Enhancing the legal status of animals – the need for a shift away from property to non-

property and usufructuary rights in relation to animals and their welfare

Introduction

This essay considers the legal status of animals, noting the difference between humans and
non-humans, which is expressed mainly in the mental arena of existence. The notion of
animals as property has become entrenched in the legal system, due to the influences of the
early common law, anthropocentric biases evident in liberal theory and individualism, and
Western religious doctrines. A shift in understanding is required to change this.

That shift is supported by the recognition of animals as sentient beings having inherent worth
or existential value. With the theory of evolution, there has also fortunately been an increase
in moral understanding regarding the treatment of animals. This has lead to a call for the
property status of animals to be abolished and for animals to be granted legal personhood.

The non-property argument strongly acknowledges the existential value of animals, but does
not adequately deal with the contribution animals have made to the development of human
civilization because of their utility value. This is unlikely to change, and so human use of
animals has to meet requirements regarding the animal’s individual and collective welfare,
and the use must be for the general welfare of all. Allowance has to be made for a limited
usufructuary right for human use of animals, consistent with a guarantee of their welfare, and
recognising that animals have interests and rights in not being harmed and for their continued
existence. This essay also explores that usufructuary right.

The animal world

The main characteristic of the animal world is that its species are mobile. Animals can move
from place to place, whereas the plant world is immobile. The animal kingdom can be
divided into 21 phyla1 or divisions2. Those animals having a spine fall in the chordata
(chordates) phylum. This division is subdivided into 3 major subphyla3, one of which is the
vertebrata (vertebrates) subdivision.

Vertebrates have a cranium, spinal column and skeleton. The vertebrates subdivision is
further divided into 8 major classes, being:
• mammalia (mammals);
• reptilia (reptiles);
• aves (birds);
• amphibia (amphibians);
• osteichthyes (bony fishes);
• chondrichthyes (cartilaginous fishes including sharks and rays);
• placodermi (armoured fishes);
• agnatha (jawless fishes).

1
Margulis L & Schwartz K, Five Kingdoms: An Illustrated Guide to the Phyla of Life on Earth (2nd ed.), W.H.
Freeman and Company, New York (1988); Margulis L, Diversity of Life: The Five Kingdoms, Enslow Publishers,
Inc., New Jersey (1992).
2
The divisions are: Chordata (Chordates); Arthropoda (Arthropods); Mollusca (Mollusks); Echinodermata
(Echinoderms); Coelenterata (Cnidaria - Corals & Jellyfish); Ctenophora (Comb Jellies); Porifera (Sponges);
Bryozoa (Bryozoans); Brachiopoda (Brachiopods); Rotifera (Rotifers); Gastrotricha (Gastrotrichs); Tardigrada
(Tardigrades); Nematoda (Nematodes); Acanthocephala (Spiny-Headed Worms); Annelida (Segmented Worms);
Chaetognatha (Arrow Worms); Hemichordata (Acorn Worms); Nematomorpha (Horsehair Worms); Nemertea
(Ribbon Worms); Platyhelminthes (Flatworms); Sipunculoidea (Peanut Worms).
3
The subdivisions are: Urochordata (Tunicates); Cephalochordata (Lancelets); Vertebrata (Vertebrates).
Human beings are mammals4 who are in the placental group, along with bats, mice, dogs,
horses, dolphins, whales and primates.

From another viewpoint, essentially the animal kingdom is made up of 2 main groups:
animals with backbones (vertebrates); and animals without backbones (invertebrates). The
number of species of animals is vast (and still unknown), with a wide range of features. The
nervous systems found in animals, particularly in multicellular animals, also differ greatly in
complexity between species5. The human nervous system, glands and subglands, brain and
other components of the human biological structure, are generally more developed than those
of animals generally, including that of other 2-footed bipeds. This sophistication gives rise to
greater mental propensities or expressions by human beings.

Distinctions betweens humans and non-human creatures

As evolution progresses, the ability of humans to make decisions has become increasingly
sophisticated and the nervous system and brain have evolved to levels where learning,
memory and model-making becomes possible6. Consequently, human beings also
discriminate between what is proper and improper, applying values, by application of their
conscience (the function of identifying good and bad, selecting the good, and directing mental
energy towards that7). This pathway of discrimination is called ‘rationality’. Rationality then
takes priority over certain instincts relevant only to mere existence and survival. Accordingly,
the human being has been described as a ‘rational animal’8. But this is on par with saying that
an animal is a ‘moving plant’, or even that human beings are ‘rational moving plants’9.

In this regard, philosophers have considered the difference between humans per se and
animals generally, especially in relation to human mammals compared to other mammals and
also compared to other animals as a whole. This difference arises from a shift of evolutionary
proportions in consciousness10. While humans, animals (non-humans) and plants all share
some common characteristics, and while there are some characteristics that humans share
with animals generally but not with plants, there are also some special characteristics that
humans alone have. These special characteristics distinguish humans from animals (non-
humans) and plants. Without them, humans would be like animals generally, but they are not.
Furthermore, even though some animals (such as primates or domesticated dogs from being
close to humans) have a somewhat developed mental faculty, the mental faculty of humans is
far more developed.

The special characteristics of human beings are not necessarily to do with physical or
instinctual capabilities, as animals can also make use of tools and communicate, and they can
‘think’ in terms of processing information about themselves and their environment, at least at
a rudimentary level. Rather, the special characteristics of human beings have to do with the

4
The 3 groups of mammals are: monotremes (females lay eggs); marsupials (females have a pouch for the
young); placentals (the young stays in the female’s uterus until born).
5
‘Nervous System’ in The Columbia Encyclopedia (6th ed.), Columbia University Press, New York (2008).
6
Watson L, Lifetide, Hodder and Stoughton, London (1979).
7
Shrii Shrii Anandamurti (Sarkar PR), ‘Dhritarastra and Sanjaya’ in Discourses on Krśńa and the Giitá, Ánanda
Márga Pracáraka Saḿgha, Calcutta, (2000, discourse of 17 January 1980) at 87.
8
Kahn CH, ‘Aristotle versus Descartes on the Concept of the Mental’ in Metaphysics, Soul, and Ethics in
Ancient Thought: Themes from the Work of Richard Sorabji (ed. Salles R), Oxford University Press, Oxford
(2005) at 201 (citing Aristotle).
9
Shrii Shrii Anandamurti (Sarkar PR), ‘It Is Better to Die While Following Bhágavata Dharma - 1’ in
Discourses on Krśńa and the Giitá, Ánanda Márga Pracáraka Saḿgha, Calcutta (2000, discourse of 5 November
1978) at 153.
10
Roszak T, Unfinished Animal: The Aquarian Frontier and the Evolution of Consciousness, Faber Paperbacks,
London (1975) at 3.
mental apparatus11 of a human being, in terms of deliberately applying their cognitive ability
so as to think consciously about themselves, as well as others, and their own place in the
universe. This includes evaluating themselves in their personal, social and universal contexts
and other forms of self-reflection. Accordingly, human beings are self-aware of their own
identity.

