Should Wildlife Be Granted the Right to Own Their Homes?
Karen Bradshaw says "yes" and they should not be viewed as transient renters.
Posted November 29, 2020 | Reviewed by Jessica Schrader
"Affording a property right to animals has both dignity and practical benefits." —Karen Bradshaw, Wildlife as Property Owners (p. 132)
I recently read a fascinating book by Arizona State University distinguished legal scholar Karen Bradshaw called Wildlife as Property Owners that is an extremely timely addition to books and essays that focus on the lives and rights of nonhuman animals (animals) and the complicated and often vexing relationships they have with us.1,2 My learning curve was vertical as she wove in information from numerous disciplines including different aspects of legal scholarship, ethology and cognitive ethology (the study of animal minds), and the social sciences in an easy-to-read fashion.
I've long been interested in all the topics about which Karen writes, perhaps more so now as numerous animals try to return to their rightful homes during the current pandemic. As they become new neighbors, I look forward to the time when they're granted the right to own their homes, rather than merely renting them from us on our arms and whims. When they are viewed as owners rather than as transients, this will be a gamechanger for fostering coexistence in which they and we are partners, rather than adversaries, and aligns well with the goals of compassionate conservation, green criminology, and conservation psychology.3An excellent example of displacing animals from their rightful homes is the recent delisting of wolves. Animals aren't "things" to be moved around or killed "in the name of humans." Here's what Karen had to say about her landmark book.
Why did you write Wildlife as Property Owners?
Wildlife as Property Owners is a roadmap for stemming biodiversity loss. It provides a legal framework for preventing mass extinction.
Biodiversity loss is a hidden crisis, a looming threat to humankind. We are decimating wildlife and on the brink of mass extinction. Scientists call for setting aside vast swaths of land for animals. My book answers that call by charting a course through political and legal realities to allow for massive habitat preservation.
My book advocates for allowing wildlife to own land in trusts. This property-rights based solution sidesteps the polarization that has long stymied animal law. Individuals can implement wildlife trusts immediately, without waiting for sweeping legal or social change. This book also contains a blueprint for Congress to devote public lands, which comprise one-third of the United States, to wildlife interests.
How does your book relate to your background and general areas of interest?
Modern distinctions between humans and animals make little sense to me. My childhood spent outside embedded within me a fundamental knowing of interconnectedness; an understanding that humans are a small part of a broader natural system. When I left the forests of my childhood for higher education, this interconnectedness lay dormant within me.
After becoming an environmental law professor, I was researching jaguars for the Endangered Species Act. When I read about jaguars’ use of mounds as territorial markers, I intuitively understood that the jaguar mounds were analogous to Costa Rican fences, which are widely spaced vertical wooden poles without horizontal links. Both erected upright visual markers to demarcate boundaries.
This sparked my curiosity. How widespread were property-like behaviors among wildlife? I reviewed hundreds of papers from ethology, then mapped their examples onto the core principles of property. I discovered that animals of all kinds practiced territorial behavior with marked similarities to what we call “property” in humans—exclusion, sharing, inheritance rules, and the like. Humans and other animals are coparticipants in a biological system of resource sharing, which also extends to plants and other living things.
I revisited the canonical property articles in law and economics and discovered that they unwittingly described biological behavior. Ornithologists described cost-benefit analysis before economists. I suspect that what we call property may be little more than territoriality among the human species. Property law, and perhaps law more generally, may merely codify our species' evolutionary rules, survival of the fittest ideas, distilled and updated over time.
Humans are subject to unseen biological rules that drive our behavior, just like other living species. We are not magically exempt from the resource distribution hypothesis. Like every other living thing, we are shaped by our physical environment and interactions with other living things far more than we understand.
This was the foundational understanding of the book. I sought to remove law from a theoretical vacuum and reintegrate it with biological reality, scientific insights, and traditional ecological knowledge in a way that would benefit wildlife.
What are some of the topics that are woven into your book and what are some of your major messages?
This book begins by challenging the pervasive, unstated assumption that non-human animals cannot own property. Hundreds of years ago, English jurists crafted the laws that comprise the bulk of modern American property law. They neglected to incorporate biological processes that they did not know, confined as they were to urban spaces on a small island with limited wild areas.
There is a bug in the code of British and American property law. Granting people a monopoly on owning property has proved disastrous for all living things. Landowners expropriate wildlife habitat from wildlife, which causes biodiversity loss. It is not the landowner's fault; it is the fault of a system that artificially stripped wildlife of their interests in the natural environment. If property law is the problem, so too can it be the solution. We must fix the institution of property.
We must fold nature back into the human-created institutions that failed to include it. Property law can easily expand to accommodate a new category of owners; such a shift has happened dozens of times in the past. Property can already include non-human owners. Ships and corporations have owned property for decades; why not bison?
