Property

The other day, I set out for a walk with Quiddity or Quid, as we call her, one of three dogs in our family. She’s a young, tri-colored, mixed breed with big ears and big energy. In many ways, it was a typical walk. We left our apartment building, stopped for a minute to take in the scene, then turned on to Riverside Drive — a tree-lined street with a wide promenade that makes it a popular place for people walking and dog walking. It was a beautiful day and I saw maybe 50 other people with dogs. Joggers with dogs. Couples with dogs. A dog walker with seven dogs. A person skateboarding with a dog. It’s New York City, and everyone had their dogs on a leash, as the law requires. And the message behind the leash is clear.

Your dog is your responsibility. Because your dog is your property. And property, as we’ll learn, is a kind of thing.

So, by the books, Quiddity belongs to me, Alexandra Horowitz. I’m a dog-cognition researcher, a writer — and someone who likes to experience the world on a walk. Especially on a walk with a dog. On a day like this one, a dog walk isn’t just exercise, or an excuse to join the crowded dog scene unfolding along Riverside Drive. It’s a chance to think and talk about our relationship with dogs, and what that relationship says about us. That’s what we do here on Off Leash. I’ll ask someone interesting — and their dog — to join me for a walk, and then we’ll see where the walk takes us.

Quiddity takes her name from the word meaning “the essence of a thing,” and she seems to be the complete essence of dog. She’s loving, playful, and really, really likes tennis balls. But this brings us to the most basic question: Is she a thing? I doubt many people who live with dogs would think so, but as we’ll see, that’s how current U.S. law thinks of dogs. So, what would happen if we treated them less like things and more like persons? In a moment, I’ll talk with an attorney who specializes in nonhuman rights.

Steven WISE: For hundreds and hundreds of years — until the 18th century probably — dogs really weren’t even legal things. They weren’t even property.

And we’ll explore the gray area of canine thingness with a divorced couple whose beloved dogs found themselves at the center of a state Supreme Court case.

Diane MAROLLA: I’ll give him the house and everything in the house, if I can just have the dogs

But first, a different couple. Meet Freya.

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Ian CHILLAG: She definitely has a lot of husky in her. She has that beautiful two different colored-eye thing going on.

And meet Ian Chillag, who hosts the podcast Everything is Alive. He’s walking Freya. Sort of.

CHILLAG: Sorry, Freya’s darting at a dog here. And this is kind of like walking a dog, kind of like water skiing. I’m mostly being — being pulled here.

Freya might be taking some liberties because Ian is not her owner. Like a piece of property, she has been loaned to Ian for the express purpose of today’s walk. And through the magic of audio, we’re walking in two different cities. I’m in New York and Ian is in sunny Los Angeles.

CHILLAG: It’s perfect here. The other day it got down into the 50s and I heard on the local public radio the broadcaster described it as “biting cold.” No, it isn’t. It really isn’t. We’re in my neighborhood in Los Angeles which is called Highland Park. It’s pretty dense, residential. A lot of small bungalows, small houses. A lot of dogs.

I wanted to talk to Ian today because he talks to things for a living, and the things talk back. On his podcast Everything is Alive, he has interviewed a subway seat and a bar of soap. And once he interviewed a can of cola.

CHILLAG: They are played by actors. But we like to say everything they say is true, even though they are talking, inanimate objects.

Ian has spent a lot of time thinking about things. Things with no heartbeat, no desires: inanimate objects. And then he reimagines them on his show as these soulful, sensitive beings. They’re not quite human, but they’re pretty close.

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IAN: Let’s just start, settle in, have you introduce yourself for us.

LOUIS: My name is Louis and I am a can of Go2 Cola.

IAN: That’s a store brand?

LOUIS: Mm-hmm. Go2. G-o-2 Cola.

IAN: So, it’s similar to Coca-Cola?

LOUIS: Similar. People call it a knock off. I’ve been called the best of the worst.

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CHILLAG: One thing that I’ve realized since starting the show is that there are two types of objects. There are objects that are used once and objects that are used regularly. And objects that are used once, there’s this thing where the purpose they’re made for, they never experience until the very end of their life. But it doesn’t actually have any experience of the thing it’s made for, which is very weird.

