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Seymour, George --- "Animals and the law: Towards a guardianship model" [2004] AltLawJl 52; (2004) 29(4) Alternative Law Journal 183

Towards a guardianship model


The use of animal welfare legislation, while once controversial, is now almost universally accepted as a necessary and justifiable means of restricting human actions towards animals. Every jurisdiction in Australia has enacted legislation purporting to protect animals from wanton acts of cruelty. However, the success of such statutes is questionable. This article argues that the law can, and should, redefine non-human animals to something closer to persons.


Broadly speaking, law exists to protect the interests and enforce the obligations of persons. But just who is a person?

In the legal context the term 'person' has a somewhat different meaning to its general usage. In lay terms 'person' is generally synonymous with 'human'. However, the Butterworth's Concise Australian Legal Dictionary defines person as a 'separate legal entity, recognised by the law as having rights and obligations'.[1]

As Gin be seen from this definition, personhood is not reserved solely for human beings. It is an artificial creation of a legal system; a legal fiction. Legal personality can be granted by society to whatever beings or objects it determines appropriate. Not all humans have been regarded as persons, and not all persons have been human.

A critical distinction: a person or a thing

Common law and civil law traditions have two primary entities: persons and things. Anything or anyone who is not a person is a thing. This distinction between being a person and being a thing is critical; only persons are recognised as having rights and obligations. Legal relations exist between persons, and only between persons; there can be no legal relation between a person and a thing or between two things.[2]

Animals[3] do not easily fit within the person/thing distinction. They are not given the status of humans, yet it is recognised that they have interests that inanimate objects do not. It is in this middle ground, somewhere between humans and inanimate objects, where the law places, animals. The enactment of anti-cruelty legislation would seem to distinguish them, and their relationship to humans, from most other non-humans or 'things'. Yet they are clearly treated very differently to humans, who can own and exploit them as resources. However, the legal status of non-humans, animals or otherwise, is not set in stone. As will be shown, the law has continually expanded the group of entities it regards as persons, and therefore the holders of legal rights.

Animals as 'things'

Under the common law there are two classifications of animals: ferae naturea, meaning wild, and domitae naturae, meaning of tame disposition. Whether ferae naturea or domitae naturae, animals are legal 'things' as opposed to legal 'persons'. Things, whether living or not, can be the property of persons. Property has value solely as a means to an end, whereas people are ends in themselves. Upon this view, objects, animals, or humans designated as property can have no interests of their own which must be respected.

Animals are kept by humans for a number of purposes including companionship, food, research, and entertainment. It has been argued that 'the treatment accorded to animals under the law, is determined not by reference to any moral ideal but by the property status of the animal and by what conduct is perceived to maximise the value of animal property'.[4] This view of animals is reflected in the criminal offences relating to them, most of which are little different to other property offences. Consider:

Queensland Criminal Code s 468 - Injuring Animals

(1) Any person who wilfully and unlawfully kills, maims, or wounds, any animal capable of be1ng stolen is guilty of an indictable offence.
(2) If the animal in question is stock, the offender is guilty of a crime, and is liable to imprisonment for 7 years.
(3) In any other case the offender is guilty of a misdemeanour, and is liable to imprisonment for 2 years, or, if the offence is committed by night, to Imprisonment for 3 years.
(4) If the offender (whether guilty of a crime or a misdemeanour) kills or maims the animal and is sentenced to pay a fine in addition to, or instead of imprisonment, the fine shall be not less than 4 penalty units or, where in respect of the animal in question a value is determined in accordance with the provisions of the regulations made pursuant to section 450F, not less than that value, wh1chever is the higher amount, for every animal killed or maimed.
(5) However, the fine imposed in respect of the offence shall not exceed 500 penalty units.

This offence is typical of the way that the law often treats animals: as items of property. The offence certainly concerns them, but it does not protect their interests. In other words, it may impose some sort of duty regarding animals, but it doesn't impose a duty to animals. The actual interests of the animal concerned never truly enter the equation. It is their monetary value, to their owners, which is being protected. This is particularly reflected in one of the elements of the offence: the property status of the animal. The animal must be 'capable of being stolen'. This clearly indicates that the wrong is between two persons, the offender and the owner, not between the offender and the animal. Further, the offender must 'wilfully and unlawfully' do the act; mens rea is required. This means that the harm done to an animal is not covered if it was done negligently or accidentally. In relation to the remedies or penalties available, the value of animal life takes on a solely human orientated assessment. The offence provides for a greater punishment where the animal is 'stock' presumably because they are of greater monetary worth to humans. Finally, the minimum fine is linked to the monetary value of the animal.

