Fernandez on Animals as Property (undated)

Video: Angela Fernandez, “Animals as Property, Quasi-Property or Quasi-Person.” Animal Law Fundamentals, The Brooks Institute. An associated paper (also (and annoyingly) undated) is available here. 

• History: 19th century animal welfare statutes; 1960s-70s animal rights; 1990s animal law discipline 

• Pierson v. Post (1805) is often the first case taught in a property law class in the US. It centers on whether a hunter in hot pursuit of a fox should "own" the fox, or whether a "saucy interloper" could apply the finishing touches to the fox's life and make off with the fox's corpse. Sadly, the murder of the fox the fox's own interest, is often ignored.

• Professor Fernandez was drawn to animal law (from her pre-existing interest in legal history) by the neglect of the fox's interest in Pierson v. Post. She soon learned that much of the law that ostensibly protects animal interests is of a “paper tiger” sort, where the law sounds tough, but is often toothless – like exempting fish, easily the modal animal as a human-food source, to be exempt from animal protection laws.

• Animals are treated as property, not as persons, in the law, and altering this situation seems a promising method for improving the treatment of animals. Professor Fernandez cites Gary Francione on ethical personhood and Stephen Wise and the Nonhuman Rights Project on legal personhood.

• But the argument for legal personhood is not landing well, in either common law or civil law jurisdictions The habeas claim has only worked in civil law Argentina, for the orangutan Sandra.

• Indigenous legal systems offer the best environment for animal personhood, and indeed, often view animals as possessing personhood. 

• The high stakes of recognizing animal personhood harm its chances; but, we can evade a personhood/property binary. Note the current, existing inroads into a pure version of animals as constituting property: anti-cruelty laws, plus animal interest treatments in lots of other legal areas, such as divorces, wills and trusts, emotional damages, and domestic abuse (where shelters will allow people to bring their pets, for instance).

• In reality, animals already are quasi-property, and they also possess some subset of personhood rights. The term quasi-property seems to be better suited than similar concepts that have been proposed, such as living property or semi-property, in part because the term "quasi" itself is frequently used in the law for in-between states, as in quasi-contract, nd in part because it allows for flexibility over time and across species.

• From the personhood (as opposed to the property) side, quasi-personhood works well, too.  The idea of quasi-personhood is also longstanding in law, including its application to enslaved people in ancient Rome.

• It is counterproductive (and triggering for many humans) to force animals to be considered as legal persons: use quasi-persons instead, to sidestep the outrage and better capture the rights that are sought.