An Analysis of Favre’s Theory on the Legal Status of Animals: Towards a Reconsideration of the “Person-Property Dichotomy”

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Other Title
  • 動物の法的地位に関するフェイヴァー理論の検討 : 「人／物」二元論の再考に向けて
  • ドウブツ ノ ホウテキ チイ ニ カンスル フェイヴァー リロン ノ ケントウ : 「 ヒト/モノ 」 ニゲンロン ノ サイコウ ニ ムケテ

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Abstract

In modern legal systems, only persons（including natural persons and legal persons） can have legal rights ; property cannot. This perspective is known as the “Person-Property Dichotomy”. Although animals are categorized as personal property, their legal treatment has changed from that of other forms of property, and in many jurisdictions, anti-cruelty laws have been enacted to punish owners of animals who abuse animals in their care. This unique legal status of animals leads us towards a reconsideration of the “Person-Property Dichotomy”. The Japanese Government is currently in the process of amending the Act on Welfare and Management of Animals. In Japan, there has been a dearth of academic debate to date about the legal status of animals, and it is helpful to see how other jurisdictions have discussed this topic. This paper focuses on David S. Favre’s theory as it has not been studied as deeply in Japan as its importance and societal needs merit. In order to keep animals within the concept of property and recognize their legal rights, Favre proposed an innovative concept, “living property”. His theory is based on the principle of trusts, which divide title into equitable and legal title, and acknowledges equitable self-ownership by animals. Whereas domestic animals possess equitable title and some legal rights, owners have only legal title. Such animals with equitable title thus become living property. When owners infringe domestic animals’ legal rights, such animals can sue their owners with the help of other humans as guardians. This paper introduces Favre’s theory on the legal status of animals from his own highly original perspective and analyzes it critically with a view to clarifying its implications for Japanese law.

Journal

  • 一橋法学

    一橋法学 18 (1), 215-271, 2019-03-10

    一橋大学大学院法学研究科

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