In 2010, I published an article in which I suggested a different path for the future legal status of animals. Prior to this time, the primary cry of animal rights activists was the need to eliminate the personal property status of animals, claiming that animals could never hold legal rights without being freed from that legal category. My core thought in the 2010 article was that the legal system has the capacity to separate animals from the general category of personal property and create a new category in which animals have both base characteristics of property and some modest level of legal rights.
Well, it has been over a decade since I made that suggestion—what has happened since? Animals have not been freed from their property status in any U.S. state. At the same time, calls for such change have greatly diminished. After twenty more years of experience, many may have realized that there is no foreseeable path to eliminating the property status of domestic animals. The general legal strategy has quietly shifted toward enhancing the wellbeing of animals while ignoring their status as property.
Another realization of those active in the field is that it is impossible to change the rules for all animals at the same time. The law places animals in categories and the legal rules can only realistically change within those categories. So, companion animals get enhanced political consideration before agricultural animals. It is not fair, but it is the reality. An additional lesson from the past twenty years is to not shout “animal rights” in a crowed legislature or courtroom. The makers and interpreters of law are not yet comfortable with the idea of animals having legal rights, but they have been willing to protect some animal interests which, unbeknownst to them, creates some legal rights for some animals.
As I see it, a very specific, and perhaps narrow, definition of a threshold legal right is critical to the path forward. Some rights are weak, some strong, and others preferred. Given the evolving nature of law, it should not be expected that we start with the strongest legal rights. Rather, the first animal rights will be inherently weak, but still rights. As this is a short article and the topic has been discussed for centuries, I’ll simplify my bottom-line definition of a legal right to the recognition of an entity or being by some aspect of the legal system as an individual whose personal interests must be understood, accommodated for, or recognized in the outcome of a legal dispute.
Assume a bad actor inflicts significant wounds on a human and his dog because they do not like the dog. In present tort law, humans have a right to seek compensation for the damage, but the dog does not. This is not because the legal system is incapable of giving the dog a cause of action; it simply does not choose to do so at this point in time.
Dogs, however, do have the protection of the anti-cruelty laws, which make illegal intentional and cruel acts against certain animals. Such laws are the reflection of a social judgement that dogs have an interest in being free of pain and thus should not be attacked. However, the law limits the remedies available to vindicate this legal right, since it is only within the power of the State to prosecute the bad actor. This should also be attached to the dog as a weak legal right. This follows from the way states have, beginning with an 1867 law in New York, carved animals into a special category of personal property through their anti-cruelty laws, because they are living beings, unlike chairs or cars, which have no such legal protections.
No one would seriously suggest that our national Constitution supports the concept of animals as rights holders. The federal courts have been unwilling to expand the definition of “person” in federal statutes to include animals. However, in one very interesting case, the Court of Appeals for the Ninth Circuit stated that, without changing the property status of animals, Congress could give animals legal rights, if they explicitly stated such in the law. As this is unlikely to happen in the near future, this path will likely not be expanded upon. But the expression of the Ninth Circuit itself is a sign of changing attitudes toward animals. As personal property law is primarily within the power of the states, let’s turn to various categories of animals at the state level and see where they stand in the light of legal rights.
The animals that share a home with humans are on the fast track for enhanced visibility and protection in the legal system. Their legal status is progressing at the state level, despite the lack of any action at the federal level.
In one area of U.S. law, animals are considered “property plus”. Historically, the legal definition of “persons” excluded animals such that they could not receive a distribution of property under a human’s will or trust. But beginning in the 1990s, state laws began changing, allowing individuals to create Pet Trusts where money could be set aside in will or trust to meet the needs of an animal. No other personal property may be the beneficiary of a will or trust, but if someone drafts a will and leaves $20,000 in trust for the benefit of their two cats, courts will enforce the trust just as they would a trust for the benefit of a child. For example, an enforcement action could be filed in the name of such a companion animal. However, the Pet Trust laws do not change the property status of the relevant animals. Instead, the animals are deemed to be both personal property and beneficiaries of a trust. So, are such animals legal persons or personal property? Clearly, they hold aspects of both statuses.
