Non-property and usufructuary legal status regarding animals

Dieter Dambiec
The possible directions for the legal status of animals must allow them to find a substantive place in the justice system.  First it is necessary to look at arguments concerning the non-property status of animals, as this option completely turns the common law around.  Secondly, an intermediate position based on usufructuary rights is looked at, which can be considered an addition to the development of the common law.

Non-property status of animals and personhood

The non-property argument assumes that the only way to end animal exploitation is to abolish the property status of animals.  This supposedly guarantees the interest of animals in not deliberately having suffering or harm inflicted on them by humans[87] and their interest in continued existence.  The argument is based on the notion of sentience.

As sentient beings, animals have an interest in not being harmed or in not suffering and in continuing their existence.  It is enough to know that animals experience pleasure and pain for these interests to be appropriately attributed and acknowledged.  No other capacities or lack of capacities regarding animals need to be considered.  Once these interests are recognised it means animals also have rights to protect.  Animals legally become classified as bearers of rights, and so are entitled to equal consideration of their interests.  For any right to be invoked and protected, an animal needs to acquire legal personhood and be treated as a legal person.  A human representative can seek to protect an animal’s rights on behalf of the animal or a group of animals.

Thus animals as sentient beings must be recognised as possessing rights.  The moral notion of respect for any individual sentient being entails the fundamental right to not be the property of someone else.  Treating animals as property of humans achieves the opposite, as it is deprives animals of their rights and denies legal protection of their interests.  The tendency for the interests of human property owners to take priority over the interests of their animal property[88] would also predominate.  The property relationship will rarely be in favour of the animal.  Consequently, a property status for animals is unlikely to achieve the best welfare outcomes for animals or their humane treatment.

Abolition of the property status of animals means they are on par with humans.  Both have an interest in not suffering and in continuing their existence.  However, given that every living entity would surely suffer from something during their existence, i.e. through suffering that is not deliberately imposed, the real interest that requires protection is that of not intentionally having pain or hurt (including death) inflicted on that entity by someone else.  That is, the avoidance of intentional harm or hi?sá (which is called ahi?sá[89]).  Accordingly, animals (like humans) cannot be denied the right not to be intentionally harmed or the right to continue their existence, and in this respect humans are not privileged over animals[90].

While both animals and humans have such equal interests which deserve equal consideration, in practice this need not, and usually would not, result in the same outcomes.  Interests and rights exist and have to be asserted in the relative world, so the practical application varies.  In some instances priority has to be given to a particular party, such as where it is necessary to save the life of a human over that of an animal.  Here it is likely that human interests would take priority.  Although in such a case it is arguable that no right has been violated as the inability to save the life of an animal over that of a human is not because of the infliction of intentional harm on the animal or due to purposely decreeing the death of the animal.

Assertion of legal rights is done through legal personhood.  When an animal has legal personhood, it has an inherent worth as a legal person and is no longer considered a mere instrumentality or thing to be owned or enslaved.  Legal things exist for persons, while legal persons exist for themselves.  Nor is legal personhood a biological concept – it is independent of actually being human[91].  Legal personhood is an important stature that enables an animal (or other entity) to come before a court of law[92].  Legal personhood gives an animal the same capacity as a human for asserting relevant legal rights[93], albeit in the case of animals through human representatives.

However, a person is a subject of not only legal rights but also of duties[94].  While animals can be made the subject of certain legal rights, it becomes impractical for them to personally fulfil stipulated legal duties that apply in the case of humans.  The awareness of having to fulfil the duty is lacking.  Accordingly, the bundle of duties that accompany legal personhood (and the assertion of rights) on an animal will have to vary from that of humans because of the nature of the different entities.  For animals, there are likely to be more mitigating circumstances as well.  The notion of legal personhood practically has to be watered down in relation to animals.  However, there are already different forms of legal personhood that exist, e.g. corporate including corporation sole, associations, councils, body politic, states and so on. This should be considered in any legal framework and the type of personhood granted does not seem to be insurmountable.

