AnimalsAnimals andand the Lawthe LawMary Margaret McEachern, J.D.Mary Margaret McEachern, J.D.

Dillow, McEachern & Associates, Dillow, McEachern & Associates, P.A.P.A.

March 16, 2006March 16, 2006

How are animals viewed at How are animals viewed at law?law?

Do animals have rights?Do animals have rights? Animals are property and Animals are property and

since property has no since property has no rights, animals have no rights, animals have no rights.rights.

Present-day animal welfare Present-day animal welfare laws protect our property laws protect our property interest in animals.interest in animals.

History of Property Status: History of Property Status: Theological JustificationTheological Justification

The Genesis term, “dominion”, has The Genesis term, “dominion”, has been historically interpreted to mean been historically interpreted to mean that we humans can treat animals that we humans can treat animals however we see fit because we’re however we see fit because we’re human; i.e., “dominion” = human; i.e., “dominion” = “domination”“domination”

Animals have no interest in not being Animals have no interest in not being subjected to involuntary servitude or subjected to involuntary servitude or sufferingsuffering

History of Property Status: History of Property Status: Defect TheoryDefect Theory

Animals possess some “defect” making Animals possess some “defect” making them qualitatively different from humans them qualitatively different from humans and thereby deserving of subjugation by and thereby deserving of subjugation by humanshumans

Animals have no soul and are “spiritually Animals have no soul and are “spiritually inferior”inferior”

Animals are not rationalAnimals are not rational Animals cannot use languageAnimals cannot use language Animals are inherently less valuable than Animals are inherently less valuable than

humanshumans

Conditions of Ownership Conditions of Ownership Arising from Property StatusArising from Property Status

We can POSSESS animals…We can POSSESS animals… We can USE animals…We can USE animals… We can MANAGE animals…We can MANAGE animals… We can CONTROL the income, rents, We can CONTROL the income, rents,

fruits and profits of animals…fruits and profits of animals… We can GIVE animals away….We can GIVE animals away….

Welfare Theory: The Basis of Welfare Theory: The Basis of Modern LawModern Law

It is morally acceptable, at least It is morally acceptable, at least under some circumstances, to kill under some circumstances, to kill animals or subject them to suffering animals or subject them to suffering as long as precautions are taken that as long as precautions are taken that the animal is treated as “humanely” the animal is treated as “humanely” as possibleas possible

There exists no animal interest that There exists no animal interest that cannot be overridden if the cannot be overridden if the consequences of the overriding are consequences of the overriding are sufficiently “beneficial” to humanssufficiently “beneficial” to humans

Rights Theory – Doing Away Rights Theory – Doing Away with “Legal Thinghood” Statuswith “Legal Thinghood” Status

We must accept the proposition that animals have morally We must accept the proposition that animals have morally significant interests in not being subjected to unnecessary significant interests in not being subjected to unnecessary sufferingsuffering

Because property by its definition has no rights, we must first Because property by its definition has no rights, we must first elevate the status of animals from legal things to legal personselevate the status of animals from legal things to legal persons

A “person” is defined as a “being capable of having rights”; a A “person” is defined as a “being capable of having rights”; a “thing” is defined as “that which cannot have rights”; “person” “thing” is defined as “that which cannot have rights”; “person” is not necessarily synonymous with “human” is not necessarily synonymous with “human”

What is a RIGHT?What is a RIGHT? To have a “right” implies that the holder of that To have a “right” implies that the holder of that

right has some intrinsic value that requires our right has some intrinsic value that requires our respect, regardless of whether our exploitation of respect, regardless of whether our exploitation of the holder would be beneficial to us or others; in the holder would be beneficial to us or others; in other words, rights cannot be taken away simply other words, rights cannot be taken away simply because it would benefit someone if the holder because it would benefit someone if the holder lost that rightlost that right

The right holder cannot be used as a means to The right holder cannot be used as a means to someone’s endssomeone’s ends

For instance, I cannot be forced to give up my life For instance, I cannot be forced to give up my life to laboratory research even if doing so would to laboratory research even if doing so would definitely provide a cure for all types of cancerdefinitely provide a cure for all types of cancer

If a being has a right to life, then the being If a being has a right to life, then the being cannot be killed unless there is moral justification cannot be killed unless there is moral justification for doing sofor doing so

This Analysis Begs a Very Large Question…If This Analysis Begs a Very Large Question…If We Accept that Animals should have Rights, We Accept that Animals should have Rights,

then Which Animals should have Which then Which Animals should have Which Rights?Rights?

Should a horse have the right to vote?Should a horse have the right to vote? Should a horse have the right to live?Should a horse have the right to live? What about a monkey?What about a monkey? What about a fish?What about a fish? What about a roach?What about a roach? Should companion animals have fewer/more rights than farm Should companion animals have fewer/more rights than farm

animals?animals? Should companion animals have fewer/more rights than wild Should companion animals have fewer/more rights than wild

animals?animals? What would be the effects on society in general if the law What would be the effects on society in general if the law

enforced a cow’s right to life with the death penalty?enforced a cow’s right to life with the death penalty? If we accord to all animals the right to life, can we not take If we accord to all animals the right to life, can we not take

medicine to control bacteria?medicine to control bacteria? WHERE DO WE DRAW THE LINE?!?WHERE DO WE DRAW THE LINE?!?

