Problems with the property status of animals
There are problems inherent in the property categorisation of animals. The first is that the legal characterisation of animals has failed to keep up with advancements in scientific and philosophical knowledge. Animals were recognised as property at a time when leading philosophers believed that God had given humans dominion over all animals.1 It was also believed that animals did not have any moral standing because they lacked rationality and autonomy.2 Modern philosophers no longer hold these views. Peter Singer’s Animal Liberation, for example, refutes Descartes’ assertion that animals have no interests because they are not sentient.3 Singer asserts that the interests of humans and animals should receive equal moral consideration because both have the ability to suffer, feel pain and experience enjoyment.4 Science too has progressed overtime. Since Darwin presented his theory of evolution, scientists have come to accept that humans have evolved from other animals. Further, sentience is now recognised in most animals to varying degrees. However, the law in Australia has not progressed to reflect our current scientific knowledge about animals.
The second problem with the property status of animals is that they are ostensibly misplaced in the property category. Animals are very distinct from other forms of property, such as tables, land and intellectual property. Unlike inanimate objects, animals have the capacity for independent action. They also have the capacity to experience suffering and, to varying degrees, engage in intelligent thinking. By categorising animals as property, the law objectifies animals. However, the very fact that animal welfare laws exist to protect a particular type of ‘property’ sets animals apart from other types of property, which are only protected from harm to the extent that they infringe on an owner’s rights. Once it is accepted that animals are sentient and therefore have morally relevant interests, it becomes difficult to justify the treatment of such beings as mere objects.
Finally, as a result of their categorisation as property, animals cannot be bearers of legal rights. This is because legal personality, or standing, is a precondition for having and enforcing legal rights. Without legal rights, the trivial interests of humans (eg, in entertainment and sport) manage to outweigh the interests of animals. Francione illustrates this problem by making the following comparison:
When the legal system mixes rights considerations with utilitarian considerations and only one of two affected parties has rights, then the outcome is almost certain to be determined in favour of the right holder.5
While animal welfare laws do exist to protect animal property, they have many limitations. For example, they do not prevent the infliction of all forms of harm on animals. They regulate exploitation, rather than prohibit it. Further, they do not apply equally to all species of animals.6 Additionally, the protections afforded by animal welfare legislation are enforced by charity organisations that, to a large extent, rely on donations to perform their role. Although it is better to have animal welfare legislation than to have no such laws, the limitations of such legislation mean that it provides a ‘band-aid’ fix rather than a solution that goes to the root of the problem.
Of course, not everyone agrees that the property status of animals should be abolished. Epstein claims that the property status of animals offers more advantages to animals than disadvantages, especially as it secures food, shelter and veterinary care for them.7 He further argues that animals benefit from more humane deaths in the care of humans than they would in the wild.8 However, Epstein’s reasons for maintaining the property status of animals ignore the inherent interests of animals in living a natural life and expressing their normal behaviours. Further, while the property status of animals might afford certain benefits to animals, such benefits could also be guaranteed for animals outside the property paradigm.
Garner too argues for maintaining the status quo. He argues that animals having legal rights would not guarantee their protection, and gives the example of states that have proclaimed human rights, but failed to prevent human exploitation.9 Garner further argues that legal rights and legal standing are not the same and should not be confused. According to Garner, the welfare of animals can be improved simply by granting legal standing to animals and strengthening existing animal welfare legislation.10
Indeed, animals would be in a better position if they were to be granted legal standing and if animal welfare laws were to be strengthened. However, while legal standing and more stringent laws could improve the welfare of animals, retaining the property status of animals reinforces their objectification. The law has the potential to influence and shape community values.11 So at a time when society is becoming more educated and concerned about the welfare of animals, retention of the property status can be seen as counter-productive.
Is legal personhood restricted to humans?
Although the term ‘personality’ suggests a human subject, it is worth noting that the notion of legal personhood is not necessarily equivalent with, nor limited to, human beings. According to the formalist view, legal personality is an artificial construct that is not restricted to humans.12 Section 124 of the Corporations Act 2001 (Cth), for example, provides that ‘[a] company has the legal capacity and powers of an individual’. It follows that the mere fact that an animal does not biologically fall within the human species does not prevent them from being classed as legal persons. A number of countries have in fact started exploring this very possibility.