On granting some kind of legal personhood to animals, one outcome is that animals will be subjected to human laws and punishment[95].  But again, the duties required by the law and the punishment will have to vary.  On occasions animals may have to appear as defendants in trials, with legal representation.  Though, this is not entirely unusual and there are cases, many occurring in medieval times[96], where a variety of species were tried for charges ranging from murder to wantonly eating and destroying crops.  Importantly, such legal proceedings will today involve due process, and so an animal being subjected to laws will still get a fair hearing.

Once an appropriate type of legal personhood is granted to animals, the question arises whether humans can still justify using animals for food, manual labour, experimentation, entertainment, and the like.  This would have to be judged on the basis of whether intentional harm (pain and suffering) is being inflicted on an animal or whether the animal is denied its continued existence (by intentional death).  Certainly, human beings themselves are used for labour and entertainment, and sometimes even experimentation, but not for food.  The allowed uses are justified uses and there are social and legal arrangements that govern them. One such arrangement is a contract between parties, which is also a form of property[97].

Likewise, there is no reason why legislatures cannot develop and make deemed legal arrangements or schemes, or grant powers for others to do so, that govern the utilization of animals by humans on a fair and reasonable basis, provided that animals are not intentionally harmed, the welfare of the animal remains paramount, and animals are not denied their continued existence.  Such arrangements would be necessary given that animals cannot make those legal arrangements themselves and cannot fulfil legal duties.  These arrangements can cover the harnessing of resources from animals and their use as labour, with the required provisos.  More complex ethical questions arise in the use of animals for entertainment and experimentation, but arguably the animal’s welfare and right not to be harmed or destroyed can still persist in restricted circumstances.  However, the taking of the life of an animal for food by humans would fundamentally be against the animal’s right of continued existence and can also be against its right not to be harmed.

If such arrangements or schemes were not allowed, the utilization of animals by humans would effectively cease.  The consequences of abolishing the property status of animals would make it impossible to buy or sell animals, pass on their ownership, tame and train them as a means of transport, maintain pets, and to use animals in other myriad ways.  Since the beginning of the human species, humans have utilized animals and that utilization has contributed to the development of human civilization and indeed its safety and security, e.g. soil has been cultivated with the help of horses.  This interaction is likely to be ongoing, although its form will change as will any associated technology.

It seems counterintuitive to suggest that abolition of the property status of animals means that all animals simply go back to some natural state, where there is no ‘interference’ by humans, when many existing animals have been breed, or in modern terminology genetically engineered, by humans themselves over a long course of history.  In this respect, animals can be found in the wild as well as being ‘neighbours’ of humans.  The simple compost heap in a backyard garden makes the worms in it the neighbours of humans.

The doctrine of non-property status for animals is strong on recognising the inherent value or existential value of all animals, and indeed of all creatures.  This is an important development in ethical and legal understanding.  However, the doctrine is weak in respect of recognising, or perhaps in even accepting, the utility value of animals.  This needs to be further explored, recognising that living entities can have an existential value and a utility value.

Usufructuary right in relation to animals

Non-human creatures have the same existential value to themselves as human beings have to themselves[98].  This applies even if non-human creatures may not be valuable to human beings, or human beings may not be aware that the existence of non-human creatures has some significance.  The existential value of a living entity can be individual or collective or both.

Living entities also have utility value[99].  Non-human creatures have utility value of varying degrees.  Some creatures may even have negative utility value, but most would have positive utility value.  However, given that living entities have their existential interest to protect, human beings should only be allowed to utilize an animal if its welfare is fully assured.

