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Sentient beings

2014.04.09

That animals are sentient beings which feel emotions, pain, suffering, joy, and pleasure as any other living being does not seem to be a novelty for today, but rather something that science has shown for decades now.

However, the perception that animals feel was already in the writings of Antiquity. If you read book VII.1 of Naturalis Historia by Pliny the Elder (Rome, 23 AD –Stabiae, 79 AD), which is dedicated to the elephants. Following the path laid down by Aristotle, Pliny affirmed (in HN.I.1.1) “the biggest and the closest animal to human sensibility is the elephant; it understands the language of its country and obeys orders, memorizes tasks that it has learned, enjoys love and glory; furthermore it possesses qualities rare even in man, honor, prudence, equanimity…”; 5.11: “About this animal, they say that it is so good to the weakest that, in a herd, it blows its trunk to the sheep in front of it in order not to crush any without their knowledge. They do not attack if unprovoked… If they are surrounded, they put the infirm and the wounded in the center of the pack and occupy the front in turns”. This is only a sample of what could be deduced in the first century AD by simple observation of animals, and out of respect for them as part of nature, which is an important characteristic of the Antique Age. I will not delve further into this aspect, but I wanted to highlight that this respect for animals was diluted and lost in later centuries until science began to become interested in recovering objective studies on animal sentience.

For this purpose, in an initiative by the Humane Society of the United States, with the patronage of the World Society for the Protection of Animals (WSPA) and Compassion in World Farming, a Congress was recently celebrated in Gallaudet University, in Washington D.C., entitled: “The Science of Animal Thinking and Emotion: Sentience as a Factor in Policy and Practice” in which I had the honor of being able to participate with a speech about how the criterion of animal sentience can be influential in improving the animal protection in legislation ("The influence of sentience on Animal Law Research").

In the first session, we were able to hear new contributions by invited colleagues regarding the cognitive capacities of dogs and simians ("Ape and Dog cognition", Brian Hare, PhD, Duke University), on the emotional structure of animal brains ("The emotional Brain", Jaak Pankseep, PhD, Washington State University), on the ability of fish to feel ("The Fishes", Victoria Braithwaite, PhD, Penn State University), on the diversity of animal language ("Animal Language", Con Slobodchikoff, PhD, Professor emeritus Northern Arizona University), on the pleasure animals feel ("Animal Pleasure", Jonathan Balcombe, PhD, The Humane Society of the United States), and on the emotions of dogs ("Dog Emotions", Greg Berns, MD, PhD, Emory University).

The second session was dedicated to the implications of animal sentience, found even in crocodiles ("Swamp Smarts: Discovering Cryptic Intelligence in Crocodilians", Vladimir Dinets, PhD, MSc, University of Tennessee)-, the contributions of sentience to other branches of knowledge such as psychology and sociology ("Sentience, Psychology and Social Change”, Hal Herzog, PhD, Western Carolina University), Bio-Politics ("Sentience and Bio-Politics”, Bernard Unti, PhD, The Humane Society of the United States), culture ("Sentience, Development and Cultural Change: Human-Animal Relations in Contemporary China”, Peter Li, PhD, Humane Society International), Communications ("Marketing Science through the Media”, Clare Molloy, PhD, Professor, Edge Hill University, UK), Law ("The Influence of Sentience on Animal Law Research", Professor Dr. M. Giménez-Candela, Professor in Law, Universitat Autònoma de Barcelona), European Legislation on Animal Welfare ("Sentience and Animal Welfare in the EU", Marguerite Kuzma, Policy Officer, Animal Welfare Unit, the European Commission) and climate change ("Sentience, Cetaceans and the Global Conservation Agenda", Mark Simmons, OBE, Sr. Marine Scientist, Humane Society International). In short, the Congress was an accomplished program and an organizational success which is due to the initiative of the team led by the Humane Society of the United States, led by Andrew Rowan, President and CEO of Humane Society International. I would like to say that this Congress is a step forward in knowledge and the practical application of animals as “sentient beings”.

From the Legal point of view, one could hope that the application of animal sentience will lead to significant improvement in legislation at the constitutional, civil, administrative and criminal law. For now an example is worth mentioning. Various texts have been published over the past 40 years in the EU recognizing animal sentience as a guide for legislation in Animal Welfare, but it was not until 2009, in article 13 on the TFEU, known as the Treaty of Lisbon, when the obligation to treat animals as “sentient beings” was imposed on Member States in their internal legislation, particularly with regards to agriculture, livestock management, experimentation and spectacles. It is well known that the exceptions explicitly mentioned in the second paragraph of article 13 TFEU (religious rites, regional customs, and traditional cultures), have weakened article 13 and its possible applications, specifically in the case of Spain and France with regards to bullfighting spectacles.

However, it is necessary to highlight that the EU has given decisive support to the consideration of animals as sentient beings in their legislation on Animal Welfare. A clear example is Directive 2003/15/EC , regarding animal experimentation which is reflected in Directive 76/768/EEC, which prohibits experimentation on animals for cosmetic products ("testing ban"). This European regulation, which since 2009 has included the sales ban on cosmetics products tested on animals, was applied ten years later in Spain, by Royal Decree 53/2013 of 1 February. It is interesting to note that, in the programmatic part of the regulations cited, as in the normative text, animals are mentioned as sentient beings, and a pain threshold is indicated in experiments that involve punctures from injections.

Let’s consider for a moment what that change would signify, for example, in criminal law where, in cases of possible abuse, the current boundary for animal suffering is either immediate death or painful death (without specifying how pain can be measured)-, which determines if the action is considered a misdemeanor or felony and how the respective sentences are applied when legislators are thinking of an animal as a thing. Let’s think, on the contrary, what would happen if, in cases where an animal is a victim of abuse, the Criminal Code applied the evaluation of animal pain and suffering, considering the animal to be a sentient being. Would they change some sentences today that are obviously too lenient and make them more appropriate?[1].

I leave this question open for discussion, both for jurists and for non-jurists. It is clear that legislation regarding animals must begin to become clearer, more precise and more applicable. And the method that legislators must take when discussing animal treatment must be that they are sentient beings.

THE EDITOR
Teresa Giménez-Candela
Full Professor of Roman Law
Animal Law Profesor
Universitat Autònoma de Barcelona
Follow me on Facebook: https://www.facebook.com/editora.da


[1]Vid. the Jurisprudence Bulletin for this month, published on this website: "News from the Court", establishing a comparison between animal abuse and punishment applied to delinquents.




keys Sentient beings, art. 13 TFUE , animal language , animal sentience

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