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IAN: When you think about being consumed by a human, do you think about the human that you want to be in?

LOUIS: If and when I’m finally consumed, I hope I’m consumed by someone who enjoys it. But I like to imagine that if you’re drunk immediately, that instead of being a painful process, there’s this sort of first moment of relief. The can is cracked open. All of this internal fizzing that I have going on finally has somewhere to go.

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Alexandra HOROWITZ: Oh, is that her talking or somebody else?

CHILLAG: That is somebody else. Woah! Okay. There are two— what’s happening here? So, Freya, I should say, is a large dog, and there are two dogs behind a fence who are quite small — like I think each one is roughly half the size of Freya’s head, but they don’t seem intimidated.

HOROWITZ: Everyone is on a leash.

CHILLAG: Well, Freya is on a leash. Those dogs were behind a fence.

HOROWITZ: The fence. That’s so interesting because, in a way, we would say they’re protecting their property. Right? Whereas, of course, they don’t really have property. Because property can’t have property.

CHILLAG: Yeah. What a funny thing to put them in this position of guarding our possessions when they are one. There’s something a little sad about it.

HOROWITZ: And initially one of the functions dogs were domesticated for was to be a guard. So, they started out that way as property protecting property.

CHILLAG: Yeah. And now it just feels like it has to do this thing. Oh, some more dogs behind the fence. Very wrinkly dog.

HOROWITZ: Wait, did you say “it,” Ian? Do you refer to dogs as “it”s?

CHILLAG: Oh gosh. I may have just done that. I’m sorry, Freya.

Using “its” was indelicate, sure, but Ian wasn’t incorrect. Dogs are “its” to the law, because the law defines them as things. Things that don’t have thoughts or feelings or make choices, like Freya sure seems to. Could the law change?

WISE: I’m Steven Wise. I’m founder and president of the Nonhuman Rights Project. And the purpose of the Nonhuman Rights Project is to gain legal rights for as many nonhuman animals as we can.

He also happens to be a dog person.

WISE: I love Yogi to pieces. He’s a Morkie. So, he’s part Maltese, part Yorkie. Someone had actually thrown him out of his house because he’s high strung sometimes. And we got him at the age of two and now he’s 10. And he’s obviously part of our family.

Steven started out practicing animal protection law, representing individual animals.

WISE: I think I had 150 people come to me over the years whose dogs have been ordered executed. And I would come in to try to save their lives, which I almost always did.

But at some point, Steven felt he wasn’t getting very far, saving individual dogs-in-trouble.

WISE: I finally concluded that the way nonhuman animals would actually be protected would be the way that we humans are protected from each other, which is to gain legal rights for each other.

HOROWITZ: Got it. So, let’s back up one second, because maybe people aren’t aware of what the legal status of nonhuman animals in the U.S. is. To the law, are all nonhuman animals property?

WISE: They are things. Property is a kind of thing. Since Roman times, there’s been this thick wall that has separated things and persons.

To win new rights for nonhumans, Steven has to persuade judges that his clients are not things, but actually autonomous beings.

WISE: “Are these autonomous beings?” That’s really the main characteristic that we are using to underline our fight for personhood.

HOROWITZ: Can you unpack a little bit for us what you mean by “autonomous being”?

WISE: Well, when a human is detained against their will illegally, then someone can seek a writ of habeas corpus. Habeas corpus means, “you have the body.” And it has been used in humans now for centuries. What lies beneath bodily liberty is that you are autonomous, which means that you can make choices in your life. So, we go to experts, saying, “Are elephants autonomous? Are chimpanzees autonomous? Are orcas autonomous?” And if they say they are, we then point out to the judge that we have now proven that our client is autonomous. Therefore, he or she should have a right to bodily liberty and that the bodily liberty then should be protected by habeas corpus.

Okay, but this isn’t a podcast about elephants or chimpanzees or orcas.

WISE: Dogs have different kinds of problems. For hundreds and hundreds of years, until the 18th century, probably, dogs really weren’t even legal things. They weren’t even property. They were very slowly made property, but they were made property under a statute. So, a common law court cannot say, “Well, we’re going to make them persons through the common law and say that they’re not things,” So, that’s one of the problems we have. But we might figure out a way of being able to persuade a court to overrule a statute, or we’re going to have to get the personhood of dogs in the legislatures.

