Animals in the Law

Animals in the Law

Where is discourse on non-human legal subjects heading?

February 03, 2025

For over 50 years, the animal rights movement has been advocating a change in the relationship between humans and animals. In the humanities and social sciences, an “animal turn” has been proclaimed. There is now also growing interest in the question of how animals should be legally treated and whether they are entitled to their own rights. “While constitutional rights for animals have been in the foreground up to now, it is precisely private law that has a long tradition of gradually emancipating new legal subjects and of giving them an individual and autonomous character,” says Felix Aiwanger, research fellow at the Institute.

“Our ambivalent attitude towards animals is reflected in § 90a of the German Civil Code, which has for 34 years asserted that animals are not things but that they are legally equivalent to things. “Surprisingly, this provision, which originated in the Austrian Civil Code, has found its way into the civil codes of many European legal systems despite its incongruous content,” says Aiwanger. Today, cruelty to animals is prohibited in 152 countries, 79 of which have more comprehensive animal protection laws.

A thing or a legal person?

There is a global trend towards a subjectivization of non-human animals. Some legal systems now recognize animals as legal subjects or as legal persons, although it is often unclear exactly what this means. The granting of rights says nothing about their scope, form, or enforcement. The situation is also characterized by contradictions: given that pets are seen as vulnerable family members, the question arises as to why wild animals and animals subject to industrial processes should not also enjoy a legal status that identifies them as independent stakeholders.

Questions about non-human legal subjects go far beyond the topic of animal rights. “The increasing disintegration of the legal dichotomy between things and persons can also be observed in other contexts, such as in the areas of genetic engineering or artificial intelligence,” explains Aiwanger, who is involved in organizing a conference titled The Legal Distinction between Persons and Things: Changing Perspectives, which will take place at the University of Antwerp in July 2025.

Do animals have rights?

“In a certain sense, we can already say that animals have rights, because current animal protection law imposes obligations on us to protect the interests of animals,” explains the legal scholar. However, these duties are not enforced by or in the name of animals, but by state authorities. And animal interests do not enjoy full protection. Rather, the regulations imply that human interests generally take precedence. Such restricted legal positions are also referred to as “simple rights”.

Up to now, the discussions on current animal protection law and on potential animal rights have largely progressed along separate paths. Aiwanger wants to bring them closer together and is exploring the question of how simple rights can become fully endowed subjective rights. He is currently focused on instances where this development is already discernible. He is shedding light on this as part of his work on a new commentary on the German Animal Welfare Act, the reform of which fell victim to the recent collapse of Germany’s coalition government.

Can animals have rights?

Whether animals can be legal subjects depends on which characteristics are associated with this status. “From a purely technical point of view, many things can be construed as legal subjects, as this does not necessarily involve any value judgments,” says Aiwanger. Differentiating, he goes on to explain that ”what is important here is which non-legal characteristics, such as interests, autonomy or capacities, legal systems draw on and have historically drawn on in order to distinguish between subjects and objects. This forms a legal grammar, which in turn has an impact on social views. In addition, scientific findings from other disciplines, such as behavioural biology or bioethics, are taken into account.”

In order to enforce rights on behalf of animals, representation by humans is required. In his animal rights research, Aiwanger examines possible mechanisms of representation: How and by whom are representatives appointed? What qualifications do they need to have? Is an individual, a collective entity, or a specially established body required? Is there a general representation capacity or does it exist only for a specific procedure or a specific area of responsibility? His research also examines how existing models, such as family law guardianship, representative actions, or state-appointed commissioners, can be further developed on the basis of these criteria. Together with experts from 31 European countries, he is exploring these questions in a comparative law network that will meet at the Institute for a first joint conference in July 2025.

Should animals have rights?

As an alternative to the concept of animal rights, there are various proposals for new categories: quasi-things, quasi-persons, “living property”, a “mixed subjective-objective category”, “sentient beings”, and similar reformulations. Even in private international law we now see discussions on how to deal with the status of animals if falling between persons and things. However, there is also the view that rejects the granting of rights to animals, as the concept of rights is seen as being inherently anthropocentric.

Thus far, questions regarding the kinds of rights animals could have and the extent to which these could be extended to private law have hardly been answered. Aiwanger sees a particular challenge in ensuring that the grammar of subject and object reflects not only the individual interests of animals but also the collective interests in human health, environmental, and climate protection standing opposite interests in animal use. In order to give this issue a scholarly forum, the Journal of Animal Law, Ethics and One Health was founded in 2023, with Aiwanger sitting as a member of its editorial board.

Will animals have rights?

As prophesized by Jacques Derrida in the 2006 dialogue For What Tomorrow …: “I do not believe that we can continue to treat animals as we do today.” He went on to state: ”All the current debates indicate a growing unease concerning this question within industrial European society.” While there is now a broad consensus that the legal status of animals will significantly change in the foreseeable future, the direction of such change remains uncertain.

“The question whether there will one day be fully-fledged rights for animals could be considered in terms of discourse analysis, thus asking how the topic is discussed and identifying parallels to other areas of discourse pointing to common developments. In this sense, animal rights can be seen as a debate on emancipation,” says Aiwanger. In order to broaden the discourse on animal law, he has launched the lecture series Hamburg Forum on Comparative Animal Law, which is held as a hybrid event at the Institute. Renowned guests from Germany and abroad will comparatively examine the status, changes, and future of the legal landscape concerning the human-animal relationship. All interested parties are invited to join in the discussion on this platform and to inform themselves further.”

 

Felix Aiwanger, A Family Law Approach to Animal Rights, Animal & Natural Resource Law Review 19 (2023), 1–20.

 

Hamburg Forum on Comparative Animal Law
National and international guests speak on the state, development and future of the legal landscape concerning the human-animal relationship. It is the series’ aim to build bridges – between national and international lines of discourse, between animal rights and animal welfare law, between animal rights and rights of nature, between legal scholarship and the natural sciences and civil society. more

 



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© Max Planck Institute for Comparative and International Private Law / Johanna Detering

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