Written by Anna Pippus, JD, Director of Farmed Animal Advocacy
Animals’ status as property is a central topic of discussion and criticism in animal rights, and correctly so. The authority we have granted our own species to own animals of other species is based on self-interested domination rather than a principled ethic of justice, and it should be critically re-evaluated.
However, given how engrained species exploitation is in the economic machinery of global society, species equality will not be achieved in the near future. In the meantime—that is, until all animals are no longer property and instead have the right to be free—should we concede that animals cannot be persons with any legal rights?
An overwhelming majority of animal advocates take the position that as long as animals are property, they cannot have legal personhood or legal rights. I argue that not only is this not the case, but taking this position actively harms animals.
First, it is worth considering what a legal right is. A legal right is simply a legal entitlement to do, have, or be free from something. Considering the law in most developed countries prohibits, for example, causing unnecessary suffering to animals—in effect, if not verbatim—do they then have legal rights? After all, they have the legal right to be free from unnecessary suffering, however vacuously this may be defined and however anemically it may be enforced.
In my view, animals do not currently have rights—but not because they are property. They don’t have legal rights because they have no means to enforce the rights to which they are ostensibly entitled. In other words, the common prohibition against unnecessary suffering cannot properly be considered a right to be free from suffering because nowhere in the world do animals have access to courts to enforce this right.
This principle is expressed with the legal maxim ubi jus ibi remedium—that is, for every wrong, the law provides a remedy. This principle has been recognized by the highest courts in the United States, the United Kingdom, and Canada. For example, the Supreme Court of Canada has stated that “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”
Applying this to animals, current animal welfare laws do not qualify as animal rights because animals do not have a remedy available to them. If they are abused, the law might be enforced to protect them—but it might not, and animals (through advocates) do not have legal recourse to demand a remedy.
But a remedy could be made available to animals. With legal standing, animals could have their interests represented in court and their rights adjudicated. Corporations already have legal standing; there is no reason animals shouldn’t have legal standing too. After all, we designed the legal system, and we can—and do—adapt it in novel and creative ways as needs arise.
This idea is not so far from becoming a reality. A few years ago, animal advocates including PETA and Zoocheck sought a judicial declaration that the City of Edmonton was in violation of provincial animal welfare laws for keeping a lone elephant in a municipal zoo in abominable conditions. Although the case was dismissed before the merits were heard, the top Chief Justice of the Alberta Court of Appeal wrote a lengthy, impassioned dissent, observing that “it arguably remains an open question whether the common law has now evolved to the point where, depending on the circumstances, an animal might be able to sue through its litigation representatives to protect itself.”
In other words, a top judge in a top Canadian court has acknowledged that animals may achieve legal standing through the common law—and not in the distant future, but now.
What does this mean for animals? For starters, although animals will continue to be exploited for profit, it gives animal advocates a tool for judicially abolishing the worst practices. For instance, with legal standing, advocates could go to court to argue that confining hens in battery cages, genetically breeding meat chickens to grow so quickly that their health is inherently severely compromised, castrating piglets without painkillers, or hot-iron branding cattle constitute unnecessary suffering and therefore run afoul of animal welfare laws.
In many provinces, including British Columbia and Ontario, provincial welfare laws exempt “reasonable and generally accepted practices” of animal management. These terms are important and cannot be glossed over. Is it “reasonable” to deprive an egg-laying hen of space to move, clean air, sunlight, prompt veterinary attention, and solid flooring for her entire miserable, fear-filled, stressful life? Many people would say no. In fact, many people would consider all of the horrifying practices to which farmed animals are routinely subjected to be extremely unreasonable.
As for general acceptance, we have to ask: generally accepted by whom? We should not concede that only profit-driven industrial agriculturalists can determine what qualifies as general acceptance, thus effectively conceding them law-making and self-policing power. Whether this is the ultimate judicial interpretation applied to this term, as advocates we should be advancing the interests of animals, and demanding a rational, fair, and policy-driven judicial interpretation of this term which does not allow those who profit by cutting corners on animal welfare to determine animal welfare standards.
Noble efforts to abolish the property status of animals and have them declared persons have been underway in courts around the world. These efforts focus on higher primates, based on arguments that these animals are so like us that depriving them of freedom and personhood is indefensible. Although the success of these efforts will be important for shattering the species barrier of legal personhood, they do not offer much immediate hope to the vast majority of animals currently suffering at human hands: most notably, the chickens, cows and pigs who are much less like us than are chimpanzees, but whose capacity to experience fear and pain is like our own.
When we, as animal advocates, say that animals cannot have rights or personhood as long as they are property, we are limiting ourselves, and we are selling animals short. We are allowing animal-use industries to abuse animals unchecked in the name of profit until the distant day arrives that all animals cease to be property and gain freedom.
But legal personhood does not require this of us. We can and should take the position that the legal system should recognize animals as legal persons—that is, as having legal standing to enforce their legal rights—right now, independent of their status as property being eradicated. This would give us another tool at our disposal to protect animals, and to chip away at the paradigm that allows virtually unchecked, systemic abuse of animals in the name of profit.
Animals are too vulnerable, their suffering too severe, and the quantities in which we harm them too great for us to hold any position that limits our ability to effectively advance their interests. They need legal standing, and they need it even while they are still property. They need it now.
 In Canada, many pieces of federal and provincial legislation use various language to prohibit causing unnecessary suffering to animals in various ways. The common theme is that the legislation implicitly recognizes a human privilege to use animals, thereby causing them some suffering that is considered necessary, but it also attempts to (vaguely) place limits on this privilege.
This blog and the contents herein are for informational purposes only and do not constitute legal advice. Readers are advised to seek legal counsel prior to acting on any matters discussed herein. The opinions expressed are those of the author.
Image: Egg-laying hens living in filthy, cramped cages in Alberta, 2013. Courtesy Mercy For Animals.