Incorporating wildlife into the legal institution of property can fundamentally change and improve the human relationship with nature. Much of human damage to the planet is directly traceable to the legal and economic institutions stripped of natural interests. Updating our institutions to reflect the interests of non-human living things serves to reharmonize people and nature, restoring our sense of connectedness with other living things. Creating wildlife trusts can do much to stem biodiversity loss.
Who is your intended audience?
I wrote this book for anyone who is concerned about wildlife. My publisher generously invited me to write a book for a broad, general audience. This freed me from the confines of the law, allowing me to connect with nature aficionados from all walks of life.
I hope that Wildlife as Property Owners will inspire and enable big, bold thinkers in politics, business, and academia to establish permanent habitat protections.
I dream that readers will understand that it is entirely possible to renegotiate societal relationships with nature with law dramatically. We are not resigned to the present; our institutions do not enslave us. Law is flexible. If others believe that humankind's fate is fundamentally interconnected with other living things, we can and should change laws to reflect that worldview.
How does your book differ from others that are concerned with some of the same general topics?
For 50 years, animal law has had only two approaches: animal welfare and animal rights. Welfarists advocate for better treatment of animals within their current legal status—such as improving farm animals' treatment and outlawing animal cruelty. Rights advocates try to change sentient animals' status as holders of rights with legal personhood—asking a court to recognize the legal personhood of a chimpanzee or arguing that a monkey owns a copyright. Both approaches focus on animals in captivity: pets, livestock, and research animals. Wildlife is largely missing from the animal law conversation.
Wildlife as Property Owners focuses on non-captive creatures left behind by traditional animal law. Scientific literature showing property-like behavior among creatures on all rungs of the so-called tree of life obviates the need to prove sentience or human-like characteristics in animals to merit protection. Bees matter as much as orcas when we take the ecosystem approach. Plants, too, receive protections under this property-rights approach to conservation.
Wildlife trusts rely on property law, which is robust and well-established. They sidestep the questions of legal personhood embedded in the animal rights movement. This approach paves the way to crowdsourced conservation protection, allowing for quick, disbursed habitat-based protections. A property-rights approach to conservation also has a pragmatic, bipartisan appeal. One can eat meat or even hunt and still believe that animals can own trusts to protect the land on which they live.
Wildlife trusts are an addition to existing laws and reform efforts, not a replacement of them. Welfarists and rights advocates alike have been remarkably generous towards this project. Similarly, scientists have welcomed this work. I think they understand the aim of Wildlife as Property Owners as translating scientific findings of conservation and ecosystems into law.
Collectively, I sense that animal advocates understand that this is a ”yes, and” moment of crisis, which demands many diverse approaches. I am grateful to the interdisciplinary group of scholars and advocates who have welcomed my voice in this conversation.
What are some of your current projects?
Natural resource damages also fascinate me; they are the actualization of Rights of Nature in the United States. Why is this tool virtually unknown when it has generated tens of billions of dollars in funds for conservation over 30 years? Expanding natural resource damages provides another immediate, direct path for conservation by creatively wielding existing legal tools.
1) Karen Bradshaw is a Professor of Law and the Mary Sigler Fellow at Sandra Day O'Connor College of Law at Arizona State University. She is concurrently a Faculty Affiliate Scholar at the New York University School of Law Classical Liberal Institute and Senior Sustainability Scientist at the Global Institute of Sustainability at Arizona State University. For more information click here.
2) The book's description reads, "Humankind coexists with every other living thing. People drink the same water, breathe the same air, and share the same land as other animals. Yet, property law reflects a general assumption that only people can own land. The effects of this presumption are disastrous for wildlife and humans alike. The alarm bells ringing about biodiversity loss are growing louder, and the possibility of mass extinction is real. Anthropocentric property is a key driver of biodiversity loss, a silent killer of species worldwide. But as law and sustainability scholar Karen Bradshaw shows, if excluding animals from a legal right to own land is causing their destruction, extending the legal right to own property to wildlife may prove its salvation. Wildlife as Property Owners advocates for folding animals into our existing system of property law, giving them the opportunity to own land just as humans do—to the betterment of all."
3) Numerous references about compassionate conservation can be found in Compassionate Conservation, Sentience, and Personhood and here. See Green Criminology: Widespread Caring Means Justice for All for more on this growing transdisciplinary field and click here for more on conservation psychology.
Bekoff, Marc. Urban Animals Work Hard to Adapt and We Must Be Kind to Them.
_____. Neighborly Animals Offer Valuable Lessons About Coexistence. (As animals come to town in the Anthropause, changes occur for them and for us.
_____. Canine Science Shows Dogs Aren't Merely Unfeeling Property. (In "Owned, " legal scholar Johanna Gibson shreds this inane misconception.)
_____. Anthropomorphism Favors Coexistence, Not Deadly Domination. (Research shows that anthropomorphism challenges traditional wildlife management.)
Gibson, Johanna. Owned, An Ethological Jurisprudence of Property: From the Cave to the Commons. Routledge, 2019.