'The superb A Bird’s-Eye View of Animals in the Law' by Visa Kurki in (2024) The Modern Law Review comments
The article develops an analytic account of nonhuman animals’ current legal status. Animals are often characterised as legal things and property, but this characterisation is both simplistic and, in some cases, incorrect. The article seeks to dispel a number of orthodoxies regarding the legal status of animals and offer a more nuanced and contextual account. The emphasis is on Western law, with a particular focus on European jurisdictions. The article approaches animal legal status in terms of two historical regimes: the Commodity Regime and the More-than-Commodity Regime. While treating animals as commodities has been the rule for millennia, the situation has recently become more multifaceted. For instance, the private law status of companion animals has shifted away from that of commodities. Furthermore, it is argued that some wild animals have stopped being legal things altogether as a result of EU wildlife law. The multifarious arguments are then synthesised in order to produce a bird’s-eye view of animals in the law.
Kurki argues
The legal situation of animals is often summarised as animals are ‘things’, ‘property’ or ‘legal objects’. However, I will claim that there is no meaningful single label – such as ‘thing’ or ‘legal object’– that all animals would fall under. The argument will rely on the methodological premise that the legal status of animals is not best understood by faithfully employing the labels and categories offered by the legislator and judges. Instead of this deferential approach, I will show how a substantive approach – looking at the content of the norms governing animals’ legal situation – will yield a more accurate description.
The traditional theoretical approach to animals’ legal status is based on two bifurcations: thing/person and protection/rights. First, everything is either a legal thing or a legal person. Things are rightless entities that can be owned, whereas persons have rights. Even though things cannot have rights, they can regardless be protected. Under animal protection, animals are things, protected from unnecessary suffering. If the vision of animal rights is realised, on the other hand, animals are turned into right-holding persons. Hence, the protection/rights bifurcation builds upon the person/thing categorisation.
However, these traditional bifurcations are problematic in many regards. They overemphasise the role of private law and neglect the perspectives of other areas of law. There are already plenty of examples of how the practice of animal law has advanced in ways that traditional theories have trouble explaining. For instance, the declarations of some European countries that animals are ‘not things’ – but not persons either – are not straightforwardly explainable under the traditional person/thing bifurcation. Another example is the developing legislation and case law in some parts of Brazil according to which certain animals are ‘non-personal subjects of rights’. A new explanation of animals’ legal status is needed.
A more holistic approach will show,first,that though most animals are still legal things, they are legally more than merely things – their legal status can- not be exhaustively described by merely making reference to thinghood; and second, the legal thinghood of animals is of a special kind. Furthermore,I will argue that the legal status of animals is not necessarily determined by top-down categorisations by legislators or judges. Rather, the property status of animals may be ‘crowded out’ by increasing legal protections, which may in some cases entail that classifying animals as property is no longer appropriate. This will yield the conclusion that some animals – primarily certain protected wild animals – are not legal things.
Not all of these conclusions apply to every Western legal system. This article is an exercise in particular jurisprudence: the theoretical analysis of certain elements of modern Western legal thought and legal systems.I will seek to distil certain unifying features of Western legal systems,and present them as ideal-types.The presented analysis and framework will provide a better theoretical understanding of animals’ legal status but may not correspond in detail to every legal system.
A word on terminology. The phrase ‘legal status’ is highly ambiguous. I use ‘legal status’ in a broad sense, to refer to the overall body of legal norms applying to some entity. I also occasionally use ‘legal situation’ as a synonym for ‘legal status’. By ‘legal thing’, I mean an entity that can be owned. Not all things are necessarily property: in the civil law tradition, wild animals have traditionally been categorised as res nullius,‘things belonging to no-one’. A central distinction is that between commodities and other types of things. A commodity is a thing that the law treats as readily replaceable by another. What I mean by ‘replaceability’ will become clear over the course of the article. One of my central arguments is that while treating animals as commodities has been the rule for millennia, the private law status of especially companion animals has shifted away from that of commodities.
Especially in the civil law tradition,‘legal object’ has been understood synonymously with ‘legal thing’. However, after the legislative declarations that animals are not things, some scholars now think that animals are legal objects but not legal things. ‘Object’ and ‘thing’ are thereby not synonyms anymore. I consider this understanding of ‘object’ not to be a particularly useful category; I will return to this issue over the course of this article.
The article is structured as follows. In the following section, I will discuss two ‘inventories of the universe’,ie high-level categorisations of how the law makes sense of the world. I will first present the ‘Orthodox Inventory’ of the universe: an understanding of the world as exhaustively divided into persons and things. I will, however, argue – partly based on my earlier work – that what I term the ‘Substantive Inventory’ offers a better account of the universe according to the law. This inventory will provide the basis for a new way of understanding the legal status of animals as well: even though most animals are still things, their status is more multifaceted than that. The following sections will provide a more multifaceted account of animals. The third and fourth sections will analyse the legal status of animals through two co-existing historical legal regimes – what I call the ‘Commodity Regime’ and the ‘More-than-Commodity Regime’.
Finally, in the penultimate section I will offer a synthesis of the multifaceted current legal status of animals.The final section will conclude.
