Progressive Property and Animal Law

Traditional notions of property law tend to focus on the owner and define property as the owner’s “sole and despotic dominion.” In contrast, recent progressive property scholarship offers a more flexible understanding of what property is, highlighting its transformative potential as a tool that can aid vulnerable populations in gaining legal rights.<br><br>Although animals are a (somewhat contested) form of personal property, they are rarely discussed in property law scholarship, including recent progressive property scholarship. This gap stems in part from progressive property’s emphasis on real, not personal, property, and its prioritization of human interests and human flourishing. At the same time, animal law scholarship takes a generally negative view of property law. Many animal law scholars have argued that so long as animals are considered property, rather than legal persons, there will be no justice for animals. Yet animal law scholarship has failed to acknowledge the more expansive conceptions of property set forth by progressive property scholars.<br><br>This Article seeks to bring progressive property scholarship and animal law scholarship into conversation with each other. It argues that progressive property scholarship should expand its coverage beyond human flourishing to address animals as property, and that animal law scholarship should recognize that being defined as property does not necessarily preclude rights for animals. Indeed, this Article suggests that in a number of successful animal law cases courts implicitly embrace a progressive property perspective despite not explicitly acknowledging that they are doing so. Because the notion of property is malleable, taking a more expansive view of property law could yield additional legal protections for animals.