Legal protection of animals
The legislation provides protection for animals from different perspectives. Normally, the legal protection for animals is based on the theory of property, animal rights, or other theories.
According to the theory of property, an animal is regarded as a sort of personal property, which receives the protection for the property. In most jurisdictions, animals as legal things have little or no legal rights of their own, and the “rights” for animals actually belong to the animal owners or handlers. Based on the theory of property, protecting animals as property can solve the problems in a variety of cases, such as protecting the animals from the harm, damage or killing of the animals from a person other than the owner or handler.
Protecting animals as property has its own limitations and the law has a reaction to these issues. One example is that the fair market value for the property is not suitable for the estimation of the value of the companion animals. Normally the newest property will have the highest market value, and after being used for a long time, the value will decrease, even to no market value. On the contrary, a companion animal’s value to the owner would increase when more time is spent, although its market value may decrease. To solve this problem, some courts calculate the economic value and non-economic value of the companion animals, while other courts still use the theory of the property and calculate the value of the companion animals only of the fair market value.
(See more related to this issue in the U.S. here)
Another issue is the custody issue of companion animals Upon Guardian Divorce. Some courts take the best interests of animals into consideration the same way as in the custody of children after a divorce, and some courts adopt new methods for the custody such as visitation and shared custody arrangement, monetary support paid to the custodial guardian, or “petimony.” All of these shows that the traditional way of property disposition in divorce does not meet all demands for the disposition of companion animals.
(See more related to this issue in the U.S. here)
Finally, the property legal framework cannot deal with the problem when the animal owners or handlers harm, abuse or neglect the animals. According to the property theory, there are four rights for the possessor: the right to use the good, the right to earn income from the good, the right to transfer the good to others, and the right to ownership cessation. So that the welfare of the animals and anti-cruelty shall be protected other than the framework of personal property.
Animal rights theory is an idea that the interests of animals shall be given the same consideration as the interests of human beings. In the legal system, animals shall be regarded as individuals, not just property, and human beings shall not have a privilege over animals. This theory does not allow human beings to use animals for experiments or animal testing, food, clothes or medicine, hard labor, breeding not for the benefit of the animal, hunting, and zoo, aquarium, and other types of entertainment.
The animal rights theory is hard to apply to the current legal system because the distinction between “a person” and “a thing” is one of the most important classifications for the law. Therefore, legal personhood and legal standing are vital for animal rights cases.
Animals recognized as legal personhood will receive a higher level of protection. The distinction between human and thing as “personhood” and “thinghood” is a basic framework for the current legal system. As previously discussed, animals protected as personal property cannot provide enough protection for the interests of animals. There is a movement of “animal legal personhood” or “animal personhood” to provide more protection.
Legal personhood does not require the subject to be human-beings, nonhuman-beings such as ship or company can also have legal personhood in the courts. On the other side, in history, not all human beings are allowed to have personhood due to different bases of discrimination. There are also discussions on whether to give personhood to artificial intelligence, robot, or a human embryo. Great apes and chimpanzees cases have been sued for legal personhood in courts by the Nonhuman Rights Project (NhRP).
The legal standing, the ability to sue, is another important issue for animal law cases. A potential litigant must have the standing to have the case to be heard in the court. According to U.S. laws, a plaintiff shall meet the following requirements to be able to have standing:
Injury in fact:
Causation - fairly traceable to the challenged action of the defendant; and
Redressability - likely, as opposed to merely speculative, that injury will be redressed by a favorable decision.
The court uses the standing to make it difficult for animal advocates or activists hard to sue, as usually animal advocates or activists do not have a personal legal connection with animals so that they cannot easily pass the “injury in fact” test. The aesthetic injury can be an option for animal advocates or activists who are seeking “injury in fact.”
Other than the theories of property, and the theory of animal rights, there are many different aspects such as utilitarianism, welfarism, speciesism, contractarianism, or egalitarianism. (Read more here). The different theory has a different view on what the human-animal relation is, what kind of animals shall be protected on which level. They recognize animals are not property but do not protect them high as the level of animal rights. There was a debate between Peter Singer and Richard Posner about animal welfare and animal rights.
Now existing animal laws, including general animal protection law or the animal welfare law, hunting law, agriculture, transportation and slaughter law, wildlife protection or conservation laws, and law on animals for exhibition, research and other uses, are more based on the utilitarian or welfarism perspective, which present that animals are not merely a property and need more protection, but the protection level is lower than the rights for human beings.