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Legal Status of Non-human Beings: Adoption of Animal Laws from 1698 to 2008

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This paper will be presented at the Graduate Student Session, Annual Meeting of the Korean Sociological Association, in December, 2009. Ab s tra ct
In this article, I analyze the adoption of animal laws in the United States from 1698 to 2008. Tracing the dates of the enactment of animal-related laws shows a clear pattern of the emergence and evolution of the animal welfare and nonhuman rights over time. This article reveals the influence of international emphasis on environmental sustainability and enhanced rights of the nature on legal status of animals: there is a thematic shift from liability of economic property to animal rights-based protection of nonhuman beings throughout the twentieth century. Second, the field of animal laws has clearly changed over time in the framing of animals as "companions" and of "species-oriented" guidelines: delineating the characteristics of individual statues and acts, such changes in the US laws are drawn from sociological institutional perspective. Keywords: Animal laws, animal welfare, nonhuman rights, and institutional theory

Introduction
"...For just as we pointed out resemblances in the physical organs, so in a number of animals we observe gentleness or fierceness, mildness or cross temper, courage, or timidity, fear or confidence, high spirit or low cunning, and, with regard to intelligence, something equivalent to sagacity. Some of these qualities in man, as compared with the corresponding qualities in animals, differ only quantitatively." (Aristotle, The History of Animals, VIII, 1) Animals play a significant role in human society. They serve as food and clothing, of course carriers and experimental subjects as well. In this sense, they are properties of human owners. We, humans, can use them for the purposes of living, entertainment and so forth. Recent proliferation of the global ecological sustainability, however, animal welfare and nonhuman rights have become an increasing concern in the world. They are not mere personal belongings. Rather, wildlife are members of ecosystem. Pets become our companions. Other captive animals, such as deer and hens, should be protected from domestic violence. People are willing to put their dogs in their will and set up a trust for the continuous care of their four-legged family.

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In this article, I stipulate that the thematic shift in social framing of environment and animals has significant influence on the legal status of animals and the adoption of animal welfare laws on a national level. Based on the US animal law data compiled from and published by Michigan State University College of Law - Animal Legal & Historical Web Center (available at www.animallaw.info) , I demonstrate historical changes of animal status: (1) dramatic expansion of animal laws by a conceptual reconstruction of the nature and (2) diversification and specification in the understanding of animals in legal documents, which highlight a discursive shift in the perception of the nonhuman beings. Following a discussion of a theoretical background which initially drives this research, and the American legal framework, I start by presenting evidence of the shift of animal status in the US laws. Second, I illustrate the major legal changes in detail. Together, I see these as indicators of animal rights as a social concern.

T he orizing th e Em ergen ce of A nima l Rights


From a neo-institutional perspective, nature in modern society has been demystified by scientification (Meyer and Jepperson 2000). People in the past believed in spiritual forces in forest and felt fear at entering the jungle. Today, scientific findings unveil the truth of the natural environment. Human individuals take scientific knowledge into account in their actions (Drori, Meyer, Ramirez and Schofer 2003). For instance, zoologists reveal that some frogs make alluring sound in which many people confuse it with songs of sylvan spirits. Scientific knowledge does not only provide clear understanding of the nature, but also mobilize imagined interests of nonhuman beings. Accordingly, there have been a series of animal advocates, which are highly anthropomorphized. In the case of anti-whaling, for example, marine biologists find that whales have their own communication systems, day-care services for their youth, recreational sports, and other social interactions similar to those of human beings (Kalland 1993). They also prove that whales contribute to balancing the marine ecosystem. In this regard, domestic and international NGOs, citing scientific information uncovered by professionals, have tied the protection of whales, to ecological diversity in the ocean (Song 2008). International environmental treaties championed the anthropomorphic ideas of nonhuman interests. Along with the importance of animal rights arise from scientification, human individuals advocate animal welfare and the well-being of other species become more legitimized. Consequently, legal status of animals has also been changed and the notion of animal rights has been further emphasized in accordance with the social scientification.

