An animal's take on the "company man." - A Consideration of Policy Implications: A Panel Discussion - In the Company of Animals

In the symposium paper occasioning this two-part question (1), Tannenbaum offered the thesis that treating animals as property in the law provides them adequate protection. He argued that this is the case since the legal concept of property originally developed in part around cattle ("chattel"); and such property, in his view, can have rights under the law.

In response, I maintain that the concept of nonhuman animals as property does not afford them adequate protection, For it reduces them to the same category of inanimate objects to the subordination of which much law in our system is dedicated, precisely to assure that a property owner's rights prevail with respect to his or her property. Although the terms "inevitably" and "necessarily" are too strong--history is more a matter of contingencies than inexorable consequences--history indicates that we have treated and continue to treat animals as inanimate objects when it suits our needs. A legal system that treats animals as property clearly provides and, there is no reason to doubt, will continue to provide justification for that exploitation.

In regard to the second part of the first question, a category is emerging in the culture, buttressed by the animal rights movement and by certain areas of scientific investigation (for example, cognitive ethology), which suggests an alternative category ontologically and, it follows, in jurisprudence--the animal as subjectivity.

Let me review a few considerations which support these responses to the two questions posed.

United States law, in particular, overwhelmingly supports the rights of a property owner. In the case of animate or movable property, its protection (note I am precluded from using a personal pronoun) is relegated to occasional limitations on otherwise preemptive property owner rights. In effect, an owner is protected in doing whatever he or she sees fit to maintain and enhance the economic value of his property, while that property itself is bereft of any interests and rights.

The fact that animals were those entities around which the concept of property developed offers no argument that that conception provides an adequate framework for their protection, as, no doubt, they were taken merely as things of a certain value from that outset. Yet the concept of property is stretched beyond its carrying power when it refers to an entity as an object that is, more than a thing, the "subject of a life," to use Regan's term in The Case for Animal Rights ( 1983). The thrust of investigations of nonhuman animals clearly establishes what we have always known, that animals are experiencing beings. While they can be taken and treated as objects, as can we, they are subjectivities--beings that intend, anticipate, suffer.... In the case of companion animals, they are members of our family; more generally, they are members of their own families.

Historically, we have used the device of ontologically reducing subjectivities to objects to justify institutions in which they are treated as property, as in the case of slavery and the oppression of women. To end those injustices it was not enough to provide limits on their respective property owners.

In the Middle Ages, nonhuman animals occasionally had standing in court.(1) In a recent Supreme Court case, Justice Douglas asserted that trees had standing, borrowing from Stone's argument in Should Trees have Standing? (1974). The question of standing is very important because while an entity that is treated as property under the law cannot be brought to trial, nor can that entity seek redress in the courts. Incidentally, standing is also the issue when groups of people seeking to protect those entities are prevented from doing so in the courts. A number of recent cases involving the Animal Welfare Act in which the court ruled for further protection of nonhuman animals under that act were overturned when the animal protection groups which brought the suits were denied standing (Animal Legal Defense Fund v. Yeutter; Animal Legal Defense Fund v. Secretary of Agriculture).

The medieval examples show that having standing in court does not assure fair treatment in a society as animals in medieval times were often the objects of cruelty--although the intensive institutionalized exploitation of our times has been possible only with modern technology. However, it also shows that the status is possible under the law.

Two contemporary legal scholars have provided extended arguments on the status of animals as property. Francione (1995) presents the negative case that treating animals as property is inadequate protection; while Wise (1995) argues the positive brief that at least chimpanzees are persons and, therefore, have standing under the law. From case material in the common law, Wise deduces the attributes of personhood under the law. He then applies these to current research on chimpanzees, such as that which Rumbaugh presented in this symposium, and concludes that these animals meet the criteria for personhood under the law.