Int J Semiot Law (2011) 24:307329

DOI 10.1007/s11196-010-9183-8

The Animal: A Subject of Law? A Reflection on Aspects

of the Austrian and German Juridical Systems
Sabine Lennkh

Published online: 5 September 2010

 Springer Science+Business Media B.V. 2010

Abstract In recent years there has been a marked increase in interest in animal
welfare issues worldwide. This subject often evokes extreme points of view, and can
be both intellectually challenging and emotionally dividing. It is undeniably a field
where substantial progress has taken place, with a multitude of countries worldwide
implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of animal welfare legislation. To
highlight a variety of these promising and noteworthy ideas this article outlines and
examines some selected and qualified aspects of a potential juridical approach to the
subject by consulting the legal systems of Austria and Germany under this particular
premise. The aim will be to ascertain the extent to which animals have been granted
consideration and protection, for instance in spheres of Constitutional or Civil Law.
What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be
established? Ideally, a complete legal network on all possible levels of the legal
system should be developed, ensuring a comprehensive and an all-embracing
protection of the individual animal.
Keywords Austria
Germany
Animal welfare
Ethical animal protection
Legal
animal protection
Recognition of animals
Legal status
Legal personality

Some documents and quotes have been rendered by the author from German into English. Those are
marked with an asterisk (*).
S. Lennkh (&)
Faculty of Law, Paris-Lodron-University Salzburg, Churfurststrasse 1, 5020 Salzburg, Austria
e-mail: sabine.lennkh@sbg.ac.at

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1 Introduction
In recent decades, the demand for a morally more appropriate consideration of
animals contributed to the changing perception of concepts such as dignity and
rights. In addition, thoughts about the responsibility of mankind for the
environment and the understanding that nonhuman life might also be worth
protecting became the subject of ethical reflection [32, p. 19]. Thus new moral
obligations seemed to evolve and eventually become recognised. In this paper the
development of the position of animals within the law generally, as well as their
current legal status, shall be followed through a major focus on the situation de jure
in Austria and Germany. These countries share a rather similar historical and social
evolution. Since 2005, Austria has been equipped with one of the most forwardlooking versions of animal welfare legislation and Germany can also be classified as
one of the more advanced examples in this field. Nevertheless, on this occasion we
will not endeavour to analyse the individual Animal Protection Acts of Austria or
Germany in great detail. Instead we will concentrate on the overall picture of the
legal situation of animals in these two states and take a closer look at some of the
concepts advantageous to animals which have either already been introduced in
their legal systems or at least been presented at some stage as reasonable
alternatives to decision- and law-makers for deliberation.
Discussing some of these suggestions should ultimately lead to a number of
possible options for compiling and providing a proper framework to ensure an
individual animal a legally secured position. The aim of such statutes would not
only be to promote animal welfare and protection and to gain far-reaching support
and cooperation for a modified regime within the general public and the system, but
simultaneously to set pioneering paragons and stimulate and advance responsibility
and consideration as well as humanity and compassion for all sentient fellowbeings1 as moral values which range at the top of the scale of demands for futureoriented and progressive animal welfare and protection related issues and legal
guidelines.

2 Animal Protection within the Cultural, Historical and Ethical Context

To place the topic into the appropriate context, precedence will be given to a brief
summary of the cultural, historical and ethical background of todays animal
welfare and protection provisions.
From the very beginning animals were closely linked to man and his existence,
and animal worship had already brought forward the first bans on the use of animals
as a source of food [35, p. 42]. The codex of the Babylonian King Hammurabi
(approx. 1700 BC) is the oldest known corpus of laws explicitly prohibiting the
animal keeper to allow an animal to work excessively. This [] old legal source
1

The term fellow-being (Mitgeschopf) respectively: fellow-beingness (Mitgeschopflichkeit) has

been coined in 1959 by Zurichs theologian Fritz Blanke to ,,connect the traditional term of humanity
[Mitmenschlichkeit] with the comprehensive context of the creation [34, Introduction pt. I. (2)].*

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distinguished in a separate section animals, persons and things. So the oldest

