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How has Germany has dealt with the legal status of animals? What, if any, transition has taken place from a thing to a creature in a legal context?

This question is prompted by a sentence found in the BBC article Cat declawing: Should it be banned, and why does it happen in the US?

For Americans, it's a matter of freedom and convenience – the right to the freedom to make decisions in terms of how you raise your cat, and convenience, because once you remove the claws, you don't ever have to worry about you or the furniture getting scratched.

  • @MarkJohnson BTW: Many jurists say that § 90a BGB is only symbolic and does not say anything not in the Tierschutzgesetz. Question is nevertheless interesting. – K-HB Jun 7 at 15:05
  • @K-HB Yes, it is a half baked solution. That is why the Green party did not vote for it. – Mark Johnson Jun 7 at 15:22
  • The answer is more notable given the context of recent German legal history than it seems on its face and is an evolving area of German law which hasn't fully played itself out yet, as I discuss below. Also, good choice of tags. – ohwilleke Jun 10 at 18:29
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Section 20a of the German Constitution added in 2002 states:

Article 20a [Protection of the natural foundations of life and animals]

Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

This adopts what American environmentalists would call a "conservationist" stance (i.e. that the environment including animals should be preserved for the benefit of people in the future) as opposed to an "environmentalist" stance (i.e. that the environment is intrinsically something entitled to protection in its own right and not just because of its future value to human beings).

The German Civil Code (BGB) § 90a, adopted in 1990 (or 1998, it isn't entirely clear from my sources), states (in the definitional introductory part of the Code (in English translation)). This appears in a larger context as follows:

Division 2 Things and animals

Section 90 Concept of the thing

Only corporeal objects are things as defined by law.

Section 90a Animals

Animals are not things. They are protected by special statutes. They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided.

Section 91 Fungible things

Fungible things as defined by law are movable things that in business dealings are customarily specified by number, measure or weight.

Section 92 Consumable things

(1)Consumable things as defined by law are movable things whose intended use consists in consumption or in disposal.

(2)Movable things are also regarded as consumable if they are part of a warehouse store or another aggregate of things whose intended use is the disposal of the individual things.

Section 93 Essential parts of a thing

Parts of a thing that cannot be separated without one or the other being destroyed or undergoing a change of nature (essential parts) cannot be the subject of separate rights.

Section 94 Essential parts of a plot of land or a building

(1)The essential parts of a plot of land include the things firmly attached to the land, in particular buildings, and the produce of the plot of land, as long as it is connected with the land. Seed becomes an essential part of the plot of land when it is sown, and a plant when it is planted.

(2)The essential parts of a building include the things inserted in order to construct the building.

Section 95 Merely temporary purpose

(1)The parts of a plot of land do not include things that are connected with the land only for a temporary purpose. The same applies to a building or other structure that is connected with a plot of land belonging to another by a person exercising a right over that land.

(2)Things that are inserted into a building for a temporary purpose are not parts of the building.

Section 96 Rights as parts of a plot of land

Rights that are connected with the ownership of a plot of land are regarded as parts of the plot of land.

Section 97 Accessories

(1)Accessories are movable things that, without being parts of the main thing, are intended to serve the economic purpose of the main thing and are in a spatial relationship to it that corresponds to this intention. A thing is not an accessory if it is not regarded as an accessory in business dealings.

(2)The temporary use of a thing for the economic purpose of another thing does not give it the quality of an accessory. The temporary separation of an accessory from the main thing does not deprive it of the quality of an accessory.

Section 98 Commercial and agricultural inventory

The following are intended to serve the economic purpose of the main thing:

  1. in the case of a building that is permanently equipped for commercial operations, in particular a mill, a smithy, a brewery or a factory, the machinery and other equipment intended for the business,

  2. in the case of a farm, the equipment and livestock intended for the commercial operations, the agricultural produce, to the extent that it is necessary to continue the farming until the time when it is expected that the same or similar produce will be obtained, and manure produced on the farm.

Section 99 Fruits

(1)Fruits of a thing are the products of the thing and the other yield obtained from the thing in accordance with its intended use.

(2)Fruits of a right are the proceeds that the right produces in accordance with its intended use, in particular, in the case of a right to extract component parts of the soil, the parts extracted.

(3)Fruits are also the proceeds supplied by a thing or a right by virtue of a legal relationship.

Section 100 Emoluments

Emoluments are the fruits of a thing or of a right and the benefits that the use of the thing or the right affords.

Section 101 Division of fruits

If a person is entitled to receive the fruits of a thing or of a right until a particular time or from a particular time on, he is entitled to the following, unless otherwise provided:

  1. the products and parts stated in section 99 (1), even if he is to receive them as the fruits of a right, to the extent that they are separated from the thing during the period of entitlement,

  2. other fruits to the extent that they are due during the period of entitlement; however, if the fruits consist in remuneration for permission of use or of enjoyment of fruits and benefits, in interest, in profit shares or other periodically paid income, the person entitled has a right to a share corresponding to the duration of his entitlement.

