The evolution of the legal status of animals: From things to sentient beings

The legal status of animals is evolving. Slowly but surely.

One initiative assisting that evolution is The Global Animal Law (GAL) Project, an initiative that focuses on using the law to create a better world for animals. Read more about the GAL project in Sabine’s previous blog.

So, what is the current legal status of nonhuman animals? How have the law and attitudes evolved through time? And what are the next desirable steps to improve the legal protection of nonhuman animals?

The old paradigm of seeing animals as mere things at our service is no longer defensible, neither from an ethical nor a legal point of view. Animals have long been considered as mere things even under the law, but they are now increasingly recognised as sentient beings.

Today, the legal status of nonhuman animals is in a grey zone, between things and persons. In the summa divisio (Latin expression for the division between the main legal statuses), two categories are well established: legal properties and legal personhood. Animals do not (yet) fall within the category of legal personhood, either physical (humans) or abstract (corporations). However, they are increasingly recognised as sentient beings. In this sense, they are not just things because they are “living properties”[1] with special laws to protect them.

Can we move toward the recognition of animal personhood in the future? Or, at least, the recognition of a third category for nonhuman animals, between things and persons, establishing a fairer protection of animal interests?

The dereification in civil law: Animals as not-things

From the Latin "res" which means "thing", the dereification of the animal is the recognition that animals are not things. Some countries have made this recognition without fundamentally changing the status of the animals and they remain subjected to the legal regime of things.

Animals are not things. This clear formulation is now in the civil codes of several European countries. Austria has initiated the integration of this provision in 1988[2] and Germany followed in 1990[3]. Later, this statement was made in the Swiss Civil Code in 2003[4], in the province of Catalonia in Spain in 2006[5], the Netherlands since 2011[6], followed by others such as the Czech Republic since 2012[7]. While innovative, this statement says what the animals are not, but not much about what the animals legally are. We simply know that they are distinct from common things. In the civil law of these countries, the status of animals is therefore a “non-thing” status.

However, all these civil codes also specify that provisions applying to things also apply to animals. This implies a type of “non-thing thing” status for animals. Pretty paradoxical…

In short, animals remain under the category of things although they are no longer considered as such. Everywhere in the world today, animals are subjected to the property regime and are, therefore, tradable, alienable and exploitable. Even if the rhetoric can sound contradictory and the change more symbolic than revolutionary, it is at least a first step to distinguishing animals from the category of mere things (or objects inanimate).  

Sentience recognised in civil law: Animals as sentient beings

Some civil codes have also recognised animals as “sentient beings”, beginning with France in 2014[8], followed by Quebec in 2015[9] and shortly after by Colombia in 2016[10]. Here the same principle applies. Even though recognised as sentient beings in these countries, animals remain subjected to the things (or common “goods”) legal regime.

The civil codes of these countries create more of a terminological precision rather than a real transformation of the legal status of the animals. According to the translation of the Latin legal maxim “usus, fructus, abusus” applicable to properties, their owners can use, exploit and abuse (or kill) animals, as long as not incompatible with the protective legislation in force.

Nevertheless, again this first step is a laudable attempt to achieve evolution of the legal status of animals in a positive sense. These countries have indeed opened the way in beginning to challenge the current legal status of the animals.

Furthermore, although practical implications of this civil recognition are not apparent in many countries, Switzerland offers a good example of its impact. Indeed, the sentimental value of a companion animal is recognised in the law (and compensation awarded when the animal is injured or killed), and his/her welfare is considered in the event of the divorce or death of the owners[11].

It is also important to mention that the recognition of animals as “sentient beings” first appeared in positive law in France in 1976 (in the rural code)[12], followed by the European Union (EU) recognition, now in the Lisbon Treaty of 2008 in the EU general principles[13].

Some countries of common law (vs. civil law) have also included this statement in their animal welfare laws, especially New Zealand since 2015[14].

