When is an animal not an animal?

by Paula Sparks

The law defines animals as 'things', not 'persons', leaving us in all kinds of mess.

Everyone will have had experience of animals outside our own species. We see them around us, in the wild, on farms, in the skies and the sea; some of us will have lived with an animal and shared our daily life and routines with (or had them dictated by) those animals. We are aware that there are different species of animal and that we are one of those species. We will have had opportunities to observe and interact with those other species, sometimes over long periods of time, and we may even have a strong emotional connection with certain animals.

While we might not be able to categorise or name every species, we know what an animal is and we know something about the nature of different species and their capabilities. It therefore comes as some surprise to many to learn that, in law, an animal is a 'thing', in the same legal category as a table, chair or any other inanimate object.

We may think this is understandable when we discover that the law adopts only two classifications: 'legal things' and 'legal persons'. Since animals are not people, they must necessarily be 'things', right? Except that 'legal person' isn't synonymous with 'human' or 'Homo sapiens'. In fact, in the past, belonging to the species of Homo sapiens wasn't necessarily even a qualifying criterion; enslaved human beings found themselves treated as legal things, capable of being bought and sold but not capable of being the holders of any legal rights. Today, all humans are legal persons, but the category has expanded beyond humans to artificial entities, such as companies that are consequently capable of bringing or defending legal actions.

A legal thing is an object over which a legal person can exercise a legal right. It can therefore be owned. The owner has rights over their property that are protected in law to prevent interference by others, but the property itself has no legal standing to complain about its 'treatment' by an owner or another person. This makes sense when we think about inanimate forms of property. However valuable an object we own, we can destroy or dispose of it with no consequences, since we hold the property rights. It would be absurd to conceive a scenario whereby someone could bring a claim to defend the legal right of the painting or vase that has been deliberately smashed.

But what about property that has an interest in its own life and well-being? Property that will suffer if not protected from abuse or if kept in conditions that do not meet its welfare needs? This is the conundrum, for the animal, being a legal thing, is reliant upon us to enact and enforce laws to protect him or her from abuse. And the double whammy is that animals are reliant upon the very people who may stand to gain from not fully meeting their welfare needs to enact and enforce those laws.

So how did we end up here? The origins are in Roman law, which introduced the categories of persons, things and actions. A person had legal rights. A thing lacked free will and was the object of those rights. Women, children, enslaved people, the 'insane' and animals fell into the legal-thing category, since they were considered to lack free will.

Roman law reflected the views of ancient Greek philosophers, such as Socrates, Plato and Aristotle, who viewed the world as strictly hierarchical. The gods were at the top of the pyramid. Those further down the pyramid existed to serve those at the top. Greek men came at the top of society's pyramid, which extended downwards to Greek women, then children. Animals and enslaved people were considered unable to reason and described as 'living tools'.

It was a world view that became embedded and persisted over centuries. We can find it in early Christian doctrine: Saint Thomas Aquinas, philosopher and theologian, promoted the view that animals were made for man's benefit; this was the natural order and reflected divine intention. Early scientific opinion supported, rather than challenged, this orthodoxy. In this pre-Darwinian world, scientists and philosophers regarded man as separate from the animal kingdom and some, such as the French philosopher Descartes, postulated that animals were like machines, lacking souls, thought and self-consciousness.

Our knowledge and understanding of the world and the animal kingdom are fundamentally different today. Informed by Darwin, most people now accept the theory of evolution and the fact that humans, rather than being separate from the animal kingdom, are part of it. A different species, but fundamentally still a species of animal. Our knowledge of the inner lives of animals is also improving, with scientific discoveries about animal consciousness, intelligence and sensibility to pain and suffering. Animal welfare science has become a recognised discipline, further increasing awareness about the impacts of our actions on animals.

It took many centuries for the law to recognise that all humans were legal persons. Not until the case of Somerset v Stewart (1772) 98 ER 499 was an enslaved man recognised by the courts as a legal person and, even after this case, slavery continued in British territories until the Slavery Abolition Act (1833). The property rights of Charles Stewart over James Somerset were at the heart of the case, in which James Somerset invoked the ancient writ of habeas corpus to secure his freedom from unlawful detention upon a ship bound for Jamaica, where he was to be sold for labour in the plantations.

