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.

Francione and Charlton (2017), "Animal Rights"

Gary L. Francione and Anna E. Charlton, “Animal Rights.” Chapter 1, pages 25-42, in The Oxford Handbook of Animal Studies, Linda Kalof, editor, 2017.

• The term “animal rights” is not used in a consistent fashion; here, a right is “a way of protecting an interest [p. 25]” 

• Rights protect interests even when the consequences of protecting that interest might not be desirable -- though rights need not be absolute, they can give way to extreme consequences.

• Animals traditionally have been “things,” and mistreatment was bad if the mistreated animals were someone else’s property, or if such behavior might cascade to direct human harms.

• Francione and Charlton suggest that any balancing of interests will always shortchange animals, as long as they are considered property. 

• Some early animal rights activists include: Lewis Gompertz (1784?-1861), an SPCA founder, author, and vegan; Henry Shakespear Stephens Salt (1851-1939), author of Animals' Rights: Considered in Relation to Social Progress (1892); the Vegan Society (1944) (including the word “vegan,” from Donald Watson and his (future) wife Dorothy); and the Oxford Group, coalescing in the mid-1960s.

• Singer's review of the Oxford Group's book helped to publicize animal issues. But Francione and Charlton's abolitionism differs considerably, in their view, from Peter Singer’s utilitarian approach. Singer "clearly regards animal life as having less value than human life [p. 32];" so, he leaves room for allowing human interest to almost always trump animal interests.

• Further, Singer is a proponent of “so like us” (in Martha Nussbaum's phrase) thinking, in that he believes that the genetic and cognitive similarity between humans and great apes suggests that primates "deserve greater legal protection than other nonhumans [p. 32]." 

• Singer also supports animal welfare (as opposed to animal rights) and single-issue causes (like cage-free eggs), and he ignores the property issue that is central to Francione and Charlton-style abolitionism.

• Tom Regan, the author of The Case for Animal Rights (1983), comes close than does Singer to abolitionism, and his book is really the impetus for modern animal rights (as opposed to welfare), in that the rights do not give way when overbalanced by bad consequences. For Regan, animals are “subjects of a life,” with equal inherent value to humans.  We need to respect that inherent value, and cannot use animals solely as a means to our ends; thus “institutionalized exploitation” must be abolished. 

• Francione and Charlton diverge from Regan with respect to the lifeboat case. Regan maintains that "if we are in the proverbial lifeboat with a dog and a human and have to decide whether to throw out the dog or a large number of dogs or the human, the harm suffered by the human will be worse than that of any of the dogs because a human has more 'opportunities for satisfaction' than a dog does, so death is a greater harm for the human [p. 34]." But this exception could swallow the rule, and allow institutionalized exploitation in due to qualitatively different values of human versus animal lives. 

• “The abolitionist approach rejects all animal use [p. 34].” Why? Animals matter morally, so they cannot be mere means to our ends, and hence, cannot be property. Therefore, all institutionalized exploitation of animals must end. 

• Alternatively (but equivalently and without invoking rights), we can’t impose unnecessary suffering, while the common uses of animals for our pleasure impose harms without necessity. 

• A potential exception is the use of animals for medical advancements, but even this cannot be justified if we would not be willing to use “similarly situated humans [p. 35].” 

• Abolitionists don’t support reforms for better conditions for animals, like cage-free initiatives. These types of reforms wrongly suggest that there is a humane way to exploit animals, and might perpetuate such exploitation. For similar reasons, abolitionists do not support “single-issue” campaigns, like fur bans. 

• The way to promote the goal of eliminating human exploitation of animals is through non-violent vegan advocacy. 

• As with Bentham, for abolitionists, sentience is the only condition: any sentient being cannot be used as property for our purposes. 

• In practice, animal welfare laws only rule out economically inefficient procedures – they forbid unnecessary suffering, while accepting customary suffering within industries that are themselves unnecessary. 

Singer, "All Animals Are Equal...," from Animal Liberation Now (2023)

Peter Singer, “All Animals are Equal…” Chapter 1, pages 1-29, in Animal Liberation Now, New York: Harper Perennial, 2023. 

• Almost half a century on from the publication of Animal Liberation, Peter Singer offers a major update in the form of Animal Liberation Now.

• Start with humans, and the common (but factually false) claim that all humans are equal. “The principle of the equality of human beings is not a description of an alleged actual equality among humans: it is a prescription of how we should treat human beings [p. 3].” 

