UNIVERSIDADE FEDERAL DE SANTA CATARINA CENTRO DE CIÊNCIAS JURÍDICAS
PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO
GABRIELA FRANZISKA SCHOCH SANTOS CARVALHO
THE CONSTITUTIONAL PROTECTION FOR ANIMALS IN BRAZIL AND IN SWITZERLAND: Cruelty, Well-Being and
Dignity
DISSERTAÇÃO DE MESTRADO
Florianópolis 2018
Gabriela Franziska Schoch Santos Carvalho
THE CONSTITUTIONAL PROTECTION FOR ANIMALS IN BRAZIL AND IN SWITZERLAND: Cruelty, Well-Being and
Dignity
Dissertação submetida ao Programa de Pós-Graduação em Direito da Universidade Federal de Santa Catarina para a obtenção do Grau de Mestre em Direito.
Orientadora: Profª. Drª. Letícia Albuquerque
Florianópolis 2018
To my parents Für meine Eltern
ACKNOWLEDGEMENTS
I would like to take this opportunity to thank all those who have supported my work on this thesis and have in some way contributed to it.
First and foremost, I express my gratitude to my thesis supervisor, Prof. Dr. Letícia Albuquerque. She has encouraged and accompanied my research from the beginning. Her support, generosity and friendship have been invaluable.
Prof. Dr. Fernanda Luiza Fontoura de Medeiros (UNILASSALE), Prof. Dr. Marita Giménez-Candela (Universitat Autònoma de Barcelona) and Prof. Dr. Paula Cals Brügger Neves (CCB/UFSC) composed the Thesis Committee. I would like to thank them for their valuable comments. I also would like to thank Prof. Dr. Everton das Neves Gonçalves (PPGD/UFSC) for presiding the Thesis Committee.
I am grateful to the dean of the Post-Graduate Program in Law at the Federal University of Santa Catarina (PPGD), Prof. Arno Dal Ri Jr., PhD, as well as the academic and administrative staff for welcoming me at UFSC, and to Prof. Dr. Alessandro Pinzani (PPGFIL/UFSC) for accepting me as a student in one of his classes.
My fellow members at the Environmental Justice Institute (OJE/UFSC), Prof. Dr. Adriana Biller Aparicio, Camila Mabel Kuhn, Conceição Raquel Melo Sabat, Gabrielle Tabares Fagúndez, Isabele Bruna Barbieri, Leatrice Faraco Daros, Maria Alice da Silva, Rafael Speck de Souza and Thais Silveira Pertille were always available to help me with administrative issues. Thalyta dos Santos was my travel companion on the BR-101 – thank you all for your help and companionship.
I would also like to thank lic. iur. Vanessa Gerritsen and the Stiftung für das Tier im Recht (TIR) in Zurich, Switzerland for giving me access to their library and for sharing their knowledge and experience.
Finally, I express my gratitude to my husband, Rodrigo, not only for his support and encouragement, but also for contributing to the final version of this thesis with his vast linguistic skills and knowledge.
But tell us, O men! We pray you to tell us what injuries have we committed to forfeit? What laws have we broken, or what cause given you, whereby you can pretend a right to invade and violate our part, and natural rights, and to assault and destroy us, as if we were the aggressors, and no better than thieves, robbers and murderers, fit to be extirpated out of creation … From whence did thou [O man] derive thy authority for killing thy inferiors, merely because they are such, or for destroying their natural rights and privileges? (Thomas Tryon, Complaints of the Birds and Fowls of Heaven to their Creator (1688). Cited from: LINZEY, Andrew. Animal Theology. Urbana and Chicago: University of Illinois Press, 1994.)
RESUMO
O objeto deste estudo é a tutela constitucional dos animais na Constituição da República Federativa do Brasil de 1988 e na Constituição Federal da Confederação Suíça de 1999. O Direito reflete a complexa e ambivalente relação do ser humano para com os animais: por um lado, ele conceitua os animais como recursos naturais, commodities e coisas; por outro lado, ele os reconhece como co-criaturas e seres vivos e sencientes. O uso de animais para alimentação, em entretenimento e esportes, e como ferramentas é profundamente enraizado nos costumes. Contudo o uso de animais sempre foi limitado por costumes, pela moral ou por leis. Desde o final do século dezenove, legislação específica tem emergido, visando a proteger animais individuais contra determinadas interferências pelo ser humano, e definindo limites de o que se pode e não se pode fazer com os animais. Atualmente um pequeno grupo de países, entre eles o Brasil e a Suíça, menciona os animais nas suas constituições, tornando a tutela dos animais uma tarefa do Estado. A Constituição da República Federativa do Brasil de 1988 explicitamente veda práticas que submetam os animais a crueldade, enquanto a Constituição Federal da Confederação Suíça de 1999 estabelece a proteção dos animais e da dignidade da criatura como objetivos do Estado e como princípios constitucionais. Todavia, os animais são explorados em uma escala sem precedente. O propósito deste estudo é de examinar, por meio dos exemplos do Brasil e da Suíça, o âmbito e os pressupostos subjacentes da tutela constitucional dos animais. A hipótese a ser examinada é que a concretização da tutela constitucional dos animais pelo legislador infraconstitucional e pelo judiciário levanta questões sérias devido à falta de conceitos claros e de um consenso social sobre a nossa relação ética com os animais. Esta dissertação conclui que para que normas constitucionais visando a proteger os animais possam ser eficientes, é preciso tornar explícitos os conceitos legais e seus pressupostos éticos subjacentes. A abordagem usada foi dedutiva e o método de procedimento constituiu na análise de literatura e legislação.
Palavras-chave: Constituição. Direito Animal. Direito Comparado. Brasil. Suíça.
RESUMO EXPANDIDO
Introdução
Esta pesquisa inicia-se com uma apresentação da natureza ambivalente e curiosamente instável da relação entre humanos e animais: por um lado, os animais exercem um magnetismo e um fascínio nos seres humanos; olhamos para eles com espanto e admiração, e os reconhecemos como nossos semelhantes, com quem compartilhamos não apenas o planeta, mas também nossa vulnerabilidade e finitude. Por outro lado, desde tempos imemoriais, os animais são usados como recursos e ferramentas para alimentação, vestuário, pesquisa, entretenimento e esportes; por conta disso, continuamos a tratá-los como coisas e mercadorias cujo propósito é servir-nos, e aceitamos que ao fazê-lo, os animais são prejudicados, machucados e explorados. O Direito reflete essa contradição entre a exploração de animais, e um senso de responsabilidade por sua integridade e bem-estar. Os animais aparecem em textos legais como coisas, mercadorias, recursos naturais e integrantes da paisagem; no entanto, sempre houve regras que visaram proteger os animais contra uma instrumentalização excessiva e abuso. Desde o surgimento da legislação moderna de proteção dos animais, no final do século XIX, na Inglaterra vitoriana, muitos países têm adotado legislação destinada a proteger os animais. Alguns – incluindo o Brasil e a Suíça – até mencionam animais em suas constituições. Ao mesmo tempo, os animais continuam sendo explorados em uma escala sem precedentes. Essa contradição entre a promessa de proteção dos animais feita pela legislação e sua real efetivação é o ponto de partida desta dissertação.
