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The needle and the pike

2012.12.10

A simple question; which hurts more, a needle or a pike? What I mean is, if a being with nerve endings in its skin is pricked with a needle, does it hurt? The answer is yes, of course, but it seems bearable. If they stuck a sharp steel pike into it, would it hurt? The answer, of course, is yes again but with an expression of astonishment over the question. How could it not hurt? that is the point of it, if we let someone stick a needle into us to take out blood with certain resignation then they would probably have to tie us down, and tightly, if for some reason that society were to accept, we had to let someone stick a pike into us. This association of ideas and instruments that cause pain, the needle and the pike, are news every September in Spain due to the ritual known as “Toro de la Vega” [1] . As I am writing this, this year's bull has already succumbed, after a race of harassment across open fields, pursued by a group of horsemen armed with spears and pikes. The regulations of the alleged festival state that [2] in order to protect the purity of the ritual, the pike is stuck into the animal to kill it, not to injure it. That is, a wonder of legal balance. Causing pain to the animal would be punishable, if there is no animus necandi when throwing the pike, but the violence exercised by the armed man is legitimate if he kills the animal, by sticking in the pike. How many of the participants pursuing the bull who injure it without killing it are punished by the Festival Committee? If they were reported for stabbing the bull without killing it, they should be punished as they are breaking this regulation. But they are neither reported nor will they be reported because the legal text is the cover for violence against the bull that is considered legitimate because it is protected by two equally obscure parameters; tradition and the ignorance of the law on inflicting pain on animals.

One of the issues that legal minds still must tackle and regulate is the pain felt by animals. Veterinary science has contributed to setting sufficient parameters that specify when the threshold of pain has been exceeded, clearly and conclusively in the case of mammals. What is not so clear is what the law has regulated on animal pain and what legal consideration is prevailing in the application of punishments to suppress abuse or intentional actions that cause physical pain or distress to an animal, and therefore, deserve punishment or regulation to set limits if the pain is inevitable or is the means of obtaining a benefit that law considers priority, compared to what nature shows that the animal rejects. Or do we think that an animal, a living being, wants to suffer and likes or takes pleasure in suffering?

I am not dealing with a banal issue, quite the opposite, I am dealing with an important issue that is systematically ignored by law. Only tangentially treated when suffering caused by the abuse of the animal is "unjustified". That is one of the thresholds of legitimacy for animal pain, as set out in some Penal Codes. There is plenty of criticism, and some has come from the very contradiction contained in the association of two terms – abuse and justified – that however, are used with that association in legal texts as set out, and without elaborating further, as previously mentioned, in our Penal Code [3].

Another example of a legal contradiction and of reluctance to address a difficult issue is related to animal testing, where it is assumed that the animal's pain is part of it and justified as necessary for achieving results that benefit research, i.e., they benefit the human being for which the improvements potentially contributed by research are intended. Effectively, lengthy and abundant European legislation on animal welfare, which is built on acknowledging the animal as a "sensitive being" [4], includes an extensive section on how an animal used in research must be treated. It is interesting to emphasise that in this field, the legislator has set a threshold of acceptable pain for an experiment to be performed, a threshold of pain that is justifiable [5]. This threshold of pain that the animal can bear, according to current European legislation, and endorsed by Spain, is that caused by the prick of a needle.

The question is how this difference can be justified. For laboratory animals, acceptable pain is that caused by a needle, for animals taking part in shows backed by tradition, however, no limits have been set or those that do exist greatly exceed the prick of a needle. Just think about Toro de la Vega, as already mentioned, all types of shows involving bulls; bull fights, toro de fuego, toros embolados, toro ensogado, the ducks thrown into the sea at Puerto de Sagunto, the ants sprayed with vinegar, the horses grabbed by their manes as they run ("a rapa das bestas"). Objectionable activities that are still permitted in the name of "tradition" and "culture".

Twenty first century law is faced with a lacerating issue that must be regulated. Animal abuse, in any shape of form, is not justifiable.


THE EDITOR
Teresa Giménez-Candela
Professor of Roman Law
Animal Law Professor
Autonomous University of Barcelona


[1] Vid. GIMÉNEZ-CANDELA, Ritos populares y violencia legítima,,Download
[2] Regulating terms and conditions of the Inmemorial Torneo del Toro de la Vega, art. 30 (adapted to the Regulation on Popular Shows involving Bulls approved by the Regional Government of Castile and León, through Decree 14/1999 of 8 February), at tordesillas.net .
[3] Art. 337 of the Penal Code; GIMÉNEZ-CANDELA, T., Sin Ensañamiento pero Injustificadamente .
[4] MARGUÉNAUD, J.P., La promotion des Animaux au rang d’êtres sensibles dans le Traité de Lisbonne, in RSDA 2 (2009) p.14 et seq.
[5] On 20th October, Directive 2010/63/EU on the protection of animals used for scientific purposes was published. This directive repeals that used as the regulative base in this area since 1986 (Directive 86/609/EEC). The two-year moratorium for its application in Spain ends on 1st January 2013, the date on which, for example, use of animals will be definitively banned in the cosmetics industry. See art. 18 of the Regulation (EC) no. 1223/2009, Download, , of the European Parliament and of the Council of 30 November 2009 on cosmetic products, OJ L 342 of 22.12.2009.

keys law, legal , case law , animal

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