Global developments with respect to the legal status of animals
While modern science and community values have not yet prompted Australia to reconsider the appropriateness of animals being classified as property, there are some countries that have done this. In particular, several jurisdictions have attempted to resolve the problems associated with the property classification of animals by creating a separate legal status for animals. Over the last three decades, Switzerland,13 Germany14 and Austria15 have amended their Civil Codes to declare that animals are not objects and that they ought not to be subject to the laws relating to objects. Efforts are also underway in other countries to change the legal status of specific animals. In the United States, for example, there are lawsuits seeking to have chimpanzees declared as legal persons. Similar litigation is underway in Argentina, while Romania is considering legislation that would grant legal personhood to dolphins (see below).
Countries that no longer classify animals as property
The Civil Codes of Austria, Germany and Switzerland contain provisions that specifically relate to the legal status of animals. For instance, Article 285 of the Austrian Civil Code, which became operational in 1988, provides that ‘animals are not objects; they are protected by special laws’.16 It further provides that laws relating to objects ‘do not apply to animals unless there is a contradictory provision’.17 Similar provisions exist in the German and Swiss Civil Codes.18
At first glance, these provisions appear to have changed the legal status of animals in these countries. Such declarations that animals are not objects and not subject to the laws of objects can easily lead one to construe that the legal status of animals has changed. However, this is incorrect. While these provisions have modified the degree to which animals are subject to the law of objects, they have not gone so far as to place animals in the category of ‘persons’.
If animals have not become legal persons in Austria, Germany and Switzerland through these changes to the respective civil codes, then what is their legal status? Former Animal Welfare Attorney for the Canton of Zürich, Antoine Goetschel, asserts that Article 641a of the Swiss Civil Code created a separate category for animals, distinct from objects and persons. He claims that animals are no longer objects, but they are not holders of rights.19
While Gerritsen agrees with Goetschel that animals now ‘have their own status between the status of objects and the one of humans’,20 Michel and Kayasseh have a different view. They argue that although Article 641a of the Swiss Civil Code made clear that animals are no longer classified as objects, it did not create a separate legal category for animals:
The new law simply states that animals are no longer ‘objects’. Obvious is the lack of a definition which clarifies their concrete legal status. Even though the legislator’s intention was to improve the legal status of animals, most ‘special regulations’ relating to animals … do first and foremost improve the legal position of the animal’s owner or keeper, and not the animals’ itself. Correspondingly, it crystallises from the legislative material that Article 641a of the Swiss [Civil Code] is primarily of a declarative nature; the introduction of a separate legal category for animals was actually never intended. Animals thus have neither gained legal personhood nor do they have human caregivers or guardians instead of owners. Of course the law states that they are no longer objects; but in most cases they are still treated as such.21
Michel and Kayasseh’s interpretation is supported by the qualifications contained within the relevant provisions of the three civil codes. Though the provisions declare that the law of objects does not apply to animals where specific laws exist for animals (alluding to animal protection laws), they do allow for the application of property laws where animal specific laws do not exist. In other words, if there are no laws regulating human relations with animals then animals continue to be subject to the law of objects.
Nevertheless, even though the relevant Civil Code provisions of Austria, Germany and Switzerland are merely of a declaratory nature, the recognition of animals as distinct to objects is an important step away from the erroneous premise upon which ancient roman laws were built. Acknowledging that animals do not encompass the characteristics of objects can create an impression of animals as separate legal entities worthy of protection, particularly for newer generations who will learn that the legal system does not consider animals to be objects.
Such acknowledgement in the Civil Code also provides more credibility to the laws regulating human and animal interactions. Ultimately, this recognition may help pave the way for more progressive animal welfare laws. A recent study found that Austria and Switzerland (and Germany to a lesser extent) have some of the best animal welfare standards and frameworks in the world.22 These countries apply the general duty of care and anti-cruelty provisions in their animal welfare legislation equally to companion animals and farm animals.23 This is in contrast to Australia, where farm animals, which are subject to various codes of practice, are excluded from the protections afforded by animal welfare legislation. These European countries have also included a stated objective to protect animals in their national constitutions,24 thereby providing a constitutional basis for their animal protection laws.25
Other approaches to changing the legal status of animals
Different approaches to changing the legal status of animals are being taken in a number of other countries, including Romania, the US and Argentina. These are analysed below.
In February 2014, Independent MP Remus Cernea introduced a Bill that would grant legal personhood to dolphins.26 The proposed law would declare that ‘[a]ll species of dolphins enjoy special protection on the territory of Romania, each individual of this species being considered to be a non-human person’. The Bill seeks to classify dolphins as ‘non-human persons’, which is defined as a non-human species that ‘possesses a developed intelligence [and] the capacity to form complex social relations’. The Bill seeks to grant dolphins specific rights such as the right to life, the right to bodily integrity, the right to be in their natural environments, and the right to be with their social groups.27
The Bill is yet to be debated in the Romanian Parliament, and the degree of support that the Bill might enjoy is unclear. If passed, the new laws would have radical implications for the way in which dolphins could be treated. It would, for example, place dolphins beyond the reach of medical experimentation and use for human entertainment. It would also set a precedent for other animals to be recognised as non-human persons, especially those recognised by science for their intelligence and capacity to form social relations.