• “The basic principle of equality does not require equal or identical treatment; it requires equal consideration [p. 2].”

• “Concern for the well-being of children requires that we teach them to read; concern for the well-being of pigs may require no more than that we leave them with other pigs in a place where there is adequate food and room to roam freely [p. 3].” 

•  The principle of equal consideration of interests is the basis for the condemnation of sexism, racism – or speciesism (pages 3-4).

• What quality is required before animals “count” in calculating overall well-being? Jeremy Bentham answers in the form of a series of questions: “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?” [From note 122 in chapter 17 of Bentham’s 1823 An Introduction to the Principles of Morals and Legislation.]

• The argument for equal consideration of nonhuman animal interests might be made in terms of “rights,” but they are not fundamental (for a utilitarian like Bentham or Singer): rights are there to reduce suffering and increase well-being (things that are fundamental) (p. 7).

• How we feel about a given “unit” of suffering should be independent of the species of the animal that is suffering “sentience… is the only defensible boundary of concern for the interests of others [p. 7].” 

• Notice how we grant equal consideration to the interests of human infants, or severely disabled people – even if they are not rational or self-aware (p. 8).

• “Most human beings are speciesists…. ordinary human beings – not a few exceptionally cruel or heartless humans, but the overwhelming majority – are complicit in the continuation of practices that thwart the most important interests of members of nonhuman animals in order to promote far less significant human interests [p. 9].” 

• We are not certain that other people possess consciousness or can experience pain – but that doesn’t stop us from acting as if they do (p. 10). 

• The best evidence we have is that many nonhuman animals are sentient. The evidence comes from neurobiology, from aversive behaviors and responses to painkillers, from biological markers… 

• Parents can understand their infants even before the infants can speak – and many human companions to animals can do likewise.

• Most fish seem to be sentient. We are less sure about sharks and rays. Crabs, lobsters, octopuses, and other invertebrates also appear to be sentient. Insects? 

• Treating one human badly (in a way that is publicly known) can inspire widespread fear, but not so for an animal – so that is a reason, if bad treatment is required, to prefer to treat the nonhuman badly (p. 21). But note that the same reasoning means that it is preferable to mistreat profoundly mentally disabled people than their non-disabled con-specifics (p. 22).

• For policy guidance now, we don’t need precise information on the comparative suffering of humans and animals – the pain imposed on animals for the slight benefit to humans is unjustifiable (p. 22). 

• We also do not need to know the precise conditions under which killing is justified to know that factory farming and other animal abuse is wrong. 

• Most people who hold that human life is sacrosanct have no problem with killing animals – this is speciesist (p. 24). 

• We should generally avoid eating animal products because of animal suffering, not because of animal death (p. 28).

Notes on The Atlantic Article by Annie Lowrey on the "Radical Vegans" of Direct Action Everywhere (DxE)

 Annie Lowrey, "Radical Vegans are Trying to Change Your Diet," September 20, 2023, The Atlantic. 

• From the opening paragraph: "Everything, everywhere in this farm for 'free-range' chickens was covered in excrement."

• Calling a factory farm a farm is to employ a misnomer.

• DxE supports a Constitutional amendment to grant nonhuman animals legal personhood.

• Lowrey is a vegan: "I believed in DxE’s mission. About its tactics, I wasn’t so sure." She details the personal and social depredations of being a vegan, which is "exhausting, abstemious, weird." 

• The blossoming of animal rights activism post-Animal Liberation was curtailed in the 21st century by legal suppression and limited success. Incrementalism, such as promoting cage-free eggs or gestation crate bans, did make some progress. But animal exploitation continued and the amount of such exploitation globally expanded.

• Wayne Hsiung, a co-founder of DxE, along with others, looked into the theory, practice, and history of social change. Non-violent direct action like boycotts and sit-ins seems to be a key component in a winning reform movement. 

• DxE hopes to turn vegans into activists, in an effort to meet the critical mass that makes social change likely. Their goal is to end animal exploitation quickly, within a generation: here's their roadmap. Their tactics include low-risk activities like protests, to higher-risk strategies like open rescues and working undercover.

• Lowrey describes the DxE 2021 protest at a slaughterhouse and factory chicken farming operation, operated by Foster Farms -- she was there, covering the event as a journalist.

• The critical mass of activists isn't enough, Lowrey argues. In addition to the committed vanguard, you need tons of tacit supporters. You start with the tacit group to recruit the activists. The opposite approach -- have a vanguard but little support beyond it -- will not work in achieving reform goals.