This self-awareness carries with it the ability to plan for the future by application of the
analogue-I12 or doer-I13 (i.e. the ego) and to foresee possible consequences of one’s actions or
even thoughts. In addition, self-awareness carries the capabilities of decision making and self
control, perspective taking by considering the views of others and envisaging the lives of
others, self-conceptualisation and evaluation, and introspection including internal
contemplation into the depths of one’s existential-I14 (the I of I exist) such as in meditation.

Thus, the difference between human beings and animals generally is at the psychic (mental)
level. Accordingly, we can use the term ‘animals’ as referring to those creatures that are non-
human, and refer to human beings simply as ‘humans’.

Classical notion of animals as property

The common law notion of animals as property also uses this difference to treat animals as
things (not persons). This stems from William Blackstone’s mid-18th century Commentary on
the Laws of England15, which draws from Roman and Old Testament laws and cosmologies16
to proclaim animals as legal things rather than legal persons. This aspect of English common
law has carried over to the common law in Australia. As legal things animals can be
classified as personal property and so are denied legal rights. At law, this gives humans
dominion over animals: “The objects of dominion or property are things, as
contradistinguished from persons” (Blackstone)17.

In this regard, the common law concerning domesticated animals is straight-forward in that
they are personal property capable of being owned, and the early common law considered the
owner’s right as absolute in the same way as ownership of inanimate objects. This also
applied to companion animals and does so today, e.g. see section 7 Companion Animals Act
1998 (NSW) which recognises personal property in companion animals. However, while the
common law regards both inanimate and animate objects as capable of being property, the
forms of property are not necessarily equivalent18. Developments in case law have shown
that companion animals are likely to be classified as a special type of personal property19,
somewhere between a person and property, so as to take into account the element of
humaneness implicit in the human-animal relationship.

11
Leary MR, The Curse of the Self: Self-awareness, Egotism, and the Quality of Human Life, Oxford University
Press, Oxford (2004) at 5.
12
Leary MR, The Curse of the Self: Self-awareness, Egotism, and the Quality of Human Life, Oxford University
Press, Oxford (2004) at 5.
13
Shrii Shrii Anandamurti (Sarkar PR), Ánanda Sútram, Ánanda Márga Pracáraka Saḿgha (2nd ed.), Calcutta
(1996, discourses of 1961) at 12.
14
Shrii Shrii Anandamurti (Sarkar PR), ‘The Ascent of the Mind’ in Ananda Marga Ideology and Way of Life in
a Nutshell (Part 9), Ánanda Márga Pracáraka Saḿgha, Calcutta (1988, discourse of 1959) at 635.
15
Blackstone W, Commentaries on the Laws of England: In Four Books, G.W Childs, Philadelphia (1867).
16
Wise SM, ‘The Legal Thinghood of Nonhuman Animals’ (1996) 23 B.C. Envtl. Aff. L. Rev. 471 at 525.
17
Blackstone W, Commentaries on the Laws of England: In Four Books, G.W Childs, Philadelphia (1867) at 2-
16.
18
Wicklund PR, ‘Abrogating Property Status in the Fight for Animal Rights’ (1997) 107 Yale L.J. 569 at 572.
19
Kelch TG, ‘Toward a Non-Property Status for Animals’ (1998) 6 N.Y.U. Envtl. L.J. 531 at 537-40; see e.g.
Corso v. Crawford Dog & Cat Hosp., Inc. 415 N.Y.S.2d 182 at 183 (N.Y. Civ. Ct. 1979), Bueckner v. Hamel,
886 S.W.2d 368 at 378 (Tex. App. 1994), Katsaris v. Cook, 180 Cal. App. 3d 256 at 270 (1986).
In relation to wild animals, Blackstone, drawing on Roman law and the decision of Sir
Edward Coke in the Case of Swans20 (1592) which recognised a Crown prerogative in wild
swans, stated that wild animals can be reduced to property21. This happens when an
individual takes a wild animal so that it becomes personal property (this was considered a
natural right of every individual during Blackstone’s time), unless restrained by the laws of a
country. Even without personal possession, wild animals which roam freely can be
considered as property, not of human beings or private persons, but as property of the
Crown22 or the State. This happens when ownership of wild animals is deemed to be that of
the Crown or State, such as in legislation made to that effect. In such instances wild animals
also do not possess legal rights, even if having special privileges of protection under the
relevant legislation.

After Blackstone, the anthropocentric approach of recognising the legal ‘thinghood’23 of

animals for the benefit of human beings was confirmed in the mid-19th century English case
of Blades v. Higgs24. Legal ‘thinghood’ describes an entity with no capacity for legal rights,
whose interests are not required to be respected, and where the owner’s interest in the thing is
protected25. In the Blades case, Lord Chelmsford concluded that when a wild animal is
caught or killed it becomes the personal property of the hunter. Accordingly, qualified
property could be acquired over wild animals by lawfully taking, taming or reclaiming them26.
Even if they regained their natural liberty, their ownership would rest with the Crown or State.

In the USA, the United States Supreme Court in the case of Geer v. Connecticut27 in the late-
19th century held that wild animals or game are to be treated as the subject or ownership of
governmental authority. This case was later partly overruled by the Supreme Court in 1979
and its ‘ownership’ language was taken to refer to no more than the State’s power to regulate
for the preservation and exploitation of an important resource28 (which still denotes human
control over animals).

However, the common law in the various American States do still recognise that wild animals
while belonging to no one (or to everyone in common) can, in lawful circumstances, still be
made the property of the first human who possesses them29, unless otherwise protected by
wildlife legislation. The same applies when wild animals are tamed. This is a qualified or
limited property interest in wild animals, as the nature of wild animals renders them incapable
of absolute ownership. If such an animal happens to regain its natural liberty, the human
property interest in it will also cease.