HOROWITZ: As opposed to —

WISE: In the courtroom.

If a legislative body granted dogs the status of personhood, it would give them a fundamental right that can’t be taken away so easily from one court decision to another. If the concept of “dog personhood” seems far-fetched, consider that — legally — a “person” isn’t necessarily a human.

WISE: Many judges automatically believe that “humans” and “persons” are synonyms. So, we have to very politely remind them that corporations are persons, that cities are persons. In New Zealand, a river is a person. In Colombia, the Amazon forest is a person. What “person” means is an entity who has the capacity for rights versus a thing, who is an entity who lacks the capacity for rights. So, anyone who has even a single right is indeed a person for that reason. And it doesn’t matter whether you’re alive or whether you’re not alive. It doesn’t matter what you are or who you are. If the legal system believes that you should be protected, the way you are protected is by having fundamental rights. That’s why you know ‘who’s the person’ is really a reflection of what society values.

HOROWITZ: Well, that becomes the other question then. We know that one of the things that persons have is the right to not be owned by other persons.

WISE: Yes, and that’s relatively new. It only took a civil war in which 750,000 Americans were killed, in which it was finally established that you couldn’t own Black people in the United States. Now it seems like, “Hello, it’s freaking obvious.” And one day it’ll be “Hello, it’s freaking obvious,” for other entities as well.

HOROWITZ: When I was writing a little bit about the legal status of dogs, the area of which they came up a lot initially was divorce cases. Is this context a fertile place to help redefine dogs’ role legally?

WISE: Yes. There have been more and more cases in which people are saying it doesn’t matter who formally purchased Fido or who formally owns Fido, but you should be taking the interest of Fido into consideration. The way you might look in a divorce case, what are their children’s best interests?

After the break, we’ll go inside a divorce case with the fate of two dogs on the line. It went all the way to the Rhode Island Supreme Court.

MAROLLA: I said to my lawyer, “Listen, I’ll give him the house and everything in the house, and I will leave if I can just have the dogs.”

We’ll hear more from Steven Wise about the significance of dogs’ legal status.

WISE: If you’re anything but a person, then you will end up being treated as a thing.     

And we’ll check back in with Ian Chillag and Freya the Husky.

CHILLAG: Hold on. Sorry, Freya picked up something. Freya, I hope that’s food.

So, stay with us.

*       *       *

I’m Alexandra Horowitz and this is Off Leash. We’re looking at the dissonant and conflicting ways that dogs are defined — in the home and under the law.

As we talked about with Steven Wise, divorce court is a prime context where judges are forced to think about how dogs are considered under the law. Typically, since they’re “things”, pets are considered “property” to be “distributed” in a divorce — often to the person who acquired the pet or trained them. Along the way, it can be an intense experience for a couple breaking up.

MAROLLA: I am Diane Marolla. I’m a clinical social worker and I also am a writer, as well.

Paul GIARRUSSO: My name is Paul Giarrusso. I’m an independent contractor. I officiate high school and college sports.

MAROLLA: So, I met Paul in 1991. And we were married in 1993. So, marriage is great. But marriage requires certain ingredients in order for it to be successful.

GIARRUSSO: Diane and I are very different. We’re both very independent, and we basically started to grow apart during our marriage.

MAROLLA: I mean, I knew the marriage was in a very bad place very, very early on. But I stayed in the marriage for two reasons. One was financial reasons. The other thing was the dogs. Marox is an 18-year-old Italian Greyhound. He was running around the streets of Providence. And then Winnie is a 15-year-old Chiweenie.

GIARRUSSO: Which is a Chihuahua and Dachshund mix.

MAROLLA: He was a rescue at seven years old and he came to me as Winchester. I shortened it to Winnie like Winnie the Pooh.

GIARRUSSO: They love to go for car rides. They love sleeping on the bed.

GIARUSSO: So, Diane was the one that filed for divorce.

MAROLLA: I said, “I just need to make this decision and move forward.” And I knew state law, that they would divide the dogs up and I did not want that to happen. The dogs were bonded. I said to my lawyer, “Listen, um, the house is fully paid for, I’ll give him the house and everything in the house, if I can just have the dogs and I can just leave.” And Paul had agreed to that.