When a person is not a human

The body of entities that have been granted legal personhood has continually expanded. The further expansion to include certain animals for particular purposes is supported by the granting of similar status to other non-humans.[5] In viewing the historical development of the law Maitland comments; 'Every system of law that has attained a certain degree of maturity seems compelled by the ever increasing complexity of human affairs to create persons who are not men ... '[6]

This creation of 'persons who are not men' has included entities that one would instinctively consider as things. Corporations and ships are two examples.


The conferral of artificial personality upon corporations is a concept ingrained in the common law. However, this conferral is not a complete one; corporations are not granted all the rights and obligations of a natural person (a human being). For example, at common law a natural person has the right to refuse to provide information that might incriminate them. In Environmental Protection Authority v Caltex Refining Co Pty Ltd [7] the High Court held, by a majority of 4 to 3, that a corporation does not have such a right.


Ships have been granted personhood in some jurisdictions; this has led to some surprising outcomes.[8] Through the 'admiralty doctrine of personification' the true defendant in an 1n rem action is the ship's cargo or the ship itself.[9] This artificial status, whereby ships are deemed to have rights and obligations separate from their owner, is particularly prevalent in the US. The situation has been the subject of considerable criticism.

Why do some entities have it?

For whatever reasons, the law has already granted personhood to artificial and lifeless entities, entities which in no way could claim to have the sentience of humans or any other animal. The denial of rights for animals on the basis that they are different from 'us' and therefore lack some prerequisite qualities for 'personhood' ignores the fact that we have already bypassed such requirements in other instances.

The difference can possibly be put down to economic imperative. It has been in the interests of a capitalist economy to grant legal personhood to corporations. When an economic system finds the granting of such status to be advantageous its notion of personhood can become quite elastic.[10]

When a human is not a person

Personhood, as a legal concept, is neither fixed nor static. It has been extended to those who once didn't have it and it can be extended to those who don't presently have it. The rationale that animals are unable to be classified as persons because of their difference to 'us' is similar to the justifications used for centuries to keep certain humans from being granted personhood.

Western societies, and their legal systems, have progressed to the stage where all human beings, at least upon birth, are seen as persons before the law. While prejudice and discrimination still exist, every human has, at least in theory, formal equality. However, this has not always been the case. Certain groups of humans have been denied personhood in recent history.


The legal status of women has historically been subjugated through a variety of means, one such way was the institution of marriage. Upon marriage women would lose their separate personality. Their legal existence was suspended, or at least incorporated and consolidated into that of their husbands. This meant that they lost their ability to sue or own property; basically the law no longer recognised them as a separate legal entity.[11] This joining of personhood was not equal; '... the main idea which govern[ed] the law of husband and wife [was] not that of an "untty of person", but that of the guardianship. The mund, the profitable guardianship, which the husband has over the wife and over her property.'[12]

In terms of statutory interpretation women have not always been found to be included in the, seemingly gender neutral, term 'person'.[13] The fact that such an interpretation would be unthinkable 100 years later illustrates the term's malleability.

Human slavery

The grand and flourishing articulation of equality contained in the United States of America's Declaration of Independence did nothing to alter the situation whereby certain human beings were bought and sold as per any other item of property in the 'land of the free'. African Americans continued to be subjugated, through the institution of slavery, to the property of their masters. The institution of slavery turned certain human beings, on the basis of race, into the objects of mortgages, assignments, inheritance, seizure, bailment, insurance and warranties. The legality of this denial of personhood was affirmed by the US Supreme Court in Dred Scott v Sandford where it held that a black man had no rights which a white man was bound to respect.

While denying slaves personhood for most other purposes, under criminal law they were held as accountable for criminal actions as non-slaves. This ambiguity in their legal status inspired an unusual litigation tactic by which slaves argued that they were not legal persons, and therefore outside the ambit of the criminal law.[14]

More than any other group, the granting of personhood to American slaves can be traced to one distinct and dramatic action; the North's victory in the Civil War. The thirteenth amendment, which arose out of the victory, officially ended slavery in the southern states.