Accordingly, utilization of an animal by humans must ensure the individual welfare of the animal.  As well, utilization of any animal(s) by humans must ensure the collective welfare of the collective body or species to which the animal belongs (that is, the population of individual animals that share a high degree of common characteristics).  This welfare approach, directed specifically to animals, has 2 limbs: individual animal welfare and welfare of the collective body of animals.  Then overall, the utilization should be for the welfare of all.  This additional welfare aspect represents the general welfare.  In the field of economics a ‘total welfare standard’ has been employed in matters such as competition policy[100], and the concept of the ‘public interest’ is known in many areas of law.  A similar approach can be taken in the utilization of animals.  It assesses the effect on the public interest[101] or general welfare of the utilization, taking into account all benefits and costs, regardless of the identity of the beneficiaries of the utilization.

This 3-fold test will set high benchmarks, and should apply whenever an animal is used to further the interests of human beings.  For example, the wool of a sheep is shorn (utilized) as a crude resource.  Under the 3-fold welfare approach there has to be:

• care of the body of an individual sheep, and even its psychic/mental and spiritual aspects;
• care of the collective body to which the sheep belongs, which may extend even as far as the species to which it belongs, and again may incorporate psychic/mental and spiritual aspects;
• proof that the harnessing of the wool from the sheep is for the general welfare of all.

This test is not necessarily based on an anthropocentric approach, because the general welfare of all is not necessarily limited to humans and can include any entities in the relevant environment or ecology.  It is essential that when living entities are used by humans that they be properly treated in all respects.  The test should achieve this objective and more.  Nor does the test deny that humans will continue to interact as users and providers with the animal world; which the non-property status of animals doctrine, by itself, appears to suggest.

Another simple example is the breeding of animals as pets or companion animals.  Under the 3-fold approach, a breeder has to ensure the welfare of each individual animal, as well as the welfare of the breed or species to which the animal belongs, and the breeding has to be for the general welfare of all.  This raises issues such as whether the animal can live alone when its nature is really as a social being, irresponsible cross-breeding which can dilute a pure-bred gene pool to the point of extinction of a breed of animal, and the impact that the animal will have on the environment (e.g. hunting down native birds)[102].

The application of these welfare principles recognise human use of animals, but only allows a human being to have a usufructuary right (not a personal property right) in relation to the animal.  Drawing on Roman law[103], the legal concept of a ‘usufruct’[104] refers to rights and responsibilities in using something[105], and recognises that the thing or entity belongs to an environment in common with other things/entities.  As well, because animals can multiply by giving birth to more animals, human obligations to animals spread across generations collectively.  Under a usufruct, users may benefit from the use, except when their actions threaten to commit waste.  Accordingly, human users have an obligation to others (including the animal and its species) and to future users and generations.  The prohibition against waste demands that full consideration be given to the ecological well-being of the Earth’s resources (animate and inanimate), and their responsible use and care.

The usufruct concept and associated welfare obligations would not deny animals having legal rights or fundamental rights necessary to fulfil their nature or purpose (telos[106]).  It is not equivalent to legal welfarism in the sense of animals being treated solely as means or instrumentalities for humans as long as the treatment does not result in the infliction of so-called ‘unnecessary’ pain, suffering, or death[107].  The granting of usufructuary rights certainly would not tolerate barbarous treatment or exploitation of animals[108].

The usufruct concept and associated welfare obligations still contain the element of animals being understood as moral ‘patients’, in comparison to humans who are moral ‘agents’.  This recognises the reality of animals being incapable of taking on reciprocal moral obligations towards humans, while humans must acknowledge their moral obligations to animals.  Any animal used by humans could qualify as “subjects-of-a-life”[109] with inherent or existential value, and so deserve direct moral respect.

Furthermore, under the usufruct concept, an animal’s utility (value) relative to human interests does not reduce the animal’s inherent or existential value which is considered to be on par with or equal to that of humans.  The welfare obligations – individual and collective – owed to animals, helps assure that this is the case.  Those animals that have little or no chance of surviving in the wild also benefit from the welfare or stewardship obligations that are imposed.

