Animal Property Rights: A Theory of Habitat Rights
for Wild Animals by Josh Hadley
A legal argument to considering animals a right to their habitat as property. The podcast interview below also mentions a contrasting commons land take by Josh Milburn.
Final Chapter – Recapitulation of the Main Elements and Implications
Animal property rights theory consolidates the project of inclusion initiated by the first-generation of animal rights philosophers. While the task of the first generation was to make the case for the inclusion of animals within the so-called sphere of moral concern, the task of a second-generation philosopher, like me, is to take the next step: to examine which rights it is logically possible to extend to animals, assuming that they [animals] do matter. With this as my rationale, this book has primarily been an exercise in logical analysis, not normative argument. Apart from the basic needs argument in Chapter 4, I have eschewed making normative claims about animals and the environment, and instead focused on the institutional design tasks associated with explicating a theory of property rights for animals.
As a clear conception of a property owner is needed to answer the logical possibility question, I began the analysis ‘where we are’, that is, with the institution of property as it exists today, in theory and practice. For the purposes of this book, I presupposed the institution of property to consist in traditional property rights theory and existing systems of property rights. The most important implication of this presupposition is that, in theory and practice, the default picture is that property is an ostensibly person-centered institution. The person-centeredness of property makes it difficult to extend traditional justifications for property rights, such as labor and first occupancy, to animals. Because animals are not actually persons (or, at least, not acknowledged as persons by the lights of orthodox mainstream scientific opinion), any attempt to argue for animal property rights on person-centered grounds is likely to be contentious.
Where Do Animal Property Rights Come From?
If a person-centered justification of animal property rights is too fraught with epistemological difficulties, what is the most suitable normative ground for extending property rights across the species barrier? In the above, I began the derivation of animal property rights with a banal descriptive claim: animals use natural ‘goods’ (land, vegetation, watercourses, rocks, soils, etc.) to meet their basic needs and those of their offspring. As having their needs met adds to an animals’ welfare, it is meaningful to say, consistent with an interest-based theory of rights, that animals ‘have an interest’ in using natural goods. The question then becomes whether this interest meets the normative significance test. Is the animal interest in using natural goods important enough to qualify for rights status?’ As far as the development of animal property rights theory is concerned, this was the most important ethical question in this book. My suggestion is that if we think about the promiscuity of the institution of property, that is, how easy it is for human beings to meet the normative significance test, then animals qualify because basic needs, intuitively, is on an ethical par (if not prior) to ‘non-critical’ or ‘low-level’ human desires, which over the course of history, in theory and practice, have giving rise to property rights in land and natural resources. To say this much, however, does not amount to surreptitiously importing an animal rights position into the animal property rights theory, but simply reflects the status of animals, witnessed by their presence in the legislation and norms which bear upon their lives in existing societies.
Once the animal interest in using natural goods meets the normative significance test, the task then becomes one of institutional design: how can we translate the animal property right into the existing property rights system? Firstly, notice that we are dealing with property rights in particular. As property rights specify rights of access to and usage of land and natural resources, when the animal interest in using natural goods passes the normative significance test, the effect is to give rise to a property right. In so far as the individual with the interest is an animal, the property right in question is an animal property right.
How will the animal property right translate on the ground in existing property rights systems? If the land upon which the animal resides is owned by a human being, then the animal property right must impair the rights of existing landholders in some way. (This is the sense in which animal property rights theory is in large measure a theory of property rights impairment.) Short of allowing the wholesale extinguishment of animal property rights (an option that would fly in the face of the normative foundation established by the first generation of animal rights philosophers and fail to reflect the presence of animals in a raft of legislation and codes of practices in liberal democracies), my suggestion was that the animals’ property right co-exists with the property rights of the human being. What does it mean to co-exist? Logically, the options are many and varied, and we can imagine different jurisdictions balancing out the competing interests in different ways to reflect their particular ethical and policy priorities. In the interests of theoretical completeness and practical application, I suggested that animals be afforded guardianship representation or a ‘right to negotiate’: when animals are at risk due to habitat loss or modification, human landholders are obliged to discuss their land-management objectives with a designated guardian for the animals. The rationale is that a mandated period of deliberation will serve to give animals a voice and act as a cooling-off period by inserting a pause in the casual chain that ordinarily leads to habitat loss.