The denial of personhood: a tool of subjugation

The granting of personhood has traditionally been controlled by the powerful. and has reflected power relations in society. The classification of a living being as a thing or as property has been used throughout history as a way of perpetuating the subordination of that being.[15] When the law defines a living being as a thing, and therefore the property of another, it has already decided what limits to place on protecting the interests of the individual.[16]

Seeking alternatives: guardianship model for animals

The personification of corporations and ships demonstrates the capacity of the law to recognise non-human entities as persons for particular purposes. Similarly the present position of married women and African Americans is testament to its ability to accept new groups into the fold of personhood where justice demands it. However, the analogy between these groups and animals clearly has its limits. Any change to the legal status of animals would need to take into account not only their interests but also their capacities.

Like corporations, which have been granted some aspects of personhood but not others, animals should not be granted, nor could they use, all the rights and responsibilities of natural persons. They don't need the right to vote or drive heavy machinery, nor do they need the privilege against self-incrimination. What they need is legal recognition of their interests.

It has been argued that animals should be given status similar to that of infants or young children; a status commensurate with their capacities.[17] In this way their interests could be represented in the legal system by human guardians. Some aspects of such a Status, specifically standing and criminal liability will be explored below.

Should animals have standing?

Persons are given standing, whereby they can assert and enforce their rights through the courts. A legal right of some sort is of little use if the rightholder does not also have standing to assert it.

The granting of standing to animals would obviously present some logistical problems, not the least being a lack of inter-species communication. However, the law has already developed the concept of guardianship to enforce the rights of those who for one reason or another are unable to assert them themselves. In this way there can be circumstances where the person who articulates the right and actually asserts the required standing is someone other than the rightholder.[18]

Children and the mentally incompetent are given legal rights and legal standing, but it is often through court­ appointed guardians that their interests are actually articulated. It is submitted that the position of animals and non-autonomous humans is analogous for the purposes of legal representation.

Identifying what entity should serve as the guardian to a particular animal could be problematical. With humans family members are the obvious choice. Likewise pets, such as cats and dogs, could be represented by a member of their human 'family' if appropriate. It could also be appropriate to grant guardianship status to animal protection groups.[19]

Another contentious issue would be the determination of what is in fact in the animal's best interests. The interests of different species, and different individuals, can be very diverse. There being no way of actually communicating their needs in words, some sort of interpretation would be necessary. The interpretation would be greatly assisted by the large body of knowledge built up by zoologists and other professionals involved in the study of animals. Such a problem with interpreting needs would not be unique to animals. For example, the interests of a corporation must be determined by its directors. Decisions are made on behalf of, and in the purported interest of, others everyday. The interests of fellow living creatures can be identified more easily and conclusively than many other entities and are less variable and metaphysical in nature.[20]

The granting of personhood, and therefore standing, to animals would not result in the interests of animals always prevailing over other legal persons. It would simply require the court to acknowledge the interests of the parties to the proceedings, including the animal's, and on weighing up the different interests to make a decision.

Criminal liability

The indeterminacy of the position of animals before the law is illustrated in a number of intriguing criminal cases originating in medieval Europe in which animals were tried and punished as criminals. Bringing the full majesty of the law down on a pig or a swarm of bees would seem peculiar and pointless to most present day observers. Where a specific animal had injured or killed a human being, she could find herself before a secular trial. Animals seen as pests, such as weevils or fleas, were brought representatively before ecclesiastical trials, where upon being found guilty they suffered the inconvenience of exorcism or remedial curses.[21]

Such trials may seem absurd, but should animals be granted personhood the question of whether they could be criminally responsible for their actions would need to be addressed. It is submitted that they should be treated similarly to children or mental incompetents, and deemed incapable of committing an offence. Such treatment would be consistent with a guardianship model.

The road to personhood

Conceptually, being a person is not so much about being a human as it is about having access to justice and rights. Its coverage is used to delineate who has legal recognition and who doesn't The same legal categorisation that is now denied to animals once was also held from certain humans. Viewed from an historical perspective the position of animals is analogous to that of oppressed groups who have managed to cross the dividing line between things and persons.

Whenever there is a movement to change the status of something from that of a th1ng to a person, the proposal has been, and will be, seen as odd, frightening or laughable. Christopher Stone explains this aversion to the extension of rights as due to the fact that 'until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of "us"-those who are holding rights at the time'.[22]

Legislative reform: introduction of a duty of care; moves towards quasi personhood?

