Author: Eduardo Camargo Olyntho de Arruda
Translated by: Ligia Payão Chizolini
The 1988 Constitution of the Federative Republic of Brazil, with the aim of guaranteeing the effectiveness of the right to an ecologically balanced environment as outlined in Article 225, entrusted the Public Power with the responsibility to safeguard fauna and flora. This includes prohibiting, through legal means, practices that jeopardize their ecological roles, lead to species extinction, or subject animals to cruelty (BRASIL, 1988).
The constitutional provision outlined in § 1, item VII, of article 225 to what Marques (2022, p. 1156) refers to as the dual protection of non-human animals in Law. In this sense, the author (2022, p. 1144-1145) observes that animals 'are protected as a natural resource and due to their role in ecological balance by Environmental Law, and as sentient beings, with intrinsic value, by Animal Law against cruel treatment and abuse.
As a result, Animal Law emerges as a distinct legal branch, separate from Environmental Law. While they share some rules and principles, the former draws primarily from Article 225, Paragraph 1, Item VII, the final part of the Constitution, as a foundational normative source and initial milestone for its scientific independence (ATAIDE JUNIOR, 2018).
Ataide Junior (2018, p. 50) defines Animal Law as "the set of rules and principles that establish the fundamental rights of non-human animals, considered in and of themselves, irrespective of their environmental or ecological function."
This legal branch starts from the premise that prohibiting the cruel treatment of non-human animals implies an acknowledgment of animal sentience. This recognition comes from the understanding of the legislator, that these creatures possess the capacity to experience negative emotions such as pain, anxiety, and stress.
Beyond the recognition of animal sentience by the constitution, the Cambridge Declaration on Animal Consciousness, dated July 7, 2012, a universally recognized scientific document, affirms that all mammals, birds, and various other creatures, including octopuses, possess the neurological substrates necessary for consciousness and the ability to exhibit intentional behavior (LOW, 2012).
Building upon this, Ataide Junior (2018, p. 50) argues that sentience, characterized by the capacity to feel affective states and exhibit intentional behavior, grants non-human animals intrinsic dignity. This forms the foundation for their autonomous legal protection under Animal Law.
On a philosophical level, the recognition of animal sentience as the basis for their legal protection and intrinsic value was championed in Peter Singer's 1975 work "Animal Liberation". Singer drew from Jeremy Bentham's formulation of thought in "An Introduction to Moral Principles and Legislation" to consolidate the idea that the capacity to feel pain or pleasure leads to the consideration and protection of the interests of non-human animals (SINGER, 2013, p. 13; GONÇALVES, 2020, p. 322).
In terms of jurisprudence, Ataide Junior (2018, p. 53) champions the judgment of ADI n. 4983/CE in the Federal Supreme Court (STF) as a fundamental moment in the jurisprudential consolidation of Brazilian Animal Law.
In fact, in ADI n. 4983/CE, by ruling that the animal's interest in not suffering takes precedence over the vaquejada, a cultural practice, the STF, as the guardian of adequate constitutional interpretation, affirmed the prohibition of cruelty to non-human animals (Article 225, Paragraph 1, Item VII, final part of the Constitution) as an independent norm, with its own purpose and value. This norm is grounded in animal sentience, recognized by the 1988 Constitution of the Federative Republic of Brazil, from which animal dignity emanates as an intrinsic value inherent to the non-human animal, irrespective of their ecological or preservationist role. This is evident in Justice Luís Roberto Barroso's vote:
' 37. Therefore, the prohibition of cruelty to animals in the Federal Constitution must be regarded as an autonomous norm. This ensures that its protection is not solely due to an ecological or preservationist function, and that animals are not reduced to mere elements of the environment. Only through this approach can we acknowledge the eminently moral value that the Constitution assigned to it for the benefit of sentient animals. This moral value lies in the assertion that animal suffering has intrinsic significance, irrespective of environmental balance, ecological function, or its importance for species preservation.' (ADI n. 4.983/CE, vote of Justice Luís Roberto Barroso, p. 42)
In this way, Ataide Junior (2018, p. 58) argues that this judgment definitively separated Environmental Law and Animal Law into autonomous disciplines, culminating in the dual protection of non-human animals. As Marques (2022, p. 1145) observes, this underscore 'the need for multidisciplinary analysis of cases involving animals in the Law, since protection must be complementary, never exclusive'.
However, despite the STF's recognition of the prohibition of cruelty as an autonomous norm and the acknowledgment of non-human animals as sentient beings with intrinsic value—grounds sufficient for their protection—observations at the infra-constitutional legislative level suggest that the protection of non-human animals is often driven by a vehement anthropocentric motivation. This approach does not align with the dignity afforded to these animals.