T he Am erican A nima l La ws an d Th em atic Sh ift


In 1824, the Royal Society for the Prevention of Cruelty to Animals, which is the world's first organization for animal welfare and well-being, was launched in the United Kingdom (Lubinski 2002). Yet, the first articulations of the moral and legal issue of animal status date back to 1776. In his writing, "Dissertation on the Duty of Mercy and Sin of Cruelty to Brute Animals," Reverend Humphrey Primatt called on society to take generous care of animals. More

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significantly, Jeremy Bentham, an English philosopher and jurist, argued the capacity for suffering is the vital characteristics that give a being the right to legal consideration. His Utilitarian approach also included the interests of animals (Bentham 1789; Kalof and Fitzgerald 2006). In tandem with the rise of intellectual arguments for care of animals, Lord Erskine introduced the first bill of the protection of animals in 1809 (Favre and Tsang 1993). Although this bill was defeated in the House of Commons, it was the first animal law in terms of animal welfare. Despite its independence, the US adopted British rules and laws from its mother country during the late 1700s and 1800s. For instance, the first animal law which was adopted and enacted by Massachusetts - Lost Property: Lost Goods and Stray Beasts - came from a British colonial law of personal property in 1698. In the early 1800s, American laws tentatively agreed on the adoption of animal welfare laws but the legislation did not change until the 1860s. In most cases, the earliest animal laws portrayed animals as dangerous properties (e.g., dogs with rabies). Humans had responsibilities with killing stray beasts to protect themselves and society from other species' attack. In 1833, there was a first attempt to include the well-being of nonhuman beings. Under the Georgia statute, a person who commits the offense of cruelty to animals, causing death or physical harm to animals, shall be guilty of a misdemeanor. Yet, this statute did include neither fish and pest that might be killed or removed, nor animals in zoos, scientific research, exhibitions and husbandry practices. About 30 years later, however, New York adopted the first effectual anti-cruelty law that describes the penalty for treating an animal cruelty (New York Revised Statutes 1867: Chapter 375: Sections 1-10). In the NY statutes, "animal" means every living creatures except humans. Moreover, any person who overloads, tortures or cruelly treats animals is punishable by imprisonment or a fine. Although these statutes initiated social concerns against cruelty, most laws in the earlier period focused on animals as resources or replaceable slaves. Figu re 1. N um ber of anim al la w s a nd 10-yea r m oving aver age of th e ad op tio n b y year 16 98-20 08

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Figure 1 depicts both federal and state-level enactment of the animal laws and smoothed average of adoption. A smaller, earliest wave of animal law extensions between 1900 and 1930 mostly focused on responsibilities of human owners and their animals as economic property. For instance, the Nebraska statutes adopted in 1901, show the legal power to regulate, license or prohibit the running at large of cattle, hogs, horses, mules, dogs and other animals and cause these animals to be impounded (NE - Licenses - Animals at Large; regulation; penalty). A majority of statutes in other states give municipalities the authority to regulate and provide for taxing the owners and harborers of animals, and to destroy stray animals found at large contrary to any ordinance. In this period, nonhuman creatures in federal laws, were also described as subjects that can be possessed, sold, acquired and transported by human beings (e.g., US - Trade - Tariff Act of 1930 and Lacey Act in 1900). The second wave of animal law expansion apparently occurred after the World War II. By the mid 1980s, animals attained legal entity in the wake of international discourse on environmental sustainability. It is largely accompanied by a changing notion of the nature (Frank 1997; Frank, Hironaka and Schofer. 2000) from the resource to the ecosystem, and the rise in international action (Boli and Thomas 1999). Until the end of the Second World War, society viewed the nature as a giant storehouse of resources (Porter and Brown 1996). Consistent with this notion, human beings were free to exploit the environment. However, there is a new phase of environmental polity promotes protecting the "ecosystem" through an identification of rights of nature (Orlove and Brush 1996). This new approach has been widely recognized by members of world society, and not simply in reaction to environmental degradation but also as a result of a diffusion of the scientification of the ecosystem (Frank 1997; Orlove and Brush 1996; Redford in Alcorn 1993; Song 2008; cf. Porter and Brown 1996). Although Convention for the International Regulation of Whaling in 1946 (in force 1948) is one of initial post-war attempts to balance the ecosystem, the major changes were observed in the late 1960s and the early 1970s. In these periods, both the number of international treaties and agreements regarding environmental sustainability increased. In the US, beginning in 1940 (US - Protection - Bald and Golden Eagle Protection Act), both federal and state laws became more environmental-oriented. These laws used different names and description in the introduction of new ones. Statutes with words "protection," "conservation," "wildlife/wilderness," "environmental," "endangered" and even "welfare," increased dramatically. For example, Wilderness Act in 1964 and Endangered Species Act in 1973 were national level laws for the listing and protecting endangered wildlife and their habitats. In addition to legal attention to the protection of the nature, animal welfare rose in the second stage of adoption. In 1966, US Animal Welfare Act (hereafter AWA) focused upon human activities that have been shown to be animal abuse. The law provides criminal and civil penalties for violation of the AWA. It seeks to control the living conditions of domestic, non-agricultural animals only, though, the AWA becomes mother law for subsequent state-level statutes. The largest wave of animal law adoption occurred between the late 1990s and the 2000s. The proliferation of animal laws is driven by anthropomorphized rights of nonhuman beings. Not only activists but some academic scholars grant moral rights to animals (e.g., Regan 1983,

