Animals and the Law: More Like Persons Or Property?

At the beginning of her article “Are Animals ‘Things’?: The law evolves” (Harvard Magazine, March-April 2016), Cara Feinberg tells the story of a Texas couple whose family dog ran off and ended up in a shelter. The couple found him there the next day, but the shelter placed a “hold for owner” tag on the cage while the owners went to get cash needed to pay the fees. When they returned, the dog was gone. There had been a mix-up and the dog had been put to sleep.

The couple sued for damages. But in Texas their dog was only “property,” worth almost nothing, and loss-of-companionship damages applied only to human family members. They appealed on the grounds that “Texas courts had awarded damages for the sentimental value of personal property with little or no market value–such as lost heirlooms like jewelry, pistols, and hand-made bedspreads” (Feinberg). They won the appeal, but the state’s Supreme Court overturned the decision. That court ruled that a family dog that has provided such “rich companionship” cannot be forced into the same category as an heirloom. The couple’s quest ended. The dog was neither a piece of valuable property nor was it legally a human.

Gaining protection—and maybe rights (jubbiz.files.wordpress.com)

Gaining protection—and maybe rights
(jubbiz.files.wordpress)

The growing field of animal law, and the surging interest of law school students in it, focuses on this debate. The law treats everything as either a person or as property. Where do are animals fall? The growing body of law that protects animals–laws banning unethical hunting practices, gestation crates, and cock fighting, for example–rests on the assumption that animals are property. The animals’ owners bear the responsibility for their welfare. This is especially the case when the animals can experience fear and pain. A milestone in animal protection was reached in 2015 when, after many years of protection for “endangered” chimps in the wild, the U. S. government extended the same designation to chimps in research labs. It is now illegal to harm or kill a chimp anywhere in the U. S.

On the other hand, the view that animals are legal “persons” is making slow but significant headway. Significantly, other non-humans such as corporations and ships have been accepted in court as having legal rights. The first step in animals attaining such rights is their (chimps again, so far) gaining standing to be represented in a courtroom, and attorneys seeking to plead for their freedom or grieve their injuries are inching towards that goal. Over the centuries, the circle of beings embraced by the law has been expanding, gradually including women and slaves and others on the grounds that they are sufficiently “like us” to possess rights. The U.S. is hardly at the forefront in adding animals. In 1992, Switzerland amended its constitution to recognize animals as beings and not things. In 2002, Germany followed suit by adding the phrase “and animals” to a clause requiring the state to respect and protect the dignity of humans (USA Today, 5/18/2002).

But, as Feinberg points out, if animals become candidates for personhood and rights, “where should the law draw the line? Should primates have the same rights as humans? Should dogs? Should ants? What about animals in the wild, or those used in medical research, or the billions slaughtered for food?” It’s not surprising that we have empathy for the animals who are most like us—those that, like our pets, have intelligence and show feelings. But that empathy drops off quickly (and I think unfairly) when it comes to “lower” animals like rodents, fish, worms, and insects who have their own non-sentient responses and struggles.

It seems to me that in the legal mix here there is one issue that is not adequately discussed. Simply put, that issue is eating. All animals, including humans, eat other living things, either animals or plants or both. We can and should humanize the rules for medical experimentation and for hunting animals or raising chickens, but we can do very little to mitigate the reality of animals eating animals. We may be able to protect the lion in the wilderness, but we can’t protect the antelope and zebra that the lions hunt and eat, nor, probably, would we want to. The law can support the well-being of animals who are enmeshed in human affairs in labs or food factories, but it can’t regulate our need to kill animals in order to eat them.

Feinberg mentions that animal attorneys often become committed vegetarians because, as one lawyer quipped, attorneys don’t eat their clients. To me the joke hints at how abruptly the principles of animal rights can come face to face with biological imperatives. Perhaps in the course of clarifying the law for animals, a middling category between property and persons will evolve, such as the single basic right of bodily liberty, as advocate Stephen Wise has suggested. But liberty from which constraints, for which animals? The language of the Swiss and German constitutions moves us closer to a synthesis of rights and protections, but for animals under which conditions?

At least we have a new generation of law students eager to grapple with such enormous questions.

Beavers, Humans, and Evolution

Despite all the links of many kinds between us and our animal ancestors, the obvious ways in which we are unique remain striking. Unlike any other species, we talk a lot, we learn by listening, we hold meetings, we make plans, we create complex technologies, and we build organized communities. How did we become so different? How did we come to live in such mini-worlds of our own making, in our cultures?

Here’s an interesting perspective:

beaver (wikipedia)

(Wikipedia)

To understand the role of culture in human evolution, it is helpful to start with the beaver. Beavers exhibit the remarkable trait of damming up streams to form ponds and then inhabiting the ponds, thereby protecting themselves from predators. This trait is clearly “hard-wired:” If the sound of running water is broadcast to captive beavers, they proceed to pile sticks on top of the speaker. It also exemplifies niche construction: Beavers are adapted to the ponds that they themselves create; they are selected for their ability to produce the niches upon which they depend.

And so it is with the human. The niche to which we are adapted— human culture—is a niche that we ourselves construct; we are selected for our ability both to produce and to inhabit culture-based niches. Since human culture is encoded in and acquired by symbolic languages, this means we have been selected for our symbolic minds in the same way that beavers have been selected for their dam-building skills.

The passage is from a 2003 article on “From Biology to Consciousness to Morality” by Ursula Goodenough and Terrence W. Deacon. There is a lot to take in from these insightful paragraphs. My paraphrase: The characteristics of living things depend on the traits that best contribute to the organism’s capacity to survive and reproduce in its environment. But beavers, like humans, turn this relationship between organism and environment on its head. Instead of adjusting to an environment, we and the beavers create the environment in the first place. We both find the right niche by actually making the niche. To do so, beavers are hard-wired for building dams, humans for using language.

Human examples abound. Every home (maybe every room), every community, every automobile, every organized group is a self-created niche. Perhaps even our clothes. Even our smartphone is a pocket-sized niche of manufactured language and image. And it’s one we keep contributing to, to make it the way we like it.

Deacon and Goodenough’s paragraphs are the kind of application of natural selection theory that shows us not only how our traits may have evolved but what our essential and surprising characteristics are in the first place.