Externalities and Transaction Costs
Of course, the potential benefits of an animal property rights guardianship system must be weighed against potential costs. In theory, guardianship threatens to compromise the (purported) efficiency of existing property rights systems by imposing additional costs and causing delays to land management decision making. Even if they were willing to extend property rights to animals in the first place, proponents of the economic approach to property rights will presumably reject animal property rights theory on the issue of potential inefficiencies alone. There is also a danger that animal property rights guardianship will add to transaction costs which are an important influence on the success of existing property-based habitat conservation planning systems. But, as they are currently designed, existing habitat conservation systems have shortcomings; not least of which, judging by increasing rates of habitat loss and biodiversity decline, is the absence of institutional design elements that give enough weight to the interests of resident animals at risk.
In terms of the institutional design of the animal property rights system, the eligibility of people to serve as guardians turns upon their capacity to apply the best interest test, and the negotiations between guardians and landholders must proceed in a climate of good faith. With these normative requirements in place, any foreseeable acrimony and litigiousness is no more a criticism of the institutional design of animal property rights than it is of any other legal or policy instrument, such as family court mediation, restorative justice tribunals, and native title negotiations, established for the purpose of dealing with conflicts between rights bearers. Beyond the normative parameters set by good faith and the best interest test, however, it is easy to imagine animal property rights playing out in different ways in different jurisdictions.
I suggested existing property-based habitat conservation programs were the ideal space for negotiations between human landholders and animal property rights guardians to occur. Not only do such programs provide the necessary infrastructure; implicit in each property-based habitat conservation program is the normative idea that landholders need to be more cognizant of how their actions impact upon resident animals and modify their behaviour accordingly. It needs to be stressed, however, that there is an important difference between existing habitat conservation mechanisms and animal property rights theory. The animal property rights guardian enjoys a degree of independence greater than any representative of a regulatory agency currently charged with taken into account the interests of resident animals. In existing habitat conservation systems, regulatory agency personal must balance the interests of animals against those of a range of stakeholders and are subject to political pressures that compromise their capacity to represent animals.
The normative requirement to consider non-owners is a long-standing feature of property rights theory traceable to the natural law doctrine known as the ‘initial patrimony’― the idea that the Earth was given to humans by God for the preservation of human life. The initial patrimony is, at bottom, a problem of fair shares against the background of existing ownership arrangements. So too the global problem of habitat loss is about ensuring that some natural areas are left for their inhabitants by placing constraints upon the actions of the humans who own and use these areas. In other words, the problem of habitat loss is a cross-species initial patrimony problem.
The Ubiquity of Property Rights
While it is reasonable to suggest that property rights are part of the problem in so far as environmental destruction is undertaken by people exercising property rights, it is also true that they are part of the solution or, at least, that they must figure prominently in any solution. Why is this? Because it is unlikely that liberal democracies will overturn or substantially amend the currently existing system of property rights anytime soon. This will seem a serious drawback to theorists who lay the blame for the world’s parlous environmental state at the feet of Locke and liberalism.  But, one can only be dismissive of the kind of insurgent amelioration project undertaken in this book, if it’s conceptually incoherent to suggest that there is scope to debate the limits of the Lockean proviso and, indeed, its extension to animals. There is nothing I can say to anti-property theorists other than to acknowledge that I have a different idea to them about what constructive research consists in. Maybe my natural optimism serves to explain why I think that it is not enough for theorists to simply be critical and good theory requires making positive suggestions. 
Existing Mechanisms for Addressing Habitat Loss are Property-based
The ubiquity of property in liberal democracies extends to environmental policy: policy options for addressing the biodiversity extinction crisis are themselves property-based. Outside of protected area systems (national parks, wilderness areas and conservation reserves, etc), habitat protection policy measures are property-based. Property-based habitat protection measures are directed at the behavior of owners or users of land and natural resources―they restrict certain actions and provide incentives for others. Thus, if the experts are right and the solution to the biodiversity crisis is to halt habitat loss, then we need a mechanism that constrains the exercise of people’s property rights. This is another reason why animal property rights theory is a theory of property rights impairment.