GIARUSSO: The best thing was to keep them together because they bonded so well that I didn’t want to separate them.

MAROLLA: So, the marriage settlement agreement said I had custodial rights of the dogs, but Paul would get the dogs Tuesdays and Wednesdays.

GIARUSSO: I think deep down, she knew that I loved the dogs but there was an incident where something happened where she thought I was incapable of taking care of the dogs.

MAROLLA: I was at work one day, Paul was texting me that Winnie was whimpering. I said, “I’m coming right now, and I’ll come and pick up the dogs and I’ll take Winnie to the vet.” So, I go to the house and I pull up in the driveway and Paul comes out with Winnie and there’s no Marox.

GIARRUSSO: When she came to pick up the dogs, I couldn’t find the greyhound. She’s flipping out, which I understand.

MAROLLA: Then, I don’t know, maybe it was around two hours later, the dog was found in a closet in the house.

GIARRUSSO: She’s convinced that I hid that dog on her and I never did.

MAROLLA: At that point, I just said, “He’s never seeing these dogs again.”

GIARUSSO: So, that’s how come we went back to court. We have our little trial and Judge Asquith rules in my favor. And says, “Tomorrow morning he gets his dogs.” This is at the lower court. And Diane says, “I’m appealing this to the Supreme Court.”

MAROLLA: It was almost like, The Wizard of Oz. There was this beautiful green velvet curtain. And it just opened up and the justices came out. there’s like six or seven of them.

GIARRUSSO: And I end up winning.

MAROLLA: So, I have to honor that marriage settlement agreement.

GIARUSSO: When I went to meet them for the first time after not seeing them for 13 months, I had to meet at Diane’s lawyer’s office and she had to bring the dogs. And when I walked into the room, I couldn’t even sit on the chair. I sat on the floor because they were all over me. And it seemed like we didn’t miss a beat. It felt like we were never apart for the 13 months, even when we were. We picked up right where we left off and I’ll never forget it.

Paul and Diane’s case is a good example of what can happen when dogs are considered property, or things. A handful of states, including Alaska, California, New York, and Illinois, have passed pet custody bills. These bills allow the judge to consider the well-being of the dogs in deciding who they should live with.

It’s a consideration that’s not given to other property of the divorcing couple. No one thinks to ask, “What’s best for the Subaru?” One way or another, the courts might start catching up with what most Americans already feel: Dogs are our family. Still, some people might think it odd to go a step further and imagine dogs as persons. I asked Steven Wise whether we should consider some other legal designation for a creature who’s more than a thing, certainly, but might not be quite a person.

WISE: My concern is that if you’re anything but a person, then you will end up being treated as a thing. And so, we might give dogs certain kinds of protections. But then, if we want, we can take them away. Our rights can’t be taken away like that. We keep them even when people don’t like us, even they hate us. But if all of a sudden, for some reason, people started hating dogs, well, then they would lose their protections really quickly.

HOROWITZ: What would be the consequences for dogs if they were granted a personhood? Or what would be the consequences for people living with dogs?

WISE: All that means is that you now have the capacity for rights. Theoretically, we could file a lawsuit on behalf of the dog and a judge would agree with us that a dog is a person, but find that the right we’re seeking for the dog is not appropriate. All human beings now are born persons. But which rights are we entitled to? I might ask you the question now. Give me an example of a fundamental interest that you think a dog has that humans don’t have.

HOROWITZ: I would say, maybe not different than humans, but a right to not be left alone all day. So, social companionship.

WISE: I think the Swiss legislature passed a statute saying that someone might not own a single guinea pig. You had to have multiple guinea pigs because having a single guinea pig alone is a terrible thing for such a social creature. So, if we prove that dogs are social — I mean, they’re obviously pack animals. And frankly, people might say, “You have to respect the fundamental interests of dogs. And only people who can do that are allowed to have them.” And there could come the day that — by the way, when you have them, you don’t own them.

HOROWITZ: You live with them, somehow, in a non-ownership fashion.