We have a great many animal welfare laws; animals, however, remain legal things. There are currently attempts to change this through the development of the common law, adopting the reasoning in Somerset v Stewart. The Nonhuman Rights Project (NhRP) in the US has brought several cases seeking a writ of habeas corpus to order the release of imprisoned animals being kept in conditions not conducive to their welfare and their removal to a sanctuary. The case is advanced, not for all animals, but at least for those species where scientific evidence demonstrates that they can exercise practical autonomy, defined by Wise thus:

'A being has practical autonomy and is entitled to personhood and basic liberty if she: 1. can desire; 2. can intentionally try to fulfill her desires; and 3. possesses a sense of self-sufficiency to allow her to understand, even dimly, that it is she who wants something and it is she who is trying to get it'.

Wise argues not only that these species should be recognised as legal persons, but also that they should have the entitlement to basic 'dignity' rights.

At the time of writing, a case on behalf of Happy the elephant is listed to be heard before the New York Supreme Court, following a petition issued by the NhRP for a writ of habeas corpus seeking recognition of personhood and the fundamental right to bodily liberty for the elephant, who is currently being kept alone at Bronx Zoo. The group is seeking her release to an elephant sanctuary where she will have the opportunity to socialise with other elephants.

Whatever the outcome of this case, while a win for the elephant would arguably be a momentous step forward, it is not the complete answer. For a start, it would only impact those higher cognitive functioning species, possibly (for example) including dogs, dolphins, elephants, whales, honeybees and gorillas. Why should only 'intelligent' species fall within the category of legal persons? Wise himself recognises that the case he is making is a legal, not a philosophical one. He explains:

'If I were the chief justice of the universe, I might make the simpler capacity to suffer, rather than practical autonomy, sufficient for personhood and dignity-rights. For why should even a nonautonomous being be forced to suffer? But the capacity to suffer appears irrelevant to common-law judges in their consideration of who is entitled to basic rights. What is at least sufficient is practical autonomy. This may be an anathema to disciples of Bentham and Singer. I may not like it much myself. But philosophers argue moral rights; judges decide legal rights. And so I present a legal, not a philosophical, argument for the dignity-rights of nonhuman animals'.

But, we may further ask, why persist with this classification of the world into legal persons or legal things at all? The universe as we understand it has changed and we can surely adapt to accommodate this. This is a question that Judge Fahy grappled with in a claim for liberty brought by the NhRP on behalf of two 'imprisoned' chimpanzees, Tommy and Kiko.

'In the interval since we first denied leave to the Nonhuman Rights Project (see 26 NY3d 901 [2015]; 26 NY3d 902 [2015]), I have struggled with whether this was the right decision. Although I concur in the court's decision to deny leave to appeal now, I continue to question whether the court was right to deny leave in the first instance. The issue whether [sic] a non-human animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a 'person', there is no doubt that it is not merely a thing.'

Do we need change at all? Is there any real detriment to animals in being classified as 'things' over which owners have legal rights? On the one hand, it's arguable that the property status of animals is protective, enabling their owners, having rights over their property, to protect them from being taken or injured by others.

It is without doubt, however, that the property status of animals places them at a disadvantage. Radford identifies six potential detriments: (1) owner autonomy over domestic animals; (2) all persons having autonomy over wildlife; (3) there being a greater challenge to secure legislative protection; (4) it being a barrier to empowering third-party removal of animals kept in conditions that compromise welfare; (5) colouring attitudes towards animals; and (6) placing the animal at a disadvantage when their interests are weighed against fundamental, protected human rights in protection of humans' property.