The recently enacted Animal Care and Protection Act (2001) (Qld) embodies a progressive shift towards a greater recognition of the interests of animals and the duties of certain humans to them. It provides statutory recognition that animals have certain interests which their human custodians have a duty to care for. This would seem to provide some sort of middle ground for animals, possibly providing some sort of quasi­personhood or guardianship model.

While a common legal term regarding certain relationships, the imposition of a duty of care to animals is quite unique. Tasmania is the only other state to adopt such an approach in its animal welfare legislation. Similar to the Queensland provision it only applies to people who have the custody of an animal. The other states make cruelty an offence, but not in such a proactive way.

A proactive approach to animal welfare

The Act goes beyond providing punishment for people who are cruel to animals. It places a proactive duty on anyo11e who is in charge of an animal to care for its physical and behavioural needs. The explanatory notes describe this distinction thus: 'positively provid1ng for the welfare needs of animals is at the opposite end of the welfare continuum to the mere absence of being cruel, the focus of the [old] Act'.

The Introduction of a duty of care to animals is a significant change in the law relat1ng to animals. It puts the focus on the promotion of animal welfare rather than solely on the punishment of animal cruelty. By recognising the actual animal's welfare interests, the Act is differentiating animals from other 'things'. In some ways the treatment appears to be approaching some sort of quasi-personhood. Indeed, the term 'duty of care' is usually only used in the context of person­ person legal relationships.

Section 17(2) makes it an offence not to fulfill the duty of care one has to an animal in their charge by providing for its basic welfare needs. This duty of care includes providing the animal with sufficient food and water, accommodation or living conditions, treatment for disease or injury, handling it appropriately and allowing it to display normal patterns of behaviour.

The Act states that a person in charge of an animal owes a duty of care to that animal. The meaning of a 'person in charge' of an animal is defined in s 12. It means a form of ownership or custody of the animal. This does not refer solely to the owner of an animal. For example, it would cover someone who transports animals or takes them on adjustment. Veterinarians are deemed to have temporary custody of animals during examinations and operations, and are therefore subject to the duty of care provisions. It has been found to include someone who took charge of a stray dog through feeding, medicating and sheltering her.[23] The Act provides for vicarious liability: covering those who employ or engage another who has custody of an animal in the course of their employment.

Importantly, the duties imposed, and the offence related to their breach, are not qualified by terms of intent as a necessary element of an offence. In other words, no mens rea is required in relation to a breach of duty; negligent breaches can constitute an offence. The duties are all in the context of the relevant animal's needs and what is appropriate. Thus the focus is placed on the animal's health and well being, rather than simply the actions or intentions of the custodian. The effectiveness of these duty provisions will depend somewhat on the courts' interpretation of 'reasonable steps'.

The imposition of a duty of care is certainly a positive and progressive measure, however its practical effect is open to question. Despite shocking examples of wanton cruelty and neglect, the courts have not imposed anywhere near the maximum penalties against offenders found guilty before them.[24]


The idea that animals should, or even could, be considered persons will seem ridiculous to many. Movements for the extension of rights to those who don't currently have them have always generated opposition and derision. With animals it is no different The current status of animals, and the movement for animal rights should be seen from its historical perspective. Professor Stone argues that

Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. We are inclined to suppose the rightlessness of rightless 'things' to be a decree of Nature, not a legal convention acting in support of some status quo. It IS thus that we defer considering the choices involved in all their moral, social, and economic dimensions.[25]

The conferral of rights on animals, and corresponding duties on humans, will clearly cause some problems -for humans. As persons, animals would have at least one interest that would be protected from being sacrificed by humans for consequentialist purposes; their interest in continued existence. Without this basic right to physical security all other interests would be meaningless. Such a move would have significant ramifications for human economies and lifestyles,

which have to a large extent become reliant on the exploitation of animals as resources.

Those advocating rights for animals are clearly in the minority. While displaying shock at isolated and senseless cases of wanton cruelty, the majority appears to show no interest in considering any real extension of rights or addressing the continuous, brutal and institutionalised exploitation of millions of animals. Clearly, if animals are ever to be granted personhood it is a long way off. In the meantime, the change of focus conta1ned in the new Act is a significant step.


[*] GEORGE SEYMOUR is an articled clerk in Hervey Bay, Queensland.