Conclusion

Human beings have an ecological footprint greater than that of non-human creatures[110].  In order to ensure the flourishing of animal capabilities and human interests[111], our governing systems need to make a proper adjustment so that the value of all entities is recognised.  This requires abolition of the property status of animals and recognition that animals also have interests and therefore rights to protect.  In turn, some semblance of legal personhood for animals is needed so that those interests and rights can be represented for legal purposes by human representatives acting on behalf of animals.

In addition, human laws must not subjugate animals.  At the same time it has to be recognised that humans have had an interactive role in the animal world ever since the advent of the human species.  This is likely to continue, and be on a more technologically enhanced basis.  The interaction with, and use of animals, comes about in large part because of the higher psychic/mental capacities of humans which gives their expressions and interests greater weight per se[112].  However, this does not need to diminish any welfare obligations that humans have towards animals or other living entities, whether individually or collectively, or to the environment and planet and its inhabitants as a whole.

Use of animals should only ever give human beings a limited usufructuary right, and not a personal property right.  The usufruct concept recognises that use of animals by humans is a mere privilege.  Animals, either individually or collectively, are not owned by anybody and belong to an environment in common with other entities.  As well, animals seek to continue their species (as do humans), and therefore the welfare obligations of humans to animals spread across generations and into the future (at least to the extent that an animal species itself has not died out).  The potentialities of animals and their development must not come to waste.

This means, utilization of an animal by humans must ensure the individual welfare of the animal.  As well, utilization of any animal(s) by humans must ensure the collective welfare of the collective body or species of animal.  Furthermore, the utilization should be for the general welfare of all.  Human society should implement a framework incorporating these principles so that they are legally enforceable to ensure the ongoing welfare of animals.  That framework will need to allow for the making of standards, including a total welfare standard, which set out clear parameters in the use of animals, and which must not be contravened by users.  In particular, the interests and rights of animals not to be inflicted with intentional harm (through pain, suffering and death) and for their continued existence are paramount.

This approach properly balances the existential value and utility value of animals.  It promotes a sense of cosmic holism[113] which does not differentiate for the well-being or welfare of living entities within the same species (e.g. humans) or between different species (e.g. primates and humans) or in regard to aspects of the same entity (e.g. from the birth of a child to that person’s eventual death, or from the birth of an animal to its death).  It sees all beings as part of a larger environment (natural and technological) in which humans owe fundamental obligations (moral and legal) towards other sentient beings and to the environment as a whole; rather than just considering their own human interests[114].  Arguably, the time will come for world constitutions[115] to provide for complete security to be guaranteed to all the animals on the planet[116]

Notes

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[2] The divisions are: Chordata (Chordates); Arthropoda (Arthropods); Mollusca (Mollusks); Echinodermata (Echinoderms); Coelenterata (Cnidaria – Corals & Jellyfish); Ctenophora (Comb Jellies); Porifera (Sponges); Bryozoa (Bryozoans); Brachiopoda (Brachiopods); Rotifera (Rotifers); Gastrotricha (Gastrotrichs); Tardigrada (Tardigrades); Nematoda (Nematodes); Acanthocephala (Spiny-Headed Worms); Annelida (Segmented Worms); Chaetognatha (Arrow Worms); Hemichordata (Acorn Worms); Nematomorpha (Horsehair Worms); Nemertea (Ribbon Worms); Platyhelminthes (Flatworms); Sipunculoidea (Peanut Worms).

[3] The subdivisions are: Urochordata (Tunicates); Cephalochordata (Lancelets); Vertebrata (Vertebrates).

[4] The 3 groups of mammals are: monotremes (females lay eggs); marsupials (females have a pouch for the young); placentals (the young stays in the female’s uterus until born).

[5] ‘Nervous System’ in The Columbia Encyclopedia (6th ed.), Columbia University Press, New York (2008).

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[22] E.g. section 97 National Parks and Wildlife Act 1974 (NSW).

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[43] The first book of the Bible of Judaism and of Christianity, and the first book of the Pentateuch or Torah of Judaism.

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[70] See section 5(3)(b) Prevention of Cruelty to Animals Act 1979 (NSW).