WISE: Exactly. You are essentially their guardian. I have, like, three kids. When they were two years old, I didn’t know them, but I was essentially their keeper. I was in charge of making sure that they were living an appropriate life.

HOROWITZ: If we just look at the history of dogs, who were domesticated by or with humans, we do have a responsibility to be tending to them. Because they’re dependent on humans. And so, it would be interesting if the law were to reflect that in some way.

WISE: I think that we are very slowly moving in that direction, certainly with dogs and cats. 50 or 60 years ago, it wasn’t even clear that they had minds, that they weren’t essentially robots. We humans don’t make these kinds of changes really quickly. So, everything has to do with moving in directions. We make legal arguments that we build upon the facts of the scientists who keep finding more and more facts that makes it harder and harder to deny that these beings, you know, are extraordinarily cognitively complex and have needs and that we should not be treating them in a way as if somehow they don’t feel anything or they don’t matter.

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CHILLAG: We’re now, on our walk, we’re getting back to where we started, back to my house. And I feel that Freya knows that. I feel like she’s kind of pulling back to—

HOROWITZ: She knows the way.

Before we say goodbye, I had one last question for Ian Chillag about the inanimate objects on his podcast, Everything is Alive.

HOROWITZ: I wonder if talking to all these objects, to these things, has changed how you deal with objects in your daily life?

CHILLAG: It’s funny. I did an interview with a bar of soap named Tara. And, you know, the life of a bar of soap is a life of always getting smaller and smaller until you’re gone. And something about it, whenever I see the bar of soap in our shower at home, I feel guilty.

HOROWITZ: Do you refrain from throwing out the last sliver of soap?

CHILLAG: Yeah, just save all the little ones, reconstitute them into one big bar of soap. It’s eternal life. It’s resurrection. I just turned us onto my street and she’s — yeah. The horse can smell the barn. She is on her way.

HOROWITZ: Excellent. Well maybe we should let Freya walk us out of our conversation?

CHILLAG: It’s all been really great. Thank you.

If a dwindling bar of soap can provoke guilty feelings, surely it’s within us, as a society, to acknowledge dogs’ experience, and do right by them by giving them a legal status that matches their role in our lives. While “things” can be held in high esteem, dogs in our lives are closer to “persons” than to “things”. We’ll have to see when the law catches up to what dog people already know. For now, thank you to Ian Chillag, Steven Wise, Diane Marolla, Paul Giarrusso — and to you, for coming on this walk with us.

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Off Leash is produced by Stitcher and Renbud Radio, and is part of the Freakonomics Radio Network — which also includes No Stupid Questions, People I (Mostly) Admire, and Freakonomics, M.D. This episode was produced by Molly Getman, Lyric Bowditch, Brent Katz, and Joel Meyer — with help from Jared Hohlt, Alison Craiglow, Gabriel Roth, and Stephen Dubner. It was mixed by Greg Rippin, Jasmin Klinger, and Jeremy Johnston.

Our staff also includes Neal Carruth, Zack Lapinski, Ryan Kelley, Rebecca Lee Douglas, Morgan Levey, Julie Kanfer, Emma Tyrrell, Eleanor Osborne, Jacob Clemente, and Alina Kulman. Our music was composed by Luis Guerra.

To see behind-the-mic photos of all the dogs you met in this episode — or to share your thoughts on the show — follow Off Leash on Instagram and Twitter at @OffLeashShow. You can also shoot us an email at OffLeash@Freakonomics.com. To find a transcript, links to research, and a newsletter sign-up, go to Freakonomics.com. As always, thanks for listening.

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Hi! It’s Alexandra again. We loved making these episodes for you and would love to make more. The best way you can help us do that? Tell your friends, family, or even strangers you meet at the dog park about Off Leash. Thanks so much.

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CHILLAG: I mean, I had imaginary friends.

HOROWITZ: Who were your friends?

CHILLAG: You’re talking about Fritchard and Himanem, two grown men. They lived in a house together that was not my house. Their dog’s name was Booper. But my mom tells me that I would only talk about the fact that Booper had died. So, yeah, I had imaginary friends who then had a dog.

HOROWITZ: A dead dog?

CHILLAG: A dead dog. It was very sad for all of us, for Fritchard, Himanem, and myself.