When answering the question, “What is animal law?” the best place to start is by looking at the history of animals and the law. Laws protecting, impacting, regulating and controlling animals have been an integral part of American jurisprudence since the early days of colonization. One only needs to cross the ocean to see that laws were in place in England for the same purpose well before colonization.

However, the distinct field now known in America as “animal law” is a relatively new development, even though we are still saddled with some of history’s archaic laws involving animals. Animal laws bring together statutes and cases from multiple fields of law that consider, at their core, the interest of animals or the interest of humans with respect to animals. More specifically, historically, animal law cases literally placed the nonhuman on trial. In the Middle Ages, nonhuman animal defendants were dressed in formal wear and tried for murder, and notably, they were assigned counsel.[1] A very early case dates from 1266 in Fontenay, France, where a pig was tried and burned to death for eating a child.[2] The earliest known case is found in the Valley of Aosta in 824 when a priest excommunicated moles.[3]

How the law defines and treats animals has often depended on prevailing public attitudes about morality and economics. As a result, a particular animal may receive more or less protection under the law depending on that animal’s role in society. An animal that is a companion animal may enjoy substantial protection, while the same animal in a research facility is virtually unprotected.

Clearly, not every case with an animal in it is an animal law case. Perhaps one of the better definitions for animal law is, “in its simplest and broadest sense, statutory and decisional law in which the nature of nonhuman animals is an important factor.” This is close to saying you know it when you see it.[4]

Animal law and its practitioners have been around for many years. Today’s practice of animal law has emerged, in large part, from the work of a group of lawyers led by Joyce Tischler. The development of animal law has been her life’s work. Beginning in the 1970s, she and her colleagues contributed greatly to the scholarship and case law that comprise the field of animal law. She is the founder of the Animal Legal Defense Fund, an organization made up of a large staff of attorneys and a network of pro bono lawyers who pursue a variety of animal law cases throughout the United States.[5]

Although it started with the animal protection movement, animal law is a legal discipline. It is law that affects, but not always protects, animals. Definitions vary somewhat. The first animal law casebook defined animal law as “statutory and decisional law in which the nature – legal, social, biological – of nonhuman animals is an important factor.”[6] Animal law is city ordinances, state or federal laws, international treaties, federal and state administrative laws or cases in which provisions or results have an impact on animals or animals’ care and use, how they can or cannot be treated and even whether they are considered animals.[7]

Animal law incorporates various cultural and philosophical ideologies of the animal rights, civil rights and environmental protection movement. The scientific research on the intelligence of animals, the accelerated extinction of certain species, changes in farming practices and ethical views of society all contribute to the body of knowledge that comprises animal law.[8]

What we now call animal law began when attorneys consciously considered animal-related legal issues from the perspective of the animal’s interest, when they began to view the animal as the de facto client and where the goal was to challenge institutionalized forms of animal abuse and exploitation.

In the 1990s, a rapid development of the academic discipline of animal law began. At the beginning of that period, there were but five animal law courses at law schools in the United States. Today, it is estimated that there are 167 animal law courses in ABA-accredited law schools in the United States and Canada.[9] Add to these numbers the growing list of conferences dedicated solely to animal law, law school journals devoted to animal law and more than 30 legal sections in state and local bar groups nationwide, and the educational growth of animal law is substantial. Recently, the legal community in Oklahoma has begun seeing an increase in the interest in animal law. In June 2023, the OBA Board of Governors approved a petition submitted by association members to establish the OBA Animal Law Section.

In the field of legal education, the OCU School of Law is now, and for the past several years has been, offering animal law courses to its law students, and the OU College of Law added an animal law course that began in the 2024 spring semester. All three Oklahoma law schools have animal law student chapters supported by the Animal Legal Defense Fund and share its mission to protect the lives and advance the interests of animals through the legal system. There are almost 200 student chapters in law schools nationwide.[10]

The National Judicial College, located in Reno, Nevada, has also determined that there is a need to assist judges in understanding this rapidly growing area of law. In 2019, it created a webinar for America’s judges, “Animal Law 101,” an eight-part course covering the broad areas of animal law. The course discussed anti-cruelty laws; civil law that covered animal injury (injuries to animals), personal injury (injuries by animals), pet custody (family law), products liability and pet trust; state and local ordinances; service, support and therapy animals; wildlife; animals in entertainment; and farm animals.[11] This was, in part, because of the growing number of animal law cases appearing in courtrooms across the United States. Legislation creating laws to meet the growing animal law litigation issues that the public is seeking answers to has been lacking in most states. An example is custody battles over the family pet or pets. Animals are universally viewed as property under the law, but today, more and more litigants see their pets as family members. They are seeking custody arrangements for their animals, similar to what the court would order for a child, though most states lack statutes or case law that give a judge direction other than handling animals like all the other inanimate property to divide.

