To many animal rights activists, the notion of animals as property is indefensible. On this view, dogs, pigs, and chickens are creatures with their own feelings and needs, and treating them as property reduces them to the status of things, completely subject to their owners’ whims. The legal scholar Jerrold Tannenbaum argues that this is a misunderstanding, not of the nature of animals, but of the nature of property.
First, Tannenbaum writes, the idea that calling animals “property” puts them in the category of inanimate objects is historically misguided. In fact, animals were one of the first types of property recognized in Anglo-American law. In the years after the 1066 Norman conquest of England, when English common law was coming into being, “cattle”—meaning not just cows but also oxen, sheep, goals, horses, and chickens—were typically the most valuable possessions that people owned. In fact, the word chattel, describing any kind of moveable property, derives from the Latin equivalent of “cattle.”
Tannenbaum’s second argument is that property was never as absolute a concept as many of us think. Property rights absolutism has been popular at least since the eighteenth-century writings of William Blackstone, who claimed that early English law identified the right of property as the “sole and despotic domination which one man claims and exercises… in total exclusion of the right of any individual in the universe.”
But Tannenbaum writes that this was a misunderstanding of those early laws. In fact, the law that emerged in twelfth-century England assumed that everything ultimately belonged to the King. Everyone else could have only provisional claims on land, cattle, or any other sort of property. Since then, the limits of property rights have been the subject of constant debate. For example, today states prevent people from owning cars unless they’re registered, and most communities forbid construction of a building without a permit.
Tannenbaum argues that the issue is not whether we can own animals but what sorts of rights they might have even if they are property. (What sort of responsibilities animals have is another fascinating question.)
In 1641, the Massachusetts Bay Colony created the first law in the Anglo-American tradition protecting animals, but bans on cruelty to animals didn’t become well established until the nineteenth century. Even then, the justification for the laws usually was not the rights or welfare of the animals but the tendency of cruel acts to “corrupt the morals of those who observe or who have knowledge of these acts,” as a Massachusetts court put it in 1931.
Some advocates for animals, like George Angell, founder of the Massachusetts Society for the Prevention of Cruelty to Animals, have argued that animals should be protected “first for their own sake.” And today, Tannenbaum writes, it’s common for courts to base their decisions on the well being of animals themselves. They may be property, but it’s no contradiction to say that they are property with rights that their owners can be legally required to respect.