Objetivos
O objetivo desta pesquisa consiste em examinar o âmbito e os pressupostos éticos subjacentes à proteção constitucional concedida aos animais na Constituição da República Federativa do Brasil de 1988 e na Constituição Federal da Confederação Suíça de 1999, com foco nos conceitos de crueldade, bem-estar e dignidade. Esta dissertação examina como esses conceitos jurídicos indeterminados foram concretizados pelo legislador infraconstitucional, pela administração pública e pelo judiciário, e quais pressupostos éticos podem ter guiado sua interpretação. Por meio dos exemplos da tutela constitucional dos animais no Brasil e na Suíça, esperamos contribuir para entender melhor o potencial e os limites da proteção dos animais dentro do atual marco
legal, e entender como o sistema legal atual pode ser usado para melhorar a situação dos animais na sociedade humana. A hipótese principal que examinamos é a de que a concretização da proteção constitucional dos animais pelo legislador infraconstitucional e pelo poder judiciário levanta sérias dúvidas devido à falta de conceitos claros e de consenso social sobre nossa relação ética com os animais. Em outras palavras, conceitos como: crueldade, bem-estar e dignidade usados para delimitar o que podemos ou não podemos fazer aos animais não são claros devido à falta de consciência e de consenso sobre sua fundamentação ética e sobre os valores que orientam nossa relação com os animais.
Metodologia
A abordagem metodológica utilizada foi a dedutiva e o método de procedimento consistiu na análise de literatura, legislação e decisões judiciais nacionais e estrangeiras.
Resultados e Discussão
A Constituição da República Federativa do Brasil de 1988 proíbe expressamente as práticas que sujeitam os animais à crueldade, enquanto a Constituição Federal da Confederação Suíça de 1999 estabelece a proteção dos animais e a dignidade da criatura como objetivos do Estado e como princípios constitucionais. Crueldade, bem-estar animal e dignidade são conceitos jurídicos indeterminados. O alcance e a eficiência da proteção constitucional dos animais dependem da interpretação e concretização destes conceitos pelo legislador infraconstitucional, pela administração pública e, em última análise, pelo poder judiciário. No primeiro capítulo desta dissertação, observamos que a relação dos humanos com os animais sempre foi ambígua e curiosamente instável, oscilando entre nossa visão dos animais como co-criaturas e como recursos úteis. Notamos também que o Direito reflete essa dicotomia. Normas legais que protegem os animais baseiam-se em diferentes pressupostos éticos: animais são protegidos em virtude de sua função ecológica, como partes do ecossistema e das riquezas e do patrimônio de um país ou do planeta; outras normas legais criminalizam o abuso de animais para impedir o embrutecimento dos cidadãos e a degradação dos costumes. O que distingue e define a legislação de proteção dos animais que emergiu desde o século XIX é seu foco na proteção individual dos animais em virtude deles mesmos: o objeto da proteção se baseia nas necessidades dos animais e não nas necessidades dos seres humanos. Essa chamada “proteção animal ética”
(em contraste com a proteção animal antropocêntrica, que se concentra nas necessidades dos seres humanos) pode ser patocêntrica (do grego páthein, padecer, referindo-se à sensibilidade dos animais para a dor e prazer, e visa evitar sofrimento destes) ou biocêntrica (do grego bíos, vida, englobando como critério de moralidade a mera existência e dignidade dos animais). No segundo capítulo, examinamos o conteúdo e a finalidade da proteção constitucional dos animais na Constituição da República Federativa do Brasil de 1988 e na Constituição Federal da Confederação Suíça de 1999, e identificamos os valores éticos que podem ter orientado o legislador constituinte. Quanto à tutela constitucional dos animais na Constituição Federal da Confederação Suíça de 1999, observamos que embora o texto constitucional proteja os animais em geral, o legislador infraconstitucional restringiu a proteção animal aos animais ditos sencientes, ou seja, que possuem a capacidade de sentir dor ou sofrimento. Vale dizer, a legislação de proteção aos animais se aplica a todos os animais sencientes, sejam eles animais de companhia, animais selvagens, animais usados na pecuária ou na experimentação animal, por exemplo, embora os padrões e exigências variem segundo o contexto no qual o animal é inserido. Na Suíça, há um entendimento compartilhado de que os animais devem ser protegidos em virtude deles mesmos (“proteção animal ética”), e que a proteção dos animais está enraizada em uma ética patocêntrica (evidenciada pela restrição do escopo da legislação de proteção animal a animais sencientes). Ademais, há um entendimento compartilhado de que com a introdução do princípio constitucional da dignidade da criatura em 1992, aquela orientação patocêntrica foi expandida por um elemento biocêntrico. A dignidade da criatura refere-se ao valor inerente dos seres vivos, que existem por si mesmos e devem ser tratados com respeito e cuidado pelos humanos que interagem com eles. Assim, a proteção dos animais vai além dos critérios de dor e sofrimento. A dignidade dos animais também pode ser violada, humilhando-os, interferindo em sua aparência, em suas habilidades ou na instrumentalização excessiva deles. A Constituição da República Federativa do Brasil de 1988, em seu art. 225, § 1, VII, também protege os animais em geral. A Lei Arouca (Lei nº 11.794 de 12 de fevereiro de 1998) que estabelece procedimentos para o uso científico de animais regula apenas o uso de animais sencientes, o que evidencia uma orientação patocêntrica. Mas a Lei dos Crimes Ambientais de 1988 (Lei nº 9.605, de 12 de fevereiro de 1998) aplica-se a todos os animais, sem qualquer restrição em razão da senciência, da sua classificação biológica ou finalidade de uso. Com base na doutrina e jurisprudência que analisamos, no Brasil parece não
existir um entendimento convergente sobre os valores éticos que motivam a proteção constitucional dos animais. Nossa análise do debate na subcomissão de Saúde, Segurança e Meio Ambiente da Assembleia Nacional Constituinte de 1987 mostrou que a intenção do legislador constitucional original foi introduzir uma norma destinada a proteger os animais (por exemplo, gado, cavalos e animais de laboratório) que são utilizados para fins humanos (como alimento, pesquisa e entretenimento) contra o sofrimento desnecessário. De acordo com nossa interpretação das atas acima mencionadas, os membros da Subcomissão de Saúde, Segurança e Meio Ambiente, expressando sua compaixão e piedade pelo sofrimento dos animais, foram claramente guiados pela ética patocêntrica. Além disso, uma abordagem ética antropocêntrica pôde ser identificada em sua indignação com a dor gratuita infligida aos animais. Em contraste com a motivação predominantemente patocêntrica do legislador constituinte, a doutrina brasileira deu mais ênfase a uma interpretação antropocêntrica e biocêntrica do art. 225, § 1, VII, CF. No terceiro capítulo, examinamos a concretização da proteção constitucional para animais na Constituição da República Federativa do Brasil de 1988 e na Constituição Federal da Confederação Suíça de 1999 pelo Supremo Tribunal Federal do Brasil e da Suíça, e procuramos identificar as premissas éticas subjacentes à proteção concedida aos animais. Observamos que o Supremo Tribunal Federal Suíço, em 1989, reconheceu os animais como “seres sencientes vivos, como cocriaturas, cujo respeito e valorização é um postulado moral para os seres humanos e seu intelecto superior” (BGE 115 IV 248). Em 2009, o Supremo Tribunal Federal Suíço confirmou uma decisão em que foi recusada aos cientistas a autorização para realizar experiências com macacos-rhesus argumentando que, naquele caso concreto, o ganho previsto em conhecimento não justificaria a violação da dignidade dos animais (BGE 135 II 384 e BGE 135 II 405). O Supremo Tribunal Federal brasileiro declarou inconstitucionais três usos de animais em razão da crueldade contra os animais: a Farra do Boi (RE 153.531 / SC), briga de galo (ADI 2.514 / SC; ADI 3776 / RN; ADI 1.856 / RJ) e mais recentemente, a Vaquejada (ADI 4.983 / CE). Porém, por meio de nossa análise dos votos dos ministros da Suprema Corte no caso da Vaquejada, observamos que no Brasil não há entendimento unívoco compartilhado sobre os pressupostos éticos da proteção dos animais, sobre o conceito de crueldade e a relevância jurídica do sofrimento animal. Isso pode criar insegurança jurídica e comprometer a proteção dos interesses mais fundamentais dos animais. Nós sugerimos que, em vez de abordar essas práticas como sendo um conflito entre os
princípios constitucionais, o STF adote o conceito de crueldade animal, o que garantiria que o sofrimento animal fosse sempre levado em conta, nas decisões judiciais.
