Anna Wotherspoon has posted Unravelling Incoherence: Utilizing Property Theory to Challenge the Classification of Animals as Chattels ((2021) 46(2) Journal of Legal Philosophy 81-119) on SSRN. Here is the abstract:
In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.
