Constitutional Animal Law: Trends and Impacts
/Constitutional animal law is a relatively new discipline that has emerged in legal scholarship in recent years. It focuses specifically on constitutional norms relating to the protection of animals and, more broadly, on constitutional rights and litigation involving animals.
A Growing Constitutional Trend
It is only in the last few decades that animals have appeared in various national Constitutions. Traditionally, animal protection provisions have been enshrined at the legislative, regulatory, and international levels, with the first texts adopted in this field dating back to Martin's Act passed by the UK Parliament in 1822 and the Grammont Law adopted in France in 1850. It was not until a century later that the animal reached the top of the hierarchy of norms. India led the way in 1976 by enshrining the duty of compassion towards living creatures (Art. 51-A), followed by Brazil, which included a ban on cruelty to animals in its new constitution in 1988 (Art. 225).
The movement then spread to Europe and Africa. Switzerland enshrined the obligation to respect the dignity of living creatures in 1992 (Art. 120 of the current Constitution), followed by Germany, which introduced a national objective (Staatziel) for the protection of animals in 2002 (Art. 20(a) of the Basic Law). Article 11 bis in the Constitution of Luxembourg, introduced in 2007, "promotes the protection and welfare of animals" whilst the Federal Constitutional Act of 23 May 2013 on Sustainable Development and Animal Welfare, § 2 in Austria “commits [the state] to the protection of animals”. Finally, Art. 45 of the Constitution of Egypt (2014) provides that "The State is committed to (...) the prevention of cruelty to animals". It should be noted that in 2023, Luxembourg adopted a new Constitution which changes the wording of its previous provision on animal protection: the new article 41(3) provides that the State “recognises to animals the quality of non-human living beings endowed with sentience and ensures the protection of their welfare”.
In addition, four countries have opted for provisions in the form of a jurisdiction clause, through formulas that attribute competence for animal protection either to the legislator or to the executive power: Switzerland in 1973 (Art. 80(1): "The Confederation shall legislate on the protection of animals"), Slovenia in 1991 (Art. 72(4): “The protection of animals against torture shall be regulated by law"), Russia in 2020 (Art. 114(f5): the federal government “shall undertake measures aimed to (…) forming [a] responsible attitude in society towards animals”), and Italy in 2022 (Art. 9(3): “State law shall regulate the ways and means of protecting animals”).
As we can see, the number of countries that have included animals in their Constitutions is very small. Nevertheless, the movement is recent and growing rapidly. In recent years, there has been a proliferation of draft constitutional amendments dealing with this issue, notably in Belgium, South Korea, Greece, and Chile. Given the current reassessment of the relationship between humans and animals on ethical grounds, we can predict with relative certainty that this phenomenon will continue in the years to come.
Explicit and Implicit Constitutional Protection for Animals
The constitutional protection of animals in Germany, Brazil, Luxembourg, and India operates by means of a specific constitutional provision. It appears that such a norm has a number of notable effects: the recognition of a right to conscientious objection, the annulment of contrary acts, a basis for limitation of fundamental rights, providing an incentive to take action (to punish mistreatment more severely, to enforce the law more strictly, to strengthen existing regulations), creating a limit on actions harmful to animals, acting as a reference point for the application and interpretation of the law, and providing a basis for legitimising criminal offences. Although the number of countries with constitutional provisions explicitly concerning animals has grown in recent decades, most countries do not have specific constitutional provision protecting animals. However, as I argue in Constitutional Animal Law, constitutional protection for animals is sometimes implied in provisions that protect the environment, recognise the rights of nature, enshrine the right to life, or protect the individual. In these countries, and in the absence of such recognition, constitutional litigation concerning animals is essentially analysed as litigation concerning the constitutionality of texts that aim either to protect animals or to regulate the ways in which they are used.
The Tangible Effects of Constitutional Provisions
Some scholars have claimed that constitutional provisions related to animals are mere declarations of intent without practical effect. I argue that to the contrary, they influence the legal system, public authorities and citizens. Within legal systems, the strength of these provisions lies in the fact that they give a high legal value to the protection of animals.
In practice, this high status can have several effects, three of which will be set out here. The first is the recognition of a right to conscientious objection. On this basis, for example, a student could refuse to participate in the dissection of an animal, as recognised by a court in India (in Sarika Sancheti vs Central Board of Secondary Education (CBSE), AIR 1997 Delhi, writ Petition n° 139/96).
The second tangible effect is the annulment of laws or administrative acts contrary to the relevant provision. In Brazil, for example, where the prohibition of cruelty has direct effect, the Federal Supreme Court has declared unconstitutional laws allowing cockfighting and rodeos.
The third effect is the most general. It consists in providing a justification for the restrictions that must sometimes be imposed on fundamental rights to strengthen the laws or regulations that apply to animals. In particular, this includes the owner’s right to property, the commercial freedom of those who use animals as objects of economic activity, or religious freedom. It will therefore be necessary to establish that the objective pursued by the law justifies the restriction. In this respect, the existence of such a provision makes it much easier to recognise this protection as a relevant objective. By making the protection of animals an objective of the State - that is, a policy which the State may and indeed must implement - the constitutional provisions in question provide a legal basis for the necessity of the restrictions imposed. It is through this mechanism that laws banning circuses with animals in India and the use of electric collars in Germany, for example, have been upheld.
In conclusion, a constitutional norm is characterised by its stability, durability and continuity over time. It also has a superior legal status, which enables it to prevail over subordinate norms. These two elements together render inclusion in a constitution a decisive issue: succeeding in enshrining a certain vision of the world (or of animals) in a constitution ensures that it will prevail in the long term. This has been clearly understood by animal rights advocates, as well as their opponents. It explains the initiatives taken by both sides to invest the constitution. In the field of animal law, the presence of animals in the constitution is one of the most important issues of the 21st century.
Olivier Le Bot is Professor of Public Law at the University of Aix-Marseille.
Suggested Citation: Olivier Le Bot, ‘Constitutional Animal Law: Trends and Impacts’ IACL-AIDC Blog (27 February 2024) Constitutional Animal Law: Trends and Impacts — IACL-IADC Blog (blog-iacl-aidc.org)