The following excerpt was taken from Introduction to Animal Rights (2nd Ed) by Joseph Lubinski. The full text of this article can be found at: http://www.animallaw.info/articles/ddusjlubinski2002.htm on the Animal Legal & Historical Center web site maintained by Professor David Favre at Michigan State University College of Law. Professor Favre’s web site can be found at: http://www.animallaw.info/index.htm

Introduction to Animal Rights (2nd Ed)

Joseph Lubinski
Animal Legal and Historical Center
Publish Date: 2004 Edition
Place of Publication: Michigan State University - Detroit College of Law

A. Rights Goals

There are many initial, intermediate, and ultimate goals that the average animal rights advocate would like to achieve. To some, the ultimate goal is simply more equitable treatment for animals, with no real more tangible meaning than that conceptual hope. Others have real tangible goals that include an end to animal experimentation, the consumption of animals by people, and perhaps an end to the domestication of different species. Still others who consider themselves animal advocates are really only concerned about the interests of some subset of animals—animals like their dog for instance. Thus, there is no end to the types of gains one might seek. For a survey of such possibilities, there are countless excellent books on the subject. For purposes of introduction, however, it seems far wiser to stick with a single, fundamental and yet highly controversial goal of the animal protection movement—legal personhood.

Rights advocates, as discussed above, recognize that to achieve any novel gains for animals requires a change in their legal classification – away from property and towards legal personhood. Personhood would give animals standing in court to assert their rights, both those that may exist currently under the laws in the form of anti-cruelty statutes and those that may evolve under the common law.[i][lxxxvi]

One way to abrogate the property status of animals, thereby conferring some aspect of personhood, without totally dismantling the current system of animal ownership would be to divide that ownership into its legal and equitable components. Such a division is common in title to real property and the ownership interests of trusts. At its most fundamental level, the legal interest holder is the person with legal title to the property – the record owner with the ability and responsibility to control the property. Common examples of legal owners are the grantor of a life estate with a reversion or the trustee of a trust. Conversely, the equitable title holder – the holder of the life estate or the beneficiary of the trust – is the person deriving benefit from the property without having control over the property’s disposition.

Such a division allows the ownership interest in property to be held by multiple people in different capacities. In the context of animal rights, recognizing animals’ equitable interest in themselves – equitable self-ownership – could transform them from pure legal property into pseudo-persons capable of enjoying greater legal protections and more importantly holding legal interests that they could enforce in a court of law. Humans, on the other hand, would then retain legal title to the animals, leaving that person both the ability to use that animal and the responsibility for its care.

The creation of this new legal classification of animals could resolve the standing obstacles to the enforcement of current laws – giving Yoon, Alex, or even Luke the ability to sue for their mistreatment – as well as pave the way for more innovative and progressive protectionist laws. At the same time, it is a far less radical step than completely dismantling the current legal status of other species and works as a balancing tool between the competing interests of man and beast.[ii][lxxxvii]

Such a subtle approach is, in a very real way, a form of new welfarism. More importantly, one could view recent changes to the law as a sign of such subtle change. Several years ago, Boulder, Colorado—locally known as ten square miles surrounded by reality—enacted a local ordinance to change the legal title of pet “owner” to pet “guardian” to reflect the special status of animals as property.[iii][lxxxviii] Though Boulder faced significant ridicule and scrutiny, its lead has subsequently been followed by several other municipalities.[iv][lxxxix] While such changes have not resulted in a substantive change in the legal classification or treatment of animals, it would be overly simplistic to call such reforms nothing more than semantics. Similarly, trust law increasingly recognizes the interests of pets whose owners wish for them to be cared for after death. The uniform probate code as well as the probate codes of several states expressly recognize “pet trusts”, under which Spike or Fido or Luke can be the beneficiary of a trust. More importantly, appointed third persons, humans naturally, can enforce the terms of the trust to ensure that the trustee actually administers the trust in the best interests of the animal.[v][xc] The Uniform Trust Code, recently drafted and being considered in many states, goes a step further and grants pet beneficiaries the classification of legal person for the limited purpose of serving as a beneficiary under a trust.[vi][xci]