Animals, the Constitution and Private Law

Abstract

A constitution, whether written or unwritten, defines the basic rights and obligations as between the government and the individual human citizen, while private law defines the rights and obligations among human persons. Thus, these two sources of law are to protect human interests directly. As a result, animals, if present, almost always are present as objects — the property of their human owners or part of the “common” held for the benefit of humans — rather than subjects — referenced in their own right. To date, these sources of law provide little opportunity for robust protection of animals’ interests, with a few notable exceptions. However, we will see that the manner in which these two sources of law are addressing animals has begun to change. Both the constitutional law and the private law are beginning to recognize the inherent interests of animals as sentient beings, and with time may do more to promote the animals’ own individual interests independent of their owners.