In 2013, the Nonhuman Rights Project (‘NhRP’) filed an application for the writ of habeas corpus in a New York court on behalf of Tommy, a chimpanzee being held in captivity.28 Habeas corpus is an old common law writ that can be used to free unlawfully detained persons.29 To be granted this writ, it is essential to show that the plaintiff is a legal person. To support its petition, affidavits from experts were presented to prove that chimpanzees possess complex cognitive abilities that satisfy the requirements for the common law concept of personhood, and the resulting right to protection from bodily harm.
The court rejected the NhRP’s arguments and the writ was denied.30 Two similar petitions were made on behalf of three other chimpanzees, which were also denied.31
Appeals were filed with the Appellate Division of the Supreme Court of the State of New York in all cases. In Tommy’s case, the appellate court, comprising five judges, dismissed the appeal on the grounds that the right to liberty was not available to an entity that was incapable of assuming duties and responsibilities.32 In the case concerning the chimpanzee, Kiko, the appellate court did not explore the issue of the chimpanzee’s possible personhood. Rather, the court denied Kiko’s entitlement to the writ of habeas corpus on the basis that the writ was not available where the subject of the application for the writ was not entitled to immediate release from custody.33 The five appellate judges ruled that Kiko’s immediate release had not been sought. Instead, the NhRP was seeking to place Kiko in a different facility.34
The NhRP lodged further appeals on behalf of Tommy and Kiko to the Court of Appeals, the highest court in the State of New York, 35 but these applications were similarly denied.36 The outcomes demonstrate the reluctance of courts to extend the concept of personhood to animals.
Had the appeals been allowed, the decisions of the Court of Appeals would have provided valuable insight into how the common law notion of habeas corpus could be used to change the legal status of some animals. However, any application for the writ of habeas corpus on behalf of a captive non-human animal in Australia is likely to face the same challenges as in the US. While it is now clear that the concept of a legal person is not restricted to humans,37 there is currently no Australian authority that recognises the potential for nonhuman animals to be persons. Further, similar to the decision in Kiko’s case, Australian courts have ruled that the writ of habeas corpus is not available in cases seeking simply to change the conditions of detention.38 The writ can only be obtained to set a person free, without restriction.39 Thus, unless the plaintiff animals can be left free to roam, there will be practical impediments to obtaining the writ in Australia too.
Within Argentina, there are two habeas corpus cases pending. In one case, the writ is being sought on behalf of a chimpanzee named Toti,40 and in the other case, the writ is being sought on behalf of Arturo, a polar bear.41 If the writs are granted, the precedent could prove persuasive for Australia given that the writ of habeas corpus has similar origins in Australia and Argentina. At this time, it is unclear how these cases will be decided.
Two mediums: litigation and legislation
The above developments demonstrate that there are two distinct approaches that are being used in attempts to change the legal status of animals. Austria, Germany, Switzerland and Romania have used the legislative path to either change the legal status of animals, or at least distinguish animals from mere object-hood. This method relies on significant political and public support. The advantage of this approach is that once the necessary support is garnered, change can be brought about fairly quickly. Moreover, legislation can be enacted for the benefit of a wide category of animals.
In the US and Argentina, advocates are using strategic litigation to try to achieve a degree of legal personality for particular animals. Thus they are seeking to reform the laws governing animals through the courts rather than the parliament. The downside of this approach is that a lot of time and money must be spent litigating claims through lower courts and various levels of appeal. The result is that that strategic litigation can be a slow and expensive instrument for initiating change. Further, only those animals that are the subject of a writ of habeas corpus can directly benefit from legal personhood and the consequential rights. Other animals of the same species will not initially benefit from success in those litigations. Nevertheless, if a court declares a particular animal to be a common law legal person for the purpose of habeas corpus, a precedent will be created for other animals of the same species. It will also make it easier and more likely for other animal species, with similar cognitive abilities, to successfully apply for such a writ.
Courts have a role to play in law making. While lower courts are bound to follow established precedents, higher courts do have room to develop existing, sometimes outdated, common law principles. Former Chief Justice of the High Court, Anthony Mason, highlights Mabo v Queensland (No 2)42 as an example of a case where the High Court took on a law-making role and corrected a historical fallacy that Australia was unsettled prior to the arrival of Europeans.43 However, there are limitations to the courts’ law-making abilities. Courts can only develop the common law within the boundaries of established principles and values in respect of which there is general consensus in the community.44 According to the former chief justice, anti-discrimination was the underlying principle based on which the Mabo decision was reached. Courts are reluctant to modify or expand the common law based on values that have little or no consensus in the community. Such decisions are regarded as political matters that are best left to policy makers.
