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In search of a legal system for animals

2012.05.10

In recent years, reflection on the Law governing animals is gaining ground around the world. One of the consequences of this reflection is the changes being made in the traditional legal status of “animal-object”, which until now has been the dominant concept in countries with legal codes. In Europe, the initiative taken by Austria, which amended the Treatise on Property in its Civil Code (ABGB) to say that animals “are not objects” and are governed by special laws, was quickly followed by Germany, which reformed its Civil Code (BGB) in the same direction, as did Switzerland some time later [1]. So a major change took place during the 90’s which challenged the continued existence of a category that has existed in Law since Roman times: animals are objects that are owned.

Admittedly, this change (animals are “non-objects”) can be criticised for lack of ambition, in that it does not give a new legal status nor does it improve animals’ legal condition. While maintaining animals’ continued existence as Property, it seeks to achieve a difficult legal balance by denying that they are “objects” and opens the door to animals’ legal condition being governed by its own laws.

In addition to the change mentioned above, other legal systems have adopted the same negative formula (non-objects). Among them, we could mention book 5 of the Catalan Civil Code (2006) and, very recently, as we have reported on this website [2], the Czech Republic’s Civil Code. On 31 January 2008, Bulgaria passed the Animal Protection Act [3] and this legislative initiative is now being followed by other East European countries. Thus, at present, 5 European Civil Codes have taken a step—albeit still insufficient—toward a legal definition of animals that aligns with what science has acknowledged for some time, namely, animals are “sentient beings”. Only one programmatic legal text has included this highly expressive legal expression which recognises animals’ condition as beings who share with us a capacity to feel and suffer. I am referring to the Lisbon Treaty [4] which, although it is not a European Constitution—even if it is inappropriately called this –, it does provide a framework that Member States have accepted as a source of inspiration for their own laws.

The expression “sentient beings” as a standard for regulating animal wellbeing is now being implemented in many of the EU’s legal texts—especially those issued in recent years—thanks to the untiring work of the European Commission, primarily through the DG SANCO [5]. Indeed, it can be said that significant progress has been made in the field of Animal Wellbeing. By way of example, the regulations abolishing the use of battery cages for laying hens. In Spain, this has triggered a profound change in the poultry industry and in consumers’ habits, who are starting to keenly examine the numbering on eggs to ascertain whether the hens are kept in conditions that respect their needs and interests [6], in other words, whether the eggs are laid by free range hens.

What I am talking about here is incorporating the work of veterinary science in legal science. In other words, legal texts, particularly those that provide the basic structure for the entire regulatory system and the enforcement of standards, need to be worded with categories that put animals in a context that more accurately reflects their status as sentient beings, taking them out of the category of objects governed by narrow Property relationships. Veterinary surgeons and jurists should work closer together with the goal of improving animals’ living conditions. This in turn will enable us to address from firmer ground the changes that must be made—now more than ever—in the legal systems governing animals.

In the next few years, part of our work will be to build bridges for cooperation. We share a common interest, animals, but we need to remove some of the obstacles which have kept us apart until now. I would mention just one area as an example of the path we need to follow, namely, the endeavour to transform legal language—a language that is eminently technical in its nature—into a clearer, more precise and more open tool for understanding.


THE EDITOR
Teresa Giménez-Candela
Department Chair in Roman Law
Animal Law Profesor
Universitat Autònoma de Barcelona


[1] Austria: ABGB, 1986; Germany: BGB, 1990; Switzerland: BGB, 2000.
[2] MÜLEROVÁ, Hana, Animals Finally above Objects and stricter Criminalization of Cruelty in Czech Legislation, in DA, March 2012.
[3] Vid. external link
[4] Vid. external link
[5] Vid. external link
[6] Vid. external link

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