Judicial Recognition of the Interests of Animals - A New Tort

This article seeks to explore a simple but profound question. How should our legal system deal with the claims of animals for protection against harms inflicted by humans? Rather than a comparative rights analysis as used by some writers, this article will use the non-comparative approach based upon an interest analysis. The short answer is that our legal system can and should do what it always has done, balance the interests of competing individuals in a public policy context, always seeking to strike an ethically appropriate balance. It will be shown that the legislative branch of our government presently promotes the consideration of animal interests on this basis. This article examines how the legal system presently balance such interests and how common law judges could expand, in a forthright manner, the consideration of an animal’s interests. Finally, this article will suggest a more expansive consideration of animals’ interests through the adoption of a new tort: the intentional interference with a fundamental interest of a non-human animal