Jan. 12, 2021
"Living Property"
I was intrigued by an article I read on the topic of pets seen as “living property.” So I decided to write more on the subject. I would love to hear your thoughts on this matter!
The reality is that that the majority of humans attach an emotional, personal value to their pets, they are seen as a member of the family. However, the present position of the law that says that damages to “property” are primarily measured by the fair market value of the property, constitutes a large disconnect between public expectations and the rules of property.When we reference the veterinarian industry, this puts them at a huge advantage as there is really nothing that is going to hold them to responsibility, legally speaking. There are no punishments severe enough that would essentially cause a reform in veterinary care. Simply because they have nothing to lose currently with the court system.
As long as pets are seen as personal property, they are not able to receive legal rights. Legal rights that would most definitely hold a veterinarians responsible for damages. And let’s be honest, the veterinarians’ will only change if they MUST. If they are FORCED by stronger and sticker legal punishment/consequences.
The impact on the veterinary industry would be, I feel, very dramatic if pets were to be seen as yes property, but “living” property. This is not some far-fetched notion. This can most definitely and realistically happen. I do not think this is asking too much of the courts at all. And it has potential to be a victory for us pet parents.
Legislatures' are showing acceptance of the proposition that an animal's interest in being free from unnecessary pain and suffering should be recognized as a value within the legal system. In most states, the freedom from pain and suffering was allowed for all animals, whether or not the property of humans. This also includes the actions or lack thereof by veterinarians’.
This concept has already slowly started to be introduced. In the case of Stephens v. State, the court found that: This statute is for the benefit of animals, as creatures capable of feeling and suffering, and it was intended to protect them from cruelty, without reference to their being property, or to the damages which might thereby be occasioned to their owners.
More and more often pets are being compared to the likes of infant children in that they can be recognized as legal persons, but do not have the capacity to understand or knowingly exercise any legal rights allocated to them. What would happen to a pediatrician if he practiced with incompetence and negligence, for example? I do not think that said person would be a pediatrician anymore.
As a starting point, some of the behaviors that most, but not necessarily all, animals engage in and that demonstrate the scope of their interests include:
• fighting for continued life,
• finding and consuming food daily,
• socializing with others (usually of the same species),
• mating,
• caring for their young,
• sleeping,
• accessing sunlight (or not),
• exercising their inherent mental capacities, and
• moving about in their physical environment.
What other personal property requires this? None. Absolutely no other personal property. The basic principles of property law will need to be modified in three basic categories in order to provide legal protection for the interests of living property. One area of particular impact will be the ability of owners to realize economic value from their animals. Second, humans who are not animal owners will have new duties toward living property that they do not have toward non-living property. As juristic persons, remedies for tort wrongs inflicted upon animals will be able to run to the benefit of the illegally harmed animal. Finally, the living property will hold certain rights themselves.
“five freedoms” comes up.
In the world of property law, the duty toward the animal by the owner is of both a positive and negative nature. As already suggested by some of the comprehensive state anti-cruelty laws, it is both a duty of not imposing harm as well as a duty of providing care. It is here the notion of the
1. Not to be held for or put to prohibited uses.
2. Not to be harmed.
3. To be cared for.
4. To have living space.
5. To be properly owned.
6. To own property.
7. To enter into contracts.
8. To file tort claims.
Let’s take a closer look at the right “not to be harmed.” The right not to be harmed, not to experience pain and suffering, is the oldest and most obvious of legal rights for some animals. Legislature has recognized that a balancing of the interests of the animals against the interests of the humans will have to be judged by the jury or judge to determine what is acceptable within their society. In addition, there is now a sense of duty to provide care. The duty to let the animals experience the fullness of life, as provided by their genetic heritage. If a dog is kept for his entire life in a small room, the dog could well receive food and water, veterinary care, and exercise.
We all are aware of all the ways veterinarians’ are harming our fur children. From the use of over vaccinating to cancer inducing medications to botched procedures, etc. etc. Cue in the legal right to be cared for. If these two alone went through in the courts, veterinarians’ would have a lot more explaining to do. More would be held truly accountable and there would be severe/harsh punishments. Revocation of license to practice. Even criminal punishments. Not these meek warnings and simple slaps to the wrists. This is when the change would begin.
While I do not see animals or pets as any type of “property” if we could get the courts to see them from being personal to living, I believe we would see much greater change for the good in our pets’ health care. It is a start. And we desperately need that. We are not letting up. We want change. We want justice.