The New Animal Rights

Abstract

The Supreme Court has yet to define the outer boundary of Congresses’ authority to extend property rights to non-humans. In fact, the Court has repeatedly found that the Property Clause affords Congress nearly unfettered power to grant land and property rights to animals on public lands. Yet, because property is universally assumed to be exclusively human, no research to date has examined the legal and scientific rationale for extending property rights to animals. This Article fills this gap by linking the previously distinct fields of animal behavior and property law. Biological studies indicate that animals acquire, exclude, defend, and transfer territories. Indeed, species ranging from ants to orcas, prairie dogs to lions, exhibit behavior that forms the core doctrines of human ownership of property, distinguishable only with respect to alienation and recordation. Moreover, government and private actors alike have already created a vast network of functional property rights for animals.Building upon these observations, this Article presents a thought experiment of formalizing and extending customary property rights to non-human animals. Although implementation challenges may render a rights revolution ultimately impracticable, the exercise highlights the limitations of the current human rights approach to animal welfare. The human rights approach is compelling with regard to primates, but excludes many creatures. Moreover, it overlooks the connection between wildlife and habitat, which a property right approach more directly addresses. Considering the biological underpinnings of property also suggests the opportunity to revisit and reconceptualize the field of property. The animalistic nature of systems of property forces a fresh look into the relationship between property and fields to which it is frequently linked, such as government and morality. More concretely, the concept of animal property rights should encourage animal welfare advocates to consider pressing Congress to consider whether more expansive grants of public property to animals might advance objectives reflective of the desires of the American public.