It is important to bear in mind that different societies place contrasting emphasis on specific property rights incidents. While some societies may have laws or norms that effectively render certain incidents as meaningless; in other jurisdictions, the same incidents may be held as sacrosanct. The point to stress is that ownership is not static and does not take place in a void. Laws and norms, legal and ethical, serve to give shape to ownership regimes. The successful extension of property rights to animals requires that many of the incidents be meaningfully applied to animals. This places an obligation on proponents of animal property rights to make plain whether their usage of established property concepts amounts to adaptation of them or fundamental change to them.
Indigenous Rights and Animal Property Rights
Proponents of indigenous rights may argue that the extension of property rights to animals represents a setback for the cause of justice for indigenous people. I argued that in many cases the animal interest in using natural goods to meet their basic needs is consistent with the flourishing of indigenous communities and that property rights for animals in such circumstances may be unnecessary or simply of symbolic significance. This claim was predicated on two qualifications: firstly, the morality of hunting is a separate issue to the territorial interests of resident animals and what human co-owners may owe to them in light of the interests; and, secondly, the extent to which animal property rights are uncalled for on indigenous land turns upon whether values such as environmental sustainability or ‘respect for nature’ inform land-management decision making.
Animal Rights Theory and Environmentalism
Proponents of animal rights theory and environmentalism ought to embrace a theory for the impairment of human property rights. For proponents of animal rights, the thesis above extends the call for animal rights beyond claims to bodily integrity to a right to the natural areas in which animals live. This is a welcome development because a secure habitat means that animals are effectively free to live out their lives without human beings violating their rights. In essence, animal property rights theory serves to theoretically underpin the animal rights goal of ‘leaving animals be.’ As well as being an instrument with potential public policy and land management implications, animal property rights theory lays to rest the criticism from environmentalists that animal rights theory lacks the conceptual resources for protecting natural collections like ecosystems or wilderness areas.
For their part, environmentalists also ought to welcome animal property rights theory. Theoretically, a check on habitat modification or destruction protects ecosystem stability and integrity, and thereby maintains the intrinsic value that environmentalists hold dear. Practically, animal property rights holds out the hope of addressing some of the shortcomings of the existing property-based habitat protections systems. Given the ubiquity of property rights, even environmentalists who reject property rights as an anathema to environmental protection can view animal property rights as bad tasting medicine.
It is true, however, that from an environmental perspective, animal property rights theory comes with some philosophical baggage. Ecological holists might argue that an animal property rights system will have a negligible impact on securing the health of entire ecosystems because the boundaries of ecosystems extend further than the boundaries of animal territories. But, it needs to be borne in mind that the territorial interests of many species of sentient animals extend over large areas and may even cross into different ecosystems. Insofar as an attribution of an animal property right entails that these quite possibly large areas will be free of deleterious human impact, the scope for ecosystem protection is significant. A similar point can be made to environmentalists who might argue that animal property rights are sentience-focused and cannot extend protection to non-sentient individuals, such as insects or plants. On the basis of the protection it secures for large swathes of land within an animals’ territory, an animal property right will maintain the flourishing conditions of all life, sentient or nonsentient, within the territory.
The question remains as to the efficacy of animal property rights in areas in which there are no sentient animals. While it is true that an animal property rights system cannot offer direct protection to such areas, damaging these areas could result in a spillover effect which may deleteriously impact upon animal property areas. Alternatively, in cases where the absence of sentient animals is due to extinction, the property rights system could be implemented as part of a reintroduction or re-wilding program. To draw upon an analogy with human health, once people start to focus on their health, they generally want to improve it even more: their first goal may be to stabilize their weight or blood pressure, but after a time their aim becomes to reduce it. In like manner, animal property rights may initially serve to check habitat loss on a given parcel of land and then, in order to promote biodiversity on a wider scale, they could be extended to neighboring properties.