To this end, Law 14.064/20 is noteworthy. This law introduced §1-A into Article 32 of the Environmental Crimes Law, criminalizing the mistreatment of animals. The law further enhances penalties for mistreatment of dogs and cats, including imprisonment ranging from 2 to 5 years, fines, and custodial bans.
The harshening of the penalty resulted in the removal of the crime from the jurisdiction of the Special Criminal Court, which is intended for the trial and execution of less serious criminal offenses. This designation, in itself, by encompassing the simple form of animal abuse (Article 32, "caput," of the Environmental Crimes Law), reflects a lack of regard for animal suffering. Furthermore, the increase in the penalty eliminated the applicability of the de-penalizing institutes established by Law No. 9.099/95 (criminal transaction and conditional suspension of the process).
In this manner, the qualifier increased the legal severity for the mistreatment of dogs and cats, indicating a greater social disapproval of such behavior and an intention to stop its practice. It's worth noting that the heightened penalties bring the crime within the jurisdiction of the State Court, facilitating a more rigorous process compared to the summary procedure of the Special Criminal Court. This allows for the apprehension of the perpetrator in flagrante and the imposition of bail.
Nonetheless, while Law 14.064/20 undeniably represents progress in the protection of dogs and cats, it is evident that the escalation of penalties was primarily motivated by the affection humans have for them, rather than an intrinsic recognition of the dignity these species hold. This discrepancy highlights the need for robust protection of their physical and psychological well-being.
This is evident from the substitute (16/12/19), which derived from the endorsed opinion of the Deputy Celso Sabino (PSDB-PA). He modified the wording of Bill No. 1,095/19, which ultimately became Law No. 14,064/20:
'In this way, through consensus, we seek to ensure the transformation of this legislative proposal into a ordinary law. The goal is to advance legislation concerning crimes against animals, with a specific focus on protecting the animals most commonly adopted as pets, those that establish an intimate relationship with humans - namely, dogs and cats.' (SABINO, 2019)
Consequently, the more a species endears itself to humanity, the more its suffering resonates. However, this anthropocentric motivation inherently embodies a form of speciesism, as defined by Singer (2013, p. 13) as 'a prejudice or attitude that favors the interests of members of one species over the interests of members of other species'. This bias results in a lack of protection for animals deemed less 'beautiful' or 'amiable', those that fail to evoke intense affection and compassion in humans.
Sentience has not only been acknowledged in the case of dogs and cats. In light of this, embracing the ethical proposition advocated by Singer (2013, p. 24), this capacity should warrant equal consideration for the similar interests of animal specimens for which animal sentience has already been recognized.
Indeed, there exists no moral, scientific, or philosophical foundation to justify stronger protection for dogs and cats, while affording other animal species protection that is undeniably inexpressive and innocuous. Such protection runs counter to the constitutionally recognized dignity of these animals, a direct consequence of sentience.
In fact, the penalty for the basic form of the crime of ill-treatment, carrying a sentence of three months to one year of imprisonment, places the offense within the purview of the Special Criminal Court. This procedural choice facilitates a swift and less stringent process, while also allowing for plea bargaining and the conditional suspension of proceedings.
Furthermore, the nominal nature of the penalty categorizes the crime as an offense of limited severity, thereby unambiguously exposing a disregard for the physical and psychological well-being of animals other than dogs and cats. This signals that the suffering of these specimens does not elicit a sensitive response from legislators, rendering violence against these animals less socially reprehensible.
Consequently, the protection afforded to these animals remains inconsequential, lacking the requisite force to stop and prevent the crime of ill-treatment. This fact is acknowledged by the legislature itself:
'Since then, society has undergone a process of maturation, which has led it to give greater protection to the ecosystem. As a result, both the type of sanction provided for and its amount have become unjust, in that they do not adequately punish the offender, since they have been insufficient to curb this criminal practice, which has increased dramatically.' (SABINO, 2019).
From all of the above, it is evident that while one could argue that the Supreme Court, the highest interpreter of the 1988 Federal Constitution, has recognized the autonomy of Animal Law and the dignity of animals—an acknowledgment that inherently justifies their protection—in legislative practice, the drive to protect animals is often guided by anthropocentric sentiments. This approach fails to account for the intrinsic value of the non-human animal, thus undermining and neglecting the protection of non-human animals that do not elicit affection in humans. Such practices lack a scientific, philosophical, or moral basis.
Thus, for all animals to receive protection that aligns with their dignity, it is imperative that progress in the protection of non-human animals is guided by the moral value intrinsic to all animal species, derived from their sentience. This should take precedence over considerations of human attachment to a specific species.
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