The common law assumes that the interests of an animal do not exist or do not matter. At
most, the only duties humans have towards animals are indirect ones, such as not being cruel
to animals30 and maintaining the welfare of animals for human benefit, which today tend to be

20
The Case of Swans, 7 Coke Rep. 16, 17b, 77 Eng. Rep. 435 (K.B. 1592).
21
Blackstone W, Commentaries on the Laws of England: In Four Books, G.W Childs, Philadelphia (1867).
22
E.g. section 97 National Parks and Wildlife Act 1974 (NSW).
23
Wise SM, ‘The Legal Thinghood of Nonhuman Animals’ (1996) 23 B.C. Envtl. Aff. L. Rev. 471.
24
(1865) 11 HL Cas 621.
25
Allen CK, ‘Things’ (1940) 28 Cal. L. Rev. 421 at 424.
26
Kearry v Pallinston [1939] 1 KB 471.
27
161 U.S. 519 at 522 (1896), overruled in part by Hughes v. Oklahoma 441 U.S. 322 (1979).
28
Hughes v. Oklahoma 441 U.S. 322 (1979), quoting Toomer v. Witsell 334 U.S. 385 at 402 (1947).
29
Sterling v. Jackson 37 N.W. 845 at 859 (1888).
30
See section 5 Prevention of Cruelty to Animals Act 1979 (NSW).
imposed by legislation31. The result is that animals have no rights or a place in the sphere of
rights. They are excluded because they lack self-reflective awareness and means for
rationality in order to reason32.

This lack of personal autonomy deems animals to be unable to participate in a system of

reciprocal rights and obligations developed for a community or society. On this account, only
rational beings have merit for participation in such a system and community. At law, the
status of animals becomes such that they have no inherent moral worth and so become things
or instrumentalities for the satisfaction of human needs. As things, this gives the legal
justification for human practices such as animal husbandry, harvesting and killing of animals
for food, animal experimentation, genetic engineering concerning animals, and use of animals
in entertainment (such as zoos, circuses, rodeos, sports and the like)33.

Influence of liberalism and individualism

The anthropocentric prejudice of the common law, and its legislative equivalents, today
continues to be bolstered by a version of liberal theory associated with the influential 20th
century American political philosopher John Rawls34, which ends up excluding animals from
a theory of justice. This relies on a political conception35 of justice taking primacy and being
applied, rather than a comprehensive or broader ethical application of justice. Under the
political conception, only beings who can understand what it is to be just (because they are
persons capable of a moral conception of their good in life with a sense of justice) and are
able to make claims to justice for themselves and to respect the rights of others (because they
are persons with a desire to apply and act upon principles of justice), are entitled to be actual
beneficiaries of justice36. This excludes animals because they do not qualify as autonomous
individuals with the required capacity for rational self-determination.

Also, it is only autonomous individuals who are able to assert property rights. This is in line
with the socio-political theory of individualism37 and its self-reliance against the interference
of the state and society, which further supports strict property law. Such laws may even be a
hindrance to enforcement of anti-cruelty laws, because of the pervading assumption that there
has to be good reason for interference in property rights, including property rights in animals.
These influences can also make legislative improvements in animal welfare difficult.

However, where the political and lobbying influence of individualism is less powerful
(compared to the United States), the community may more readily defer to a majority view
such that individual rights do not stretch so far as allowing an absolute right to property in
animals by humans. The point is that the law does not have to accept a fixed dogma about
property and the relationships it gives rise to. The law can be open to a legal status for

31
See section 4 Animal Research Act 1985 (NSW) under which a Code of Conduct may be prescribed in respect
of animal research and supply of animals for animal research; section 14 Exhibited Animals Protection Act 1986
(NSW) under which Standards may be prescribed for the exhibition or display of animals.
32
Steiner G, Anthropocentrism and its Discontents: The Moral Status of Animals in the History of Western
Philosophy, University of Pittsburgh Press, Pittsburgh (2005) at 77-92.
33
Steiner G, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2 J.
Animal L. & Ethics 1.
34
Rawls J, A Theory of Justice, Oxford University Press, Oxford (1972) at 504.
35
Rawls J, A Theory of Justice, Oxford University Press, Oxford (1972) at 512; Rawls J, Political Liberalism,
Columbia University Press, New York (1993) at 12-13.
36
Rawls J, A Theory of Justice, Oxford University Press, Oxford (1972) at 505.
37
Lukes S, ‘The Meanings of “Individualism”’ (1971) 32 (1) Journal of the History of Ideas 45.
animals based on humans and animals being bodies of discrete individuals and at the same
time co-members of an ecological community38.

Influence of religion and theory of evolution

Religious doctrines may however impede development of progressive change in the law.
Religious doctrines have influenced the law on the legal status of animals and in determining
the lives and deaths of animals39. Part of religious doctrine, as resorted to by Blackstone40,
includes human dominion over animals. On this point, a long pervading Western religious
idea (mainly from the time of Hellenic Greece to the 19th century) has been that the universe
is divinely designed in a linear hierarchy, known as the Great Chain of Being, for every entity
that exists or could exist and for the ultimate benefit of humans. It is a human-centred
construct signifying human dominion over every earthly creature41 and of nature itself.

This is mirrored in the Judeo-Christian view42 found in Genesis43, which is taken to be the
divine source of humanity’s claim over nature and animals. Excluding animals from legal
entitlement is also evident in the book of Genesis when it proclaims that the Earth and all
Earth’s non-human inhabitants are for human’s to rule44. As can be seen, from these early
times there has been an essentially Western theological basis45, continuing throughout history,
for humans denying animals any legal rights or legal recognition.

It has had constitutional significance, as well. In relation to animals, many countries still
allow ritual slaughter on the grounds that to abolish it would offend the principle of religious
tolerance46. Ritual slaughter is allowed even though there is obvious evidence that it causes
unnecessary suffering that is easily remedied47. On this point, the United States Supreme
Court has essentially held in Church of Lukumi Babalu Aye v. Hialeah48, that religious
freedom prevails over concern for animals. In this case, the scope of certain Florida
ordinances made under anti-cruelty statutes prohibiting ritual animal sacrifice were held to be
unconstitutional as they violated the free exercise of religion49. Consequently, the religious
rites of the Santeria religion which required the sacrifice of animals by cutting their throats
prevailed.

38
Warren KJ, Ecofeminist Philosophy: A Western Perspective on what it is and why it Matters, Rowman &
Littlefield, New York (2000) at 133.
39
deCoux EL, ‘Pretenders to the Throne: A First Amendment Analysis of the Property Status of Animals’ (2007)
18 Fordham Envtl. Law Rev. 185 at 196-218.
40
Blackstone W, Commentaries on the Laws of England: In Four Books, G.W Childs, Philadelphia (1867) at 2-
16.
41
Wise SM, ‘How Nonhuman Animals Were Trapped in a Nonexistent Universe’ (1995) 1 Animal L. 15 at 17-
18.
42
White L, ‘The Historical Roots of our Ecological Crisis’ (1967) 155 Science 1203.
43
The first book of the Bible of Judaism and of Christianity, and the first book of the Pentateuch or Torah of
Judaism.
44
Genesis 1:28.
45
Bartlett SJ, ‘Roots of Human Resistance to Animal Rights: Psychological and Conceptual Blocks’ (2002) 8
Animal L. 143 at 149.
46
Jones v. Butz 374 F. Supp. 1284 (S.D.N.Y. 1974) deferring to Congress’ determination that Kosher
slaughter is humane and allowable.
47
Fraser AF & Broom DM, Farm Animal Behavior and Welfare, Balliere Tindall, London (1990) at 152.
48
124 L. Ed. 2d 472 (1993).
49
The Constitution of the United States of America, First Amendment (“Congress shall make no law respecting
an establishment of religion, or preventing the free exercise thereof”).
While dominant world religions do also preach compassion and responsibility towards
animals, they all favour the inherent existential superiority50 of humans over animals.
However, Buddhism is often viewed as more reasonable in its view of animals, as most forms
of animal exploitation are against fundamental Buddhist teachings51, although many
Buddhists do participate in activities which involve killed animals. Notably, the strongest
religious advocates for the sanctity of animal life are the Jains52 and Vaeśńava53 (Vaishnavite)
religions, which espouse the avoidance of hiḿsá or intentional harm towards any living being
and require adherents to be vegetarian.