• DxE remains small, however; PETA is much larger. DxE's tactics seem to be a turn off even for many vegans, and some people consider it to be a cult. 

• Will DxE tactics help to bring the median voter, an omnivore, to their side? "There’s a big gap still between your average animal-loving American, who wants the government to ensure the welfare of the cow in her burger, and your average animal-rights protester, who wants to grant that cow constitutional rights."

• Maybe the animal activists will win due to causes related to, but not directly concerning, animal welfare, such as climate change or cultivated meat.

• Radical vegans often are annoying and have little prospect of achieving their goals -- they are also right, that the horrors of factory farming are unspeakable.

Castelló (2022) on Aussie Wild Animals

Pablo P. Castelló, “A Strategic Proposal for Legally Protecting Wild Animals.” Journal of International Wildlife Law & Policy 25(2): 103-134, 2022.

• This article looks at how wild animal interests might be protected under the Australian Constitution. Its argument builds on Donaldson and Kymlicka: animals need rights to self-determination, individually and communally. So Castelló takes as a starting point the notion that wild animals have interests and deserve some fundamental rights.

• One advantage of providing fundamental rights is that it makes backsliding, retreating on the rights of wild animals, more difficult.

• The approach here is intended to pragmatic, keeping (Australian) political feasibility in view.

• Currently, a division between wild and domesticated animals reaches Aussie common law through roots in Roman law: wild animals are things that can become some human’s property through appropriation.

• “…members of endangered species have strong protections under Australian law [p. 107].” Many wild animals lack similar protection.

• Currently, wild animals can be hunted, can be domesticated (into human property) and/or confined, or be killed if they are viewed as threats.

• In the author's proposal, individual wild anymals and their communities will have rights to political representation; to not be property; to territory; and to self-determination. They, and their ecosystems, are protected against human harm and activities.

• Self-determination is meaningless without territory (p. 109), and anymals need habitats protected against human-induced harms to survive.

• The proposed self-determination is internal: anymals do not have the right to secede, for instance. A similar form of internal sovereignty currently applies to some Australian indigenous peoples.

• Self-determination precludes being someone’s property. Hunting, capturing, or domestication are inconsistent with a right not to be property; nor could wild animals be sold. 

• The right to political representation requires some humans to serve as proxies.

• Castelló proposes a new category, “legal animalhood."

• Horses were brought to Australia in 1788; wild horses can trample the individuals and habitats of smaller species. Should the horses be culled to protect other anymal habitat? Better to nudge the horses away – and such nudges (as opposed to killing) are required to respect the self-determination of wild horses.

• To be a wild animal with the rights suggested, you must live in a Wild Animal Territory and participate in a Wild Ecosystem. Much of Australia (40%) would qualify as a Wild Animal Territory – and such a designation would hold minimal impacts on humans, as these areas are thinly populated by humans.

• Even now, the existing category of “Territory” in Aussie law does not require that inhabitants receive parliamentary representation. 

• Territories in which there is an element of sovereignty for indigenous peoples would not be required to become Wild Animal Territories.

• An animal who wanders out of a Wild Animal Territory would lose their status of legal animalhood.

• Fishing is popular in Australia, so for practical reasons, marine animals would not benefit at first from legal animalhood.

• In some property rights alternatives to "legal animalhood," the rights are easily infringed, and hunting, for instance, would still be permitted -- but not for wild animals within their territories under the author's proposal.

• Alternative legal approaches to ecosystems do little to protect the interests of individual anymals – they are not centered on self-determination.

• The “new conservation,” an econ-style environmental approach, takes it as a given that anymals are resources to be consumed or managed by humans.

• Castelló's approach, however, does share the spirit of the ecocentrist vision of Nature Needs Half.

Hessler, Jenkins, and Levenda (2017) on the Wild-Caught Fishing Industry

Kathy Hessler, Becky Jenkins, and Kelly Levenda, “Cruelty to Human and Nonhuman Animals in the Wild-Caught Fishing Industry.” Sustainable Development Law & Policy 8(1): 30-38 and 56-63, Fall 2017.

• Something like 1 to 3 trillion fish are caught each year for human consumption (fishcount.org.uk).

• The wild-caught fishing industry encompasses the catching of finfish; crustaceans (including shrimp); mollusks (snails, clams, etc.); cephalopods (octopuses, etc.); and cetaceans (whales, dolphins, etc.).