In order to determine whether there is consensus on the issue of the legal status of animals, sufficient to justify courts modifying established common law principles, studies will need to be undertaken to gauge societal attitudes. However, given the dependence on animals for food, income, entertainment and other human-centered activities, it seems unlikely that there is consensus in Australia about what the legal status of animals should be. For this reason, it is highly unlikely that Australian courts would be willing change the common law position in the near future.
Nevertheless, litigation should not be undermined as a tool for instigating change because unsuccessful litigation can at least help generate political support by increasing public awareness about a particular matter. Such awareness can then pave the way for more progressive legislation. The media, for instance, has widely been following and reporting on developments in the NhRP’s cases. This media coverage has been increasing awareness of the fact that animals do not have legal rights, and is potentially prompting members of the audience to think and form an opinion on the issue of the legal status of animals.
While these international cases raise awareness of the legal status of animals, progressive legislative amendments can achieve better welfare outcomes for a wider category of animals. Similar to Austria, Switzerland and Germany, Australia should formally recognise that the law of objects does not apply to animals. While such a move would not alter the legal status of animals, it would potentially have three important consequences, namely:
- it would better align legislation with modern scientific and philosophical opinions;
- it may, over a period of time, remove the conception of animals as property. Such attitudinal changes in the community could then make legal personality for animals a more real and acceptable possibility in the future; and
- it may possibly give room for courts to develop the common law. Courts sometimes do take into account policy considerations in their judicial reasoning.45 Thus, a declaration could provide evidence of policy or legislative intent, which could in turn influence courts to modify the status of animals at common law.
Enacting a declaration similar to Austria, Switzerland and Germany could, ultimately, pave the way for changing the legal status of animals.
Although the legal status of animals is a product of the common law, courts do not provide the best mechanism for initiating change. This is because there is no evidence to indicate that there is wide consensus in the Australian community on this issue. Courts may be more willing, however, to correct the historical fictions embedded in the common law’s categorisation of animals as property, if the legislature takes the first step in declaring that animals are not be treated as objects. While such legislative expression will not necessarily abolish the property status of animals, it would be more reflective of modern scientific, philosophical and cultural knowledge and attitudes. Courts could then use the policy and legislative intent as a foundation for categorising animals differently. Such an approach would also have the potential to bring about attitudinal changes, thereby paving the way for further developments in the future.
GEETA SHYAM is a PhD candidate at Monash University.
© Geeta Shyam 2015
1. John Locke, ‘Second Treatise’ in Peter Laslett (ed), Two Treatises of Government (Cambridge University Press, 1988) 265, 288–289; William Blackstone, Commentaries on the Laws of England (A Strahan and W Woodfall, 12th ed, 1794) Vol 2, 2.
2. Immanuel Kant, Lectures on Ethics (Louis Infield, trans, Harper Torchbooks, 1963) 239–40.
3. Peter Singer, Animal Liberation (Harper Collins, revised ed, 2002), 10–15.
4. Ibid 7–8.
5. Gary Francione, Animals, Property, and the Law (Temple University Press, 2007) 107.
6. Farm animals are generally excluded from the scope of animal welfare legislation. See, eg, s 6 of the Prevention of Cruelty to Animals Act 1986 (Vic).
7. Richard Epstein, ‘Animals as Objects, or Subjects, of Rights’ in Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 143, 149.
8. Ibid 148.
9. Robert Garner, ‘Political Ideology and the Legal Status of Animals’ (2002) 8 Animal Law 77, 79–80.
10. Ibid 82–3.
11. In Victoria, for instance, the campaigns and social movements that followed two unsuccessful court cases in the areas of access to clinical infertility treatment and lesbian parenting created public awareness on the respective issues and made way for more progressive laws: Adiva Sifris, ‘Lesbian Parenting in Australia: Demosprudence and Legal Change’ in Paula Gerber and Adiva Sifris (eds), Current Trends in the Regulation of Same-Sex Relationships (The Federation Press, 2011) 8, 15.
12. For a discussion on different views as to the nature of legal personality in common law systems see, eg, Ngaire Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 Modern Law Review 347.