Considerações Finais
O status e o bem-estar dos animais na sociedade humana dependem, em grande parte, de como os animais são representados e considerados dentro da estrutura legal. A questão de como a proteção dos animais pode ser fortalecida e melhorada dentro do marco legal atual é um dos grandes desafios do direito contemporâneo. A delimitação do escopo da proteção legal para os animais é inevitavelmente contenciosa e controversa porque a proteção legal para os animais não pode ser melhorada sem a aceitação de uma abdicação do uso de animais. Em outras palavras, melhorar a proteção legal para os animais tem o custo de restringir os direitos daqueles que consideram a exploração de animais como uma prerrogativa sua. Por um lado, o reconhecimento do bem-estar animal é uma preocupação para uma parte considerável (e crescente) da população; por outro lado, vê-se que a sociedade humana não está disposta a renunciar aos benefícios do uso de animais. Enquanto o uso de animais para benefícios humanos for socialmente aceito, esse é o dilema ou a contradição insolúvel que a proteção legal dos animais inevitavelmente enfrentará. Para que normas constitucionais protetivas aos animais possam ser eficientes, e para se evitar que as disposições legais se tornem meras declarações simbólicas, os conceitos jurídicos e seus pressupostos éticos subjacentes devem ser bem explicitados.
Palavras-chave: Constituição. Direito Animal. Direito Comparado. Brasil. Suíça.
ABSTRACT
The object of this study is the constitutional protection afforded to animals in the Federal Constitution of the Swiss Confederation of 1999 and the Constitution of the Federative Republic of Brazil of 1988. The law reflects the complex and ambivalent relationship of humans with animals: on the one hand, it conceptualizes animals as natural resources, commodities and things; on the other hand, it recognizes them as fellow creatures and as living, sentient beings. The use of animals for food, in entertainment, sports, and as tools is deeply rooted in human customs. However, customs, morals or laws have always set limits to this use. Since the end of the nineteenth century, specific legislation has emerged, aiming at protecting animals as individuals against certain interferences by humans and defining limits of what we can and cannot do to animals. Currently, a handful of countries, amongst them Brazil and Switzerland, mention animals in their Constitution, making the protection of animals a state duty. The Constitution of the Federative Republic of Brazil of 1988 explicitly prohibits practices which involve cruelty against animals, while the Federal Constitution of the Swiss Confederation of 1999 establishes the protection of animal welfare and the dignity of the creature as state objectives and constitutional principles. Nevertheless, animals are being exploited on an unprecedented scale. The purpose of this study is to examine, by means of the examples of Brazil and Switzerland, the scope and underlying ethical assumptions of the constitutional protection granted to animals. The hypothesis to be examined is that the concretization of the constitutional protection of animals by the statutory legislator and the judiciary raises serious questions due to a lack of clear concepts and societal consensus on our ethical relationship with animals. This thesis concludes that in order to avoid that constitutional provisions protecting animals become mere hortatory statements, legal concepts and their underlying ethical assumptions must be made explicit. The approach used was deductive and the procedural method that of literary review and legislation analysis.
Keywords: Animal Law. Comparative Law. Constitution. Brazil. Switzerland.
LIST OF ABBREVIATIONS AND ACRONYMS
aBV – (previous) Federal Constitution of the Swiss Confederation of 29 May 1874
Abs. – paragraph (Absatz) art. – article
aSTGB – (previous version of the current) Swiss Penal Code of 21 December 1937 (SR 311.0)
AWA – Swiss Animal Welfare Act of 16 December 2005 (SR 455).
AWA 1978 – Swiss Animal Welfare Act of 9 March 1978 (in force until 2008)
AWO – Swiss Animal Welfare Ordinance of 23 April 2008 (SR 455.1)
BBl – Swiss Federal Gazette (Bundesblatt) BCE – Before Common Era
BGE – decision of the Swiss Federal Supreme Court BGer – Swiss Federal Supreme Court
BV – Federal Constitution of the Swiss Confederation of 18 April 1999 (SR 101)
CE – Common Era
CF – Constitution of the Federative Republic of Brazil of 1988 cf. – confer (compare with)
cit. – cited
E. – explanation (in a court decision) ed. – editor
eds. – editors
e.g. – exempli gratia (Latin for: for example) et al. – at alii (Latin for: and others)
et seq. – et sequentes (Latin for: and the following)
GSchG – Swiss Federal Waters Protection Act of 24 January 1991 (SR 814.20)
GTA – Swiss Federal Act on Non-Human Gene Technology of 21 March 2003 (SR 814.91)
LCA – Brazilian Federal Environmental Crimes Act (Act n. 9.605 of 12 February 1998)
lit. – litera (letter)
LS – Collection of Zurich cantonal law loc. – location
org. – organizer
SR – Systematic Collection of Swiss Federal Law STF – Brazilian Federal Supreme Court
TSchG ZH – Animal Welfare Act of the canton of Zurich (LS 554.1) USG – Swiss Federal Environmental Protection Act of 7 October
1983 (SR 814.01) ZH – Canton of Zurich
TABLE OF CONTENTS
INTRODUCTION... 27 1 HUMANS, ANIMALS, AND THE LAW... 31 1.1 USANDTHEANIMALS:WHATISWRONG?... 32 1.2 WHATPHILOSOPHERSSAYABOUTANIMALS... 43 1.3 ANIMALSANDTHELAW... 50 1.3.1 The origins of animal protection law: A brief overview.... 50 1.3.2 The evolution of animal protection law in Switzerland... 59 1.3.3 The evolution of animal protection law in Brazil... 61 1.4 WHYPROTECTANIMALS?... 64 1.4.1 Animal protection and environmental protection... 64 1.4.2 Anthropocentric and ethical animal protection... 69 1.4.3 Anthropocentrism, pathocentrism, biocentrism,
ecocentrism... 71
2 THE CONSTITUTIONAL PROTECTION FOR
ANIMALS IN SWITZERLAND AND IN BRAZIL...77 2.1 SWITZERLAND... 78 2.1.1 The Federal Constitution of the Swiss Confederation of
1999... 78 2.1.1.1 Introduction... 78 2.1.1.2 Preamble... 81 2.1.1.3 Art. 2 BV (State Aims)... 82 2.1.1.4 Art. 120 BV (Non-human gene technology; dignity of the
creature)...83 2.1.1.5 Art. 74 BV (Protection of the environment)... 86 2.1.1.6 Art. 78 BV (Protection of natural and cultural heritage)... 88 2.1.1.7 Art. 76 BV (Water) and Art. 77 BV (Forests)... 89 2.1.1.8 Art. 79 BV (Fishing and Hunting)... 90 2.1.1.9 Art. 80 BV (Protection of Animals)... 92 2.1.1.10 Synthesis... 94 2.1.2 Statutory Law: The Federal Animal Welfare Act
(AWA), the Federal Welfare Ordinance (AWO) and Art. 641a of the Civil Code... 98 2.2 BRAZIL... 115 2.2.1 The Constitution of the Federative Republic of Brazil
of 1988... 115 2.2.2 Statutory Law: The Federal Act n. 9.605/1998
(Environmental Crimes Law) and the Federal Act n.