© 2004 George Seymour


[1] Peter Nygh and Peter Bull (eds) Butterworth's Concise Australian Legal Dictionary (1998) 334.

[2] Stephen Wise, Rattling the Cage, Toward Legal Rights for Animals (2000) 24.

[3] The term 'animal' is used throughout this paper. What is meant by this is its common usage: non-human animals. This is an artificial distinction, humans are animals.

[4] Gary Franc1one, Animals, Property and the Law (1995) 27

[5] Rebecca Huss, 'Valuing Man's and Woman's Best Friend; the Moral and Legal Status of Companion Animals' (2002) 86 Marq L rev 47, 71.

[6] Frederic Pollock and Frederic W. Ma1tland, The History of English Law before the time of Edward I, (2nd ed. 1968) vol 1, 486

[7] [1993] HCA 74; (1993) 178 CLR 477

[8] Ships could be parties to litigation, and even defendants in some cases In US v Cargo of the Brig Malek Adhel 43 U S (2 How) 210 1844, a ship was seized by pirates. Upon capture, the US government condemned and sold the vessel The lawful, and disposed, owners of the ship sought to recover it In refusing to release the ship Justice Story (quoting Justice Marshall from an earlier case) observed· 'This is not a proceeding against the owner, it is a proceeding against the vessel for an offence committed by the vessel, which

is not the less an offence ... because it was committed without the authority and against the will of the owner'

[9] Martin Davies, 'In Defence of Unpopular V1rtues; Personification and Ratification' (2000) 75 Tul L Rev 337, 338

[10] Gary Francione, 'Personhood, Property, and Legal Competence' in Paola Cavalien and Peter Singer (eds) Great Ape Project (1993) 248, 252

[11] Derek St P1erre, The Transition from Property to People The Road to the Recognrt1on of Rights for Non-Human Animals' (1998) 9(2) Hastings Women's Law Journal 255, 266 (quoting 1 William Blackstone, Commentaries on the Laws of England 442 (1899))

[12] Pollock and Maitland, above n 6, 485

[13] In re Edith Haynes (1904) 6 WAR 209. The Legal Practitioners Act 1893 (WA) entitled a 'person' to apply to be admitted to legal practice In 1904 Edith Haynes applied for admittance She had passed her examination and had served a period of time as an art1ded clerk, with the permission of the Barristers' Board. The Board refused her application. She applied for a writ of mandamus to compel the board to accept her application. The WA Supreme Court decided that she was not a 'person' within the meaning of the Act, and so did not grant the writ

[14] Note, 'What We Talk About When We Talk About Persons; The Language of a Legal Fiction' (2001) 114 Harv L Rev 1745, 1748 In United States v Amy [24 F Cas 792 (C CD Va 1859) (No 14.445)], for example, a young slave girl stood accused of stealing a letter from a post office 1n v1olat1on of a federal act that prescribed two years' imprisonment for 'any person' who committed such an offence To Amy's argument that she was not a legal person because she was a slave, the prosecutor rejoined 'I cannot prove more plainly that the prisoner is a person, a natural person, at least, than to ask your honours to look at her There she is' Sitting as a circuit justice, Chief Justice Taney rejected Amy's reasoning and embraced the robust view of slave personhood, stating that he could conceive of 'no reason why a slave, like any other person, should not be punished by the United States for offences against its laws'.

[15] St Pierre, above n 11, 255

[16] St Pierre, above n 11, 255

[17] See Francione, above n 4, Wise, above n 2, Jane Nasworthy, 'The Koko Dilemma A Challenge to Legal Personality' [1998] SCULawRw 2; (1998) 2 SCULR 1, 18.

[18] Francione, above n 4, 65

[19] Francione, above n 10.

[20] See Christopher Stone, 'Should Trees Have Standing? Towards Legal Rights for Natural Objects' 1n Should Trees Have Standing' and Other Essays on Law, Morals and the Environment (1996) 1,19

[21] E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals (first published 1906, 1988), 286

[22] Stone, above n 20, 5

[23] Ryan Hefeman, 'Taking in abandoned dog leads to fine' Sunday MaiI (Brisbane), 10 March 2003, 5.

[24] See for example, Nicki Voss, 'Pet torturers let free', Sunday MaiI (Brisbane), 10 August 2003 2

[25] Stone, above n 20, 3-4.

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