Some Scholars: Give Rights to Some Scholars: Give Rights to Sentient Animals…What is Sentient Animals…What is

Sentience?Sentience? Perception…Perception… Memory…Memory… Desire…Desire… Belief…Belief… Self-Consciousness…Self-Consciousness… Intention…Intention… Sense of the Future…Sense of the Future… Emotion…Emotion… CAPACITY TO SUFFER???CAPACITY TO SUFFER???

How Does the Sentience of How Does the Sentience of Your Average Dog/Cat Your Average Dog/Cat

Compare with…Compare with…

A human fetus?A human fetus?

A severely retarded adult?A severely retarded adult?

Someone in a persistent vegetative Someone in a persistent vegetative state?state?

Some Scholars: If Our Laws Some Scholars: If Our Laws are to Ever Mean Anythingare to Ever Mean Anything

Then we must:Then we must:

1) Strip animals of their property status; 1) Strip animals of their property status; andand

2) Give animals ONE basic right…the right 2) Give animals ONE basic right…the right not to be subjected to unnecessary sufferingnot to be subjected to unnecessary suffering

THE QUESTION THEN BECOMES…THE QUESTION THEN BECOMES…

What is Necessary What is Necessary Suffering?Suffering?

Animal agriculture…is meat eating necessary?Animal agriculture…is meat eating necessary? Hunting…is hunting for sport necessary?Hunting…is hunting for sport necessary? Entertainment…is it necessary for us to cause Entertainment…is it necessary for us to cause

suffering for our amusement?suffering for our amusement? Fur…does fashion necessitate suffering?Fur…does fashion necessitate suffering? Vivisection…is experimenting on animals for Vivisection…is experimenting on animals for

medical and cosmetic research necessary?medical and cosmetic research necessary? WE ALL HAVE OUR OPINIONS, BUT IT WILL WE ALL HAVE OUR OPINIONS, BUT IT WILL

ULTIMATELY BE UP TO YOU TO DECIDE!ULTIMATELY BE UP TO YOU TO DECIDE!

Besides Determining Whether to Consider Animals Besides Determining Whether to Consider Animals as Property or Persons, what are Some of the Issues as Property or Persons, what are Some of the Issues

that Complicate the Practice of “Animal Law”that Complicate the Practice of “Animal Law”

Do we differentiate between “domestic animals” Do we differentiate between “domestic animals” and “wild animals”? If so, how do we define and “wild animals”? If so, how do we define these categories?these categories?

Doctrine of “standing” – Property cannot sue! Doctrine of “standing” – Property cannot sue! Only owners (not neighbors, not concerned Only owners (not neighbors, not concerned citizens) may sue out cases involving their citizens) may sue out cases involving their animalsanimals

Sentient Property – Property with feelings as Sentient Property – Property with feelings as distinguished from the living room furnituredistinguished from the living room furniture

Companion Constitutive Chattel – Allows courts to Companion Constitutive Chattel – Allows courts to save face by skirting issue of legal personhood save face by skirting issue of legal personhood while concomitantly acknowledging the true while concomitantly acknowledging the true worth of a companion animal to its owner (cf: worth of a companion animal to its owner (cf: historical treatment of women)historical treatment of women)

A Sampling of “Animal Law” in A Sampling of “Animal Law” in “Everyday Practice”“Everyday Practice”

Custody disputesCustody disputes BailmentBailment Common carriersCommon carriers Landlord/Tenant DisputesLandlord/Tenant Disputes InsuranceInsurance Emotional distress claims in personal injury and wrongful Emotional distress claims in personal injury and wrongful

deathdeath Veterinary malpracticeVeterinary malpractice Injuries caused by animals – LiabilityInjuries caused by animals – Liability Due process/Civil forfeitureDue process/Civil forfeiture Companion animal trustsCompanion animal trusts Directives to destroy animals upon owner’s deathDirectives to destroy animals upon owner’s death Criminal anti-cruelty statutesCriminal anti-cruelty statutes

Hypothetical QuestionsHypothetical Questions I was involved in a car accident in which my pet was injured. I was involved in a car accident in which my pet was injured.

The wreck was not my fault. Can I hold the other driver liable The wreck was not my fault. Can I hold the other driver liable for damages?for damages?

What is a feral cat? Is it the same thing as a stray cat? Are What is a feral cat? Is it the same thing as a stray cat? Are there any laws that apply to feral cats? Is there anything I there any laws that apply to feral cats? Is there anything I can do to help feral cats?can do to help feral cats?

My dog has been declared potentially dangerous because it My dog has been declared potentially dangerous because it scared a child. What rights, if any, do I have to appeal this scared a child. What rights, if any, do I have to appeal this designation? What defines a “potentially dangerous dog”?designation? What defines a “potentially dangerous dog”?

My husband is an alcoholic and becomes violent when he is My husband is an alcoholic and becomes violent when he is drunk. The other day, he severely beat my five-year-old dog. drunk. The other day, he severely beat my five-year-old dog. My husband has not beaten me, but he has abused me My husband has not beaten me, but he has abused me emotionally, and I just found out I am pregnant with our first emotionally, and I just found out I am pregnant with our first child. What should I do?child. What should I do?

I am an aspiring veterinarian. When I finish my education, I I am an aspiring veterinarian. When I finish my education, I would like to start my own practice in Wilmington. Besides would like to start my own practice in Wilmington. Besides malpractice issues, what other legalities should I be malpractice issues, what other legalities should I be concerned about with my new practice?concerned about with my new practice?