Animals: Persons, Property or In Between?

In mid-October, I attended the annual Animal Law Conference at Lewis and Clark Law School. Hearing panelists Steven Wise and David Favre address animals’ legal status as property made me excited to share some of their points, as well as my own thoughts, with you.


In the United States, animals are classified as property for legal purposes. Hence, they are defined as “chattel” rather than “persons”, which is the other main category. This is relevant for purposes of standing. This may sound logical enough. However, we must ask ourselves whether we are adequately serving our animal brethren’s needs by maintaining this construct and, if not, how it might be changed.


Suits filed in tort often revolve around harm done to an animal: someone’s dog run over; someone’s cat negligently handled by a veterinarian. The fundamental incentive to file a suit of this sort is the harm done to the animal. However, the animals can’t bring their own action. Now, this is not altogether preposterous. It seems logical to draw a line at the notion of an animal filing suit in court, seeing as animals as property, and therefore cannot have interests. However, standing rules being what they are, no one is allowed to bring suit for an animal, unless a statute specifically allows for private citizen suits. This is where our system beings to falter. With humans unable to sue on behalf of animals, they do the next best thing… sue on behalf of themselves! In the great charade that has now become common, a human can get into court by showing that he/she has suffered an injury that’s directly traceable to something that happened or is happening to an animal, and that a remedy us available which, by helping the animal, would in turn the human. The entire basis of the suit is the suffering experienced by the human. The animal is a mere vehicle through which the human’s needs are met. In fact, it may well be that, should the human win the suit and the remedy be applied, the animal’s suffering will continue, as a remedy is not necessarily a guarantee of full liberation for an animal, but sometimes merely an improvement in his or her condition. Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (Fed. Cir. 1998). For humans who only brought such a suit as a circuitous way of helping an animal, this defeats their entire purpose.


So what is there to be done? One possibility is to convince courts to reinterpret the standing doctrine to allow property to gain standing. Animals could then be represented by legal guardians, as children are. This seems unlikely. The second is to reformulate the category in which non-human animals (or at least some species, playing certain roles) are placed. This seems much more likely and, in fact, has already been done in various courts. In 1979, the Civil Court of the City of New York, Queens County, declared that “a pet such as a dog is not just a thing” because it has the ability to not merely receive affection, but to return it to its owner. Corso v. Crawford Dog and Cat Hospital, Inc., 97 Misc. 2d 530 (N.Y.C. Civ. Ct. 1979).  State Supreme Courts have not gone this far, but they have grappled with these questions. In 1997, Vermont’s highest court found that certain dogs have “a lot of emotional value but [not necessarily] a fair market value of any significance” and therefore, “modern courts have recognized that pets generally do not fit neatly within traditional property law principles.” Morgan v. Kroupa, 702 A.2d 630 (Vt. 1997). And in 2001, Wisconsin’ Supreme Court stated in Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001):


At the outset, we note that we are uncomfortable with the law’s cold characterization of a dog, such as Dakota, as mere “property.” Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.



So it appears that the judicial climate in this country is ripe for setting a new precedent regarding animals and property status. Two large questions loom: which animals would be elevated beyond the property paradigm, and what new status would they assume?


One troubling pattern emerging is that courts only seem amenable to the idea of an individual animal being something other than personal property when that animal is owned by a human being and, in return, provides that human with positive experiences such as love, affection, attention and protection. By this standard, the only animals qualifying as non-personal property are “pets”. Interestingly, since 2000, a national and Canadian movement to change our terminology from “pet owner” to “animal guardian” has gained significant ground. Citizens have taken this cause to their city and state legislators, bringing about new city and county codes and ordinances and even state legislation declaring pet owners to in fact be “animal guardians”.  To date, at least 15 cities, two counties and one state have passed such laws. These laws do nothing to inherently alter the legal status animals, but it seems likely that they will contribute to judicial opinions in years to come, as well as make legislatures more amenable to expanding animal protection statutes.


As far as what new status non-property animals could assume, a likely solution is a middle-ground between personhood and property. At the animal law conference, David Favre presented his suggestion for a category of “living property”. Under this paradigm, animals would own themselves, to a limited degree. This would allow them standing in court (through a guardian, similar to a child guardian, acting in the child’s perceived best interest). Creating this category would involve dividing the property at issue (the animal) into two components: legal and equitable. The holder of the legal title (the human owner) would transfer her title to the equitable portion to the animal himself. I encourage you to read the nuances of Professor Favre’s argument in a law review article devoted to this fascinating idea. David Favre, Equitable Self-Ownership for Animals, 50 DUKELJ 473 (2000).


Finally, some readers are surely questioning this conversation’s relevance. Why, they may ask, are we discussing how animals can enforce their rights when they have no rights? In fact, many animals are rights-holders. They have various federal and state statutes protecting their interests: everything from not being kicked, burned or mutilated to not being harassed.;  Not all animals are granted all rights: rights are doled out based on where an animal lives, what species that animal is part of, who owns the animal, and the individual animal’s role or purpose to his owner(s). Nevertheless, many individual animals have clearly-assigned rights ascribed in the letter of the law, and it is a travesty to offer rights to a class of beings without offering a feasible method of enforcement. And so it is entirely relevant and, I dare say, necessary, to determine how these rights are to be upheld. In fact, this is a conversation that is long overdue.


-Suzanne McMillan

One Response

  1. […] there is a growing dialogue about how to classify domestic animals, the norm in America is, and will likely remain for a great while longer, that animals are property […]

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