Animals and the Law

Nygh Peter Bull Peter (eds) Butterworth's Concise Australian Legal Dictionary (1998) 334.

Wise Stephen , Rattling the Cage; Toward Legal Rights for Animals (2000) 24.

The term ‘animal’ is used throughout this paper. What is meant by this is its common usage: non-human animals. This is an artificial distinction, humans are animals.

Francione Gary , Animals, Property and the Law (1995) 27.

Huss Rebecca , ‘Valuing Man's and Woman's Best Friend; the Moral and Legal Status of Companion Animals’ (2002) 86 Marq L rev. 47, 71.

Pollock Frederic Maitland Frederic W. , The History of English Law before the time of Edward I, (2nd ed. 1968) vol 1, 486.

(1993) 178 CLR 477.

Ships could be parties to litigation, and even defendants in some cases. In U.S. v Cargo of the Brig Malek Adhel 43 U.S. (2 How) 210 1844, a ship was seized by pirates. Upon capture, the US government condemned and sold the vessel. The lawful, and disposed, owners of the ship sought to recover it. In refusing to release the ship Justice Story (quoting Justice Marshall from an earlier case) observed: ‘This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence hellip; because it was committed without the authority and against the will of the owner.’

Davies Martin , ‘In Defence of Unpopular Virtues; Personification and Ratification’ (2000) 75 Tul L Rev 337, 338.

Francione Gary , ‘Personhood, Property, and Legal Competence’ in Cavalieri Paola Singer Peter (eds) Great Ape Project (1993) 248, 252.

St Pierre Derek , ‘The Transition from Property to People: The Road to the Recognition of Rights for Non-Human Animals’ (1998) 9(2) Hastings Women's Law Journal 255, 266. (quoting 1 William Blackstone, Commentaries on the Laws of England 442 (1899)).

Pollock Maitland , above n 6, 485.

In re Edith Haynes (1904) 6 WAR 209. The Legal Practitioners Act 1893 (WA) entitled a ‘person’ to apply to be admitted to legal practice. In 1904 Edith Haynes applied for admittance. She had passed her examination and had served a period of time as an articled clerk, with the permission of the Barristers' Board. The Board refused her application. She applied for a writ of mandamus to compel the board to accept her application. The WA Supreme Court decided that she was not a ‘person’ within the meaning of the Act, and so did not grant the writ.

Note, ‘What We Talk About When We Talk About Persons; The Language of a Legal Fiction’ (2001) 114 Harv. L. Rev. 1745, 1748. In United States v Amy [24 F. Cas. 792 (C.C.D. Va. 1859) (No 14,445)], for example, a young slave girl stood accused of stealing a letter from a post office in violation of a federal act that prescribed two years' imprisonment for ‘any person’ who committed such an offence. To Amy's argument that she was not a legal person because she was a slave, the prosecutor rejoined ‘I cannot prove more plainly that the prisoner is a person, a natural person, at least, than to ask your honours to look at her. There she is.’ Sitting as a circuit justice, Chief Justice Taney rejected Amy's reasoning and embraced the robust view of slave personhood, stating that he could conceive of ‘no reason why a slave, like any other person, should not be punished by the United States for offences against its laws’.

St Pierre , above n 11, 255.

St Pierre , above n 11, 255.

See Francione , above n 4, Wise, above n 2, Nosworthy Jane , ‘The Koko Dilemma: A Challenge to Legal Personality’ (1998) 2 SCULR 1, 18.

Francione , above n 4, 65.

Francione , above n 10.

See: Stone Christopher , ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ in Should Trees Have Standing? and Other Essays on Law, Morals and the Environment (1996) 1, 19.

Evans E.P. , The Criminal Prosecution and Capital Punishment of Animals (first published 1906, 1988), 286.

Stone , above n 20, 5.

Hefernan Ryan , ‘Taking in abandoned dog leads to fine’ Sunday Mail (Brisbane), 10 March 2003, 5.

See for example, Voss Nicki , ‘Pet torturers let free’, Sunday Mail (Brisbane), 10 August 2003 2.

Stone , above n 20, 3–4.