A few observations on animal rights

Pietro Paolo Onida, Professor of Roman Law at the University of Sassari, comments on the recently published essay by Professor Pulina, “Anthropocentrism, natural harmony, sensitivity and animal rights: can we use animals for our purposes?”   

Giuseppe Pulina‘s essay on “Anthropocentrism, natural harmony, sensitivity and animal rights: can we use animals for our own purposes?” is an original analysis compared to the numerous contributions on the subject of ethical-juridical conditions of animals.

However, those amongst the jurists would be wrong in thinking that this originality can be attributed to the fact that its author is a scholar of non-juridical disciplines. There is certainly more law in the pages of this contribution than in many other works on animal conditions from jurisprudence experts. It is striking that the essay dedicates particular attention to the principles, concepts and categories of legal science. Furthermore, unlike many other legal studies, the working hypothesis is presented very clearly, which sometimes makes it difficult even to understand the problems being confronted.

Considering my expertise, I will focus strictly on legal aspects. The clarification is not superfluous because the essay offers more perspectives and interpretations.

The first problem addressed in the essay is a particularly important one for the jurist of “semantic cleaning“, which invests the aspect of dogmatic elaboration and the related legal categories useful for identifying the matter in question. As is often repeated among jurists, dogmatics is the first scientific elaboration of a question in a certain sense.

For the author, the object of this “semantic cleaning” is the term anthropocentrism, intended to indicate the “prevalence of man over other natural systems” and, therefore, over the natural environment and ‘other’ animals. For Pulina, who recalls man’s ability to build a complex linguistic structure compared to other animals, there is no possibility of overcoming the anthropocentric perspective at the cost of falling into extreme relativism.

In connection with this same imposition, the author refutes that value judgments can be attributed to nature as it lacks a moral code. Therefore, suffering inflicted on animals is to be avoided as it contradicts human values. Furthermore, in this sense, the terms harmony and balance must be rejected: the former corresponds to a subjective evaluation, the latter because there is no balance in the ecosystem.

It is necessary to protect #animals not only by reducing the animal's suffering as much as possible, but also by ensuring their #wellbeing as they are under human care. Click To Tweet

A second problem, always of great importance for the jurist, concerns identifying the characteristics that justify or exclude participation in the legal world. For Pulina, talking about the animal as a sentient being is confusing. On the other hand, it is necessary to avoid indulging in “pan-animalism“, which abstractly may even mean asserting a protection of parasites or other animal vectors for disease. The scholar supports the legitimacy of killing animals for food purposes, whereby in not possessing a moral status, they are not to be considered holders of individual rights.

However, it is worthy of the utmost attention that Pulina does not come to consider the animal in purely objectivist terms. The refusal of individual rights ownership by animals does not contradict the recognition of the need for animal protection, expressed not only with the largest possible reduction of animal suffering but also with the need to ensure their well-being as they are under human care.

At the basis of this reflection is the implicit recognition of overcoming the subject-object dichotomy of law in the legal taxonomies relating to animals and the concrete discipline that derives from them. Above all, this can be deduced from the author’s reflection on whether raising and sacrificing animals for humankind’s needs is permissible. Concerning this fundamental question, the scholar proposes to overcome the rigid opposition between the two theses of those who tend to admit the ethical legitimacy of farming for food purposes and those who instead exclude it.

Pulina adds a possible third answer to these two opposing arguments to allude to the theses of a still open debate. Only after considering this possible third answer, albeit briefly, does the scholar lean towards the positive thesis. The overcoming of the subject-object dichotomy of law can again be deduced from the author’s thesis on the related question of whether or not animals are holders of rights. The author admits that animals can have consciousness, while it is much rarer for animals to have self-awareness, of which language is a fundamental part.

Rights and duties belong to humans this argues in favor of the lawfulness of #AnimalBreeding for human purposes. Click To Tweet

On a strictly legal level, the observation, referred to by the author, according to which animals cannot access the law as they are incapable of reaching a symbolic elaboration such as that required for the rules of coexistence, is the subject of heated disputes. The fact that animals are not part of the human community is not legally an essential condition for their participation in rights of law, as shown by the numerous references to this participation, leading from the great Roman jurisprudential reflection – consider first the famous passage with which Ulpian, a jurisconsult of the III century A.D., defines the ius naturale as ius quod natura omnia animalia docuit, a definition so important that the emperor Justinian takes up again and places at the beginning of his Digesta, the great Roman jurisprudential compilation which is still the basis of juridical science – to nowadays with various recognitions also on a constitutional level of animals’ ‘personality’. For the jurist, the fact that animals are mostly not considered responsible for their actions is on the same level. The absence of liability does not necessarily imply exclusion from the law (objectively and objectively).

Pulina, however, avoids the accusation of a purely objectivist animal viewpoint. He forcefully affirms man’s responsibility towards them. The fact that rights and duties pertain to humanity deposes in favour of the legitimacy of animal breeding for human purposes.

For the jurist who does not have the existence of law (in the objective sense) dependent on the State, not even in today’s democratic constitutional structures, the possible recognition of animal rights (in the subjective sense) finds its foundation in the whole juridical system rather than in the legal order. It is the merit of the author to have recalled that the art. 9 of the Italian Constitution, in its recent reformulation, foresees, in addition to the protection of the environment, biodiversity and ecosystems, also in the interest of future generations, that the State is required to ensure types of animal protection.

In chapter 6, significantly entitled “Is it lawful to raise and sacrifice animals for our own purposes? Yes, but…” the author provides an interpretation useful especially to the jurist to understand the entire essay. If the equivalence of an animal to people in a state, which for jurists at least, is of cognitive deficit, such as that of a child or those who have a cognitive disability, does not permit the formulation of systematic reasoning, it is, on the other hand, necessary to ask which animals are to be protected and to what extent.

Man is responsible for his actions towards #animals. His action is not that of a dominator. Click To Tweet

The problem of equating the animal to a child and therefore to the possibility of acknowledging the animal’s “guilt” and/or “responsibility”, has been known since ancient times in Greek philosophy and Roman law. If today the reasons for animal rights activism seem to testify in favour of a general protection of all animals, it is clear that the jurist must prepare criteria, principles and concepts that can direct towards concrete types of protection that imply a balancing with humanity’s rights.

There is in this approach the expression of a need that should always be the basis of every juridical reflection: that of considering problems not through abstract speculations with no parallel in reality but to concretely and authentically create the human dimension of law.

The legal value that emerges from Pulina’s work is that of coexistence between the primary need to preserve the value of human life, first of all, that of its nutrition, and the need to protect the dignified existence of animals. Pulina states clearly how to reconcile these two values: humanity is responsible for the actions performed towards animals. Its actions are, therefore, not dominating.

By Pietro Paolo Onida, Professor of Roman Law at the University of Sassari. He has a prevalent scientific interest in the so-called “animal question”, to which he has dedicated several monographs and articles.

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