international germany comparative-law animals
Legal status of animals in Germany
<p>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?</p>

<p>This question is prompted by a sentence found in the BBC article <a href="https://www.bbc.co.uk/news/world-us-canada-48528968" rel="nofollow noreferrer">Cat declawing: Should it be banned, and why does it happen in the US?</a> </p>

<blockquote>
  <p>For Americans, it's a matter of <strong>freedom and convenience</strong> – 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.</p>
</blockquote>

<p>Section 20a of the German Constitution added in 2002 states:</p>

<blockquote>
  <p>Article 20a [Protection of the natural foundations of life and
  animals]</p>
  
  <p>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.</p>
</blockquote>

<p>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).</p>

<p>The German Civil Code (BGB) § 90a, adopted in 1990 (or 1998, it isn't entirely clear from my sources), states (in <a href="https://germanlawarchive.iuscomp.org/?p=615" rel="nofollow noreferrer">the definitional introductory part of the Code (in English translation)</a>). This appears in a larger context as follows:</p>

<blockquote>
  <p>Division 2 Things and animals</p>
  
  <p>Section 90 Concept of the thing</p>
  
  <p>Only corporeal objects are things as defined by law.</p>
  
  <p><strong>Section 90a Animals</strong></p>
  
  <p><strong>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.</strong></p>
  
  <p>Section 91 Fungible things</p>
  
  <p>Fungible things as defined by law are movable things that in business
  dealings are customarily specified by number, measure or weight.</p>
  
  <p>Section 92 Consumable things</p>
  
  <p>(1)Consumable things as defined by law are movable things whose
  intended use consists in consumption or in disposal.</p>
  
  <p>(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.</p>
  
  <p>Section 93 Essential parts of a thing</p>
  
  <p>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.</p>
  
  <p>Section 94 Essential parts of a plot of land or a building</p>
  
  <p>(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.</p>
  
  <p>(2)The essential parts of a building include the things inserted in
  order to construct the building.</p>
  
  <p>Section 95 Merely temporary purpose</p>
  
  <p>(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.</p>
  
  <p>(2)Things that are inserted into a building for a temporary purpose
  are not parts of the building.</p>
  
  <p>Section 96 Rights as parts of a plot of land</p>
  
  <p>Rights that are connected with the ownership of a plot of land are
  regarded as parts of the plot of land.</p>
  
  <p>Section 97 Accessories</p>
  
  <p>(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.</p>
  
  <p>(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.</p>
  
  <p>Section 98 Commercial and agricultural inventory</p>
  
  <p>The following are intended to serve the economic purpose of the main
  thing:</p>
  
  <ol>
  <li><p>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,</p></li>
  <li><p>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.</p></li>
  </ol>
  
  <p>Section 99 Fruits</p>
  
  <p>(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.</p>
  
  <p>(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.</p>
  
  <p>(3)Fruits are also the proceeds supplied by a thing or a right by
  virtue of a legal relationship.</p>
  
  <p>Section 100 Emoluments</p>
  
  <p>Emoluments are the fruits of a thing or of a right and the benefits
  that the use of the thing or the right affords.</p>
  
  <p>Section 101 Division of fruits</p>
  
  <p>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:</p>
  
  <ol>
  <li><p>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,</p></li>
  <li><p>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.</p></li>
  </ol>
  
  <p>Section 102 Reimbursement of costs of production</p>
  
  <p>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.</p>
  
  <p>Section 103 Allocation of charges</p>
  
  <p>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.</p>
</blockquote>

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

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

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

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

<p>A <a href="https://www.animallaw.info/sites/default/files/vol10_p283.pdf" rel="nofollow noreferrer">law review article from 2004</a> explores the important changes in the legal status of animals in Germany that occurred in 2002. The abstract of the article explains:</p>

<blockquote>
  <p>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.</p>
  
  <p>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. </p>
  
  <p>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. </p>
  
  <p>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.</p>
</blockquote>

<p>Footnote 1 in the abstract states: </p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>The abstract of <a href="https://www.animallaw.info/sites/default/files/lralvol16_2_p213.pdf" rel="nofollow noreferrer">a 2010 law review article</a> on the topic further explains:</p>

<blockquote>
  <p>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. </p>
  
  <p>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.</p>
  
  <p><strong>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.</strong></p>
</blockquote>
