[Paul Hanley] The case against pets as property

By Korea Herald
  • Published : Aug 13, 2018 - 16:53
  • Updated : Aug 13, 2018 - 16:53

Laws reflect societal attitudes and values, which obviously change over time. Since the 1970s, the perception of how animals should be treated has dramatically changed and a body of laws protecting the rights of animals has developed to reflect this change. Some countries have even incorporated the rights of animals into their constitutions. For example, in 1992, Switzerland became the first country in the world to protect the rights of animals in a constitutional provision recognizing “the dignity of the creature.” Other states whose constitutions protect the rights of animals are India, Brazil, Slovenia, Germany, Luxembourg, Austria and Egypt.

In Korea, the Constitutional Court is currently deliberating an important case regarding the rights of animals and their owners. The issue before the Court is whether pets should continue to be classified as property or granted some new status under the law. Historically, the law has viewed animals as personal property, akin to a table or a chair. This classification of animals as objects means that the measure of compensation for wrongfully injuring or killing a pet has been the animal’s market value or the cost of replacing the animal. It also means that owners who abuse their own companion animals face little or no punishment for their actions. This flies in the face of current legal trends where animals are not treated as property under the law but as sentient beings whose bond with their owners cannot be measured by a simple market value assessment.

Courts in other jurisdictions have reviewed this issue and concluded that pets are more than inanimate objects in and of themselves and to their owners. For example, the California Court of Appeals heard two cases in 2012. One involved a German Shepherd who was shot by a neighbor and whose leg had to be amputated, which cost the owners more than $20,000. The second case involved a Golden Retriever, who underwent a botched surgical procedure. The veterinarian’s error necessitated expensive emergency surgery, which cost the dog’s owners in excess of $37,000. In both cases, the owners of the dogs sought damages in excess of the animals’ market value. The trial courts, however, rejected the plaintiffs arguments that pets have an intrinsic value and limited recovery to the market value of the animals, which was far less than the amounts plaintiffs spent saving the lives of their pets.

On appeal, the Court reversed the holding of the trial courts stating: “Given ... the reality that animals are living creatures, the usual standard of recovery for damaged personal property --market value -- is inadequate when applied to injured pets … animals are special, sentient beings, (and) unlike other forms of property, animals feel pain, suffer and die.”

These decisions are part of developing trend in tort cases involving companion animals. Courts in various jurisdictions are increasingly finding that valuing companion animals as inanimate objects is an inadequate remedy when these animals are killed or injured. Plaintiffs are now receiving damages in excess of market value when their pets are killed or injured.

As for the current case before the Constitutional Court, the issue is not whether animals should be granted special rights under the law but rather, whether the constitutional rights of Korean citizens are infringed when recovery is limited to market value when their pets are injured or killed. Korean animal rights organization Coexistence of Animals on Earth (CARE) asserts that the current definition of pets as objects violates Article 10 of the Korean Constitution, which provides that “All citizens shall be assured of human dignity and worth and have the right to pursue happiness.”

Anyone who has owned a pet can attest to the fact that they enhance our lives and do, in fact, contribute to human happiness. This is backed by science. Studies show that interaction with dogs, for example, causes the brain to produce a hormone called oxytocin which reduces stress and anxiety.

By acknowledging pet owners have rights under the Korean Constitution and that treating their pets as property is a violation of the right to pursue happiness, will bring Korean law in step with how most Koreans view their pets. This idea is shared by animal rights advocates. Matthew Liebman, senior attorney for the US-based Animal Legal Defense Fund, stated that the trend toward identifying companion animals as third parties rather than objects “is a significant step forward for companion animals and their guardians. … The legal system is finally starting to catch up with how the majority of people feel about the animals with whom they share their lives.”

Given that as of 2017 there were approximately 10 million pets in this country, it is time for the Constitutional Court to enshrine into law the reality that Koreans are increasingly treating animals as family members and not property.

By Paul Hanley

Paul Hanley is assistant professor of law in the department of international relations at Keimyung University. -- Ed.