A while ago back on the blog, we were having a debate about whether the idea of property, and private property in particular, is a peculiarly human thing.
Certainly, I think animals have a notion of territory. Sometimes they have a very strong notion, and will chase any interlopers off their territory. Our dog had a notion of what was his. He had his own particular chair which no one else used, his own particular horrible chewed soft toys and his own basket. He knew, and we knew, that those things were his. If you got too close to him while he was eating a bone, a long rumbling growl would sound deep in his chest, signalling, “This is mine, all mine, keep away from it.” Still, I tend to agree with Lorenzo that the idea of legally enforceable property rights is a peculiarly human thing.
But should animals have legally enforceable property rights? An Australian researcher has suggested recently that animals ought to have such rights:
Australian research lecturer Dr John Hadley from the University of Western Sydney (UWS) said under his proposal, particular animals would be given legal property rights, and human guardians would be appointed to represent them in court.
But farmer associations are concerned about potential conflict.
President of the South Australian Farmers Federation Peter White said the proposal was ludicrous.
“It never ceases to amaze me how stupid some people can be,” he said.
“Why would somebody give animals more rights than humans?
“I think it would create World War III between environmentalists and between welfare groups and farmers.”
But Dr Hadley said giving animals legal ownership of their habitat might be the key to protecting biodiversity.
“This could be something that produces something useful,” he said.
“By discussing with the guardian, people could be persuaded to try another land management decision, (or) they may delay destroying the habitat until the end of the breeding season.”
He said people who wanted to modify habitat on their property would have to negotiate with guardians through an independent tribunal before taking any action.
My first rather bitter thought was that, for the most part, we haven’t even given indigenous people proper property rights in the land, let alone indigenous animals…
In any case, clearly the rights possessed by animals would not be exclusive rights in any sense. In their strongest incarnation, private property rights give rise to the rights such as a right to exclude, the right to alienate, the right to destroy and the right to use.
I am rather fascinated by the idea of animals having legal rights, as can be seen from a series of previous posts: animals being restrained from trespassing, a goat held on suspicion of committing an armed robbery, Chico the delinquent macaque, Santino the delinquent chimp (who suffered a most awful punishment), potentially tortious dolphins, a dog named “Trouble” who received a large bequest under a will, and lawyers who represent dogs or pets.
In fact, the idea of granting animals legal rights is not as crazy as it may sound. In New Zealand, apes have a right not to be experimented upon, and in Spain, ‘human rights’ have been granted to great apes. Germany has protected the right to dignity of animals in its Constitution.
Nonetheless, there remain questions about who enforces the rights on behalf of animals, how one interprets the wishes of animals, and why animals should be given legal rights when some humans do not yet possess that right. People are more likely to accord legal rights to animals with whom they can communicate, and who are further along the spectrum of sentience.
I can’t really see how Hadley’s proposal would work. Presumably he is thinking that someone could bring an action on behalf of a colony of endangered Leadbeater’s Possums, for example, which sought to prevent development in the area in which the colony lived?
(No, I’m not going to be rivalling DEM any time soon, I’m afraid…)
[ADMIN DEM: I would have gone a different way...]
What kind of property rights would the possums possess? A right to exclude people? Or some lesser usufructuary right (i.e. a right to go on land and gather things)? If the latter, how could it possibly be useful in protecting the animal? How would this proprietary right be measured in time and space? Would it be caveatable? Are there better ways of regulating this kind of problem which do not involve proprietary rights?
I can’t help thinking that granting animals proprietary rights is not the right way to go about protecting the poor possums. While reading Hadley’s proposal, and seeing the incandescent response of the farmers, I suddenly remembered an article by Stephen Dubner and Stephen Levitt about the unintended consequences of trying to protect endangered animals via legal regulation:
Consider the Endangered Species Act (E.S.A.) of 1973, which protects flora and fauna as well as their physical habitats. The economists Dean Lueck and Jeffrey Michael wanted to gauge the E.S.A.’s effect on the red-cockaded woodpecker, a protected bird that nests in old-growth pine trees in eastern North Carolina. By examining the timber harvest activity of more than 1,000 privately owned forest plots, Lueck and Michael found a clear pattern: when a landowner felt that his property was turning into the sort of habitat that might attract a nesting pair of woodpeckers, he rushed in to cut down the trees. It didn’t matter if timber prices were low.
This happened less than two years ago in Boiling Spring Lakes, N.C. “Along the roadsides,” an A.P. article reported, “scattered brown bark is all that’s left of once majestic pine stands.” As sad as this may be, it isn’t surprising to anyone who has examined the perverse incentives created by the E.S.A. In their paper, Lueck and Michael cite a 1996 developers’ guide from the National Association of Home Builders: “The highest level of assurance that a property owner will not face an E.S.A. issue is to maintain the property in a condition such that protected species cannot occupy the property.”
One notable wrinkle of the E.S.A. is that a species is often declared endangered months or even years before its “critical habitats” are officially designated. This allows time for developers, environmentalists and everyone in between to have their say at public hearings. What happens during that lag time?
In a new working paper that examines the plight of the cactus ferruginous pygmy owl, the economists John List, Michael Margolis and Daniel Osgood found that landowners near Tucson rushed to clear their property for development rather than risk having it declared a safe haven for the owl. The economists make the argument for “the distinct possibility that the Endangered Species Act is actually endangering, rather than protecting, species.”
So if you give Leadbeater’s Possum quasi-proprietary rights, I’m willing to bet that some people would be chopping down old hollow trees quicker than you could wink.