The second-best example of the legal status of animals changing is regarding companion animals within divorce law. Changes have not widely arrived in the courts, but a few judges have tried. In Travis v. Murray, a New York court held a one-day hearing to determine custody of a dog named Joey during a divorce proceeding, using a standard of the “best for all concerned.” The court reasoned that “[w]here once a dog was considered a nice accompaniment to a family unit, it is now seen as an actual member of that family, vying for importance alongside children.”
Divorce is primarily a matter of state law which is controlled by the legislature. Until 2017, no state’s divorce laws distinguished a dog or cat from other personal property during the judicial division of property. In 2017, Alaska was the first state to adopt a new provision for companion animals in this context, followed shortly thereafter by Illinois, California, and New Hampshire. There is no Uniform Law to provide model language, therefore each legislature has worked out their own language as to what is appropriate for their state. Consider the following:
These legislators recognize that issues around a companion animal are not about money, but other values held by the parties before the court. Likewise, being a legal rights holder is a broader concept than being the plaintiff in a lawsuit. In these four states a companion animal is a quiet party in a court proceeding. This legal context satisfies three elements of a legal right: a specific animal is in focus, with unique personal interests, considered by the court as an individual, and the holding of the court will directly affect that specific animal.
Note that exactly which interests of the companion animal, and how to weigh those interests, are not provided for in any of these statutes. It is also expected that in the next decade a number of law review articles will be written to expand the legal vision of this process.
This category has the most animals in need of acknowledgement by law. But, to feed the existing public demand for meat, our capitalist system has evolved farms into billion-dollar global corporations. This level of money assures a level of political power that blocks the legislative creation of legal rights for agricultural animals. At the moment, this is strictly a state law issue, and most states exempt this category of animals from even the weak rights found in the anti-cruelty laws of the states.
In 2018, California Prop 12 was adopted, and the law reached the U.S. Supreme Court in 2023. This state law expanded protections for agricultural animals even beyond state boundaries. But again, like the anti-cruelty laws, this is only a weak right. Only when agricultural animal wellbeing becomes a national issue will the “political will” be generated to face and change our existing invisible food chain of meat.
What might the future hold for animals? In the middle-term future, damages for harm to companion animals need to be addressed. In a large majority of states, recovery for intentional harm to a beloved companion animal starts and stops at market value; some states, but not the majority, also allow for the recovery of reasonable veterinary costs in excess of market value. Yet, the very real loss of love and companionship that accompanies the loss of a companion animal is not yet recognized in the world of torts.
Constitutional Law. Constitutional change will occur first at the state level, and maybe in the distant future at the federal level. The push for both better welfare and legal rights for animals will need a clearer basis for legislative action within state constitutions to move forward. This is not impossible to contemplate for the west coast states and New England. Such changes would clarify that animals are more than personal property in the eyes of the law. I have previously proposed the category of “Living Property.” This could be accomplished by planting many other phrases within state constitutions. Such amendments might include factual findings with phrases such as “animals are sentient beings” or “animals possess their own living interests deserving of consideration.”
International Treaty. Another vision for the future looks to international law and the creation of an animal wellbeing treaty for solutions. There is no existing treaty that has the wellbeing of animals as individuals as a primary focus. If the issues surrounding animals in industrial agriculture, such as pigs and chickens, are to be fully addressed in a global economy, a treaty is the only way to protect animal wellbeing, and it could take advantage of capitalist competition. If there are global standards for animal wellbeing, then capitalism can do its work in providing economically efficient products to the consumer without the creation of cruel conditions. A starter treaty for this topic has been recently drafted and is available for consideration.
At present, our system of law accepts that some animals may be allocated some level of acknowledgement beyond that of standard personal property. Someday, this category may yet be known as “living property.”
At one level, the future is unknowable, but if we in the United States continue to have a healthy, stable society, concerns about animals will continue to be actively pursued both within the legal system of various states and at the federal level. In twenty years, a follow-up to this article should be written so progress for animals can be acknowledged.
