Francisco Capacete González
In a social and democratic State of law such as Spain (art. 1 Spanish Constitution), Law becomes, as Ferrajoli has called it, the law of the weakest. And it is that one of the functions of the Law is to protect, correct excesses, abuses, encourage agreements and, finally, bring society to a state of basic proportionality from which to develop civilization. There are no legal reasons why it should limit itself to protecting only humans but could potentially tend to protect animals and even the planet as a whole as well. The protection of animals as an aspect of the sense of justice, has been the main motor that has promoted the birth and development of a specialty of Law that has been agreed to call Animal Law. In this sense, the human vocation for Justice has put the animal issue on the table since ancient times. The precedents of the legal protection of animals are lost in the past.
When did the right to care for animals begin? We verified through the paleoanthropological record that the human being cared about the condition of the animal from its very beginnings. The discovery, in burials from about 33,000 years ago, of dog bones along with human bones, shows that animals had entered the human imagination, not as a resource, but as one more member of the clan. As the burials are part of a fundamental ritual of those human groups, a ritual that generated a bridge between the terrestrial and the celestial clan, we can deduce that it was regulated by tradition. So, it would not be unreasonable to affirm that, among the first human legal rules, in proto-law, relationship/inclusion rules of some animal species were collected.
Later in history we find the Code of Hammurabi (1795-1750 B.C.), in which the matter of liability towards third parties for the possession of animals is included:
- 250. Si un buey, al pasar por la calle, ha corneado a un señor y le ha causado la muerte, este caso no entraña reclamación.
- 251. Si el buey de un señor es bravo y el consejo de su distrito le informa de que es bravo, pero él no ha cubierto sus astas ni ha vigilado de cerca su buey y el buey acorneó al hijo de un señor y le ha matado, dará media mina de plata.
- 263. Si ha dejado perecer al buey o al cordero que le había sido confiado, pagará a su propietario buey por buey, cordero por cordero.
In Rome, the Law of the XII Tables (5th century BC) established that “if it is said that a quadruped animal has caused damage (…) either deliver the cause of the damage or offer an estimate of the damage”. Gaius, the distinguished compiler of Roman Law, collected in his Institutions (161 AD) that wild animals are inmancipables (peaceful possession cannot be delivered).
In the East, Asoka, king of the Maurya dynasty, ruled India in the s. III AD. Once converted to Buddhism, he established a government program that has reached our days in the form of edicts, the edicts of the Sacred Law or Dharma. Among other provisions, such as the ones I mention below, it established the prohibition of killing living beings.
E.R. II. “…In all parts of the empire two medical assistances have been established: assistance for men and assistance for animals… And trees have been planted along the roads and wells have been dug for the enjoyment of animals and men”.
E.R. III “Respect for all living beings is meritorious.
During the Middle Ages in Europe there were many trials against animals for understanding that they were responsible for epidemics and damage. The animal was still within the legal sphere, but this time not to be protected, but to serve as expiation for society.
We must advance the timer of history and reach the s. XVIII to return to find laws that return to protect animals. The Cruel Treatment of Livestock Act 1822 was an Act of Parliament in the United Kingdom known as the Martin Act, after member of Parliament and animal rights activist Richard Martin. The animal protection law established in France in 1850 criminalized public mistreatment of domestic animals. General de Grammont was the promoter of it. The Grammont Law, as it will be known later, stipulated,
“They will be punished by a fine of five or fifteen francs, and may be one or five days in prison, for those who have publicly and abusively mistreated domestic animals.”. From this century the Law of Animals will no longer stop, until reaching our days where a kind of revolution is taking place in all the legal systems of the globe.
One of the most outstanding advances is the overcoming of the legal category of “thing” in which animals have been subsumed since Roman Law. Since Austria introduced in the Property Treaty of its Civil Code (ABGB), the modification that animals “are not things”, the imprint of the change had an immediate repercussion in Germany, where the Civil Code was reformed in the same sense (BGB), as did the Swiss Civil Code a little later. In Spain, the Civil Code (2021) has recently been amended to accommodate animals in the category of “animals”, freeing them from the status of “things”. As expressed in the Statement of Motives of the Law amending the Civil Code: “The reform of the legal regime of animals in the Spanish Civil Code follows the lines established by other nearby legal systems, which have modified their Civil Codes to adapt them to the greater social sensitivity towards animals that exists today, and also to recognize their quality as living beings endowed with sensitivity.
Another of the advances that Animal Law has promoted is ending customs and traditions that had distanced themselves from the values of a civilization, since they included elements of torture of animals subject to such traditions. Fox hunting has been banned in England. It is Spain the use of animals in circuses and public shows. Bullock racing has been partly banned in India. In Mallorca, the release of ducks was prohibited as part of the patron saint festivities of Pollença. I would like to highlight a legal triumph of special importance when it comes to putting an end to customs that pervert human sensibility itself, such as keeping wild animals locked up in zoos for the simple amusement of human beings. In 2014, Sandra, an orangutan at the Buenos Aires Zoo, was granted habeas corpus. The Argentine courts determined that the deprivation of liberty was illegal and described Sandra as a non-human person with feelings and the ability to make decisions.
It should be clarified that Animal Law, like other legal specialties, is based on Science and Ethics. The advances and discoveries that the biological sciences have experienced in the last forty years are revealing to us an animal world with a complex psyche and cognitive abilities similar to those of a human child. This information forces us to provide the animal world with laws that adequately protect them and one of the best tools is to recognize their own rights. Contemporary Ethical Philosophy demands that legal agents establish rules of coexistence between human beings and the rest of the living beings on the planet and even with the planet Earth itself. Animal Law goes hand in hand with Environmental Law, specifying protection at the individual level.
Therefore, this legal consideration of animals is not due to a compassionate emotional factor, but to a necessity, to reverse the decline of human civilization.