Recognising sentience in the Portuguese Civil Code

Abstract

The philosophical currents arguing for the recognition that non-human animals are not mere things, as Descartes had sustained, has only just in recent years had an impact on the legal qualification of animals, with countries such as France, Germany, Austria and Switzerland recognizing that non-human animals are sentient beings in their national laws. The most recent country to have adopted such an amendment is Portugal, under Law n. 8/2017 of 3rd March which amended the Portuguese Civil Code. This amendment was unanimously approved by the National Parliament on 22nd of December 2016 and it has inserted a number of new provisions that intend to achieve better protection for non-human animals in the country, including a set of limitations upon the owners of animals. The present report briefly analyses the Portuguese amendment and questions whether it will bring effective improvements for the animals themselves, especially the ones subject to institutionalised use and exploitation, such as farm and laboratory animals. It is the author’s opinion that the amendment is an extremely relevant step forward not simply because it brings new provisions that can in fact represent, or at least lead to, more protection for animals, but especially because it represents a clear departure from the Cartesian philosophy that has for so long dominated the Western world and has had abhorrent impacts on the lives and well-being of non-human animals. However, when it comes to the institutionalised use of animals, the change of the legal qualification of animals has little to no impact in light of the existence of specific regimes that allow animals to be treated and slaughtered in manners that would otherwise be considered incompatible with the new status of animals. This conclusion is further confirmed by the fact that, on the same day that the amendment to the Portuguese Civil Code was approved, proposals for amending the Portuguese Criminal Code with a view to extending the criminalisation of cruelty to all animals (given that currently only acts of cruelty against companion animals are a crime in Portugal) were rejected. Hence, the symbolism represented by the new animal status cannot be seen as a full-spectrum victory for the animals themselves: it is, at the very best, a new door through which more substantial changes need to be brought, fought for and won.