Words: Sabine Brels, PhD (January 2016)
Image Credits: Pixabay
Reading Time: 7 minutes

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. The GAL Project is the brainchild of the Swiss lawyer Antoine F. Goetschel and French lawyer Sabine Brels. The project is aiming to unite all animal lawyers and animal lovers, to bring their ideas together for the benefit of all the animals globally.

One major feature of the GAL website is the Matrix. It’s a new framework that contains numerous proposals for a better treatment of animals through the law. Anyone is invited to submit new suggestions. These can range from realistic to “utopian” ideas (or recommended changes that may seem far-fetched in today’s world, but can become normality in due course). Simply working through the Matrix can be beneficial, particularly for those interested in animal law and the welfare of animals, as it contains a wealth of experience in the fields of law making, implementation, lobbying and scientific knowledge. With more than fifty animal law experts from all over the world, the GAL project is a unique resource for animal law information and includes a complete Animal Welfare Legislation Database (AWLD).

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 in order 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 recognized 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 themain division between these 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 recognized as sentient beings. In this sense, they are not just things because they are “living properties” 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?

Pig

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 a 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 and Germany followed in 1990. Later, this statement was made in the Swiss Civil Code in 2003, in the province of Catalonia in Spain in 2006, and the Netherlands since 2011. 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 recognized in civil law: animals as sentient beings

Some civil codes have also recognized animals as “sentient beings”- France in 2014, followed by Quebec in 2015 and shortly after by Colombia in 2016. Here the same principle applies. Eventhough recognized 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 as there the sentimental value of a companion animal is recognized in law (and compensation awarded when it is injured or killed), and his/her welfare is taken into account in the event of the divorce or death of the owners.

It is also important to mention that the recognition of animals as “sentient beings” first appeared in written law in France in 1976 (in the rural code), followed by the European Union (EU) recognition, now in the Lisbon Treaty of 2008 in the EU general principles. Some countries of common law (versus civil law) have also included this statement in their animal welfare laws, mainly New Zealand since 2015.

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.” 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. This is the case in 107 countries around the globe to date and now recorded in the Animal Welfare Legislation Database (AWLD) of the GAL project.

Conclusion

The legal status of animals has evolved from things to sentient beings in some countries and increasingly it is similarly evolving in the public thinking. We can observe an increased awareness about animal sentience and welfare today in the world. This can only be a good thing for these 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 are still a distance from obtaining legal personhood, where their legal rights can be recognized. 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).

There are however progressive examples of decisions and legislative proposals beginning to emerge recognizing animals as subjects of rights. For example, a court decision in Argentina recognized an Orangutan Sandra as the “subject of rights”; a law project in Luxembourg recognized that animals can be “holders of rights”; and in the US a claim for the rights of chimpanzees by the famous lawyer of the Nonhuman Rights Project, Steven Wise was, for the first time, taken seriously.

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

What we know is that we can all, as animal lawyers or those interested in animal welfare, begin to create the reality we want to see tomorrow. The GAL project is a key in this direction.

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

SABINE BRELS, PhD is an animal law expert and is co-founder (with Dr. Antoine Goetschel) and manager of the Global Animal Law (GAL) project.

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