What is the reason for this recent growth in animal law both in the legal fields of practice and in education? The American public, who has elevated the importance of animals in today’s society, is turning to the legal system to litigate animal issues for a variety of reasons. From a legal perspective, when there are significant dollars spent by the public on the care and keeping of their animals, disputes will follow in many fields of law. The American Veterinary Medical Association (AVMA), in 2019, reported that the American Pet Products Association study found that 67% of households in the United States owned at least one pet in 2018, which was an estimated 84 million homes.[12] The AVMA also found that total spending on veterinary care for all types of pets was $27.8 billion in 2016.[13] Finally, in an April 15, 2020, issue of AVMA News, it was reported that sales of pet products and services in the United States were nearing $100 billion for the first time.[14]

One of the most fascinating areas of legal debate today is whether animals are property or something else. That question goes to the heart of defining what animal law is because it is an effort to define what an animal is. Owned animals are personal property in every state and throughout the world. However, important differences are recognized by the law between sentient/animate and inanimate property. The definition of sentient is responsive to or conscious of sense impressions, having or showing realization, perception or knowledge – they are aware.[15] Animals are the only form of property that is sentient. Today, family courts are being asked to determine custody of animals, pet trusts are legal in all 50 states, and habeas corpus has been used to attempt the release of animals from abusive, unhealthy and restrictive confinement with growing support.

Recently, two judges on New York’s highest court supported the release of Happy, an elephant, from the Bronx Zoo based on a habeas corpus action.[16] The court’s opinion said Happy was intelligent and deserved compassion but could not be considered a person illegally confined to the Bronx Zoo.[17] The 5-2 decision was a closely watched case that tested the boundaries of applying human rights to animals. Two judges, Rowan Wilson and Jenny Rivera, wrote separate, sharply worded dissents saying the fact that Happy is an animal does not prevent her from having legal rights.[18] Judge Rivera wrote that Happy is being held in “an environment that is unnatural to her and that does not allow her to live her life.”[19] Cases such as Happy’s have been filed in other jurisdictions.

A wise lawyer once wrote, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”[20] That lawyer was Mahatma Gandhi. To seek to reduce the suffering of those who are completely under one’s dominion and unable to fight back is truly a mark of a civilized society.[21]

So what is animal law? One might strongly suggest it is, in its present form, a developing and rapidly expanding field of law that is fueled by growing scientific knowledge of animals, the public’s view of their animals’ place in today’s society, coupled with a rapidly escalating financial and emotional investment in them. This view has created a need for the law and the legal system to keep pace with those factors and become a legal vehicle for more accurately defining the rights of animals in our modern society.

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ABOUT THE AUTHOR

Gary Maxey is the chair of the OBA Animal Law Section. He served as special judge for Garfield County and as associate district judge for Craig County until his retirement in 2015 after 21 years on the bench. In 1988, he was elected to the Oklahoma House of Representatives and served two terms. Mr. Maxey now practices at The Maxey Law Firm in Enid, which focuses primarily on animal law issues.

 

 

 

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ENDNOTES

[1] Adam P. Karp, Understanding Animal Law 3 (Carolina Academic Press 2016).

[2] Id.

[3] Id.

[4] The National Judicial College, “Animal Law 101 for Judges – A Webcast,” 2019, www.judges.org.

[5] Yolanda Eisenstein, Careers in Animal Law, Welfare, Protection and Advocacy 7 (American Bar Association 2011).

[6] Id. P.8.

[7] Id. P.8.

[8] Id. P.8.

[9] “Animal Law Courses,” www.aldf.org/article/animal-law-courses.

[10] Id.

[11] The National Judicial College, “Animal Law 101 for Judges – A Webcast,” 2019, www.judges.org.

[12] The American Veterinary Medical Association, “U.S. Pet Ownership and Demographics,” (2017-2018).

[13] Id.

[14] Id.

[15] Oxford English Dictionary, www.oed.com.

[16] No. 52, 2022 WL 2122141 (N.Y. June 14, 2022) Nonhuman Rights Project, Inc. ex. rel. Happy v. Breheny.

[17] Id.

[18] Id.

[19] Id.

[20] Peter Singer, “Moral Progress and Animal Welfare,” Project Syndicate (July 13, 2011) https://bit.ly/3OD2tiY.

[21] Id.