• Some wild-caught fish are consumed by humans, but much is consumed by livestock and pets, too; most fishmeal and fish oil is now used for aquafeed.

• Common fishing methods include trawling (dragging a net); purse seining; gillnetting; tangle and trammel netting; rod & line, trolling; pole & line, longline (often with bait fish). [Each of these fishing methods has its own set of welfare concerns, but all of the methods seem quite horrid to me, alas.]

• Underappreciated(?) welfare issues with capture include: by-catch; exhaustion and high mortality of captured fish pre-slaughter; decompression; crushing; predators; hooks; and ghostfishing. 

• The slaughter of wild-caught fish is often gruesome: it can be long and painful, with death typically due to suffocation or live gutting. Fish are not given protection via the US Humane Slaughter Act.

• The authors offer some suggestions (pages 32-34) for improving the welfare of wild-caught fish. Among the suggested measures are: a ban on the use of live bait; limiting the duration of suffering by emptying nets and lines more frequently; banning j-shaped hooks and gillnets; permitting only near-surface-level fishing; banning gaffing and shortening the landing stage; and, rendering fish unconscious prior to slaughter.

• Towards the end of the article (pages 34-37) the authors move away from fish welfare to concentrate on the welfare of the humans who work in the wild-caught fishing industry. Commercial fishing is dangerous and often deadly, and abuses are hard to monitor on the high seas; it also is hard to provide emergency medical care in remote areas at sea.

• Forced labor seems to be commonplace in the global fishing industry. Migrant workers in fishing, who face barriers in seeking justice for violations of their rights, are sometimes exploited. 

• Seafood importers, and not just exporters, need to address production and labor issues (page 35).

Kurki (2021) on Legal Personhood for Animals

 Visa Kurki, “Legal Personhood and Animal Rights.” Journal of Animal Ethics 11(1): 47-62, Spring 2021.

• The Nonhuman Rights Project (along with others) seeks to have animals in the US “given” legal rights; this approach has not yet succeeded in the US. (There has been a significant victory in Argentina, however.)

• The goal of having a court declare animals to be legal persons via writs for habeas corpus means that such cases hold high stakes for the judges involved.

• The high judicial stakes might pose a problem for improving the conditions under which animals live. Judges are generally not all that willing to go well beyond existing precedents, especially if the departure could imply sweeping changes, such as forbidding the keeping of companion animals like dogs and cats. A better framing for those seeking to improve the conditions under which animals are confined might be: animals already possess rights, and the question is whether in some cases those rights should encompass habeas corpus.

• Kurki pushes back against the view that a focus on improved animal welfare is in opposition to the provision of rights to animals, in part because of ambiguities in the use of the term "rights.". [Our blog has done something similar.] 

• Kurki also pushes back against the notion that only legal persons possess rights. Though not currently considered to be legal persons, animals already possess some “incidents” of the bundle of rights that typically come with personhood (pages 52-53). That is, Kurki supports (both here and in his open access 2019 book) a "bundle" theory of legal personhood, in which there are many potential sticks of rights, but that in any specific instance, only a subset of those sticks might be provided. Anti-cruelty laws indicate that animals already possess some sticks in the rights bundle.

• The notion that a being can only possess legal rights if that being is capable of bearing legal duties is misguided, as the case of human infants indicates, but a version of that reasoning has been adopted by a court in arguing against legal personhood for the chimpanzee Tommy (page 54).

• Animals can be granted habeas corpus rights without there being some uncontrolled revolution that would force people to stop having pets, for instance. Kurki endorses making this case to courts, instead of asking them to undo millennia of perceived precedents with far-reaching consequences: "What if the stakes in the habeas corpus trials are not whether animals should be included in the community of legal right-holders, but rather whether certain animals should receive the right to personal freedom, protected by habeas corpus [page 55]?"

• Kurki's approach is paralleled by the well-known concurring opinion (pdf here) by Judge Fahey in the Tommy (the chimpanzee) case. 

Liebman (2022) on US Animal Law

Matthew Liebman, “Key Animal Law in the United States.” Chapter 33, pages 436-448, in Routledge Handbook of Animal Welfare, Andrew Knight, Clive Phillips, and Paula Sparks, editors, Routledge, 2022. 

• Early legal protections for animals were aimed at securing human property and preventing a brutalization of human society.

• Most US laws on animal protection are state (via the “police power”) and local. The federal laws rely (for Constitutional imprimatur) upon the Commerce Clause, so transport and slaughter are the main areas addressed.