Generally, Eastern religions accord greater respect to animals. Many Eastern religious
doctrines impose restrictions on the taking of animal life and value its intrinsic or existential
value more, e.g. as is the case in Tibetan Buddhism54. This invokes a concept of stewardship,
in the sense that human beings have a responsibility for preserving the welfare and integrity
of the natural world55, including animals. Aspects of this are also sometimes asserted in
relation to Judaism and Christianity56, and adherents will argue that it is the modern secular
notion of human progress, and not religion, which is more an impediment to the protection of
nature57 and animals.

Darwin’s theory of evolution58 challenged Western religious doctrines, but it also had
elements of support for the dominion of humans over animals. This is because natural
selection is a process that favours the survival of organisms (such as humans) that posses
certain advantageous features over other species. The so-called Social Darwinism of the 19th
(and early 20th) century took this to the extreme by proclaiming that human beings have a
right to lord over the rest of creation59. However, Darwin’s theories in their full context saw
an interdependent society of organisms that includes humans60 bound together in a web of
complex relations.

Darwin also admitted that there should be respect for humans’ fellow creatures and this
respect characterised a civilized people. These moral sympathies were also a product of
evolution61. Furthermore, Darwin thought that the application of ethics encompasses all
sentient beings who should ultimately be included in the moral community62. This is based
on a sentient being having an ‘I’ that has subjective experiences, particularly the internal
capacity to experience feelings of pleasure and pain63.

50
Waldau P, The Specter of Speciesism: Buddhist and Christian Views of Animals, Oxford University Press,
Oxford (2002) at 137.
51
Phelps N, The Great Compassion: Buddhism and Animal Rights, Lantern Books, New York (2004).
52
Tobias M, ‘The Anthropology of Conscience’ (1996) 4(1) Society and Animals 65.
53
Erndl KM, ‘Rapist of Bodyguard, Demon or Devotee?’ in Criminal Gods and Demon Devotees: Essays on the
Guardians of Popular Hinduism (ed. Hiltebeitel A) SUNY Press, Albany (199) at 240.
54
Waddell LA, Tibetan Buddhism: With Its Mystic Cults, Symbolism and Mythology, and in its Relation to
Indian Buddhism, Kessinger Publishing, Whitefish (2004) at 567.
55
Greenawalt K, ‘The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the
Environment’ (1986) 27 Wm and Mary L. Rev. 1011.
56
Linzey A, Christianity and the Rights of Animals, Crossroad, New York (1987).
57
Attfield R, The Ethics of Environmental Concern, Basil Blackwell, 0xford (1983) at 20-87.
58
Darwin CR, On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races
in the Struggle for Life, John Murray, London (1859).
59
Nash R & Nash RF, The Rights of Nature: A History of Environmental Ethics, University of Wisconsin Press,
Madison (1989) at 43-45.
60
Dershowitz AM, ‘Remarks, The Evolving Legal Status of Chimpanzees’ (2003) 9 Animal L. 1 at 59.
61
Darwin CR, The Descent of Man and Selection in Relation to Sex, John Murray, London (1871).
62
Darwin CR, The Descent of Man and Selection in Relation to Sex, John Murray, London (1871) at 138, 140,
141.
63
Francione GL, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia
(2000) at 6.
On reflection, it appears that the law has not fully kept up in the area where science meets
ethics. This risks the continued validation of misconceptions being entrenched in legal and
legal policy frameworks. This includes entrenching the “secular expression of species
pride”64 of humans. While the psychic / mental capacities of humans are generally considered
as being superior to other existing creatures, this should not lead to actions that contribute
only to human welfare, no matter how little the apparent (or known) contribution or relative
deficiencies of other creatures. There is no social or evolutionary reason why human beings
should not accord inherent value65 to other creatures. Rather, it has to be recognised that all
living beings have some inherent or existential value, simply because they are alive.
Recognising only utility value is not enough.

Even where the interests of humans and other creatures (animals) come into conflict, or need
to be prioritised, or human actions cannot practically elicit moral restraint from animals,
humans can still extend moral consideration to them. This is consistent with taking an ethical
approach towards all sentient beings that Darwin espoused. Few thinkers would today deny
that many animals are sentient (especially those in the vertebrates subphylum or even the
whole chordates phylum), that is, they have ability to feel and, to a certain extent, think and
communicate. As a result, at least these animals have interests they would instinctually seek
to protect, and that ought to be taken into account in any moral calculation by humans. The
same applies for any resultant legal framework that is put in place.

So, despite the case that animals lack the self-reflective awareness and other capacities of the
human psyche, there are certain capacities that are shared amongst humans and animals (even
if the degree varies). Notably these are understanding their experiences of pleasure and pain
and similarly the capacity for suffering, and the will to survive and continue their existence.
This means animals have morally significant interests, particularly the interest in not
deliberately having suffering or harm imposed on them and the interest in their continued
existence.

Recognising these morally significant interests of animals leads to the conclusion that rational
human beings owe an obligation to animals as non-rational beings, even though animals are
not capable of providing reciprocal obligations towards human beings. Given that the species
of animals range from unsophisticated to sophisticated (but not to the degree of human
sophistication), it would be vertebrates as the more sophisticated animals to whom obligations
are primarily owed by human beings. In a sense, such animals can come within the scope of
the social membership of human beings, especially when it is recognised that human beings
have obligations towards animals. Conversely, this gives animals entitlements or rights,
especially that of being free from exploitation and a guarantee of their security.

Practically, this type of guarantee requires an assurance of the minimum requirements66 of life
for at least developed animals. In addition, sustainable amenities67, such as environmental
amenities, need to be provided to these animals. The range of amenities may even need to
increase over time as the psyche of some animals develops further, e.g. an increase of
intelligence in primates.

