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AL Essay Dharmadeva Comment

AL Essay Dharmadeva Comment

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Enhancing the legal status of animals – the need for a shift away from property to non-property and usufructuary rights in relation to animals and their welfareIntroduction
This essay considers the legal status of animals, noting the difference between humans andnon-humans, which is expressed mainly in the mental arena of existence. The notion of animals as property has become entrenched in the legal system, due to the influences of theearly common law, anthropocentric biases evident in liberal theory and individualism, andWestern religious doctrines. A shift in understanding is required to change this.That shift is supported by the recognition of animals as sentient beings having inherent worthor existential value. With the theory of evolution, there has also fortunately been an increasein moral understanding regarding the treatment of animals. This has lead to a call for the property status of animals to be abolished and for animals to be granted legal personhood.The non-property argument strongly acknowledges the existential value of animals, but doesnot adequately deal with the contribution animals have made to the development of humancivilization because of their utility value. This is unlikely to change, and so human use of animals has to meet requirements regarding the animal’s individual and collective welfare,and the use must be for the general welfare of all. Allowance has to be made for a limitedusufructuary right for human use of animals, consistent with a guarantee of their welfare, andrecognising that animals have interests and rights in not being harmed and for their continuedexistence. This essay also explores that usufructuary right.
The animal world
The main characteristic of the animal world is that its species are mobile. Animals can movefrom place to place, whereas the plant world is immobile. The animal kingdom can bedivided into 21 phyla
1
or divisions
2
. Those animals having a spine fall in the
chordata
 (chordates) phylum. This division is subdivided into 3 major subphyla
3
, one of which is the
 vertebrata
(vertebrates) subdivision.Vertebrates have a cranium, spinal column and skeleton. The vertebrates subdivision isfurther divided into 8 major classes, being:
 
mammalia (mammals);
 
reptilia (reptiles);
 
aves (birds);
 
amphibia (amphibians);
 
osteichthyes (bony fishes);
 
chondrichthyes (cartilaginous fishes including sharks and rays);
 
 placodermi (armoured fishes);
 
agnatha (jawless fishes).
1
Margulis L & Schwartz K,
 Five Kingdoms: An Illustrated Guide to the Phyla of Life on Earth
(2
nd
ed.), W.H.Freeman and Company, New York (1988); Margulis L,
 Diversity of Life: The Five Kingdoms
, Enslow Publishers,Inc., New Jersey (1992).
2
The divisions are: Chordata (Chordates); Arthropoda (Arthropods); Mollusca (Mollusks); Echinodermata(Echinoderms); Coelenterata (Cnidaria - Corals & Jellyfish); Ctenophora (Comb Jellies); Porifera (Sponges);Bryozoa (Bryozoans); Brachiopoda (Brachiopods); Rotifera (Rotifers); Gastrotricha (Gastrotrichs); Tardigrada(Tardigrades); Nematoda (Nematodes); Acanthocephala (Spiny-Headed Worms); Annelida (Segmented Worms);Chaetognatha (Arrow Worms); Hemichordata (Acorn Worms); Nematomorpha (Horsehair Worms); Nemertea(Ribbon Worms); Platyhelminthes (Flatworms); Sipunculoidea (Peanut Worms).
3
The subdivisions are: Urochordata (Tunicates); Cephalochordata (Lancelets); Vertebrata (Vertebrates).
 
Human beings are mammals
4
who are in the placental group, along with bats, mice, dogs,horses, dolphins, whales and primates.From another viewpoint, essentially the animal kingdom is made up of 2 main groups:animals with backbones (vertebrates); and animals without backbones (invertebrates). Thenumber of species of animals is vast (and still unknown), with a wide range of features. Thenervous systems found in animals, particularly in multicellular animals, also differ greatly incomplexity between species
5
. The human nervous system, glands and subglands, brain andother components of the human biological structure, are generally more developed than thoseof animals generally, including that of other 2-footed bipeds. This sophistication gives rise togreater mental propensities or expressions by human beings.
Distinctions betweens humans and non-human creatures
As evolution progresses, the ability of humans to make decisions has become increasinglysophisticated and the nervous system and brain have evolved to levels where learning,memory and model-making becomes possible
6
. Consequently, human beings alsodiscriminate between what is proper and improper, applying values, by application of their conscience (the function of identifying good and bad, selecting the good, and directing mentalenergy towards that
7
). This pathway of discrimination is called ‘rationality’. Rationality thentakes priority over certain instincts relevant only to mere existence and survival. Accordingly,the human being has been described as a ‘rational animal’
8
. But this is on par with saying thatan animal is a ‘moving plant’, or even that human beings are ‘rational moving plants’
9
.In this regard, philosophers have considered the difference between humans per se andanimals generally, especially in relation to human mammals compared to other mammals andalso compared to other animals as a whole. This difference arises from a shift of evolutionary proportions in consciousness
10
. While humans, animals (non-humans) and plants all sharesome common characteristics, and while there are some characteristics that humans sharewith animals generally but not with plants, there are also some special characteristics thathumans alone have. These special characteristics distinguish humans from animals (non-humans) and plants. Without them, humans would be like animals generally, but they are not.Furthermore, even though some animals (such as primates or domesticated dogs from beingclose to humans) have a somewhat developed mental faculty, the mental faculty of humans isfar more developed.The special characteristics of human beings are not necessarily to do with physical or instinctual capabilities, as animals can also make use of tools and communicate, and they can‘think’ in terms of processing information about themselves and their environment, at least ata rudimentary level. Rather, the special characteristics of human beings have to do with the
4
The 3 groups of mammals are: monotremes (females lay eggs); marsupials (females have a pouch for theyoung); placentals (the young stays in the female’s uterus until born).
5
‘Nervous System’ in
The Columbia Encyclopedia
(6
th
ed.), Columbia University Press, New York (2008).
6
Watson L,
 Lifetide
, Hodder and Stoughton, London (1979).
7
Shrii Shrii Anandamurti (Sarkar PR), ‘Dhritarastra and Sanjaya’ in
 Discourses on Kr 
 śń
a and the Giitá
, ÁnandaMárga Pracáraka Sa
ḿ
gha, Calcutta, (2000, discourse of 17 January 1980) at 87.
8
Kahn CH, ‘Aristotle versus Descartes on the Concept of the Mental’ in
Metaphysics, Soul, and Ethics in Ancient Thought: Themes from the Work of Richard Sorabji
(ed. Salles R), Oxford University Press, Oxford(2005) at 201 (citing Aristotle).
9
Shrii Shrii Anandamurti (Sarkar PR), ‘It Is Better to Die While Following Bhágavata Dharma - 1’ in
 Discourses on Kr 
 śń
a and the Giitá
, Ánanda Márga Pracáraka Sa
ḿ
gha, Calcutta (2000, discourse of 5 November 1978) at 153.
10
Roszak T,
Unfinished Animal: The Aquarian Frontier and the Evolution of Consciousness
, Faber Paperbacks,London (1975) at 3.
 
