Animal Personhood, Property, And Compensation

Ben Davy

Dortmund University & University of Johannesburg

In the constitutional law of many Western countries (e.g., the member states of the Council of Europe, the member states of the European Union, and the United States of America), non-human animals share the same fate as refrigerators, stamp collections, or laundry. Animals are things, and things are the subject of private property rights. This, at least, is true for pets and farm animals. Awarding animals personhood, rights, and standing or de-commodifying animals through “ecological emancipation” terminates the property rights that animal owners had in their beasts.

Surprisingly (or shockingly), the literature on animal rights rarely addresses the consequences of animal personhood. This is a weak spot in the debate. In many Western legal systems (and depending on the technical details of creating legal personhood through legal reforms), the taking of private property rights is considered as expropriation for which the former owner often has a right to compensation.

It is not unthinkable to lift the duty to compensation through the animal rights reform that awards personhood to pets and farm animals. In most constitutional systems, this requires that the Constitution be amended. Historically, compensation for the awarding of personhood (emancipation) is rare. An exception is the compensation for the emancipation of slaves. While in some legal systems, the former slaveowners were compensated for the loss of their property (e.g., England), in other legal systems slaveowners were denied compensation. For example, the 14th amendment (1866) to the US Constitution in Section 4 ruled out “any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” An Act of Animal Emancipation could rule out “any claim for the loss or emancipation of any pet or farm animal.” Even if the animals are not taken for public use, their emancipation constitutes a regulatory taking: “A taking that requires fair compensation exists when the government creates a regulation that negates all economically beneficial use of a property” (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 [1992]). Personhood for non-human animals negates all economically beneficial use of the (previous) property. Only a constitutional amendment can suppress the right to compensation.

Private property rights are considered among the most momentous civil rights. Because of that, the liberation of animals into personhood, combined with a suppression of the duty to compensate the expropriated owners, requires enormous political will. The will to establish animal personhood must not only legitimize the change in the relationship between human and non-human animals. It also must relate to the enormous financial burden imposed on the future generations of taxpayers, who never owned a pet or farm animal themselves, never ate meat, never wore clothing made of leather (because in their world, animals will be persons to be respected, not things to be used).

With respect to the financial burden, I would like to mention the question of reparations. Awarding animals personhood, rights, and standing is not an act of chivalry or wokeness. It recognizes the enormous debt of human animals who have treated non-human animals as things – a great injustice. Once liberated into personhood, animals deserve compensation. Two types of compensation are due: Survivors of the dark era when animals have been things must be financially endowed in such a fashion that they can live their remaining lifespan in dignity and without fear of hunger, disease, or homelessness. But reparations are also due with respect to generations of pets and farm animals that have been treated – and exploited, abused, and killed – for centuries because human animals were convinced that non-human animals merely were things to be owned and used as it seemed fit to their proprietors.

The recognition of personhood, rights, and standing for animals is a noble thought: Animals deserve not to be treated like refrigerators, stamp collections, or laundry! In the light of constitutional law, however, we understand that vast parts of the literature on animal rights put too much trust in the thought that noble thinking will conquer all. Paying more attention to the property rights of human animals is essential.

Ben Davy is Professor and former Chair of Land Policy, Land Management and Municipal Geoinformation at TU Dortmund University (Germany) and Visiting Professor at the University of Johannesburg (South Africa). Website: https://bbv.raumplanung.tu-dortmund.de/research-group/ben-davy/

Suggested Citation: Ben Davy, ‘Animal Personhood, Property, and Compensation’ IACL-AIDC Blog (22 February 2024) Animal Personhood, Property, And Compensation — IACL-IADC Blog (blog-iacl-aidc.org)