At global level, the proposal of Universal Declaration on Animal Welfare (UDAW) states in its first article:

“Animals are sentient beings and their welfare should be respected.”[15]

Therefore, the question can be asked if the status of “sentient beings” can become a future general statute for nonhuman animals.

In sum, animals enjoy superior protection than mere goods, since they are protected by special laws. The author of these lines could inventory anti-cruelty and pro-welfare laws in 107 countries around the globe to date. They are all listed and accessible through the Animal Welfare Legislation Database (AWLD) of the GAL project[16].

Conclusion

The legal status of animals has evolved from things to sentient beings in some countries and it is similarly evolving in the public thinking. We can observe an increased awareness about animal sentience. This can only be a good thing for animals, considering the billions of them suffering every day, everywhere in the world.

Beyond this evolution, can we think of a deeper revolution, toward a more fair and equitable reconsideration of the other animal interests in the law?

Animals remain at distance from obtaining legal personhood, but their legal rights can be recognised. For now, only human individuals (physical persons) or groups (abstract persons) have legal rights and obligations toward animals (to care and not harm them when forbidden).

However, progressive examples emerge, whether judicial decisions and legislative proposals, that recognise animals as subjects of rights. For example, a court decision in Argentina recognised the Orangutan Sandra as “subject of rights”[17]. A recent law project in Luxembourg recognised that animals can be “holders of rights”[18]. In the US, the claim for the rights of chimpanzees by the famous lawyer of the Nonhuman Rights Project Steven Wise, was lastly and for the first time, taken seriously[19].  

It is very likely that the current evolution can lead to a deeper revolution. Can we go toward animal personhood and seeing animals as obtaining rights (beyond just deserving some) in order to have their fundamental rights (to live, be free and not be mistreated) protected by law? Utopia for some, reality of tomorrow for the others… Time will tell us.

What we know is that we can all, as animal lawyers and those interested in animal protection, create the reality we want to see for a better future.

Time is needed for things to evolve in such a way that such evolution can be considered a true revolution.

For now, the legal status of nonhuman animals is in a chrysalis, between two states.  What is sure is that it has already left the status of larvae. And even if the current process remains vague, we can expect that it will soon become a butterfly.

 

This article is based on the paper published in the Conscious Lawyer Magazine, Issue 1, Jan. 2017, at 20-23

Further reading

[1] FAVRE, D., "Living Property: A New Status for Animals within the Legal System", Marquette Law Revue, 2010.

[2] General civil code of Austria (Allgemeines Bürgerliches Gesetzbuch) (ABGB), 1812 (1988 amendment), ABGB. § 285 a : “Animals are not things; they are protected by special laws. The provisions in force for the things apply to animals only if no contrary regulation exists.” (unofficial translation).

[3] German Civil Code, Bürgerliches Gesetzbuch (BGB),  2 Jan. 2002 (revised version). German Civil Code, Section 90 a) : “Animals are not things. They are protected by special statutes. They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided”.

[4] Swiss civil code, Art. 641 a): “1- Animals are not objects. 2- Where no special provisions exist for animals, they are subject to the provisions governing objects.” (unofficial translation).

[5] Civil Code of Catalonia, Código Civil de Cataluña, Libro V, Artículo 511-1. Bienes (Ley de 2006) : “3. Art. 511-1 (3): The animals, which are not considered as things, are under the special protection of the laws. Only apply to them the rules of goods in accordance with their nature.” (unofficial translation).

[6] Netherlands Civil Code (Burgerlijk wetboek), Book 3, Title 1, Section 1, Art. 2a) : “1. Animals are not things”; “2. Provisions regarding things are applicable to animals, taking into account the legal requirements and rules of common law, reasonable restrictions, obligations and principles of law, as well as public order and morality”.

[7] Civil Code of Czech Republic, n°89/2012, § 494: “Live animal has special importance and value as already senses gifted living creature. Live animal is not a thing to the provisions on the live animal only apply mutatis mutandis to the extent that it is contrary to his nature.” (unofficial translation).