13. Schweizerisches Zivilgesetzbuch [Civil Code], art 641a (Swiss Civil Code).
14. Bürgerlichen Gesetzbuches [Civil Code], § 90a (German Civil Code).
15. Allgemeines bürgerliches Gesetzbuch [Civil Code], art 285 (Austrian Civil Code).
16. Austrian Civil Code, art 285.
17. Austrian Civil Code, art 285.
18. German Civil Code, § 90a; Swiss Civil Code, art 641a.
19. ABC Radio, ‘Australia stalls on animal welfare reform’, Law Report, 30 April 2013 (Damien Carrick) — http://www.abc.net.au/radionational/programs/lawreport/animal-welfare/4660224#transcript.
20. Vanessa Gerritsen, ‘Animal Welfare in Switzerland – constitutional aim, social commitment, and a major challenge’ (2013) 1 Global Journal of Animal Law 1, 4.
21. Margot Michel and Eveline Schneider Kayasseh, ‘The Legal Situation of Animals in Switzerland: Two Steps Forward, One Step Back – Many Steps to Go’ (2011) VII Journal of Animal Law 1, 20.
22. World Animal Protection, Animal Protection Index — http://api.worldanimalprotection.org.
24. Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 20a; Österreichische Bundesverfassung [Constitution of Austria] art 11(8); and Bundesverfassung der Schweizerischen Eidgenossenschaft [Swiss Federal Constitution] art 120.
25. There are some parallels between the categorisation of animals in Austria, Germany and Switzerland and those states, cities and counties in the United States that have replaced the term ‘owner’ with ‘guardian’ in their animal welfare legislation concerning companion animals. The Guardian Campaign, a movement initiated by the In Defense of Animals advocacy group, has been advocating the change in terminology. So far, 18 cities, two counties and one state have adopted the term ‘guardian’ instead of ‘owner’: In Defense of Animals, Do You Live in a Guardian Community, The Guardian Campaign — http://www.guardiancampaign.org/guardiancity.html.
26. The Bill has been reproduced at Remus Cernea, Draft law for recognising dolphins as non-human persons (4 February 2014) VoxPublica — http://voxpublica.realitatea.net/politica-societate/draft-law-for-recognizing-dolphins-as-non-human-persons-102731.html.
28. The Nonhuman Rights Project Inc, on behalf of Tommy v Patrick C Lavery (NY Sup Ct, 2 December 2013).
29. See David Clark and Gerard McCoy, Habeas Corpus (Federation Press, 2000).
30. The Nonhuman Rights Project Inc, on behalf of Tommy v Patrick C Lavery (NY Sup Ct, 2 December 2013), at 1.
31. Michael Mountain, New York Cases – Judges’ Decisions and Next Steps (10 December 2013) — http://www.nonhumanrightsproject.org/2013/12/10/new-york-cases-judges-decisions-and-next-steps/.
32. The People of the State of New York ex rel. The Nonhuman Rights Project Inc, on behalf of Tommy v Patrick C Lavery (NY Sup Ct, 518336, 4 December 2014) 4.
33. The Nonhuman Rights Project Inc, on behalf of Kiko v Carmen Presti, Christie Presti and the Primate Sanctuary Inc (NY Sup Ct, 2 January 2015), 2.
34. The Nonhuman Rights Project Inc, on behalf of Kiko v Carmen Presti, Christie Presti and the Primate Sanctuary Inc (NY Sup Ct, 2 January 2015), 2.
35. Stephen M Wise, Legal Whac-a-Mole (3 January 2015) — http://www.nonhumanrightsproject.org/2015/01/03/legal-whac-a-mole/.
36. Stephen M Wise, Statement Re: NY Court of Appeals Decision to Deny Motion for Leave to Appeal in Tommy’s and Kiko’s Cases (1 September 2015) — http://www.nonhumanrightsproject.org/2015/09/01/statement-re-ny-court-of-appeals-decision-to-deny-motion-for-leave-to-appeal-in-tommys-and-kikos-cases/.
37. Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 300.
38. Prisoners A to XX inclusive v New South Wales (1995) 38 NSWLR 622.
39. Matthew Groves, ‘The use of habeas corpus to challenge prison conditions’ (1996) 19(2) University of New South Wales Law Journal, 281, 286.
40. Gap Project, Habeas Corpus is denied, but law discussion is still open (30 December 2013) — http://www.projetogap.org.br/en/noticia/habeas-corpus-denied-law-discussion-still-open/.
41. Polar Bear Rescues, The Appeal of Habeas Corpus for Arturo was Granted (26 February 2014) — http://polarbearrescues.webs.com/actions.
42. (1992) 175 CLR 1.
43. Anthony Mason, ‘The Judge as Law-maker’ (1996) 3 James Cook University Law Review 1, 3.
44. Ibid 12.
45. Ibid 10.