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[73] A ‘usufruct’, in Roman law, is a temporary right of using a thing without having full dominion over the substance.

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[97] O’Brien v Benson’s Hosiery (Holdings) Ltd [1980] AC 562; Federal Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500; National Trustees Executors & Agency Co of Australasia Ltd v FCT (1954) 91 CLR 540 at 583; Kearney and Trecker Corp. v. U.S. 688 F.2d 780 Ct.Cl. (1982).

[98] Sarkar PR, ‘Pseudo Humanism’ in Birds and Animals, Our Neighbours, Ánanda Márga Pracáraka Sa?gha, Calcutta (2007, discourse of 22 March 1982) at 9.

[99] Arguably, utility value can be mundane (to do with the material world), supramundane (to do with the mental world) or spiritual (to do with the spiritual world); see Shrii Shrii Anandamurti (Sarkar PR), ‘Desire and Detachment’ in Subhásita Sa?graha Part 3 (2nd ed.) Ánanda Márga Pracáraka Sa?gha, Calcutta (1975, discourse of 1956) at 138.

[100] Cseres KJ, Competition Law and Consumer Protection, European Monographs, vol.49, Kluwer Law International, Alphen aan den Rijn (2005).

[101] Wheeler C, ‘The Public Interest: We Know it’s Important, but do we Know what it Means?’ (2006) 48 AIAL Forum 12.

[102] ‘Push to outlaw hybrid supercats’, ABC News, 6 June 2008, http://www.abc.net.au/news/stories/2008/06/06/2267441.htm

[103] Buckland WW, A Text-book of Roman Law from Augustus to Justinian, (3rd ed. rev. Stein P) Cambridge University Press, Cambridge (1963) at 269-70.

[104] Goldie LFE, ‘Title And Use (And Usufruct) — An Ancient Distinction Too Oft Forgot’ (1985) 79 A.J.I.L. 689.

[105] ‘Usufruct’ is defined as “[a] right to use and enjoy the fruits of another’s property for a period without damaging or diminishing it, although the property might naturally deteriorate over time”, see Garner A(ed.), Black’s Law Dictionary (8th ed.) West Group (2004) at 1580.

[106] Kelch TG, ‘Toward a Non-Property Status for Animals’ (1998) 6 N.Y.U. Envtl. L.J. 531 at 581-583.

[107] Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995) at 18.

[108] Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995) at 257.

[109] Regan T, The Case for Animal Rights: Updated with a New Preface, University of California Press, Berkeley (2004).

[110] Ash K, ‘International Animal Rights: Speciesism and Exclusionary Human Dignity’ (2005) 11 Animal L 195 at 212.

[111] Nussbaum MC, ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’ in Animal Rights: Current Debates and New Directions (eds. Sunstein CR & Nussbaum MC) Oxford University Press, Oxford (2004) at 304; Goodman EP, ‘Animal Ethics and the Law: A Review of Animal Rights: Current Debates and New Directions’ (2006) 79 Temp. L. Rev. 1291.

[112] Greenawalt K, ‘The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment’ (1986) 27 Wm and Mary L. Rev. 1011 at 1034-1035.

[113] Steiner G, Anthropocentrism and its Discontents: The Moral Status of Animals in the History of Western Philosophy, University of Pittsburgh Press, Pittsburgh (2005) at 83; Sarkar PR, The Liberation of Intellect – Neo-Humanism, Ánanda Márga Pracáraka Sa?gha, Calcutta (1982, discourses of 1982 and a discourse of 1971).

[114] Steiner G, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 J. Animal L. & Ethics 1.

[115] The Constitution of India provides at Article 48 that the State shall “take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”.

[116] Sarkar PR, ‘Requirements of an Ideal Constitution’ in Prout in a Nutshell (Part 12), Ánanda Márga Pracáraka Sa?gha, Calcutta (1987, discourse of 22 September 1986) at 52.

Part 1

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