2.2.3 Synthesis... 138
2.3 CONCEPTSOFANIMALPROTECTION:CRUELTY,
WELFARE,ANDDIGNITY... 143 2.3.1 The prohibition of cruelty against animals... 143 2.3.2 Animal welfare... 154 2.3.3 The dignity of the creature and animal dignity... 158 3 RECENT CASES: THE VAQUEJADA IN BRAZIL
AND EXPERIMENTATION WITH NON-HUMAN
PRIMATES IN SWITZERLAND... 163 3.1 ANIMAL PROTECTION AND THE JUDICIARY... 163 3.2 THE SWISS FEDERAL SUPREME COURT AND
THE DIGNITY OF ANIMALS... 164 3.2.1 BGE 115 IV 248: Foxes crossing the road... 165 3.2.2 BGE 135 II 384 and BGE 135 II 405: Experiments
with non-human primates... 166
3.3 THEBRAZILIANFEDERALSUPREMECOURTAND
THEPROHIBITIONOFCRUELTYAGAINST
ANIMALS... 178 3.3.1 The Farra do Boi and Rinha de Galo rulings... 178 3.3.2 The Vaquejada ruling... 184 3.3.2.1 Introduction... 184 3.3.2.2 Vote of Minister Marco Aurélio...187 3.3.2.3 Vote of Minister Edson Fachin... 189 3.3.2.4 Vote of Minister Gilmar Mendes... 189 3.3.2.5 Vote of Minister Luís Roberto Barroso... 190 3.3.2.6 Vote of Minister Teori Zavascki... 193 3.3.2.7 Vote of Minister Rosa Weber... 193 3.3.2.8 Vote of Minister Luiz Fux... 195 3.3.2.9 Vote of Minister Celso de Mello... 196 3.3.2.10 Vote of Minister Dias Toffoli... 197 3.3.2.11 Vote of Minister Ricardo Lewandoswski... 199 3.3.2.12 Vote of Minister Cármen Lúcia... 200 3.3.3 Discussion: Ethical approaches underlying the
ministers’ votes... 201 3.4 COMPARATIVEOBSERVATIONS... 204 CONCLUSION... 213 REFERENCES... 223
INTRODUCTION
Our relationship to animals, their place in the world and the question of what we morally owe them have preoccupied philosophers and thinkers since ancient times. Rather than being a post-1970 phenomenon, the concern for animals has been a constant theme in moral and political philosophy since antiquity, and there is a long and rich tradition of thought on our relationship to animals of which we are the inheritors.
Animals have always exerted a magnetism on humans and have always played a central role in the human imaginary. In legal texts, animals have figured as commodities since at least the emergence of early agricultural societies. Yet from an early age there have also been rules which put limits to the use of animals by humans; in other words, the use of animals has never been unconstrained. This ambivalence between, on the one hand, the exploitation of animals, and, on the other hand, the concern for their well-being and a sense of responsibility towards them as our fellow creatures, runs like a thread throughout Western history and philosophy.
Today, the issue of what we morally owe to animals and how we ought and ought not treat them is more urgent then ever. Animals and our relationship to them are also a major challenge for legal theory, the lawmaker and the judiciary. The legal systems of Western democracies have been designed to accommodate human needs almost exclusively. Today, based on cognitive, neuroscientific and ethological research, abilities or characteristics which have often been denied to animals, such as the ability to feel pain and to suffer, but also to communicate, make plans and consciously experience the world, are scientifically recognized. Thus, the legal system faces the challenge of how to include animals, in the words of Martha Nussbaum, not as parts of furniture of the world, but as active beings trying to live their lives.
In the legal system, animals appear primarily as things, commodities, tools, natural resources and as parts of the landscape, but sometimes also as living sentient beings and our fellow creatures. Especially since the end of the nineteenth century, first in England, and soon afterwards in other countries, including Brazil and Switzerland, legislation has been introduced aiming at the protection of animals against cruelty and maltreatment, not for the sake of their usefulness for humans, but for their own sake. By now, all European and American
legal orders have introduced into their legislation legal norms that, in one form or another, aim to protect animals.
On the one hand, environmental law protects the natural environment we share with plants and animals, and which is essential for human health and survival. Typically, environmental law protects animals as part of the fauna or of a species. On the other hand, specific animal protection legislation aims at protecting individual animals against the interference of humans; it takes account of animals not as resources, but as living and vulnerable beings. Over the past decades, legislators around the world have started to take the trouble to explicitly declare that animals are not mere “things”, but sentient beings. Brazil and Switzerland are amongst the few countries worldwide which protect animals not only in statutory law, but also mention them in their constitutions, thus making the protection of animals a state objective.
The Constitution of the Federative Republic of Brazil of 1988 states in its article 225, which is dedicated to the protection of the environment, that the state has the duty to “protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species, or subject animals to cruelty”. The Federal Constitution of the Swiss Confederation of 1999, in its article 80, makes the protection of animals a duty of the state. Furthermore, its article 120 protects the dignity of animals, the dignity of living beings and the dignity of the creature.
Both the Brazilian and the Swiss Federal Constitution reflect the view, which has been predominant for centuries, if not millennia, that animals are to be used for human purposes; albeit there have always been moral or legal limits to this use. In contemporary Brazilian and Swiss law, these limits to the use of animals for human purposes are expressed through the concepts of cruelty, animal welfare and dignity. It is by means of these concepts that the law determines what we can and cannot legally do to animals.
Cruelty, animal welfare and dignity are so-called undetermined legal concepts, whose interpretation and concretization are incumbent on the statutory legislator, legal practitioners in public administration and ultimately, the judiciary. This thesis will examine how these undetermined legal concepts have been concretized, and which ethical assumptions may have guided their interpretation.
