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Saturday, February 18, 2006

The legal status of nonhuman animals

Last week, I wrote about the colloquy in the Chronicle of Higher Education featuring Martha Nussbaum’s recent book, Frontiers of Justice, which applies a capabilities approach to thinking about justice for marginalized groups, including nonhuman animals.

Assuming that one agrees that mistreatment nonhuman animals deserves at least some consideration, this issue raises a host of questions about how the law should respond.  One major debate regards animals’ legal status.  Some commentators, such as Cass Sunstein, suggest that animals’ treatment as legal property doesn’t preclude the improvement of animal welfare through, for example, anticruelty statutes.  Others, such as Gary Francione, argue that animals’ property status represents a hurdle to their being treated decently.  (Each of these authors’ claims are advanced in Animal Rights:  Current Debates and New Directions, Nussbaum and Sunstein, eds. (2004)).

The animals-as-property issue raises a descriptive question that the current debate hasn't done much to address:  If animals aren't property, what are they?

Answering this question is limited by the paucity of possible categories:  American law typically regards objects as either persons or property.  There is a little variation; some nonhuman entities—most notably corporations—enjoy the limited privileges of artificial personhood.  But for the most part, our legal system (in contrast to much older ones, such as Roman law) lacks a vocabulary of status that would enable us to think about animals as something intermediate between persons and property.

A few localities, however, have tried to buck this trend.  Twelve North American cities (as well as one state and one county) have redefined those who keep animals as “guardians” rather than “owners,” and animals themselves as “companions” rather than “property.”  What’s peculiar about these ordinances is that their inspiration is solely terminological.  The change in nomenclature doesn’t extend to animals any more rights or impose on guardians any more obligations than existed under previous law.  The point of this movement—and there is, apparently a movement afoot—appears to be about changing perceptions of animals rather than imposing any kinds of legal rules requiring certain treatment.  The hope is that the mere change in animals’ formal legal status away from “property” and toward “companions” will enhance their social status and, in turn, improve their treatment at the hands of humans.

What interests me about these laws, though, is that they focus entirely on the expressive dimension of law, and in particular on the expressive dimension of legal status.  Whether these changes have any tangible effect on animals’ wellbeing is an empirical question without an answer as yet (though it would be interesting to study this, for example by comparing animal cruelty complaints in the fourteen guardian/companion jurisdictions before and after the change in nomenclature). 

Is the notion that changes in formal legal status can change social status plausible?  Perhaps.  Recent work on cultural cognition and risk perception suggests that people’s predictions of the risks associated with certain events are affected strongly by how much “status anxiety” the law generates in them.  For example, one study suggests that white males with an individualistic, hierarchal worldview tend to be more skeptical of the risks associated with gun ownership and environmental degradation than the rest of the population. 

While these studies focused on the notion of status anxiety as it affects risk perception, I think it also does some work to explain why some groups resist laws that appear to have no tangible effect on their well-being.  These studies show that people view, to some extent, changes in law through the prism of status, and that they tend to resist laws that express a status change that will disadvantage them.  This suggests, for example, a simple welfarist reason for resistance to gay marriage.  To the extent that tolerance of gay unions communicates a movement toward social equality between gay and straight people, that’s likely to generate status anxiety (and hence resistance) among groups that find that status change threatening.

To circle back to animal rights, what distinguishes the guardian/companion ordinances from other laws designed to change social status is that they adopt an exclusively expressivist strategy.  The civil rights reforms of the 1960s certainly communicated volumes about the changing social status of different racial groups, but it did so largely through substantive changes in the law that had tangible effects.  These animal ordinances, by contrast, communicate a non-property status for animals, but do no more than communicate, much in the manner of a legislative resolution that makes a salubrious declaration without working any substantive change in the law.  I'm thus skeptical that these ordinances will have much effect on the treatment of animals, but they're a step in the right direction, if only a marginal one.

Posted by Dave_Fagundes on February 18, 2006 at 07:07 AM in Legal Theory, Property | Permalink


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Tracked on Feb 19, 2006 5:07:52 PM


Since I've become interested in this question, I've occasionally asked myself the question that Hillel raises: does the formal legal status of animals matter, or is this just the arbitrary assignation of a category without substantive import?

Part of the point of my post is that at least some people think this issue matters; that's why there's a movement afoot (albeit a small-scale one) to change the legal status of animals from property to companions. Now one could easily respond that the mere existence of a movement doesn't mean that the issue has any practical import. Perhaps those pushing for the change are simply extreme animal-rights activists who derive an inordinate amount of aesthetic displeasure from what they perceive as law's mislabeling of animals.

But there are certainly ways in which the legal status of animals may have practical import. Under Roman law, status was the primary determinant of your legal rights. Roman males over a certain age had all manner of rights and privileges; slaves had relatively few; women, children, Junian latins, and to some extent animals had differing packages of rights that were determined by their various statuses.

The great move from status to contract has obscured this to a large extent, and given that Anglo-American legal culture now relies on a conception of the individual that is (supposed to be) a free, autonomous agent, the idea that our legal situation is predetermined by our status seems foreign.

But lots does ride on this. There are numerous instances in which animals' property status results in their mistreatment. The Rabideau case I mentioned above is one example; Darian's article on corporate law and animal cruelty enumerates many others. True that in each of these cases the substantive end about which we're concerned is animals' actual treatment, but if mistreatment is a product of status, then status can't be ignored.

I've also thought that to some extent legal status contributes to our vision of who counts for the purposes of law and for society more broadly. The law's defining certain objects as rights-bearing entities may be seen as an exercise in formalism, but I think it has implications for how those agents are perceived (here I'm thinking of the expressivist argument that law not only reflects but shapes social norms). For the law to place animals in the same category as cars and books sends a strong message about their subordinate social position and about what kind of treatment they might be afforded.

