Canine Science Shows Dogs Aren't Merely Unfeeling Property

Aubrey Beardsley having fun

Source: Johanna Gibson, with permission

It is my pleasure to offer this eye-opening interview with Johanna Gibson, the Herschel Smith Professor of Intellectual Property Law in the Centre for Commercial Law Studies, Queen Mary, University of London about her recent book Owned, An Ethological Jurisprudence of Property: From the Cave to the Commons.^1,2 More and more legal scholars are weighing in on who nonhuman animals (animals) truly are and what they deserve within legal circles, and this discussion nicely follows two interviews I recently did with Arizona State University's distinguished legal scholar Karen Bradshaw ("Should Wildlife Be Granted the Right to Own Their Homes?") and conservationist and lawyer David Johns ("Conservation Science Shouldn't Be All About Us.")

Thinking of dogs as "owned" things is harmful and a double-cross on these amazing beings who, although many live highly restrictive captive lives, still aren't mere objects but rather subjects of a life. We must use what we know on their behalf, become fluent in dog and dog literate, and pay careful attention to what canine science is telling us, because there are many good reasons underscoring the importance of understanding dog behavior.

Here's what Gibson had to say about her landmark book, which will be of interest to a broad spectrum of people who choose to live with dogs, study them, train them in our increasingly human-dominated world, favor positive training, and are interested in the highly evolved and amazing cognitive, emotional and moral lives of these amazing beings.^3,4 It's high time for a major paradigm shift in law and in heart.

Source: Johanna Gibson, with permission

Why did you write Owned?

In some respects this book was born of frustration. I call it a book of “passionate interests,” because it really is, and the big part of that passion is dogs. But my frustration is that there is so much misinformation out there about human-dog relationships, training, and behaviour. I am especially frustrated by the ongoing adherence to tales of dominance and aggression, hierarchies and leadership, the real “red in tooth and claw” stuff that plagues not only dog training but also the whole mythology of the domestication story. Dogs get very little credit at times.

When I started to dig more deeply, it became clear how these early stories of domestication and “taming” are extremely influential on popular mythologies of property today. And what’s more, how important the first domestication and “that dog” really are to property law. Starting with that first domestication, “that dog” is our guide throughout the whole book.

Humans place themselves at the centre of everything so consistently and persistently that they often take credit for innovations that simply weren’t human, including the innovations of dogs. My big contention is that this applies to domestication as well. And because domestication was such a fundamental invention, this applies ultimately to the development of agriculture and human society also. Dogs were not just observers. At the very least, they were active participants. But maybe they were even the first inventors. Indeed, who domesticated whom?

From that first domestication to watching dogs play today, I started to wonder about the way these kinds of fundamental stories of our own development might be revisited, and how this might teach us so much about the law as well. To sum up the book in one line, Owned asks the question, what might animals other than humans teach us about law?

How does your book relate to your background and general areas of interest?

My job title is Professor of Intellectual Property Law, but as well as law I also have postgraduate degrees in critical theory and in animal sciences (majoring in animal behaviour) and I have maintained my research interests in animal behaviour and cognitive ethology ever since. My work is quite interdisciplinary and I hope that this background gives me the necessary tools to undertake an investigation of the relations between these diverse fields.

Who is your intended audience?

The book draws upon sociology, anthropology, philosophy, law, science, and cognitive ethology. I hope it is presented in such a way that it will engage readers across these diverse fields as that itself will be a demonstration of the kind of relations in knowledge I am trying to examine here. I hope it makes people ask questions.

Creativity Essential Reads

Why Big Innovation Doesn't—Can't—Work at Large Companies

What Creative People Do Differently

What are some of your major messages?

With the help of that dog, I try to inject some canine wisdom into examining some of the troubling assumptions, inconsistencies, and fallacies underpinning the predominantly economic models of property and intellectual property—intangible property of copyright, patents, and so on—and to take a more relational approach to property through an understanding of animal territorialities and mobile, sociable properties. This takes us through boundaries as forms of contact rather than alienation, fences made of smells, and friends made of strangers.

A big part of the book examines popular training discourse and dog intelligence and behaviour, especially around concepts like reward and punishment. These concepts are also familiar to legal paradigms, and intellectual property law itself is fundamentally preoccupied with the language of incentives and rewards. But as well as examining and hopefully unraveling some of the damaging training approaches out there, that dog and I also take issue with many of the similar assumptions that dominate property and intellectual property discourse and show the damage caused there as well.

I critique the inaccuracies of “pack” language and examine the harm of these persistent models in a welfare context. I take the term “predatory drift” (borrowed from dog training discourse) to recast it in law in order to show what is presumed in the law (and in dog behaviour) but what is in fact a legal fiction (and to a great extent, a behavioural one as well). Through this discussion I develop the concept of “shared interests” to revise the rivalrous understanding of property and intellectual property and go on to explain what I call the resocialization of the law, and property in particular, through the language of relations. I thus revise the “biology” of the law. That is, rather than the popular understanding of economic behaviour and of animal communities as full of conflict and competition, I present an understanding of development based on cooperation, mutualism, and altruism. I explain this through what I have termed “familiar production” and res familiaris.

I call this whole approach ethological jurisprudence—that is, an analysis of property whereby both the law and science are read actively toward a multispecies account of social and legal development.

How does your book differ from others concerned with some of the same general topics?

The law and biology do have an interesting relationship and history in scholarship, but I think this may be one of the first comprehensive attempts to understand the ethology of law and the contribution of animals other than humans.

What are some of your current projects?

Owned is actually the first in a trilogy developing the principles of ethological jurisprudence. I am currently finishing the second—Wanted, More Than Human Intellectual Property: Animal Authors and Human Machines, investigating animal creativity and innovation and taking an ethological approach to some of the big questions before intellectual property at the moment, like artificial intelligence. In Wanted I look in more detail at sentience and personhood and the legal possibilities for animals through their creativity. The final book in the trilogy is Made, The Nature of Intellectual Property: An Ethological Jurisprudence of Objects, which takes an ethological approach to the objects themselves, the tools and artefacts of creativity. Made will be out late next year.

Is there anything else you’d like to tell readers?

You do not have to love dogs to read the book, but I think it would help. Or even better, if you don’t love them already, it will change your mind.