Animals are being exploited on an unprecedented scale. The violence that is inflicted upon animals which are used in food production, in entertainment and sport, and in biomedical research, for
example, polarizes contemporary societies; the legitimacy of these practices is highly contentious and divides contemporary society. Animal abolitionist scholars and activists advocate for ending animal exploitation completely, while on the other end of the spectrum of opinions, large parts of society simply refuse to acknowledge that animals used for human purposes are being harmed.
The role the law can and should play in improving the lot of these animals is controversial as well. While some scholars think that regulating the exploitation of animals will not lead to significant changes as long as animals are considered property of human owners, others do believe in the possibility of improvement through reform of the current legal system.
This thesis is based on the assumption that the status and well-being of animals in human society largely depend on how animals are represented and considered within the legal framework. Moreover, it assumes that for pragmatic reasons, it is worth striving for the improvement and strengthening of the protection of animals within the current legal framework.
By means of the example of two countries, Brazil and Switzerland, both of which are considered to have avant-garde environmental and animal protection legislation, we will examine the relationship between the promise of animal protection made by the legislation, and its actual scope. The choice of the two countries also suggested itself by virtue of the educational background of the author, who is a Swiss educated lawyer based in Brazil.
The hypothesis that will be examined is that the concretization of the constitutional protection of animals by the statutory legislator and the judiciary raises serious questions due to a lack of clear concepts and societal consensus on our ethical relationship to animals.
The first chapter presents reflections on the nature of the human-animal relationship and describes how human-animals have traditionally appeared in philosophy and in the law. In the second chapter, we will examine the content and scope of the constitutional protection for animals in the Constitution of the Federative Republic of Brazil of 1988 and in the Federal Constitution of the Swiss Confederation of 1999, and we will try to identify the underlying ethical values which have guided the legislator. The third chapter analyses how the judiciary has specified the constitutional protection for animals.
In this way, we hope to contribute to understanding how the current legal system can be used to improve the situation of animals in human society.
1 HUMANS, ANIMALS, AND THE LAW
The relationship between humans and animals has been studied by philosophers, historians, theologists, anthropologists, literary scientists and legal scholars. Animals are also a major challenge for legal theory, the legislator and the judiciary. They appear in the legal system as things, commodities, tools, natural resources and parts of the landscape, but also as living beings and our fellow creatures. The legal systems of Western democracies, which are the result of over 2000 years of development, “have been designed to accommodate human demands almost exclusively” (BINDER, 2015, p. 67). However, efforts have been made, mainly since the end of the 19th century, to take
animals and their needs into account. Many countries have enacted animal protection legislation and over the past decades, some have introduced clauses declaring that animals are sentient beings, rather than mere things. Today, animal welfare is no longer considered a private concern of some citizens, but a public interest (BINDER, 2015, p. 67).
As for the role the law plays for the human-animal relationship, Michel points out that “the law both constitutes a social consensus and creates it at the same time” (MICHEL, 2015, p. 88):
On the one hand, there is an interchange between legislation and social notions insofar as the perceptions of the animal-human relationship are changing and due to the belief that the moral status of animals must be translated into law – but with a pronounced delay in most cases. On the other hand, by preserving social consensus in law, this very same law contributes to the perpetuation of that consensus, as well as its constant reproduction, and thus a society that consistently reconstructs the dualistic conception of humans/animals. But the law – and this is very significant in the realm of animal law – can also prove to be the driving force behind certain developments (MICHEL, 2015, p. 88).
Binder points out that “the status and well-being of non-human animals in human society largely depend on how their interests are represented and considered within the political and legal framework” (BINDER, 2015, p. 67).
The question as to how the law may be used to improve the situation of animals is controversial. Some scholars fundamentally doubt that significant improvements are possible within the current legal framework. They hold that the wrong that is being done to animals cannot be corrected by means of reform, just like child labor and slavery cannot be reformed; instead of improving the conditions of the exploited, the exploitation itself needs to be abolished. There is unarguably truth to this view. On the other hand, it cannot be denied that significant improvements have been achieved through legal changes. Some scholars hold that, since the achievement of animal abolition is unrealistic at the moment, an effort should be made to strengthen animal protection legislation (on this debate, see e.g. BINDER, 2015, p. 67 et seq.; FRANCIONE; CHARLTON, 2015, p. 39; GOETSCHEL, 2012, loc. 228-232; MICHEL, 2015, p. 89; PETERS, 2015, p. 21 et seq.)
The present thesis is inspired by this later pragmatic approach. Its purpose is to better understand the shortcomings (and the potential) of current animal protection legislation. To this end, we will examine the constitutional protection granted to animals in two countries: Switzerland and Brazil. We assume that the legal protection afforded to animals by a society is the product of a social consensus. As Michel explains,
[…] to a large extent, animal protection legislation is a reflection of the current attainable social consensus regarding the animal-human relationship. Because of this, animal protection laws are frequently less of an expression of ethical imperatives and more so of what is possible with respect to the clashing interest groups involved in the legislative and political process of the present day (MICHEL, 2015, p. 88 et seq.)
For this reason, we will dedicate the first chapter of this study to questions regarding how we – humans – relate to and think about animals.
1.1 US AND THE ANIMALS: WHAT IS WRONG?
In his short story Sentimentale Reportage, written in the beginning of the twentieth century, Joseph Roth tells the story of a traveler - the narrator – who is staying in a hotel in the South of France,
in front of which, one morning, he encounters an abandoned dog. At first sight he believes the dog to be a fox terrier, but then he notices, by the shape of his ears, that he must be a mongrel. He sympathizes with the dog, who, he surmises, was abandoned by his owner when it had started to become apparent that he was not a purebred. The narrator takes the dog to a restaurant, where he offers him a bone, vegetables and some water. In the afternoon of the same day, the narrator is supposed to travel to another town, taking an eighteen-hour train ride. He considers taking the dog with him, but it seems too cumbersome. Thus, he takes the dog to the local police station’s lost and found department. The police officer informs the narrator that although legally the dog is indeed a lost object, the police, lacking the necessary means, will not keep him, the way they would have the right and the duty to keep a lost briefcase. The law provides that the finder of a lost dog is to keep him for a period of twenty-four hours; the finder must take care of him and feed him. If after the expiry of this time he has not been contacted by the owner, he may let the dog go, or have him killed. While the narrator and the police officer are talking, the dog is sitting under the table, playing with the bone he brought from the restaurant. At the end of the conversation, the police officer, for no apparent reason, kicks the dog with his foot. The narrator comments: “He could allow himself to do this, since it was a dog without an owner and a lost object” (ROTH, 1983 [1930], loc. 514-515).1 Due to his impending departure, the narrator decides to disobey
the twenty-four-hours rule and find a place for the dog to stay. He tries the local animal protection association and two veterinarians. The second veterinarian recommends taking the dog to the knacker, who takes care of dogs until they are auctioned; those who are too sick to be sold, he kills humanely. Finally, the narrator takes the dog to this knacker’s house. The dog is afraid of the knacker; the narrator himself needs to lock the animal into the cage. “He took his bone with him. I tipped the knacker and threatened that I would inquire about the dog’s fate in a couple of days” (ROTH, 1983 [1930], loc. 545-547).2 Once he
has left town for the North of France, however, the narrator becomes absorbed by his work and forgets about the dog, until, one or two weeks later, he suddenly remembers: “One day I started to remember the moment when I had locked the dog in the cage. This memory had no
1 Own translation from the German text. In the original: “Er konnte es sich leisten, weil
es ja ein herrenloser Hund und ein gefundener Gegenstand war.”
