Constitutional protection of property and dereification of animals – the case of Poland

Cezary Błaszczyk

University of Warsaw

The concept of dereification in animal law is widely acknowledged as a pivotal shift in determining the legal status of non-human animals. It moves away from perceiving animals merely as insentient property and recognizes their capacity for suffering. This reconceptualization does not categorize animals as 'things' or 'goods' but accords them a special status of neither inanimate objects, nor legal persons. Poland's legislation serves as a prime example of this approach. The Polish Animal Protection Act, specifically in Article 1.1, explicitly recognizes animals as sentient beings rather than inanimate things. The law requires that humans "ought to respect and provide it with care".

Therefore, there can be no ownership of animals in Poland, since according to art. 140 of the Civil Code, ownership rights are applicable exclusively to things. Yet, this sounds more revolutionary than it is, since Article 1.2 of the Animal Protection Act also concedes that in matters not expressly regulated by the Act, the legal treatment of animals should align with the regulations applicable to things, with due consideration for the distinct nature of animals. Hence, in reality, the prevailing human-centric legal and economic systems still facilitate the treatment of animals as property (evidenced by practices such as animal trade). While dereification may not be merely symbolic, its limitations in ensuring the personal freedom and dignity of animals are apparent.

Animals in Poland are regarded as legal subjects of law, and humans may hold proprietary rights over them but not outright ownership. These proprietary rights entail the rights to possess, control, transfer, and utilize an animal if exercised within statutory boundaries and with due consideration of the animal's sentience. The academic literature rightly describes such status as "more than simple property", acknowledging the complexity of their position. Yet, in many ways, these property rights to an animal resemble ownership. This subject has been a fertile ground for scholarly debate, especially when exploring the intricate differences between proprietary rights and ownership. Yet, the discourse often overlooks the constitutional implications of this legal treatment of animals, a topic that remains rich for exploration and analysis.

Unlike the European Union's regulation of animal welfare through art. 13 Treaty on the Functioning of the European Union, the Polish Constitution does not include any provision directly stipulating animal protection, nor does it declare animal welfare as a systemic value. However, some scholars – such as Tomasz Pietrzykowski – believe it is possible to establish an indirect constitutional norm with similar effects, primarily through a pro-animal interpretation of the Constitution's environment and public morality clauses. While agreeing with the idea of finding new values in existing provisions and the general admissibility of the proposed interpretation, one must point out its limitations. Article 5 of the Polish Constitution provides protection for animals only as part of the natural environment, emphasizing species conservation rather than individual animal welfare. Article 31.3, which pertains to the limits of the exercise of freedoms for the sake of public morality, offers protection to animals not as an intrinsic goal, but rather as a means to maintain public morality. This does not acknowledge the inherent value of animal life.

On the other hand, several provisions of the Polish Constitution offer substantial protection of ownership and other property rights, which presents a problem in balancing animal welfare and the interests of their "owners". Comparing the constitutional protection of property with statutory animal property and welfare law is a complex task. Since the Constitution is supreme law, its provisions are autonomous (cannot be interpreted through statutory definitions). At the same time, the use of private law as a subsidiary point of reference is permissible when analyzing the constitutional protection of private rights.

The Polish Constitution considers ownership a constituent element of the socio-economic system ("social market economy, based on the freedom of economic activity, private ownership, solidarity, dialogue, and cooperation of social partners" – Article 20). It goes on to protect it through two articles: 21 and 64. The former establishes a fundamental principle of protection of property. The latter institutes property as a subjective right, which may be limited only through a statute and if the substance of the right is retained.

Property rights in Poland are fundamental but not absolute, with the state protecting them through additional legislation. The term "ownership" in Article 64 is often interpreted in a manner akin to "private law ownership" as per Article 140 of the Civil Code, while "ownership" in Article 21 is more broadly construed to include all property rights, aligning with Article 44 of the Civil Code. This interpretation is supported by jurisprudence and the judiciary. Without delving into a detailed discussion of those provisions, it is safe to say that art. 21 of the Constitution includes (hence, protects) the property right to an animal. In contrast, no constitutional clause confirms the dereification or simply establishes the humanitarian protection of animals.

It is thus clear that while Article 21 of the Constitution encompasses property rights to animals, it does not extend to their ownership, nor does it abolish dereification. Thus, although constitutional property protection does not negate the humanitarian protection of animals, the legal framework remains skewed towards human interests over animal welfare. In any conflict of values, human interests are likely to prevail because of the constitutional protection of property rights.

Thus, the case of Poland confirms the need for constitutional provisions on animal status, especially in legal systems where dereification takes place. Their absence threatens the humanitarian protection of animals and may diminish dereification. Unless animal life and/or welfare (not to mention dignity or rights) are recognized as systemic values in a constitution, there can be no true balancing between pro-human and pro-animal values and rules.

Cezary Błaszczyk, Ph.D. hab., is at the Faculty of Law and Administration, University of Warsaw.

Suggested Citation: Cezary Błaszczyk, ‘Constitutional protection of property and dereification of animals – the case of Poland’ IACL-AIDC Blog (29 February 2024) Constitutional protection of property and dereification of animals – the case of Poland — IACL-IADC Blog (blog-iacl-aidc.org)