• Animals in US law are property (or, for wild animals, potential property), essentially “things”; but…

• …if someone intentionally kills your pet dog, do they only need to compensate you for the dog’s “market value”?

• But "every state has an anticruelty law, which limits how owners can treat their animals, at least in some limited contexts. This protection sets animals apart as a unique form of property: no other form of property receives legal protections based on its own interests [p. 438]."

• The federal Animal Welfare Act (1966): sets minimum care standards for some research animals, pets, and bred animals; dogs and primates get some special protection.

• The federal “28 Hour Law” (1873): animals in transport must have a food-water-exercise break every 28 hours; chickens and turkeys are not covered by this law.

• Humane Slaughter Act (1958, 1973): requires animals to be stunned before slaughter; chickens, the most commonly slaughtered land animal, are not covered.

• The federal Endangered Species Act (1973): offers protections to animal and plant species ruled to be threatened or endangered.

• Preventing Animal Cruelty and Torture Act (2019): makes some types of animal abuse federal felonies.

• Custody disputes and companion animals: the interests of the animals might receive attention from the court.

• Anti-cruelty laws are based on the notion that some animals are sentient. Nonetheless, there might be legal consequences from explicit declarations of animal sentience in the law. The legislature of the state of Oregon has made such a declaration. This declaration, however, was insufficient to give a horse named Justice the opportunity to sue his human abuser for damages -- the lead attorney for Justice was Matthew Liebman, the author of the article we are outlining here.

• The Nonhuman Rights Project has tried to bring habeas corpus actions in the name of their clients, captive elephants and chimpanzees. So far these legal actions have not been successful, though some individual judges have been sympathetic.

• Animal cruelty laws generally must address several dimensions: What animals are covered? (Insects?; wild animals?; fish?); What conduct is proscribed? (Acts of omission?); What conduct is permitted? (Standard factory farm cruelties are typically exempt); and, What sanctions are applied? (Ban offenders from owning animals?) 

• Some states and localities in the  US ban animals (or some subset of animals) in circuses; some states ban testing of cosmetics on animals; and, some states ban stores that sell pets.

• “…animal laws in the United States still assume that animals are exploitable resources that humans are allowed to use [p. 447].”

Animal Rights and Animal Welfare

Sometimes the issue is framed as Animal Rights versus Animal Welfare. Reality is better approximated by a continuum connecting Animal Rights and Animal Welfare, but when juxtaposed, the two "extremes" are that Animal Welfare concerns protecting the well-being of animals as they are bred and confined and worked and slaughtered to satisfy human consumption preferences, while Animal Rights concerns granting non-human animals legal protections that are comparable to those that humans enjoy, and thus much or all of animal farming (and other animal uses) would not be permitted, irrespective of the well-being of the animals involved. (The internet is full of rather tendentious descriptions of the differences between animal welfare and animal rights.) The work of Professor Temple Grandin, mentioned in the immediately prior post, is in the Animal Welfare tradition, while the work of the Nonhuman Rights Project, unsurprisingly, is exemplary of the Animal Rights approach.

The tension between animal rights and animal welfare orientations is felt in many other areas of public policy. Often the conflicting approaches can be characterized as "harm reduction" versus "zero tolerance." Should prostitution or cocaine use be made more safe, or should the focus be on eliminating these behaviors entirely? Matters aren't always so stark. Many people who see abolition as an ultimate goal might support ameliorative measures in the meantime -- and perhaps even if those ameliorative measures, in the short-term, increase the frequency of the targeted behavior.

For people who object to the notion of animal agriculture, more humane slaughterhouses incorporating non-slip floors in livestock unloading areas, for instance, can be rather repugnant. Nonetheless, efforts to improve "welfare" in this sense need not surely come at the expense of promoting abolition -- though I hope I am not being too optimistic on this score. Broader discussion of animal welfare improvements and animal agricultural practices might assuage enough consciences that the industry is prolonged and strengthened -- but these discussions might also open doors to deeper reforms and more extensive mental conversions, while actually improving the welfare of farmed animals in the here and now. On a personal level, "reductarianism" or vegetarianism might be helpful way stations -- even if a vegan lifestyle is the more appropriate long-term goal.

The other potential trade-off that sometimes is invoked in non-human animal policy discussions is that devotion of effort to animal welfare detracts from attention to or concern with human welfare. But again, this trade-off is not a logical necessity -- and in practice, rather the opposite seems to be the case.