2 Own translation from the German text. In the original: “Es nahm noch den Knochen
mit. Ich gab dem Wasenmeister ein Trinkgeld und drohte, daß ich mich nach einigen Tagen nach dem Schicksal des Hundes erkundigen werde.”
rational cause. It came like a silent wind” (ROTH, 1983 [1930], loc. 548-549).3 The narrator is surprised and puzzled by his feelings of
remorse and guilt for having betrayed the dog. Under his rigorous examination, these feelings first look like a sentimentality. But on even closer examination, he finds it difficult to define what exactly a sentimentality is: Is remorse for the betrayal of a human being natural, but remorse for the betrayal of a dog merely “sentimental”? The narrator concludes that he is indeed, so to speak, sentimental. He telegraphs the knacker, asking whether he could pick up the dog for an appropriate reward. The answer is short: “Pas de fox”. No fox terrier – because the dog was not a purebred who could have been sold, the knacker had killed him.
This short story about a man’s encounter with an abandoned dog touches on a series of questions regarding the relationship between humans and animals, which is the topic of this first section of this thesis. The story describes an uneasiness with the way the narrator thinks he is supposed to feel about an animal; an uneasiness with, in the words of Wild, the “historically warranted, commonplace way of thinking about animals” (WILD, 2012, (1)).4 According to this conventional way of
thinking, the betrayal of a dog is “negligible”. We do not owe a dog loyalty the way we owe a fellow human being loyalty; therefore, if we betray a dog by, for example, not saving his live when we could have saved it, but instead handed him over to his killer, we are not supposed to feel guilt or remorse. And if we do so nevertheless, we are supposed to dismiss this feeling as a mere “sentimentality”. The narrator, however, senses a discrepancy between what he feels and what he thinks he is supposed to feel; something is just not quite right. Moreover, he also feels uneasy with the dog’s legal status as a “lost object”. The connection between this legal status and the behavior of the police officer, who considers himself entitled to kick the dog on a whim, is all too obvious.
The issue Roth describes in the form of prose, has also been addressed by non-fiction writers. Philosophers, historians and lawyers have drawn attention to the ambivalence, incoherencies and contradictions of the relationship between us – humans - and the animals, who are “caught with ourselves in the net of life and time”
3 Own translation from the German text. In the original: “Eines Tages begann ich, an den
Augenblick zu denken, in dem ich den Hund in den Käfig gesperrt hatte. Diese Erinnerung hatte gar keinen vernünftigen Anlaß. Sie kam wie ein stiller Wind.”
4 Own translation from the German text. In the original: “[…] die historisch verbürgte,
(REGAN; LINZEY, 2010, p. xiv). In the words of Medeiros and Albuquerque, the relationship between humans and animals “has never been comfortable” and has oscillated between “fear and deification, neglect and the altar, cruelty and benevolence, between being hunted and hunter, namely, between attitudes which suppose a behavior of unrestricted property towards attitudes of protection” (ALBUQUERQUE; MEDEIROS, 2013, p. 134; cf. also MEDEIROS, 2013).5 Animals exert a fascination, a magnetism which fluctuates
between fear and admiration. Yet, at the same time, animals are often invisible to us; often we fail to perceive them, reducing them to insignificance, to “unimportant existences of which we need to take notice only when their lives cross ours” (ENGSTRÖM, 2004). Tom Regan, in the preface to the anthology “Other Nations – Animals in Modern Literature”, describes the important part animals have always played in our imaginary with the following words:
Human beings seem always to have had a special fascination for other animals. The earliest paintings of our ancestors, those that adorn the caves at Lascaux, France and Altamira, Spain, depict stags, horses, wild cattle, and bison. What possible symbolism these paintings contain, what questions they were meant to answer or Stone Age aspirations to satisfy, are likely to remain forever obscure. What is clear, and what is significant, is that the first painters were drawn, not to the sun or the moon, not even to the human form as their principle subject matter, but to other-than-human animals (REGAN; LINZEY, 2010, p. 1).
Regan further explains that “the magnetism animals have exerted on human creativity is hardly confined to ancient paintings”:
Much of the great sculpture from both the East and West, and from the ancient down through the modern periods, involves presentations of non-human animals. The same is no less true of the decorative arts and crafts, and, of course, of
5 Own translation from the Brazilian Portuguese text. In the original: “[...] uma relação
que nunca foi tranquila e que tem oscilado entre o medo e o endeusamento, o descaso e o altar, a crueldade e a benevolência, entre ser caça e caçador, ou seja, entre atitudes que supunham um comportamento de propriedade irrestrita às atitudes de proteção.”
literature in general. There is not a great painter or sculptor, not a great decorative artist or craftsperson, not a great thinker or writer who has not somewhere along the line been drawn imaginatively into the world of other animals and, after having visited, returned with some work – a bowl, a shape, a story – to commemorate the journey (REGAN; LINZEY, 2010, p. 1).
Brenner also points out that animals play a pivotal role in our imaginary, and that the challenge non-human nature represents to us humans, has been abundantly depicted: careful recordings of the humming of bees and the song of birds, be it in literature, music or painting, are examples of the expansion humans experience through non-human nature. This expansion and enrichment of our perception is not only an aesthetic experience, but it is also formative for the human self (BRENNER, 2015, p. 119 et seq.).
Linzey also describes how taking delight in animals makes possible an experience of transcendence; a transcendence “which releases us from a purely instrumentalist view of animals, that is, from the idea that animals are just here for us, and that their meaning or purpose can be adequately described in terms of utility” (REGAN; LINZEY, 2010, p. xii). To take delight in animals enables a more-than-selfish view of the world; it “helps us to liberate ourselves into other sensibilities – to see beyond ourselves, to find value in the other” (REGAN; LINZEY, 2010, p. xi). It is no exaggeration, Linzey writes, “to say that nature in general, and animals in particular, have the capacity to make us good by inspiring a form of selfless altruism which we couldn’t otherwise attain” (REGAN; LINZEY, 2010, p. x; emphasis in the original).
Thomas, in his study “Man and the Natural World: Changing attitudes in England 1500 – 1800”, quotes a monk of Christ Church, Canterbury, who wrote in 1536 to one Lady Lisle: “I have sent unto you … a beast, the creature of God, sometime wild, but now tame, to comfort your heart at such time as you be weary of praying” (THOMAS, 1984, loc. 1872-1873).
In contrast to this appreciative view of animals stands that in our everyday lives we often see animals as mere resources. In the words of Linzey,
Generally, we do not see animals as subjects of worth in themselves – that is, if we actually see them at all. For far too many of us, animals are the invisible beings in our midst; we live among them (that is, when we have not banished them from their habitats), but we do not stop to gaze in wonder and astonishment at the intricacy, complexity, and beauty of their lives. Too often we are single-eyed people living in a multi-eyed world. A terrible spiritual and moral blindness affects the human species (LINZEY, 2013, loc. 417-418, emphasis in the original).
