ANIMALS AS PROPERTYGary L. Francione[FN*]Cite as: 2 Animal Law i (1996)ANIMALS AS PROPERTY Gary L. Francione[FN*]Social attitudes about animals are hopelessly confused. On one hand, many people regard at least some non-humans--their "pets"--as members of their families. On the other hand, these very same people think nothing about eating animals other than "pets," wearing their skins, using them in experiments, or exploiting them for entertainment in films, circuses, zoos, and rodeos. On one hand, we all agree with the notion that it is morally wrong to inflict "unnecessary" pain and suffering on non-humans; on the other hand, we routinely use animals in all sorts of contexts that could never be considered as involving any coherent notion of necessity.[FN1]The reasons for our moral schizophrenia about non-humans are, of course, as complicated as the concrete manifestations of our conflicting attitudes. Some of the reasons are historical alone; we have been exploiting animals for so long that we simply continue doing so by force of habit alone. Some reasons are rooted in culture and religion; we uncritically subscribe to various belief systems that proclaim humans (or some subset thereof, such as white males) as "superior" and that devalue non-humans. Some reasons are economic; animal exploitation is a billion-dollar industry--and human beings appear to be able to justify most actions that result in monetary gain. One thing, however, is clear: the law and legal systems of most Western nations have been primary culprits in facilitating the exploitation of non-humans. Common-law and civil-law traditions are dualistic in that there are two primary normative entities in these systems: persons and things. Animals are treated as things, and, more specifically, as the property of persons. As Professor Reinold Noyes has observed, "'legal relations in our law exist only between persons. There cannot be a legal relation between a person and a thing or between two things.'"[FN2] More recently, Professor Jeremy Waldron has stated that property "cannot have rights or duties or be bound by or recognize rules."[FN3]The status of animals as property has severely limited the type of legal protection that we extend to non-humans. [FN4] As a general matter, whenever we seek to resolve a perceived human-animal conflict,[FN5] we balance our assessments of the human benefits to be derived from the animal use against the interests of the animal(s) that will be "sacrificed" in the process. The limiting principle of this balancing process is that we treat animals "humanely" and that we not subject them to "unnecessary" suffering. The problem is that the balancing process is nothing more than an illusion in which the outcome has been predetermined in light of the very different status of the supposedly competing parties. It is simply not possible to balance meaningfully human interests, which are protected by claims of right in general and of a right to own property in particular, against the interests of property, which exists only as a means to the ends of persons. This balancing is particularly unrealistic where, as here, the assessment is almostalways sought to be made in the context of a human property owner seeking to act upon her animal property.[FN6]The result of the property status of animals is that notions of "humane" treatment and "necessary" suffering or death are not interpreted by reference to some abstract standard of treatment. The law generally has consistently prohibited only that conduct that cannot be justified in light of the practices that develop within particular institutions of exploitation. As Lord Chief Justice Coleridge stated, any procedure "without which an animal cannot attain its full development or be fitted for its ordinary use may fairly come within the term 'necessary.'"[FN7] Not "every treatment of an animal which inflicts pain, even the great pain of mutilation, and which is cruel in the ordinary sense of the word is necessarily"[FN08] cruelty proscribed by law, which is only that pain inflicted for "no legitimate purpose."[FN09] But only those who act "for the glorification of a malignant or vindictive temper"[FN10] and who impose suffering and death outside of some form of accepted institutionalized animal exploitation, will be said to act without "legitimate purpose." A study of American law across three centuries makes this plain. The Massachusetts Bay Colony enacted the first anti-cruelty statute in North America 1641, and every state now has a law that protects animals from "unnecessary" cruelty. But almost every such statute contains specific exemptions for virtually all forms of institutionalized animal exploitation, such as the use of animals for food, scientific experiments, hunting and trapping. Even if a particular state statute does not contain an explicit exemption, liability under these laws often requires a mens rea of malice that is impossible to show when the defendant can point to accepted practices to explain behavior. Statutes such as the federal Animal Welfare Act allow determinations about the "necessity" of animal use and levels of pain to be determined by the animal users. As a general matter, as long as a particular animal use is considered legitimate, then anything that facilitates that usage will be deemed under the law as "necessary." For example, as long as we accept that it is morally permissible for humans to eat non-humans, then, if the dehorning or castration of animals is what is thought to make the animal more fit for human use, that conduct will be deemed as "necessary." As long as the animal owner does not act with a "malignant or vindictive purpose" by imposing pain, suffering, or death outside of some socially accepted form of exploitation, the law will not intervene. The law assumes that the owners of animal property are, for the most part, best able to determine the value of their animal property and accords a great deal of deference to such determinations. If the animal owner imposes harm on animals gratuitously, then the owner has diminished overall social wealth as well. Any significant improvement in animal treatment will be most difficult to achieve as long as animals are regarded by the law as nothing more than property. The owners of animal property will always insist that the level of treatment that they are providing is appropriate given the particular use of the animal. For example, scientists frequently argue that