Since Radford wrote this in 2001, some of these detriments have been removed or modified. The Animal Welfare Act (2006) in England and Wales (and equivalents in the devolved nations), affords animals protection from unnecessary suffering and imposes duties upon owners to meet their welfare needs, a significant inroad into owner autonomy. The legislation also provides powers to remove distressed animals from the care of owners who are not meeting their welfare needs. Scotland has gone a step further in recent legislation that enables animals taken from owners for suspected welfare or cruelty offences to be rehomed in appropriate circumstances without the necessity of a court order. Rehoming seized animals is in the best interests of animal welfare and saves rehoming organisations many thousands of pounds, but it also erodes the property rights of the owner over an animal. There has also been some erosion of our rights over wildlife, with some restrictions being imposed in legislation, for example on habitat disturbance and protection of mammals from certain acts of cruelty.

Not all the detriments of being a legal thing have been removed. One of these is that owners still have autonomy over the lives of their animals and can choose to kill them without reason or justification so long as they do not cause 'unnecessary suffering' in the process. Similarly, where there are gaps in animal welfare legislation, animals are left unprotected.

There are signs of public disquiet with the legal classification of animals, reflecting perhaps a disconnect between our knowledge of animals and their status in law. An example is the successful campaign for Finn's Law. Finn was a dog in service of the police force. While helping his handler to apprehend a suspect, he was stabbed, suffering almost fatal wounds.

In the book Fabulous Finn, Finn's police handler Dave Wardell writes:

'...the best that can be achieved if a police dog or police horse is attacked and/or wilfully injured in the line of duty is to charge the suspect with having committed criminal damage. It's the same law that applies if, say, someone smashes a window, breaks a plant pot, stamps on a laptop or purposely runs their car into a garden wall - as damaging a 'thing'. And this is true of all service animals in terms of law; they are considered to be of no more consequence than a piece of inanimate property...

PD Finn, a piece of property? How could that possibly be right? Surely hard-working service animals deserved better?'

In fact, the lack of protection was not unique to service dogs, though service dogs are particularly vulnerable. This is because prosecutions were not generally brought under the Animal Welfare Act (2006) for causing 'unnecessary suffering', due to a potential defence that could be invoked. This defence is that someone caused the animal suffering while trying to protect him or herself. The alternative offence of causing criminal damage did not sit easily with the public. As Dave Wardell articulates in the extract above, it simply doesn't feel right for an animal to be treated in the same way as inanimate property. The law failed to recognise the animal's intrinsic (non-monetary) value. The campaign to amend the Animal Welfare Act to remove this potential defence in the case of service dogs acting in the line of duty attracted huge public support and resulted in a change in the law.

Similarly, a campaign to create a specific offence for the theft of a pet stems from public concern about animals being treated in the same way as inanimate property for the purposes of sentencing under the Theft Act (1968). In the face of evidence about rising levels of pet theft during the COVID-19 pandemic, many people voiced concern about the light sentences (often a fine) for the minority of offenders who were actually apprehended and prosecuted. Sentencing guidelines allow judges to take account of the emotional impact of an offence upon people, but not the welfare impact on the animal, where known. The guidelines also take as a starting point the value of the property. Thus, the theft of animals valued under £500 automatically starts at a lower sentencing threshold. Again, this does not sit easily with people who often view their companion animal as part of the family. To find, after disruption to their family unit, that their animal is treated as a mere form of property adds insult to injury. This was acknowledged by the Pet Theft Taskforce, launched in 2021 in response to rising concern about pet theft. The recommendations include that the government creates a specific offence of pet abduction and addresses head-on the treatment of animals as property.

'There is growing [sic] public feeling that criminal law and the sentencing for offences involving the theft of pets do not sufficiently recognise an animal as something more than mere property. We are aware of the calls from some campaigners to recognise that animals are different from inanimate objects through the creation of a new criminal offence, or through a change to sentencing practice.

Those speaking before the taskforce gave impassioned evidence of the emotional value a pet provides them and their families. It is clear pets are valued as something more than just property. This is where many see the deficiencies with the current Theft Act (1968) ('Theft Act') - which treats pets as a type of property...