64
Bartlett SJ, ‘Roots of Human Resistance to Animal Rights: Psychological and Conceptual Blocks’ (2002) 8
Animal L. 143 at 149.
65
Regan T, The Case for Animal Rights: Updated with a New Preface, University of California Press, Berkeley
(2004) at 218.
66
Sarkar PR, ‘Minimum Requirements and Maximum Amenities’ in Proutist Economics: Discourses on
Economic Liberation, Ánanda Márga Pracáraka Saḿgha, Calcutta (1992, discourse of 13 October 1989) at 69.
67
Sarkar PR, ‘Minimum Requirements and Maximum Amenities’ in Proutist Economics: Discourses on
Economic Liberation, Ánanda Márga Pracáraka Saḿgha, Calcutta (1992, discourse of 13 October 1989) at 69.
Reasons for altering legal status of animals

Given the obligations owed to animals, there are good reasons for altering the legal status of
animals away from that of personal property, or at least considerably reducing or intervening
in those property rights. These include:
• The dignity of existence or existential value of all animals has to be recognised. This
is an essential step for consideration of animal interests on par with human interests
and for the welfare of all creatures.
• The prospects for protecting animals have to be increased. Lack of regulatory
resources to enforce animal welfare and anti-cruelty legislation can result in the
fundamental interests of animals often losing out to relatively trivial human interests68.
Also, these laws usually depend upon proving unnecessary suffering69 or that pain has
not been reasonably alleviated70, which can be difficult. Whereas, it should be clear
that animals are not to be subjected to pain and suffering for the furtherance of human
interests. As animals also experience pain and pleasure (given they have a nervous
system) they should receive some moral consideration, and intentional harm or death
of an animal is to be avoided.
• Animal welfare and anti-cruelty legislation may be more concerned with the moral
improvement of human beings71. Whereas, what is required is a direct concern to
protect the interests of animals72. Legislation enacted as a mere legal constraint to
deter inhumane behaviour, while useful, is insufficient to advance the overall welfare
of animals.
• While an animal remains personal property, it cannot have a proper entitlement of
rights because it belongs to someone else. In particular, such animals are denied the
natural right to be free from exploitation or the right to be left alone (unless
intervention can be justified) or fundamental rights concerning bodily liberty and
bodily integrity (or any necessary adjustment to such rights taking into account the
circumstances of animals). Abolition of the property status of animals is required for
fulfilment of animal rights and for animals to be morally considered alongside human
beings.
• Ownership of animals implies full entitlements to the owner, whereas at best this
should only be in the nature of a usufruct73 or privilege. Utilization of an animal by
human beings (because of the animal’s utility value) must also ensure the individual
welfare of the animal. As well, utilization of animals by human beings should not be
detrimental to the collective welfare of that species of animal, even though utilization
of the animal(s) is for the good of human beings.
• Legal standing is required to enable animal advocates to assert the interests of animals
in the judicial system and to sue on behalf of animals. This is necessary in order to

68
Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995); Kelch TG,
‘Toward a Non-Property Status for Animals’ (1998) 6 N.Y.U. Envtl. L.J. 531 at 540-44.
69
Radford M, ‘“Unnecessary Suffering”: The Cornerstone of Animal Protection Legislation Considered’ (1999)
Crim. L. Rev. 702.
70
See section 5(3)(b) Prevention of Cruelty to Animals Act 1979 (NSW).
71
Tannenbaum J, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Soc. Research 539 at 540-41.
72
Rollin BE, Animal Rights and Human Morality, Prometheus Books, Amherst (1992) at 12-23; Francione GL,
Rain Without Thunder: The Ideology of the Animal Rights Movement, Temple University Press, Philadelphia
(1996) at 133- 36.
73
A ‘usufruct’, in Roman law, is a temporary right of using a thing without having full dominion over the
substance.
 remedy harms that animals endure by the conduct (or lack of conduct) of human
beings74. The remedy can include injunctions in favour of the animal plaintiffs.

On the other hand, it is arguable that significant improvements to the welfare of animals can
still be achieved from within a property status paradigm75, as abolition of the property status
of animals does not of itself guarantee that animals will cease to be exploited to their
detriment. Property rights or any rights are not absolute, rather they give legal form to what
society is willing to acknowledge, defend and enforce. There are always occasions for
intervening in rights in order to protect other rights76. Similarly, the promotion of individual
interests can be better achieved when motivated by the promotion of collective interests77 or
the general public interest. This could be by the maximization of preferences78 or through
obtaining other valued human outcomes.

Also, personal property rights are not necessarily incompatible with the welfare or protection
of animals79, because the laws of a state can sanction interfering in such property rights in
order to benefit animals80. This can even be to the extent of prohibiting ownership of
animals81 by specified persons and/or in specified circumstances. In this regard, anti-cruelty
legislation can “trump property rights when they conflict”82. Legislatures are not prevented
from giving certain animal interests greater weight83 than has been accorded to date under the
property status paradigm.

Whatever the way forward, and whether it requires abolition or dilution of personal property
rights in animals, there is no reason why animals cannot be incorporated into a system of
justice, which provides for an enhanced legal status for animals. The human treatment of
animals should not be left largely as a matter of individual moral choice based on moral
pluralism, where the state does not intervene to impose one moral code over another84 on the
basis that the treatment of animals is considered a self-regarding action85 (i.e. that does not
involve anyone else except oneself). Actions involving animals, particularly those that
exploit or harm animals, or that deny their continued existence, have to be considered as
other-regarding actions86 (i.e. they do involve someone else), even if that other is just an
animal. Just as in the case between human beings there are rights (and obligations) which
protect human beings from each other, similarly animals need protecting from humans. This
can be consummated by placing the claims of animals before a court (whether the claim fails
or succeeds on its merits).

74
Mendelson J, ‘Should Animals Have Standing? A Review of Standing Under the Animal Welfare Act’ (1997)
24 B.C. Envtl. Aff. L. Rev. 795 at 801; Sunstein CR, ‘Standing for Animals (with Notes on Animal Rights)’
(2000) 47 UCLA L. Rev. 1333 at 1359.
75
Garner R, ‘Political Ideology and the Legal Status of Animals’ (2002) 8 Animal L. 77.
76
Brandt RB, Morality, Utilitarianism, and Rights, Cambridge University Press, Cambridge (1992) at 184.
77
Shrii Shrii Anandamurti (Sarkar PR), Ánanda Sútram, Ánanda Márga Pracáraka Saḿgha (2nd ed.), Calcutta
(1996, discourses of 1961) at 49.
78
Garner R, The Political Theory of Animal Rights, Manchester University Press, Manchester (2005) at 46;
Singer P, Animal Liberation (2nd ed.), Harper Collins, New York (1990).
79
Garner R, ‘Political Ideology and the Legal Status of Animals’ (2002) 8 Animal L. 77.
80
Tannenbaum J, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Soc. Research 539 at 556.
81
Tannenbaum J, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Soc. Research 539 at 556.
82
Wicklund PR, ‘Abrogating Property Status in the Fight for Animal Rights’ (1997) 107 Yale L.J. 569 at 574.
83
Tannenbaum J, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Soc. Research 539 at 586.
84
Clark SLR, ‘Animals, Ecosystems and the Liberal Ethic’ (1987) 70 The Monist 114 at 121.
85
Mill JS, Utilitarianism (2nd ed.) Longman, Green, Longman, Roberts & Green, London (1864).
86
Mill JS, Utilitarianism (2nd ed.) Longman, Green, Longman, Roberts & Green, London (1864).
Non-property and usufructuary legal status regarding animals