Section 102 Reimbursement of costs of production

A person who has a duty to hand over fruits may claim reimbursement of the costs of producing the fruits to the extent that they reflect proper business practices and do not exceed the value of the fruits.

Section 103 Allocation of charges

A person who has a duty to bear the charges on a thing or a right until a specified time or from a specified time on must, unless otherwise provided, bear the periodically recurring charges in the proportion of the period of time of his duty, and bear other charges to the extent that they are payable during the period of time in which he has the duty.

Some of the word choices are not the most idiomatic ways to translate into American legal English.

A better translation for "things" would be "tangible property". A more natural translation of Section 90a in American Legal English would be:

Animals are not property. They are protected by special statutes. They are governed by the provisions that apply to tangible personal property, with the necessary modifications, except insofar as otherwise provided.

Similarly, the word "fruits" while understandable, would more often be translated into American Legal English as "proceeds", and American law wouldn't really make the distinction between "Fruits" in Section 99, and "Enoluments" in Section 100, at all.

Also, most American jurisdictions would, unlike Article 90a, usually focus on the distinction between "pets" or "companion animals" and property, while not doing so for livestock in most circumstances, as the German civil code does.

One of the classic trick questions on the American bar exam is to set up a criminal law question involving what would an an assault or a murder, but to substitute a dog or a cat for a person, which transforms the crime into theft or vandalism, since in the criminal law, animals are generally treated as property subject to some specific exceptions for animal cruelty and blackmail.

German law addresses to some extent that sense that trips up American law students each year, that this absolute treatment of animals as having merely property status, derived from English common law, is unduly harsh.

Two recent law review articles explain what these recent changes in the legal status of animals in Germany mean.

A law review article from 2004 explores the important changes in the legal status of animals in Germany that occurred in 2002. The abstract of the article explains:

In the summer of 2002, Germany welcomed animals into the folds of constitutional protection. With the addition of the words “and the animals,” Germany became the first country in the European Union (“E.U.”), and the second on the European continent,1 to guarantee the highest level of federal legal protection to its nonhuman animals. Though a welcomed development in the eyes of most Germans, this groundbreaking event received very little attention on the world stage. Common misconceptions about the ramifications of the constitutional amendment resulted in limited to no accurate representation in worldwide media. Likewise, international policymakers and animal protectionists have shown little awareness of this development and its potential implications. In addition to possible legal effects, the social implications of such an occurrence in a major western country are vast. International leaders will certainly take note as the effects of this change begin to take place in Germany’s laws and, increasingly, in its international policies.

More importantly, the global animal protection community should take note of what is possible, and what can be learned from the achievements of Germany’s animal protection community. This study traces the legal and social developments leading to Germany’s constitutional amendment which provides protection to animals, showing how this legal highpoint was achieved.

Multiple sources are used, including congressional, judicial, and party documents, press releases, international media reports, personal communication with leaders in four major German animal protection organizations, interviews with a key Ministry official, and published materials.

This study will also critically assess the claims of the animal protection and opposition communities in order to predict where German animal law is going and what effects this change will have on the treatment of animals both within Germany and internationally. Concluding thoughts will address how the international animal protection community can understand this legal victory in a constructive context.

Footnote 1 in the abstract states:

BV 1992 § 24 (in 1992, Switzerland recognized the inherent worth of animals (die W¨urde der Lebewesen) in its constitution). Federal laws of a similar manner exist in Germany (Animal Protection Law implemented Sept. 1, 1990, art. 90a Tierschutzgesetz in der Fassung der Bekantuachung (Tierschutzgesetz), v. March 25, 1998 (BGB 1 I 1094) [hereinafter Tierschutzgesetz], and Austria (Art. 285 ABGB implemented July 1, 1988), but Switzerland was the first country to acknowledge the interests of animals within its national constitution. This development had virtually no international impact, however, and receives little attention outside of Switzerland.

The abstract of a 2010 law review article on the topic further explains:

In 2002, an animal protection clause was added to Article 20a of the German Constitution. Designed as a state objective, the nature of the animal protection clause decidedly influences its application. As a state objective, it is directed at all three branches of government, and each branch must ensure within its sphere of competence the realization of the stated goal.

The Federal Constitutional Court has yet to address the precise scope of the provision. This Article examines the likely future effects of the animal protection clause. With respect to the legislative branch, this Article addresses the question of whether the state objective demands that a standing provision be created for animal protection groups. With respect to the judicial and executive branches, this Article focuses on three fundamental rights that are most likely to come into conflict with animal protection: freedom of religion; freedom of teaching, science, and research; and freedom of artistic expression. Seismic shifts in constitutional adjudication are not likely to be expected.

The provision does not give rights to animals. However, at a minimum, it prohibits circumventing the Animal Protection Act by construing that statute in light of the Constitution. The animal protection clause removed the disproportionality between certain fundamental rights and the interest in animal protection. It mandates a balancing of constitutional interests and eliminates doubts regarding the constitutionality of the Animal Protection Act, especially with respect to the fundamental rights discussed.

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