Reflecting this legal recognition of sentience, the taskforce has considered ways to better reflect the view that stolen pets are not mere property but sentient beings, and considered a number of criminal law and sentencing interventions. The taskforce does not believe that the creation of a new pet theft offence or a statutory aggravating factor - in line with recent campaigns - would have the desired impact. This is because theft deals with the deprivation of property and so the welfare of the stolen animal would not be a primary consideration when sentencing. However, a new 'pet abduction' offence could switch the focus from the loss to the owner to the welfare of the animal.'

These campaigns suggest that public knowledge of animals' capabilities has evolved with scientific development. However, the law has not kept up. It continues to reflect an understanding of animals long since disproven.

The campaigns are also important barometers of public attitudes towards animals. The British public gives a huge amount to animal charities each year and is vocal in the arena of public policy regarding animals. Aside from the Finn's Law and pet theft campaigns, which received strong public support, there have been a number of other successful grassroots campaigns over the past decade for stronger animal protection measures. Many of these campaigns (such as Lucy's Law, for a ban on the third-party commercial sale of puppies and kittens) have resulted in law reform. Others are reflected in the government's Action Plan for Animal Welfare, including proposed new measures to tackle ear-cropping of dogs, the marketing of unethical tourist activities abroad, glue traps, shark fin imports and more.

Another possible barometer of public attitudes towards animal protection was the strong public reaction to media reports that the government was not planning to carry across Article 13 of the Treaty of Functioning of the European Union (TFEU), following withdrawal from the European Union (EU). Article 13 recognises that animals are sentient and imposes a duty on government bodies to take into account the welfare needs of animals when formulating and implementing policy. The Article was necessary to provide competence to the EU to take animal welfare into consideration, given that, in law, animals were categorised as commodities. Without this competence, the EU could no more take into account animals' intrinsic value or welfare needs than it could for other types of property.

The vocal public reaction to potentially losing this recognition of sentience following Brexit led to many MPs clarifying that the decision not to transpose Article 13 did not mean a lack of support for the principle of animal sentience. Shortly afterwards, the environment secretary, Rt Hon Michael Gove MP, confirmed that animal sentience would continue to be recognised, and protections for animals strengthened, after Britain left the EU. At the time of writing, the Animal Welfare (Sentience) Bill is progressing through Parliament, explicitly recognising that animals are sentient and creating an Animal Sentience Committee of experts who will determine whether government departments have paid due regard to the welfare needs of sentient animals when formulating public policy. While not ideal, the Bill does at least reflect public sentiment by recognising sentience and providing a mechanism in law to scrutinise whether the interests of animals have featured in the policymaking process.

What, then, for a legal regime that recognises that animals are sentient, but classifies them in the same way as inanimate property? There is a glaring disconnect. We need not rely upon the common law to expand the category of species from Homo sapiens outwards to other species. This can be achieved by legislation that simply recognises that animals are legal persons. Would the world fall on our heads if that happened? Would animal interests become paramount over human rights? Would it mean the end of eating animals? The answer to all these questions is NO.

Recognising animals as legal persons would mean that animals would have standing in court, so that their legal rights (for example, a statutory right not to be subject to unnecessary suffering) could be enforced on their behalf, possibly through similar legal mechanisms that allow claims to be brought or defended on behalf of children or adults with a disability. It would remove the existing barriers identified by Radford (above) and enable the courts to take into consideration in legal proceedings touching upon animal interests that they are sentient and have interests of their own.

The current legal regime presides over intensive farming systems that have not met the aspiration of 'a life worth living' for billions of animals each year; over experiments on live animals that include procedures that, by statutory definition, cause 'severe' suffering; and over a massive loss of biodiversity, resulting in the loss of a number of many native species.

There is clearly much to be done, but, if Radford is right that, 'the law is the means by which society expresses its collective choice', the indications of public support for reform suggest there is hope for a better future for animals.

Paula Sparks

Paula is a visiting professor at Winchester University, where she teaches an animal law module to undergraduate and postgraduate students. She is executive chairperson of the UK Centre for Animal Law (A-LAW), a charity whose vision is a world where animals are fully protected by law. In her role at A-LAW she oversees the programme of animal law events, publications, advocacy and student outreach and works closely with animal advocacy groups, lawyers and academics. She also frequently lectures and talks about animal law.on the plate.