[8] French civil code (16th. Feb. 2014 revision), Art. 515-14: “Animals are living beings gifted with sentience. Subject to the laws that protect the animals, they are subjected to the regime of goods.” (unofficial translation).

[9] Quebec civil code (4th Dec. 2015 revision), Art. 898.1 : “ 898.1. Animals are not things. They are sentient beings and have biological needs. In addition to the provisions of special Acts which protect animals, the provisions of this Code and of any other Act concerning property nonetheless apply to animals.”

[10] Colombia Civil code (6th Jan. 2016 revision), Article 655: “Recognizing the quality of sentient beings to animals” (unofficial translation).

[11] Margot Michel & Eveline Schneider Kayasseh, “The Legal Situation of Animals in Switzerland: Two Steps Forward, One Step Back - Many Steps to Go”, Journal of Animal Law, vol.VII, pp.1-43, May 2011, p.42.

[12] The article L.214-1 of the french rural code is the ancestor of the civil provision in France and Quebec (40 years after).

[13] Treaty on the Functioning of the European Union, 2008 (in force since 1st Dec. 2009), Article 13: “In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage”.

[14] Section 4 of the Animal Welfare Amendment Act (No 2) 2015 (2015 No 49): “animals are sentient”.

[15] See the GAL Database at Universal Level, online at: https://www.globalanimallaw.org/database/universal.html.

[16] See the GAL Database at National Level, online at: https://www.globalanimallaw.org/database/national/index.html.

[17] Steven M. Wise, “Update on the Sandra Orangutan Case in Argentina”, 6 mars 2015, online at: http://www.nonhumanrightsproject.org/2015/03/06/update-on-the-sandra-ora....

[18] Jhon Dyer, “Luxembourg Is Set to Become the Most Animal-Friendly Country in the World”, Vice News, 13 May 2016, online at: https://news.vice.com/article/luxembourg-is-set-to-become-the-most-anima....

[19] Petition for Writ of Habeas Corpus, Nonhuman Rights Project, Inc. v. Stanley, (N.Y. Sup. Ct. Dec. 3, 2013) (Index No. 13-32098); Petition for Writ of Habeas Corpus, Nonhuman Rights Project, Inc. v. Lavery, (N.Y. Sup. Ct. Dec. 3, 2013) (Index No. 02051); Petition for Writ of Habeas Corpus, Nonhuman Rights Project, Inc. v. Presti, (N.Y. Sup. Ct. Dec. 2, 2013) (Index No. 151725). All judges refused to issue the writs of habeas corpus. Transcript of Hearing at 15–16, Nonhuman Rights Project, Inc. v. Presti, (N.Y. Sup. Ct. Dec. 9, 2013) (Index No. 151725); Order to Show Cause & Writ of Habeas Corpus, Nonhuman Rights Project, Inc. v. Stanley, Index No. 13-32098 (N.Y. Sup. Ct. Dec. 5, 2013) (Index No. 13-32098); Transcript of Hearing at 27, Nonhuman Rights Project, Inc. v. Lavery, (N.Y. Sup. Ct. Dec. 3, 2013) (Index No. 02051). Notice of Appeal, Nonhuman Rights Project, Inc. v. Lavery, (N.Y. Sup. Ct. Jan. 9, 2014) (Index Notice 02051); Notice of Appeal, Nonhuman Rights Project, Inc. v. Presti, Index No. 151725 (N.Y. Sup. Ct. Jan. 9, 2014) (Index No. 151725); Notice of Appeal, Nonhuman Rights Project, Inc. v. Stanley, (N.Y. Sup. Ct. Jan. 9, 2014) (Index No. 13- 32098).

* This is a personal blog. Any views or opinions represented in this blog belong solely to the blog owner and do not necessarily represent the views or policies of World Animal Protection.