Eduardo Camargo Olyntho de Arruda
Tradução: Ligia Payão Chizolini
The recognition of sentience, that is, the ability to exhibit intentional behaviors and experience affective states, in non-human animals has long been a topic of scientific debate. In the last century, scientific research, such as the 1987 issue of The Animal Welfare Institute Quarterly, already pointed to this faculty in non-human animals by indicating that various species other than humans possess a well-developed diencephalon, the part of the brain responsible for emotions (Singer, 2013, p. 18). However, the confirmation of this capacity occurred with the Cambridge Declaration on Consciousness on July 7, 2012 (Low, 2012), which found sentience in all birds and mammals, and in many other creatures, including octopuses.
The verification of this faculty demands that the legal interpreter reconsiders the legal protection afforded to these species. Here, we aim to reflect on the repercussion of the recognition of sentience on the legal objectivity of crimes against wildlife and regarding the passive subject of these crimes. Effectively, sentience has altered the moral status of non-human animals, leading much of the doctrine to consider this group as subjects of rights (Dias, 2005), moving away from the civilist conception that non-human animals are mere property capable of their own movement, as expressed in Article 82 of the Civil Code.
In light of this, Gonçalves (2020, p. 324) asserts that this change in the legal nature of animals has modified the understanding of the legal good protected by the criminal type of mistreatment of non-human animals, which is naturally the most eminent crime against wildlife.
This understanding contrasts with tradition, which views the preservation of the categorical environment as the legal object of crimes against wildlife, in attention to the fundamental right to an ecologically balanced environment, expressed in Article 225, caput, of the Federal Constitution, or even the protection of human animals, due to the “link” theory, which indicates that animal abuse reveals a personality prone to aggression towards vulnerable human animals, considering that animal cruelty often leads to domestic and family violence (Ascione & Arkow, 1999; Gonçalves, 2020, p. 322; Panchieri & Campos, 2021, p. 5).
The Federal Supreme Court, in ADI No. 4.983/CE, providing a possible response to this debate, has already recognized the prohibition of cruelty against animals as an autonomous norm, with its own object and value, based on animal sentience, noted by the Federal Constitution itself when it prohibits animal cruelty in its Article 225, §1, clause VII:
Therefore, the prohibition of cruelty against animals in the Federal Constitution should be considered an autonomous norm, so that its protection is not only due to an ecological or preservationist function, and so that animals are not reduced to mere elements of the environment. Only in this way will we recognize the moral value that the constituent conferred on this prohibition by proposing it for the benefit of sentient animals. This moral value is in the declaration that animal suffering matters in itself, regardless of the balance of the environment, its ecological function, or its importance for the preservation of its species. (ADI No. 4.983/CE, concurring opinion of Minister Luís Roberto Barroso, p. 42)
It is worth noting that the change in the vision of the legal nature is also perceived in the legislator's actions, which, on several occasions, has expressly recognized the status of sentient non-human animals as subjects of rights, as well as in the jurisprudence of the second-degree courts (Gonçalves, 2020, p. 322-324).
Thus, it seems correct to currently conceive the physical and mental integrity of non-human animals as the legal object protected by crimes against wildlife, considering that sentience grants this being intrinsic moral value and status as a subject of rights, legitimizing autonomous protection of its interests.
Consequently, this sentient-centric view of the legal objectivity of crimes against wildlife implies recognizing that the victim of these crimes is the non-human animal considered in itself, as it possesses the protected legal good (Panchieri & Campos, 2021, p. 5; Ríos Corbacho, 2019).
This understanding should dispel the outdated anthropocentric conception that the passive subject of crimes against wildlife would be the community, as the protected legal good would be the categorical environment, a diffuse nature good, for being of common use of the people, and cannot be attributed to an individual in particular.
References:
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