The possible directions for the legal status of animals must allow them to find a substantive
place in the justice system. First it is necessary to look at arguments concerning the non-
property status of animals, as this option completely turns the common law around. Secondly,
an intermediate position based on usufructuary rights is looked at, which can be considered an
addition to the development of the common law.

• Non-property status of animals and personhood

The non-property argument assumes that the only way to end animal exploitation is to abolish
the property status of animals. This supposedly guarantees the interest of animals in not
deliberately having suffering or harm inflicted on them by humans87 and their interest in
continued existence. The argument is based on the notion of sentience.

As sentient beings, animals have an interest in not being harmed or in not suffering and in
continuing their existence. It is enough to know that animals experience pleasure and pain for
these interests to be appropriately attributed and acknowledged. No other capacities or lack
of capacities regarding animals need to be considered. Once these interests are recognised it
means animals also have rights to protect. Animals legally become classified as bearers of
rights, and so are entitled to equal consideration of their interests. For any right to be invoked
and protected, an animal needs to acquire legal personhood and be treated as a legal person.
A human representative can seek to protect an animal’s rights on behalf of the animal or a
group of animals.

Thus animals as sentient beings must be recognised as possessing rights. The moral notion of
respect for any individual sentient being entails the fundamental right to not be the property of
someone else. Treating animals as property of humans achieves the opposite, as it is deprives
animals of their rights and denies legal protection of their interests. The tendency for the
interests of human property owners to take priority over the interests of their animal
property88 would also predominate. The property relationship will rarely be in favour of the
animal. Consequently, a property status for animals is unlikely to achieve the best welfare
outcomes for animals or their humane treatment.

Abolition of the property status of animals means they are on par with humans. Both have an
interest in not suffering and in continuing their existence. However, given that every living
entity would surely suffer from something during their existence, i.e. through suffering that is
not deliberately imposed, the real interest that requires protection is that of not intentionally
having pain or hurt (including death) inflicted on that entity by someone else. That is, the
avoidance of intentional harm or hiḿsá (which is called ahiḿsá89). Accordingly, animals
(like humans) cannot be denied the right not to be intentionally harmed or the right to
continue their existence, and in this respect humans are not privileged over animals90.

While both animals and humans have such equal interests which deserve equal consideration,
in practice this need not, and usually would not, result in the same outcomes. Interests and
rights exist and have to be asserted in the relative world, so the practical application varies. In

87
Francione GL, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia
(2000) at 174.
88
Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995) at 25.
89
Shrii Shrii Anandamurti (Sarkar PR), A Guide to Human Conduct (7th ed.), Ánanda Márga Pracáraka Saḿgha,
Calcutta (1985, discourse of 1957) at 4-13.
90
Francione GL, Introduction to Animal Rights: Your Child or the Dog?, Temple University Press, Philadelphia
(2000) at 95.
some instances priority has to be given to a particular party, such as where it is necessary to
save the life of a human over that of an animal. Here it is likely that human interests would
take priority. Although in such a case it is arguable that no right has been violated as the
inability to save the life of an animal over that of a human is not because of the infliction of
intentional harm on the animal or due to purposely decreeing the death of the animal.

Assertion of legal rights is done through legal personhood. When an animal has legal
personhood, it has an inherent worth as a legal person and is no longer considered a mere
instrumentality or thing to be owned or enslaved. Legal things exist for persons, while legal
persons exist for themselves. Nor is legal personhood a biological concept - it is independent
of actually being human91. Legal personhood is an important stature that enables an animal
(or other entity) to come before a court of law92. Legal personhood gives an animal the same
capacity as a human for asserting relevant legal rights93, albeit in the case of animals through
human representatives.

However, a person is a subject of not only legal rights but also of duties94. While animals can
be made the subject of certain legal rights, it becomes impractical for them to personally fulfil
stipulated legal duties that apply in the case of humans. The awareness of having to fulfil the
duty is lacking. Accordingly, the bundle of duties that accompany legal personhood (and the
assertion of rights) on an animal will have to vary from that of humans because of the nature
of the different entities. For animals, there are likely to be more mitigating circumstances as
well. The notion of legal personhood practically has to be watered down in relation to
animals. However, there are already different forms of legal personhood that exist, e.g.
corporate including corporation sole, associations, councils, body politic, states and so on.
This should be considered in any legal framework and the type of personhood granted does
not seem to be insurmountable.

On granting some kind of legal personhood to animals, one outcome is that animals will be
subjected to human laws and punishment95. But again, the duties required by the law and the
punishment will have to vary. On occasions animals may have to appear as defendants in
trials, with legal representation. Though, this is not entirely unusual and there are cases,
many occurring in medieval times96, where a variety of species were tried for charges ranging
from murder to wantonly eating and destroying crops. Importantly, such legal proceedings
will today involve due process, and so an animal being subjected to laws will still get a fair
hearing.

Once an appropriate type of legal personhood is granted to animals, the question arises
whether humans can still justify using animals for food, manual labour, experimentation,
entertainment, and the like. This would have to be judged on the basis of whether intentional
harm (pain and suffering) is being inflicted on an animal or whether the animal is denied its
continued existence (by intentional death). Certainly, human beings themselves are used for
labour and entertainment, and sometimes even experimentation, but not for food. The

91
Ex Parte Boylston, 33 S.C.L. 41 at 43 (1847); Jarman v. Patterson 23 Ky. 644 at 645-646 (1828).
92
Wise SM ‘The Enlightenment of Chimpanzees to the Common Law Writs of Habeas Corpus and De Homine
Replegiando’ (2007) 37 Golden Gate U.L Rev. 219 at 237.
93
Tannenbaum J, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Soc. Research 539.
94
Gray JC, The Nature and Sources of the Law, Columbia University Press, New York (1909).
95
Stryker J, ‘The Dog Walks’, (1994) N.Y. Times (3 Feb. 1994) at A21.
96
Ewald W, ‘Comparative Jurisprudence (I): What was it Like to Try a Rat?’ (1995) 143 U.Pa.L.Rev. 1889 at
1898-1921 .
allowed uses are justified uses and there are social and legal arrangements that govern them.
One such arrangement is a contract between parties, which is also a form of property97.