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1997). They mobilize their agency on behalf of the imagined interests of other species (Meyer and Jepperson 2000). Scientific knowledge about primates reveals that animals are rational and autonomous like humans. At the same time, it has been found that not all human beings are rational agents. Human individuals citing these scientific findings advocate animal rights. In this sense, a California statute (CA - Trusts -Trust for care of animals; duration) in 1991 first allows a trust for the care of a designated domestic animal for the life of the animal. The statute recognizes the animal rights to survive even after the death of human owners. Historical Changes 1: from "Human-oriented" to "Species-oriented" Fig ure 2. US Anim al La ws b y M ode ls of H um an-o riented an d S p ecies -O riented , Sm oothed A verag e of Y ear ly Ad option, 189 0-20 08

At the beginning of the Animal laws, animals were represented either as feral beasts or domestic property. Under the most laws, animals without economic value to humans were easily neglected. Humans have rights to tame animals for living and of course, kill vicious animals for the purpose of human safety. For instance, an Alabama statute adopted in 1915 outlined the liability of dog owners and prevention of human damages (AL - Bite - Liability of Owners of Dogs Biting or Injuring Persons). An Iowa statute also took human duty to kill untagged dog for granted (IA-License-Right and duty to kill untagged dog in 1917). In other words, domesticated animals in particular, were considered as personal property, hence, the laws were limited to the owner's responsibilities and municipal/legal controls over animals. However, a clear pattern emerges in Figure 2. The rise of social concerns about environmental sustainability and rights of nonhuman changes the model of animal laws from human-oriented to species-oriented. Laws take care of living conditions of egg-laying hens and pregnant pigs (e.g., CA - Farming - Proposition 2 - Standards for Confining Farm Animals. Initiative Statue, adopted in 2008) More strikingly, legal wording has been changed from

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human-centered description, such as "impound," "property," "dangerous," and "hunting" to "humane," "care" and "companion." Endangered species should be protected from hunting for in 1980). Traditional methods, such as hammering or pleasure, even though they have no economic value at the moment (e.g.,US - Conservation Fish & Wildlife Conservation Act hoisting, are banned. Rather, cattle, goats, sheep and other captive animals have rights to die in peaceful way (CO-Humane Slaughter - Slaughter, Processing, and Sale of Meat Animals Act, repealed and reenacted in 1989). Species-oriented animal laws also treat animals as companions. In the later period of observation, animal laws recognize human relationship with nonhuman beings. Beyond the images of guide dogs helping people, society mobilizes an intrinsic value of animals to human beings. As a result, laws require mandatory psychological counselling for hoaders who cruelly treat animals and domestic violence against animals becomes a "new crime" (e.g., NM Hoarding - Companion Animals - New Mexico An Act Relating to Animals; Creating the Crime of Companion Animal Hoarding; Providing Penalties, adopted in 2002 and VT - Domestic Violence - Personal Protection Order Amendment to Include Companion Animals, adopted in 2006).