Except for companion animals, with whom we establish family bonds, most animals are invisible to us. Out of sight, they are to serve a human purpose, as resources, commodities, tools. Regan has observed that “the closest contact most people in the Western World have with nonhuman animals is eating them” (REGAN; LINZEY, 2010, p. 12).
Korsgaard points out that our ethical attitudes towards animals are “curiously unstable”; they oscillate between our treatment and our view of animals as our fellow creatures and as a useful resource:
Human ethical practices and attitudes with respect to the other animals exhibit a curious instability. On the one hand, most people believe that it is wrong to inflict pain or death on a nonhuman animal for an inadequate reason. Skinning a cat or setting it on fire by way of a juvenile prank is one of the standard examples of obvious wrongdoing in the philosophical literature. Like torturing infants, it is the kind of example that philosophers use when we are looking for something ethically uncontroversial, so that disputes about the example won’t get in the way of the point we are trying to make. On the other hand, human beings have traditionally counted nearly any reason we might have for hunting or killing animals, short of malicious enjoyment, as an adequate reason. We kill nonhuman animals, and sometimes inflict pain on them, because we want to eat them, because we can make useful products with them, because we can learn from experimenting on them, and because they interfere with agriculture or gardening or in other ways are pests. We also kill
them, and sometimes inflict pain on them, for sport – in hunting, fishing, cockfighting, dogfighting, bullfighting, and so on. We may even kill them because, having done some sort of useful work for us, they have outlived their usefulness and are now costing us money (KORSGAARD, 2008, p. 1).
Korsgaard compares “the shape of our moral concern for the other animal” to “the shape of our moral concern for prisoners of war”; we strike an “uneasy balance” between “treating the other animals […] as mere ends – and treating them in a way that acknowledges our common nature as conscious and sensate beings”:
Uneasily balanced between these two apparent extremes of attitude is the conviction, common to so many people, that when we do use animals for our own purposes, we should treat them as humanely “as possible”. The eating should go on, but the animals should be kept in pleasant conditions and killed humanely; the experiments should go on, but the scrupulous hunter should aim for the swift kill that involves no extended terror or suffering. The shape of our moral concern for the other animals, if I may put it that way, is rather like the shape of our moral concern for prisoners of war. Just as we strike an uneasy balance between treating prisoners of war as enemies and treating them in a way that acknowledges our common humanity, so we strike an uneasy balance between treating the other animals as a usable resource – as the philosopher Immanuel Kant put it, as mere means – and treating them in a way that acknowledges our common nature as conscious and sensate beings (KORSGAARD, 2008, p. 2, emphasis in the original).
Thus, on the one hand, we acknowledge animals as our fellow creatures, as living beings with their own intrinsic value, with dignity and rights; yet, on the other hand, we see and treat them as resources, tools and commodities whose purpose it is to serve us. In the words of Linzey, on some occasions, we look upon animals with “amazement and
wonder, or in a spirit of fraternal respect”; but most of the time “we routinely use them for food, for research, and for sport and entertainment. And what is more, most human beings seem perfectly content with our exploiting and harming other species” (LINZEY, 2013, loc. 397-422).
As Korsgaard points out, the conflict between the view of the other animals as a usable resource and the view of them as fellow creatures has reached new extremes in the contemporary world:
On the one hand, we treat at least some animals – companion animals – as members of the family to an extent that is probably unprecedented in human history. […] And yet the same animals are abandoned by the millions, ending up in shelters where they will probably be euthanized, or in laboratories where they face even worse fates, simple because it is inconvenient for their owners to keep them. And modern factory farming represents the most widespread and extensive form of cruelty towards animals that our species has practiced yet. Many factory farm animals live in densely overcrowded conditions, indoors, with their excrement and their dead left among them. Farmers cut off the beaks of chickens and the tails of pigs, without anesthetics, as ways to control the aggression produced by this overcrowding. Others, such as some pigs and calves, although they are highly social, live alone in crates too small for them to turn around in. Many chickens spend most of their lives in pain, because they are fattened much too quickly, and their legs cannot comfortably bear their weight. Chickens deemed useless are sometimes ground up live. These industrial food-processing techniques make it possible to produce meat cheaply, and as a result, despite the cruelty of the methods, people have begun to eat meat in unprecedented quantities (KORSGARRD, 2008, p. 2 et seq.).
Since time immemorial humans have used animals as resources and tools, for food, clothing, entertainment. However, since the second half of the twentieth century, due to the industrialization of agriculture
and the rise of a globalized economy, the use of animals has increased on an unprecedented scale (KELCH, 2011, p. 4 et seq.).
In his study Man and the Natural World – Changing Attitudes in England 1500 – 1800, Thomas points out that battery farming was actually not a twentieth-century invention; he writes that “in Elizabethan times the usual way of ‘brawning’ pigs was to keep them ‘in so close a room that they cannot turn themselves round about… whereby they are forced always to lie on their bellies’. […]”. According to a contemporary, these pigs fed in pain, lay in pain and slept in pain. Moreover, “poultry and game-birds were often fattened in darkness and confinement, sometimes being blinded as well. […] Geese were thought to put on weight if the webs of their feet were nailed to the floor […]” (THOMAS, 1984, loc. 1911-1917).
Nostalgic, bucolic ideas of how farming used to be before the rise of twentieth-century industrial factory farms, are not uncommon; Thomas’ study on Elizabethan England shatters this illusion. The twentieth and twenty-first centuries, however, have brought forth an economic system with specific characteristics. Kelch points out that the relationship between the consumer and the animals reared for his or her consumption has shifted from a personal relationship to a local and finally to a global one, with the consequence that the exploitation of animals has become much less visible to the consumer (KELCH, 2011, p. 1 et seq.). Nevertheless, the treatment of animals in the food industry is notorious to everyone who looks more closely. Knowing how animals, conceived and born on demand, already doomed to be killed before they reach adulthood, are treated during their short lives, as if they were a merchandise and not living beings who feel pain and fear, is difficult to bear. J. M. Coetzee writes on the industrial use of animals that “to any thinking person, it must be obvious that there is something badly wrong in relations between human beings and the animals humans rely on for food” (COETZEE, 2007). He points out that “there is something deeply, cosmically wrong with regarding and treating animals as mere units of any kind” (COETZEE, 2007).
The vast majority of the public have an equivocal attitude to the industrial use of animals: they make use of the products of that industry, but are nevertheless a little sickened, a little queasy, when they think of what happens on factory farms and in abattoirs. Therefore, they arrange their lives in such a way that they need to be reminded of farms
and abattoirs as little as possible and do their best to ensure that their children are kept in the dark, too, because we all know children have tender hearts and are easily moved (COETZEE, 2007). One such child is portrayed in João Ubaldo Ribeiro’s short story O dia quando mataram o porco (“It was a different day when they killed a pig”). The story describes the experience of a boy who, as an initiation rite to mark the beginning of his adulthood, is asked to attend the slaughter of a sow by the men of the village. While the adults matter-of-factly “demolish the sow Noca as though they were demolishing a house”, the boy feels sickened; but he tries hard to pull himself together so as not to look weak (RIBEIRO, 1991, p. 169). The contradiction between our acknowledgment of animals as living fellow creatures and as resources destined to be exploited by us is well articulated in the description of the young boy:
He imagined that maybe the reason why the sow Noca had never given an answer to the things he had said to her every once in while, even when they were all by themselves and with guarantees of secrecy, was that she knew that one day he would betray her and would be watching her execution in all coldness, learning in that operation the manner in which he would kill his own pigs in the future. For, since he was an man, his wife would surely expect him to know how to kill the pigs he raised or fattened, so she could also have her days for killing the pig, like her mother before her and the mother of her mother and all the other mothers, this being the way the world is organized (RIBEIRO, 1991, p. 166 et seq., translated by the author).