Likewise, there is no reason why legislatures cannot develop and make deemed legal
arrangements or schemes, or grant powers for others to do so, that govern the utilization of
animals by humans on a fair and reasonable basis, provided that animals are not intentionally
harmed, the welfare of the animal remains paramount, and animals are not denied their
continued existence. Such arrangements would be necessary given that animals cannot make
those legal arrangements themselves and cannot fulfil legal duties. These arrangements can
cover the harnessing of resources from animals and their use as labour, with the required
provisos. More complex ethical questions arise in the use of animals for entertainment and
experimentation, but arguably the animal’s welfare and right not to be harmed or destroyed
can still persist in restricted circumstances. However, the taking of the life of an animal for
food by humans would fundamentally be against the animal’s right of continued existence and
can also be against its right not to be harmed.

If such arrangements or schemes were not allowed, the utilization of animals by humans
would effectively cease. The consequences of abolishing the property status of animals
would make it impossible to buy or sell animals, pass on their ownership, tame and train them
as a means of transport, maintain pets, and to use animals in other myriad ways. Since the
beginning of the human species, humans have utilized animals and that utilization has
contributed to the development of human civilization and indeed its safety and security, e.g.
soil has been cultivated with the help of horses. This interaction is likely to be ongoing,
although its form will change as will any associated technology.

It seems counterintuitive to suggest that abolition of the property status of animals means that
all animals simply go back to some natural state, where there is no ‘interference’ by humans,
when many existing animals have been breed, or in modern terminology genetically
engineered, by humans themselves over a long course of history. In this respect, animals can
be found in the wild as well as being ‘neighbours’ of humans. The simple compost heap in a
backyard garden makes the worms in it the neighbours of humans.

The doctrine of non-property status for animals is strong on recognising the inherent value or
existential value of all animals, and indeed of all creatures. This is an important development
in ethical and legal understanding. However, the doctrine is weak in respect of recognising,
or perhaps in even accepting, the utility value of animals. This needs to be further explored,
recognising that living entities can have an existential value and a utility value.
.
• Usufructuary right in relation to animals

Non-human creatures have the same existential value to themselves as human beings have to
themselves98. This applies even if non-human creatures may not be valuable to human beings,
or human beings may not be aware that the existence of non-human creatures has some
significance. The existential value of a living entity can be individual or collective or both.

97
O'Brien v Benson's Hosiery (Holdings) Ltd [1980] AC 562; Federal Commissioner of Taxation v Orica Ltd
(1998) 194 CLR 500; National Trustees Executors & Agency Co of Australasia Ltd v FCT (1954) 91 CLR 540 at
583; Kearney and Trecker Corp. v. U.S. 688 F.2d 780 Ct.Cl. (1982).
98
Sarkar PR, ‘Pseudo Humanism’ in Birds and Animals, Our Neighbours, Ánanda Márga Pracáraka Saḿgha,
Calcutta (2007, discourse of 22 March 1982) at 9.
Living entities also have utility value99. Non-human creatures have utility value of varying
degrees. Some creatures may even have negative utility value, but most would have positive
utility value. However, given that living entities have their existential interest to protect,
human beings should only be allowed to utilize an animal if its welfare is fully assured.

Accordingly, utilization of an animal by humans must ensure the individual welfare of the
animal. As well, utilization of any animal(s) by humans must ensure the collective welfare of
the collective body or species to which the animal belongs (that is, the population of
individual animals that share a high degree of common characteristics). This welfare
approach, directed specifically to animals, has 2 limbs: individual animal welfare and welfare
of the collective body of animals. Then overall, the utilization should be for the welfare of all.
This additional welfare aspect represents the general welfare. In the field of economics a
‘total welfare standard’ has been employed in matters such as competition policy100, and the
concept of the ‘public interest’ is known in many areas of law. A similar approach can be
taken in the utilization of animals. It assesses the effect on the public interest101 or general
welfare of the utilization, taking into account all benefits and costs, regardless of the identity
of the beneficiaries of the utilization.

This 3-fold test will set high benchmarks, and should apply whenever an animal is used to
further the interests of human beings. For example, the wool of a sheep is shorn (utilized) as
a crude resource. Under the 3-fold welfare approach there has to be:
• care of the body of an individual sheep, and even its psychic/mental and spiritual
aspects;
• care of the collective body to which the sheep belongs, which may extend even as far
as the species to which it belongs, and again may incorporate psychic/mental and
spiritual aspects;
• proof that the harnessing of the wool from the sheep is for the general welfare of all.

This test is not necessarily based on an anthropocentric approach, because the general welfare
of all is not necessarily limited to humans and can include any entities in the relevant
environment or ecology. It is essential that when living entities are used by humans that they
be properly treated in all respects. The test should achieve this objective and more. Nor does
the test deny that humans will continue to interact as users and providers with the animal
world; which the non-property status of animals doctrine, by itself, appears to suggest.

Another simple example is the breeding of animals as pets or companion animals. Under the
3-fold approach, a breeder has to ensure the welfare of each individual animal, as well as the
welfare of the breed or species to which the animal belongs, and the breeding has to be for the
general welfare of all. This raises issues such as whether the animal can live alone when its
nature is really as a social being, irresponsible crossbreeding which can dilute a purebred gene
pool to the point of extinction of a breed of animal, and the impact that the animal will have
on the environment (e.g. hunting down native birds)102.

99
Arguably, utility value can be mundane (to do with the material world), supramundane (to do with the mental
world) or spiritual (to do with the spiritual world); see Shrii Shrii Anandamurti (Sarkar PR), ‘Desire and
Detachment’ in Subháśita Saḿgraha Part 3 (2nd ed.) Ánanda Márga Pracáraka Saḿgha, Calcutta (1975,
discourse of 1956) at 138.
100
Cseres KJ, Competition Law and Consumer Protection, European Monographs, vol.49, Kluwer Law
International, Alphen aan den Rijn (2005).
101
Wheeler C, ‘The Public Interest: We Know it’s Important, but do we Know what it Means?’ (2006) 48 AIAL
Forum 12.
102
‘Push to outlaw hybrid supercats’, ABC News, 6 June 2008,
http://www.abc.net.au/news/stories/2008/06/06/2267441.htm
The application of these welfare principles recognise human use of animals, but only allows a
human being to have a usufructuary right (not a personal property right) in relation to the
animal. Drawing on Roman law103, the legal concept of a ‘usufruct’104 refers to rights and
responsibilities in using something105, and recognises that the thing or entity belongs to an
environment in common with other things/entities. As well, because animals can multiply by
giving birth to more animals, human obligations to animals spread across generations
collectively. Under a usufruct, users may benefit from the use, except when their actions
threaten to commit waste. Accordingly, human users have an obligation to others (including
the animal and its species) and to future users and generations. The prohibition against waste
demands that full consideration be given to the ecological well-being of the Earth’s resources
(animate and inanimate), and their responsible use and care.

