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Animal protection: animal rights or human rights?

| Litigation

Luis Morón analyses the principle of animal protection in an article published in Actualidad Jurídica Aranzadi

Having overcome the conceptualization of animals as "things" (semi-movable goods in the classical conception of Roman law based on codification that was accepted by civil systems) at the historical moment in which we find ourselves, there can be no doubt that the protection of animals is a collective duty that affects society imposed for obvious ethical and social moral reasons. The principle of animal protection cannot therefore be denied or opposed.

On this basis, it is possible to discuss the legal basis of animal protection. Thus, the term "animal rights" is often used by those who try to base such protection on the attribution of so-called rights to animals, insofar as they are sentient beings capable of experiencing physical and psychological suffering when subjected to degrading treatment.

However, in all legal systems, the granting of rights is closely linked to the recognition of personality, and it is not possible to speak of rights in relation to subjects who lack personality, and animals, however close they may be to human beings in the biological chain, do not have the status of persons.

Without entering into deep philosophical analysis, which would exceed the ambit of this article, the characteristics that are consubstantial to personality are the capacity for self-reflection, intelligence as an understanding of one's own substance and individuality and of the relations that bind one to others, and will as an expression of a conscious act of the goodness or evil of one's actions.

At the legal level, personality is conceived as the ability to be the subject of rights and obligations.

It is true that personality is not only attributed to natural persons but also that capacity to be the subject of rights and obligations is attributed by law to organisations or groups of natural persons either on the basis of a creation of law (normative theory set out by Kelsen), a legal fiction (thesis advocated by Savigny) or a logical or technical construction of legal language (Hart's opinion).

But this attribution of rights and obligations is not made in the abstract but from the substratum of legal persons, as they are integrated by natural persons with intelligence and will.

It follows that it is not logical, from a legal point of view, to attribute rights or obligations to beings who are not aware of the ownership of such rights or obligations and, therefore, capable of exercising some and demanding the fulfilment of others.

Hence, the expression "animal rights" is a legal contradiction and one should rather speak of the rights of the person whose sensitivity or ethical sense may be attacked by animal abuse.

In other words, the basis of animal protection should be sought, in my opinion, not in the attribution of rights to beings who have no knowledge of such rights and obligations, nor can they consequently exercise the former and demand compliance with the latter, but in the right of the individual to prohibit conduct that is clearly contrary to the prevailing social ethics at any given time.

From this perspective, the protection of animals is based not on alleged "animal rights" but on the respect for the rights of the individual based on the respect for duties or obligations imposed by the feelings or social ethics of the community, sanctioned by a legal provision, and whose requirement for compliance is conceived as universal.

This interpretation is not precluded by the alleged existence of a Universal Declaration of Animal Rights. We say alleged existence because the Universal Declaration drafted in 1978, erroneously in line with the Universal Declaration of Human Rights, lacks any recognition or approval by any international organization. 1

However, the content of this Declaration has been transferred to some national legislations since 1988. Thus, Austria and Germany are amending their civil legislation to exclude animals from the concept of property. The German Constitution subsequently elevated the principle of animal protection to constitutional status. This constitutional status is also reflected in the Swiss legal system, which emphasizes the idea of the dignity of living creatures.

Within the European Union there are several legal instruments dedicated to the protection of animals and in our national law, animal protection is articulated at the state, regional and municipal level. We leave the analysis of these legal regulations to a second chapter of our analysis.

In conclusion, it is sufficient to indicate that the foundation of animal protection advocated by the criterion of the writer offers the functional advantage of also protecting the environment and the duty to preserve the planet, issues that are so topical due to the celebration of the Twenty-fifth Conference (COP25) of the United Nations Framework Convention on Climate Change.

You can see the article in Actualidad Jurídica Aranzadi.


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