Arecent piece in the newly minted Journal of Animal Ethics suggests that the word “pet” is a derogatory term for the animals that we share our lives with. Whether this is the case—and I’m reasonably sure my dog Annie is not offended by the term, although she would probably prefer “princess”—a great deal of interest is being focused on our companion animals and the people who care for them.
So while it might have been simple for Juliet, things are rarely that easy when it comes to the law.
The law has many definitions for the word “animal.” Depending on the law in question, an animal might be a live (or dead) hamster, but not a rat, bird or mouse (the Federal Animal Welfare Act) or “every living creature except members of the human race” (the Minnesota Animal Cruelty statute).
Books, Tables … Dogs
No matter which creatures fall into the legal definition of an animal, there is one thing they all have in common: They are all personal property under the law. That means that, in general, the legal rights a pet owner has in his pet are the same legal rights as he has in his dining room table. And the pet, like a table, has no legal rights at all.
Because animals are personal property, the monetary value the law puts on them is typically limited to their replacement value. That might be a significant amount in the case of a racehorse or top-flight breeding dog. However, most of the pets that share our homes and beds are worth virtually nothing by this definition.
If someone harms our cherished pet, he might be prosecuted under an anti-cruelty statute, but if we sued him, we wouldn’t get much.
Few people who love their pets believe that their value is limited to what it would cost to purchase a similar animal.
To attempt to bypass the law’s classifying animals as property, alternative legal classifications for animals have been proposed. One of the ideas behind changing the legal classification of animals is that it will allow courts to ignore the traditional legal approach of considering animals as personal property.
If animals are no longer personal property, the thinking goes, courts will be willing to award more than their replacement value in a lawsuit.
The proposals for new legal classifications for animals have run the gamut from relatively subtle changes to doing away with animals’ property status completely. Some legal scholars would create an entirely new type of “animal property,” with defined legal changes that come with the new property status.
This concept keeps the existing framework of animals as property, but it allows recognition that a dog has needs and desires that other property does not and cannot have.
Others have proposed eliminating animals’ classification as property entirely and thus granting them legal “personhood.” This would give animals a status similar to that enjoyed by humans.
The most interesting concept is one developed by David Favre, the idea of “equitable self-ownership” for animals. He uses the existing law of trusts to frame this concept.
In a trust, there are two ownership interests, that of the trustee who has legal title to the trust contents and that of the beneficiary who has an equitable interest in the trust contents. The trustee has legal obligations to the beneficiary and the beneficiary has legal rights in the trust that he can enforce in court.
Analogizing this concept to owners and their pets, the owner would be in the shoes of the trustee. The owner would indeed own the pet in the sense that he has legal title to the pet. The pet would be in the shoes of the beneficiary, in that she has legal rights against both the owner as well as others, that she could enforce in court.
So, if the owner was not taking proper care of the pet, the pet could sue the owner to obtain that proper care. Similarly, anyone harming the pet could be sued by both the owner (for damage to his property) and the pet (for her pain and suffering).
Owner Vs. Guardian
The idea of pet owner as a trustee is similar to the idea of pet owner as a guardian of the pet. The reclassifying of pet owners as pet guardians received a lot of press a few years ago as some jurisdictions passed laws to this effect.
There was concern in some quarters that these laws would allow the legal framework of human guardianships to be applied to animal guardianships. A guardian for a human has specific legal responsibilities with respect to caring for her ward. She must care for her ward in certain defined ways and if she does not, she can be forced to do so by a court.
The concern with animals was that renaming pet owners “animal guardians” would open owners to being sued by others who felt that they were not taking proper care of their pets. As it turns out, at least so far, jurisdictions with animal guardian statutes treat the guardians just as they treated pet owners before the law was passed. Juliet would be proud!
It is therefore possible that, just as in animal guardianships, even if a new legal term describing animals were to be adopted, there would be no significant change in how the law viewed harm to those animals.
Of course, it is also possible that there would be sweeping change, with poodles suing their groomers for a bad cut and obese cats, newly diagnosed with diabetes, taking their owners to court for overfeeding them. We live in interesting times.
Dr. Barghusen is a diplomate of the American Board of Veterinary Practitioners, specializing in canine and feline practice. He practices at Pet Crossing Animal Hospital and Dental Clinic in Bloomington, Minn.°