The usufruct concept and associated welfare obligations would not deny animals having legal
rights or fundamental rights necessary to fulfil their nature or purpose (telos106). It is not
equivalent to legal welfarism in the sense of animals being treated solely as means or
instrumentalities for humans as long as the treatment does not result in the infliction of so-
called ‘unnecessary’ pain, suffering, or death107. The granting of usufructuary rights certainly
would not tolerate barbarous treatment or exploitation of animals108.

The usufruct concept and associated welfare obligations still contain the element of animals
being understood as moral ‘patients’, in comparison to humans who are moral ‘agents’. This
recognises the reality of animals being incapable of taking on reciprocal moral obligations
towards humans, while humans must acknowledge their moral obligations to animals. Any
animal used by humans could qualify as “subjects-of-a-life”109 with inherent or existential
value, and so deserve direct moral respect.

Furthermore, under the usufruct concept, an animal’s utility (value) relative to human
interests does not reduce the animal’s inherent or existential value which is considered to be
on par with or equal to that of humans. The welfare obligations – individual and collective –
owed to animals, helps assure that this is the case. Those animals that have little or no chance
of surviving in the wild also benefit from the welfare or stewardship obligations that are
imposed.

Conclusion

Human beings have an ecological footprint greater than that of non-human creatures110. In
order to ensure the flourishing of animal capabilities and human interests111, our governing

103
Buckland WW, A Text-book of Roman Law from Augustus to Justinian, (3rd ed. rev. Stein P) Cambridge
University Press, Cambridge (1963) at 269-70.
104
Goldie LFE, ‘Title And Use (And Usufruct) -- An Ancient Distinction Too Oft Forgot’ (1985) 79 A.J.I.L. 689.
105
‘Usufruct’ is defined as "[a] right to use and enjoy the fruits of another's property for a period without
damaging or diminishing it, although the property might naturally deteriorate over time", see Garner A(ed.),
Black's Law Dictionary (8th ed.) West Group (2004) at 1580.
106
Kelch TG, ‘Toward a Non-Property Status for Animals’ (1998) 6 N.Y.U. Envtl. L.J. 531 at 581-583.
107
Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995) at 18.
108
Francione GL, Animals, Property and the Law, Temple University Press, Philadelphia (1995) at 257.
109
Regan T, The Case for Animal Rights: Updated with a New Preface, University of California Press, Berkeley
(2004).
110
Ash K, ‘International Animal Rights: Speciesism and Exclusionary Human Dignity’ (2005) 11 Animal L 195
at 212.
111
Nussbaum MC, ‘Beyond "Compassion and Humanity": Justice for Nonhuman Animals’ in Animal Rights:
Current Debates and New Directions (eds. Sunstein CR & Nussbaum MC) Oxford University Press, Oxford
(2004) at 304; Goodman EP, ‘Animal Ethics and the Law: A Review of Animal Rights: Current Debates and
New Directions’ (2006) 79 Temp. L. Rev. 1291.
systems need to make a proper adjustment so that the value of all entities is recognised. This
requires abolition of the property status of animals and recognition that animals also have
interests and therefore rights to protect. In turn, some semblance of legal personhood for
animals is needed so that those interests and rights can be represented for legal purposes by
human representatives acting on behalf of animals.

In addition, human laws must not subjugate animals. At the same time it has to be recognised
that humans have had an interactive role in the animal world ever since the advent of the
human species. This is likely to continue, and be on a more technologically enhanced basis.
The interaction with, and use of animals, comes about in large part because of the higher
psychic/mental capacities of humans which gives their expressions and interests greater
weight per se112. However, this does not need to diminish any welfare obligations that
humans have towards animals or other living entities, whether individually or collectively, or
to the environment and planet and its inhabitants as a whole.

Use of animals should only ever give human beings a limited usufructuary right, and not a
personal property right. The usufruct concept recognises that use of animals by humans is a
mere privilege. Animals, either individually or collectively, are not owned by anybody and
belong to an environment in common with other entities. As well, animals seek to continue
their species (as do humans), and therefore the welfare obligations of humans to animals
spread across generations and into the future (at least to the extent that an animal species itself
has not died out). The potentialities of animals and their development must not come to waste.

This means, utilization of an animal by humans must ensure the individual welfare of the
animal. As well, utilization of any animal(s) by humans must ensure the collective welfare of
the collective body or species of animal. Furthermore, the utilization should be for the
general welfare of all. Human society should implement a framework incorporating these
principles so that they are legally enforceable to ensure the ongoing welfare of animals. That
framework will need to allow for the making of standards, including a total welfare standard,
which set out clear parameters in the use of animals, and which must not be contravened by
users. In particular, the interests and rights of animals not to be inflicted with intentional
harm (through pain, suffering and death) and for their continued existence are paramount.

This approach properly balances the existential value and utility value of animals. It
promotes a sense of cosmic holism113 which does not differentiate for the well-being or
welfare of living entities within the same species (e.g. humans) or between different species
(e.g. primates and humans) or in regard to aspects of the same entity (e.g. from the birth of a
child to that person’s eventual death, or from the birth of an animal to its death). It sees all
beings as part of a larger environment (natural and technological) in which humans owe
fundamental obligations (moral and legal) towards other sentient beings and to the
environment as a whole; rather than just considering their own human interests114. Arguably,

112
Greenawalt K, ‘The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the
Environment’ (1986) 27 Wm and Mary L. Rev. 1011 at 1034-1035.
113
Steiner G, Anthropocentrism and its Discontents: The Moral Status of Animals in the History of Western
Philosophy, University of Pittsburgh Press, Pittsburgh (2005) at 83; Sarkar PR, The Liberation of Intellect –
Neo-Humanism, Ánanda Márga Pracáraka Saḿgha, Calcutta (1982, discourses of 1982 and a discourse of 1971).
114
Steiner G, ‘Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism’ (2007) 2
J. Animal L. & Ethics 1.
the time will come for world constitutions115 to provide for complete security to be guaranteed
to all the animals on the planet116.

115
The Constitution of India provides at Article 48 that the State shall “take steps for preserving and improving
the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”.
116
Sarkar PR, ‘Requirements of an Ideal Constitution’ in Prout in a Nutshell (Part 12), Ánanda Márga Pracáraka
Saḿgha, Calcutta (1987, discourse of 22 September 1986) at 52.