mental apparatus
11
of a human being, in terms of deliberately applying their cognitive abilityso as to think consciously about themselves, as well as others, and their own place in theuniverse. This includes evaluating themselves in their personal, social and universal contextsand other forms of self-reflection. Accordingly, human beings are self-aware of their ownidentity.This self-awareness carries with it the ability to plan for the future by application of theanalogue-I
12
or doer-I
13
(i.e. the ego) and to foresee possible consequences of one’s actions or even thoughts. In addition, self-awareness carries the capabilities of decision making and self control, perspective taking by considering the views of others and envisaging the lives of others, self-conceptualisation and evaluation, and introspection including internalcontemplation into the depths of one’s existential-I
14
(the I of I exist) such as in meditation.Thus, the difference between human beings and animals generally is at the psychic (mental)level. Accordingly, we can use the term ‘animals’ as referring to those creatures that are non-human, and refer to human beings simply as ‘humans’.
Classical notion of animals as property
The common law notion of animals as property also uses this difference to treat animals asthings (not persons). This stems from William Blackstone’s mid-18
th
century
Commentary onthe Laws of England 
15
, which draws from Roman and Old Testament laws and cosmologies
16
 to proclaim animals as legal things rather than legal persons. This aspect of English commonlaw has carried over to the common law in Australia. As legal things animals can beclassified as personal property and so are denied legal rights. At law, this gives humansdominion over animals: “The objects of dominion or property are things, ascontradistinguished from persons” (Blackstone)
17
.In this regard, the common law concerning domesticated animals is straight-forward in thatthey are personal property capable of being owned, and the early common law considered theowner’s right as absolute in the same way as ownership of inanimate objects. This alsoapplied to companion animals and does so today, e.g. see section 7
Companion Animals Act 1998
(NSW) which recognises personal property in companion animals. However, while thecommon law regards both inanimate and animate objects as capable of being property, theforms of property are not necessarily equivalent
18
. Developments in case law have shownthat companion animals are likely to be classified as a special type of personal property
19
,somewhere between a person and property, so as to take into account the element of humaneness implicit in the human-animal relationship.
11
Leary MR,
The Curse of the Self: Self-awareness, Egotism, and the Quality of Human Life
, Oxford UniversityPress, Oxford (2004) at 5.
12
Leary MR,
The Curse of the Self: Self-awareness, Egotism, and the Quality of Human Life
, Oxford UniversityPress, Oxford (2004) at 5.
13
Shrii Shrii Anandamurti (Sarkar PR),
 Ánanda Sútram
, Ánanda Márga Pracáraka Sa
ḿ
gha (2
nd
ed.), Calcutta(1996, discourses of 1961) at 12.
14
Shrii Shrii Anandamurti (Sarkar PR), ‘The Ascent of the Mind’ in
 Ananda Marga Ideology and Way of Life ina Nutshell 
(Part 9), Ánanda Márga Pracáraka Sa
ḿ
gha, Calcutta (1988, discourse of 1959) at 635.
15
Blackstone W,
Commentaries on the Laws of England: In Four Books
, G.W Childs, Philadelphia (1867).
16
Wise SM, ‘The Legal Thinghood of Nonhuman Animals’ (1996) 23 B.C. Envtl. Aff. L. Rev. 471 at 525.
17
Blackstone W,
Commentaries on the Laws of England: In Four Books
, G.W Childs, Philadelphia (1867) at 2-16.
18
Wicklund PR, ‘Abrogating Property Status in the Fight for Animal Rights’ (1997) 107 Yale L.J. 569 at 572.
19
Kelch TG, ‘Toward a Non-Property Status for Animals’ (1998) 6 N.Y.U. Envtl. L.J. 531 at 537-40; see e.g.
Corso v. Crawford Dog & Cat Hosp., Inc.
415 N.Y.S.2d 182 at 183 (N.Y. Civ. Ct. 1979),
 Bueckner v. Hamel 
,886 S.W.2d 368 at 378 (Tex. App. 1994),
 Katsaris v. Cook 
, 180 Cal. App. 3d 256 at 270 (1986).

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