The Multiple Owner Problem
Perhaps the most important objection to animal property rights theory concerns its scope: will all individual animals be eligible for property rights? If so, does this mean that many hundreds of guardians will be representing many hundreds of different animals within the same geographical area? While I suggested some possible responses, such as group ownership and guardian committees, the ‘multiple owner problem’ is an aspect of animal property rights theory that needs much greater attention. An appropriate unit needs to be identified to play the role of the bearer of animal property rights. Even if the metaphysical vagaries of territorial behaviour could be sorted out, extending guardianship to all individual animals renders the design of the institution of animal property extraordinarily complex and difficult to administer in the real world. Alternatively, extending the property rights to some collective entity, such as a group or committee, detracts from the normative significance of basic needs, which registers most profoundly at the level of the individual animal. My hope is that I’ve said enough in this book to establish the credibility of the basic concept of animal property rights, and will leave it to others sympathetic to the idea of animal property rights, and more familiar with applicable legal or ecological concepts than me, to develop responses to the multiple owner problem.
What is the connection between the property status of animals and animal’s status as putative property owners? In other words, how can property own property? I offered a response to this question in the form of a rhetorical question directed at a signature animal rights claim that animals are owed one right, the right not to be property. How can property have a right not to be property? If it is conceptually meaningful to speak of property objects having the right not to be a property object, then presumably it is meaningful to speak of property objects having a right to property in the form guardianship representation during land management decision making. If it is meaningful to talk about animals as bearers of any rights, then it is logically meaningful to talk about them as potential bearers of property rights.
Animal Property Rights Theory versus Wild Animal Sovereignty Theory
In Zoopolis, Donaldson and Kymlicka described animal property rights theory as ‘underdeveloped’ and ‘ad hoc’, and they said that it left many important questions unanswered.  This book serves to addresses such criticisms. But, even though Donaldson and Kymlicka were ostensibly charging animal property rights theory with being a work in progress, their own theory was incomplete in many of the same respects, most notably, the system of guardianship , and the use of territorial behaviour to demarcate sovereign animal territories.  The very same questions that Donaldson and Kymlicka direct at early animal property rights theory could just as readily be put to the wild animal sovereignty theory as it appears in Zoopolis. Indeed, sovereignty specific vocabulary aside, it’s reasonable to assume that ultimately the wild animal sovereignty theory will incorporate theories of guardianship and territorial determination substantially similar to the systems outlined above in Chapter 4.
Obvious similarities aside, there are some important differences between animal property rights theory and wild animal sovereignty theory. The most important is philosophical justification: animal property rights are grounded in the individual animal interest in using natural goods to meet their basic needs; wild animal sovereignty rights are grounded in the competent agency demonstrated by groups of animals. Notice that the significance of the basic needs justification registers at the individual level; whereas the significance of competent agency registers at the group level. Thus, an important difference is that, conceptually, animal property rights are individual rights, wild animal sovereignty rights are group rights.
Animal Property Rights and Traditional Property Rights Theory
Like their counterparts throughout the history of property theory, contemporary property theorists face the problem of reconciling public-interest restrictions on ownership rights with exclusive claims to property. Between the seventeenth and nineteenth century, the task was to reconcile the Natural Law theory-derived moral claims of non-owners with existing property arrangements. Likewise today, property theorists are seeking to do justice to the interests of everyone within the constraints existing property arrangements impose upon the design of viable policy measures capable of promoting sustainability. My hope is that I have said enough in this book for readers to think that animal property rights theory constitutes a novel approach to addressing this problem.
- Val Plumwood, Environmental Culture: The Ecological Crisis of Reason (Oxon: Routledge, 2002), 214-216.
- Donaldson and Kymlicka make a similar response to critics of liberalism in “Reply: Animal Citizenship, Liberal Theory and the Historical Moment,” 770-772.
- Donaldson and Kymlicka, Zoopolis: A Political Theory of Animal Rights, 177.
- Donaldson and Kymlicka, Zoopolis: A Political Theory of Animal Rights, 209.
- See Donaldson and Kymlicka, “A Defense of Animal Citizens and Sovereigns,” 152.