H isto rica l Ch an ges 2: fro m "B roa d" to "Spe cialized" gu ide line s
Recent animal laws represent an era of species-oriented specialized guidelines. International organizations, such as the United Nations, provide more group-specific and divergent scripts in recent decades. Since the 1970s, for instance, the broad concept of human rights has been diverged and concentrated on particular categories, including cultural rights of indigenous peoples and rights of children (Song 2008). The environmental polity, too, specialization of instruction is captured both in names and contents. International treaties that specialized at protection of vertebrate animals in scientific research (e.g., European Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes in 1986) or wildlife and their habitats (e.g. Convention on the Conservation of European Wildlife and Natural Habitats in 1979). Likewise, animal laws in the US have become more specialized. By the 1950s, most laws had abstract names and strictly covered mammals. The word "animal" implies domesticated animals. Usually, dogs, horses and animal property in use, are governed by universal law (e.g.,MS - Dog - Consolidated Dog Laws, adopted in 1950 and CT - Equine Activity Liability Statute, adopted in 1958). Since the specialization of international environmental guidelines at ecological sustainability, however, animals in legal domain, can be exotic animals: reptiles, fish, polar bears, seals, dolphins and other wildlife. Further, animal statutes comprise rules for a particular type of animals and specific human behaviors. A California statute regulates killing methods for newborn puppies and kittens (CA - Euthanasia 597v. Newborn dog or cat; methods of killing, adopted in 1972). Although it was not passed as a bill, an Alaska statute prohibits aero-hunting of wolves and Grizzly bears (e.g., AK Hunting - An Act Prohibiting the Shooting of Wolves and Grizzly Bears with the Use of Aircraft, in 2008). These examples show the clear changes in animal laws.

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Conclusions
In this article, I consider the historical evidence pertaining to the argument about the changing nature of "the animals" and the adoption of animal laws. The legal status of animals has been dramatically changed as a result of the emergence of the ideas of environmental sustainability and the rights of non-human beings. In the earlier period, animals were assumed as economic property. This dominant assumption led to human-oriented laws and satisfied human interests. However, the post-war animal laws were based on a different belief. People in modern society become scientized and they advocate nonhuman entities who are presumed to have some rights. Scientific findings champion the shift in the notion of the nature. Consequently, animal laws become more species-oriented. The recent explosion of animal laws also provides specialized guidelines for particular species under the specific conditions. These features are largely influenced by the thematic shift in international environmental polity and the expansion of scientization in the country. Although I move the literature forward by studying the historical pattern of animal laws in the US, there are more questions unsolved. Future research should explore the causal relationship between state-level adoption and federal laws and the influence of international shift on national legal adoption. Economic conditions varying in different times should be considered in next research as well. As the figures in this article depict, the adoption of animal laws slowed down during the Great Depression. Empirical data and analyses enable to make inferences about how many laws become favorable to animals under the different economic circumstances. Furthermore, questions about the interaction or conflicts between guidelines should be answered. Under the recent paradigm of animal laws, animals are recognized as companions and entities having some rights. At the same time, they are cultural symbols for natives. Thus, religious slaughter of animals is protected by law (US federal law, RFRA (Religious Freedom Restoration Act, adopted in 1993). Research on dynamics of diverse norms should be done in the future. Finally, cross-national and longitudinal analyses on animal laws worldwide can provide both global and regional pictures of animal welfare and nonhuman rights. Together, these future research paths will deepen the understanding of the rise and expansion of animal laws and changing concept of animals.

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References
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