A look at history shows that since antiquity “there were always some, albeit a minority, who took the trouble to register a moral problem in our treatment of animals” (LINZEY; CLARKE, 2004, p.xxiv). Such sensibilities are not only a matter of personal views; societal attitudes and perception shift over time. For example, Thomas delineates how the pet-keeping of the English middle-classes in the eighteenth century provided a background for changing attitudes towards animals, namely the tendency “to break down the rigid
boundaries between animals and man” which theorists in earlier times had tried to raise (THOMAS, 1984, loc. 2570-2571).
Over the past decades, there has been a shift in perception of animals brought about by scientific findings on the inner and social lives of animals. De Waal points out that curiously, humanity is so prone to downplay animal intelligence, that “we need to overcome internal resistance to even consider the possibility [of animal intelligence]” (DE WAAL, 2016, p. 3). We tend to deny animals capacities we take for granted in ourselves and which can be corroborated by anyone who lives in proximity to animals (DE WAAL, 2016, p. 3; NACONECY, 2006, p.138). De Waal explains that in the nineteenth century, anthropologists were still open to the possibility of culture outside our own species. In the nineteenth century, “it was perfectly acceptable to talk about the mental and emotional lives of animals. Charles Darwin himself had written an entire tome about the parallels between human and animal emotional expressions” (DE WAAL, 2016, p. 41, see. also p. 151) and “many a scientist in the nineteenth century was eager to find higher intelligence in animals” (DE WAAL, 2016, p. 3). For most of the last century, however, “Western science was overly cautious and skeptical about the intelligence of animals. Attributing intentions and emotions to animals was considered naïve “folk nonsense”; the idea that animals have an inner life was considered “anthropomorphic, romantic, or unscientific” (DE WAAL, 2016, p. 3-4). De Waal explains this change of perception with the rise of behaviorism and ethology (a branch of zoology concerned with the study of animal behavior), in the twentieth century. Both schools “viewed animals as either stimulus-response machines out to obtain rewards and avoid punishment or as robots genetically endowed with useful instincts” (DE WAAL, 2016, p. 4). Despite the difference between the two schools, what they had in common was that “both were reactions against the overinterpretation of animal intelligence. They were skeptical of “folk” explanations and dismissed anecdotal reports” (DE WAAL, 2016, p. 41). However, over the past decade the influence of these schools of thought has declined. In de Waal’s word, today’s evolutionary cognition is “a blend of both schools, taking the best parts of each” (DE WAAL, 2016, p. 51 et seq.). Thus, over the past decades, the way science sees animals has changed, and we have become more ready to accept (again) that animals have mental, emotional and social lives.
New scientific findings influence the way we think about animals. As Naconecy points out, “the existence of cognition, language and emotions in animals has been amply documented” (NACONECY,
2006, p. 138).6 Today, cognitive ethologists affirm that animals – all
vertebrates and some invertebrates – are capable of experiencing pain and that they have surprising cognitive capacities. They feel joy and fear, they suffer physically and emotionally, they communicate, have family bonds and bonds of friendship, and care for other members of their species (or members of other species). They make choices, pursue goals and try to survive, avoiding suffering and pain. (NACONECY, 2006, p. 138). In short, animals are much more sophisticated than often meets the eye. Considering the many contexts into which animals are inserted to serve human needs, this insight raises uncomfortable questions and has been described as an “inconvenient truth” (BROOKS, 2018).
1.2 WHAT PHILOSOPHERS SAY ABOUT ANIMALS
The narrator of Roth’s Sentimentale Reportage faces a number of philosophical and ethical questions regarding his relationship to the abandoned dog he encountered in front of his hotel. What are his moral obligations toward this dog? How should he treat him? What does he morally owe him? Since the dog is in need, does he owe him help? Has he betrayed the dog by handing him over to the knacker, instead of trying to save his life? Why would it be considered morally wrong to kill a human being who does not serve a purpose in society, but not to kill an animal under similar circumstances? These are central questions of animal ethics, the branch of philosophy which deals with the correct treatment of animals (SCHMITZ, 2017, loc. 12-15).
Linzey and Cohn-Sherbok wrote in 1997:
Over the last 20 years we have become more questioning of the ways in which we exploit animals – in farming, entertainment, and science to take only three examples. Have we the right to inflict suffering on other sentient animals in order to produce cheap food? Can it ever be moral to cause suffering for human enjoyment and pleasure? And are the gains made through experimentation on animals really justifiable gains or are they actually ill-gotten gains? Indeed, such questioning does not stop at the permissibility of
6 Own translation from the Brazilian Portuguese text. In the original: “A presença de
causing suffering, the issue of killing is increasingly being addressed. Can it ever be right to kill for sport and human entertainment? Have we the right to kill for food when we know that animal protein is not essential to human health? And by what ethical principle do we judge when some forms of life should live and others die? Those who have asked such questions and researched current practices have – more often than not – come back with uncomfortable answers (LINZEY; COHN-SHERBOK, 1997, p. 1). Ethical concerns with animal welfare, our relationship to animals, and how animals ought to be treated, as well as the delineation of the moral obligations of humans towards animals and the moral limits of our power and our dominion over animals are by no means new questions. Linzey explains that the ethical concern for animals has sometimes erroneously been portrayed “as little more than a post 1970s phenomenon, the tail end of the “sixties” liberation movement that began (seriously) with civil rights and ended (ludicrously) with “furry creatures”” (LINZEY; CLARKE, 2004, p. xxiii et seq.). But rather than being a post 1970s phenomenon, ethical concern for animals is part of an ongoing tradition of thought and moral concern, a long tradition of reflection on our ethical relations with animals that reaches “as far back as to the Greeks, possibly earlier” (LINZEY; CLARKE, 2004, p. xxiii et seq.). The anthology on animal rights edited by Linzey and Clarke demonstrates that many philosophers, from Aristotle, Augustine, Descartes, Hobbes, Locke, Schopenhauer and Nietzsche, have given their time to animals. Thus, there is a long and rich tradition of reflection and thought on animals and the human-animal relationship; a tradition “of which we are (in more ways than one) inheritors, even if much of what some philosophers have said is now deemed unsatisfactory” (LINZEY; CLARKE, 2004, p. xxiv). Although the ancient and premodern thinkers thought differently from ourselves, “we reflect (often without knowing it – and with much less understanding) what they once uttered” (LINZEY; CLARKE, 2004, p. xxiv).
This seems to be case of Roth’s narrator, who is struggling with the way he sees animals and relates to them. What are the implications of the dog being legally considered a thing? Is his betrayal of the dog really morally “negligible”? Where do our ideas about and attitudes toward animals come from?
