We like property rights. We really do. And here is a new law review article on property rights. But the jury's still out whether this will be useful to us (or you) in the practice of law, because, well, the article is about animals having property rights.
You read that right. Property rights. For animals.
Now we'll admit, our first thought was "is this the quality of legal scholarship that law students are going hundreds of thousands of dollars into debt to learn?"
But really, who are we to judge? We know that cats already think they own everything and everyone, including their putative owners. So what is so outrageous about the rest of the animal kingdom owning things?
Here's the abstract:
What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into property law, including what appear to be biological underpinnings to what is widely assumed to be the distinctly human system of property. It also reveals that government and private actors alike have created a vast network of functional property rights for animals. The effects of a property rights regime for animals extends beyond property law: it would serve to improve the plight of animals, especially wildlife, by counting historic exclusion of animals from property allocations.
Property law may be a human codification of ingrained biological principles, common among species. Human governance of land, partially reflected by property law and observation of social attitudes to property, may, in fact, better theorized as animal in nature. Scientific findings suggesting that animals engage behavior mirroring that which establishes property ownership among humans. Species ranging from bees to jaguars undertake actions to acquire and protect land, which, when undertaken by people, forms the legal basis of property ownership.
Initial entitlements of American land excluded customary animal users, then afforded subsequent human landowners with the right to develop and exclude, which produced profoundly negative effects on species conservation. In response, a variety of governance strategies have emerged to protect wildlife, most federal statutes weakening property rights. In fact, law has already partially accommodated the idea of animals as property owners. Examining a variety of Constitutional, statutory, and common law doctrines suggests that animals already hold a variety of functional property rights, including ownership of hundreds of millions acres of land.
This Article is the first to analyze a property-rights approach to animal welfare and species conservation. Benefits of this approach, relative to existing efforts to imbue animals with human rights, include its bipartisan nature and foreseeable endpoint. Animal property rights would not require a massive shift in societal norms or uncompensated property redistributions. Indeed, this approach would likely improve animal welfare while also strengthening existing property rights, lessening the need for statutory controls on land uses, and updating law to harmonize with prevailing norms regarding animals’ place in society.
All we're thinking is that is hard enough already to get government and the courts to appreciate the property rights of human beings, never mind adding another class of disappointed property owners to the list. Moreover, these owners cannot assert "their" rights on their own (sorry, Koko), and their main function would be, in our view, to serve as plaintiffs in environmental lawsuits asserting that animals' property rights "including ownership of hundreds of millions acres of land" (as the article posits), mean that "their" land needs to be preserved, all to the detriment of the property rights of their human overlords.
Besides, we understand that the only law animals adhere to is that ape shall not kill ape, right?
Download the article here, and make your own call.