Equitable Self-Ownership for Animals
Favre, David, Duke Law Journal
This Article proposes a new use of existing property law concepts' to change the juristic personhood status of animals. Presently, animals are classified as personal property, which gives them no status or standing in the legal system for the protection or promotion of their interests. Professor Favre suggest that it is possible and appropriate to divide living property into its legal and equitable components, and then to transfer the equitable ,title of an animal from the legal title holder to the animal herself. This would create a new, limited form of. self-ownership in an animal, an equitably self-owned animal.
Such a new status would have two primary impacts. First, the animal would have access to the legal system, at least in what has historically been the realm of equity, for the protection and assertion of his or her interests. Secondly, the human holder of legal title will, like a traditional trustee, have obligations to the equitable owner of the animal, that is the animal himself. As the subject matter of this trust-like relationship would be a living being, not money or wealth, the legal owner would best be characterized as a guardian, rather than by the traditional category of trustee. The Article concludes with a short discussion of the use of anti-cruelty law and human guardianship concepts as providing a context for the further development of this new concept of equitable self-ownership.
There is fair consensus among scholars that nonhuman animals within the control of humans are presently considered personal property, with title being held by humans or human substitutes such as corporations or state governments. Several authors have set out in some detail the facts relating to the present use of animals by humans.(1) In the arenas of moral philosophy and legal jurisprudence, the status of animals has long been under discussion, with the result being a number of proposals supporting the proposition that animals are moral persons(2) and, as moral persons, are entitled to have legal rights.(3) However, the present legal paradigm, which has its roots in Greek philosophy, is inadequate for the recognition and protection of the interests of animals.(4) This Article does not seek to establish the necessity for change; rather, it assumes change is justified.(5)
In recent years, several authors have criticized the property status of animals and have sought a new, nonproperty status for animals in our legal system. Two authors in particular have argued for the extension of existing common law "rights" principles to nonhuman animals.(6) This Article proposes an intermediate ground between being only property and being freed of property status, where the interests of animals are recognized by the legal system but the framework of property law is still used for limited purposes.
As will be developed in this Article, it is possible to imagine and articulate a legal paradigm in which a nonhuman animal has equitable self-ownership and, thus, status within the legal system, while a human retains legal title to the animal in question. The analysis that supports this position will require a consideration of the root concepts of property law, as well as a few new concepts, including the idea that living entities inherently possess self-ownership. The legal history that allows the division of property into legal and equitable title will be examined and found to support the proposition that the equitable title of an animal can be separated from the legal title.(7) Then it will be shown that it is possible to change an animal's personhood status within the legal system by transferring the equitable title of an animal to the animal, creating for the animal a limited form of self-ownership.(8) Having envisioned a new legal status for animals, the Article will then briefly consider the legal relationship between the owner of legal title, the guardian of the animal, and the equitably self-owned animal. …