicate the property status of nonhumans. But it is folly to look to the legal system as playing a leading role in any such change." ..."If, however, we did accord animals this one right not to be treated as property, we would be committed to abolishing and not merely regulating animal exploitation...If we accepted that animals have the right not to be treated as our property, we would stop-completely-bringing domestic animals into existence. I am not interested in whether a cow should be able to bring a lawsuit against a farmer; I am interested in why we have the cow in the first place."

On the other hand, some commentators consider the better approach to be modifying the concept of property to better serve the interests of animals. One commentator has called for a category of "sentient property."

David Favre has written on this issue, framing it as the dilemma posed by giving personhood status and rights to animals who are not fully autonomous. Favre proposes "equitable self ownership for animals", an "intermediate ground between being only property and being freed of property status, where the interests of animals are recognized by the legal system but the framework of property law is still used for limited purposes." "The (self-owned) animals' interests are looked after by human guardians whose duties are like the already well defined legal concepts of anti-cruelty laws and the parent-child relationship."

Cass Sunstein also has proposed revisions to the relationships between humans and animals which do not repudiate the existing property status. Writing in "Animal Law", Vol. 8, page i (2002), Sunstein argues that "an enormous amount of good can come" to improve animals' lives, by taking advantage of existing laws, expanding the category of humans that can sue on behalf of animals, and creating "a private right of action on behalf of animals, who would be the main plaintiffs, to vindicate their rights...against those who have violated them."

The discussion continues, and will continue to engender much passion as well as much creative, innovative thinking. This summer, one of the fellows at the ASI's Human-Animal Studies Fellowship, will no doubt grapple with these concepts and arguments. Kris Weller, a lawyer and PhD candidate at the University of California Santa Cruz is doing her research on "Legal Personhood, Animal Advocacy, and Human-Animal Relationships."

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