Consider also in this respect the movement toward defining fetuses as persons for the purposes of murder laws. The pro-life activists who advocate these laws make no attempt to justify them on a deterrence rationale. Instead, the notion seems to be that defining fetuses as persons in one respect may push for their definition as persons in other respects. And on the other side of the political fense, these laws have engendered resistance from pro-choice camps, suggesting that the rhetorical strategy of their proponents has something to it.

Finally, I agree that rights talk is unlikely to resolve much of anything. But this doesn't obviate the need to articulate a vision of animals' moral status so we can have dialogue about their ethical treatment, and legal status may be a key part of that dialogue.

Posted by: Dave | Feb 27, 2006 4:06:18 PM

Interesting post. My own perspective that this problem is really a result of the limits of language and the perceived need--sometimes accurate, sometimes not--for the law to impose categories. Who cares what you *call* the thing--person, property, or other? Who cares whether you call them "rights" or "protections"? At the end of the day what matters is not so much what label or category we apply, but rather the substance of the protections we offer. It strikes me as silly to focus on whether an animal has an inherent "right" not to be treated with cruelty, or whether instead the law imposes anti-cruelty duties for some other reason. The question of "rights" in this context is metaphysical, tautological, and not subject to proof. It is an assertion. Let's focus on substance rather than categories. We want to protect animals from many things; but we do not wish to confer upon them the full rights of personhood. Let's make laws that reflect this general agreement rather than get bogged down in name-calling.

Posted by: Hillel Levin | Feb 24, 2006 2:17:00 PM

I definitely think there could be empirical tests run to determine if formal re-classification of animals has any effect on their treatment. The trick would be (as with most empirical questions) sorting out the correlation/causation issues. It could be the case that communities that are amenable to reclassifying animals as companions rather than property are already trending toward treating animals more humanely. And even if you could show a causal explanation, that raises interesting questions about the mechanisms of causation. Does the formal reclassification of animals cause people to reevaluate their relationship to animals, or would there be some other explanation for the change?

As for the ways law manipulates status, I think of this as taking place on three levels. First is the highest level of generality where law describes the objects on which it operates: here, pretty much everything on which law acts can be divided into persons (natural or artificial) v. property. The next level down divides persons into various subcategories. So all born living humans are persons regardless of age, but some are considered minors and have limited rights and privileges as compared to persons who are over eighteen (another similar subdivision is citizens v. noncitizens). Finally, it might be possible to regard substantive law as conferring differential legal (or at least social) status. For example, prohibitions against gay marriage operate to the detriment of only gay people (even though they’re facially neutral in the trivial sense that they also preclude straight people of the same gender from marrying one another—an argument the Supreme Court rejected with respect to race restrictions on marriage in Loving v. Virginia).

Finally, I basically agree with Darian’s point that the property classification of animals does much to enable their mistreatment. One recent case that reflected on one element of this dynamic is Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001), in which the Wisconsin Supreme Court rejected as a matter of law NIED and IIED claims by a pet owner against an off-duty police officer who killed her dog. The court recognized that under state law it was required to regard the case as one for destruction of property, which meant that the defendant prevailed (Wisconsin apparently recognizes such actions only under very narrow circumstances), but the court prefaced its opinion with a long disquisition in dicta concerning the incoherence of the animals-as-property classification.

Posted by: Dave | Feb 19, 2006 2:57:12 PM

While this comment is only responsive to the debate between Sunstein and Francione mentioned at the outset of your post, I want to chime in to say that I agree with Francione that the property classification of animals is a major impediment to improved animal welfare. As I will discuss in a forthcoming paper, the vast majority of domestic animals in the United States - approximately 98% of them - are used for food, and food production is now concentrated in the hands of a few agribusiness conglomerates that operate as publicly traded corporations. This is significant for two reasons. First, corporations are classified as legal persons, which allows them to own property. Second, corporate managers owe fiduciary duties to shareholders to use corporate property in a way that maximizes profits. (To the extent that the business judgment rule allows for deviation from this legally, non-legal pressures such as keeping one's job will still make profit-maximization the penultimate consideration for corporate managers.)

Consider the ramifications for animals. If animals are not property, then corporations cannot own them or use them to generate profits. Because animals are property, however, corporations can not only own them, but will use them in whatever way will maximize profits. The uses of animals that maximize profits are also the uses that result in the infliction of tremendous suffering (consider common factory-farming practices, all of which are driven by economics). Therefore, to diminish the importance of the property classification fails to recognize that most animals in the U.S. are owned by corporations, and that corporate ownership, which is only permitted because we label animals as property, greatly exacerbates animal mistreatment. The property classification must be abolished if animals are to be free from corporate ownership, and freedom from corporate ownership is a precondition to their better treatment.

Sure there can be limits on the use of corporate property, but typically those limits are not for the benefit of the property itself. Also, agribusiness corporations enjoy capture of the legislative process in agriculture-heavy states, and most consumers want meat to be as affordable as possible – both of which militate against more effective limits being imposed on corporate uses of animal property. Also, if a regulation were to go too far, there may be takings issues to consider.

Posted by: Darian Ibrahim | Feb 19, 2006 12:39:44 AM

Isn't this just an easily testable empirical question? Can't we just look to see if those twelve cities have more protective animal welfare laws or less animal cruelty in general?

I'd also challege your assumption that all we've got is personhood and property. Don't we have fetuses that fall in between? Don't children fall somewhere in between too (looked at from the perspective of parents, of course)?

Posted by: Ethan Leib | Feb 18, 2006 8:38:26 PM

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