compendium of law unequivocally did not classify animals as things [46, Ref.
21].* With elevating man to Gods image Christianity destroys the initial ancient
bond between man and animal. This unity is replaced by a relation of hierarchy that
subjugates the animal to mankind [25, p. 40]. The subsequent degradation of the
human-animal relationship is cemented by the Roman law ,,that conserves the
animals lack of rights until this day [56, p. 16].* According to old Roman law
everything which did not have the status of a person was a thing. Therefore not
only animals fell under the term thing but also women, children and slaves, and
thus were without any rights [57, p. 175]. Eventually a goal-directed and more
economically orientated attitude replaces the traditional animal cult. This ideological shift was mainly caused by the commercial requirements of a slowly evolving
trade and goods traffic. The animal consequently loses its role as myth and is
increasingly regarded as an object of dominance and value, as a simple commodity
which simultaneously gives it the new legal status as a thing, an object and
property.
Also the spectrum of philosophical positions is extensive and ranges from
perspectives which grant rights even to inanimate objects to those giving
economical interests the absolute priority. Descartes was an advocate of the
so-called anthropocentric animal protection which places the animal in the
exclusive interest and for the absolute use of the human being. He saw animals as
mere reflex machines without a soul or any emotions and denied them all subjective
feelings, the capability to think or even to suffer [43, Ref. 21,14; see also 55,
pp. 200202]. The ethical animal protection on the other hand protects the animal
on the account of the animal and thus forms the foundation which values the respect
and the care for all fellow-beings as one of the pillars of a humane and
compassionate fundamental philosophy. Maybe romanticism and philosophers like
Goethe and Schopenhauer triggered an early ethical debate in the German-speaking
lands, which not only supported humanism but also included the question about the
position and role of the animal within our system of values. In the English-speaking
regions Jeremy Benthams work has to be emphasised. The founder of utilitarianism2 called for the equality of all sentient beings3 and famously phrased in 1789:
The question is not, Can they reason? Nor Can they talk? But, Can they suffer?
[55, p. 7]. Animal ethics is subject to constant change of the moral consciousness of
mankind and its sense of right and wrong whereby in the meantime attention has
shifted more to the middle ground of minimising the suffering of animals and
weighing the interests of humans and animals.
The English Martins Act of 1822 is the first law of modern times to prevent
the mistreatment of working animals [51, pp. 3840]. In 1846 cruelty to animals
was punished for the first time in Austria and Viennas first animal protection
organisation was founded. Initial signals of an ethical approach to animal protection
2

The utilitarian endeavours to: Maximize pleasure and minimize suffering [49, p. 108].

,,The principle [of equal treatment] consists of two mutually dependent and complementing statements:
the precept to equal treatment in the case of equality and of dissimilar treatment in the case of
dissimilarity [57, p. 77].*

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S. Lennkh

date back to the years after 1854 [46, Ref. 36]. The animal itself was only
recognised in the twentieth century by the legislator as an object worth protecting.
In 1925 the malicious torment, the brutal ill-treatment and the inconsiderate
overexertion of animals was made a punishable offence. 1939 the German Reich
Animal Protection Act4 of 1933 also came into force in Austria and was abolished
again in 1945 with the consequence that the old regulations from 1855, which have
never been repealed, had to be applied once more [21, p. 1]. The Criminal Code
Amending Law of 19715 established for the first time a juridical criminal liability
for animal cruelty as an offence against public morality by adding 524 StG.6
Subsequently a separate chapter in the Criminal Code was dedicated to animal
cruelty.7 Until the enactment of the federal Animal Protection Act 60 years later the
protection of animals fell under the general clause of Article 15 Subsection 1 B-VG8
giving the nine individual federal states the legislative powers in this sector [48,
pp. 117120]. In 1838, Saxony and subsequently other German states, instituted
penal legislation against the torment of animals if the deed has been committed
publicly or caused offence [43, Ref. 2]. Here the concept of an anthropocentric and
aesthetic animal protection9 clearly takes effect. In 1933 with 145b StGB10 a
general prohibition of animal cruelty was established. In the same year the Reich
Animal Protection Act came into force. With it the basic step towards todays
ethically orientated animal protection has been undertaken [46, Ref. 34],* which
means the protection of the animal on the account of the animal in contrast to the
moral order as object of the legal protection which was previously the protective
purpose of the norm. The Animal Protection Act of 1972 was even more farreaching. It aimed at species incorporating humanity and now also to safeguard the
life itself of the animal.11 Over the decades the German Animal Protection Act has
undergone continuous updates and amendments, the latest in 2009.

3 Specific Animal Welfare and Protection Legislation

Contemporary animal protection legislation should aim at being comprehensive,
clear and progressive as well as powerful, effective and enforceable and adapted to
the specific needs of each country concerned. At the same time these laws will also
reflect to a certain extent the current consensus of society. Therefore, the regulations
4

Reichstierschutzgesetz.

G 1971).
Strafrechtsanderungsgesetz von 1971 (StRA

Strafgesetz (StG) = previous Criminal Code of Austria.

This way the demerits of animal cruelty should, at least in qualified cases by aggravating of the
sanctions, be covered and a federal uniform treatment of this criminal offence guaranteed [47, 222
StGB Ref. 2].* As until then the punishment was predominantly subjected to the administrative penal
authorities.
8

Bundesverfassungsgesetz (B-VG) = Austrian Federal Constitution [3].

Which centers on the avoidance of any disturbance of the moral feeling which might be aroused by
watching and experiencing acts of animal cruelty [43, Ref. 21].*

10

Strafgesetzbuch (StGB) = Criminal Code of Germany [15].

11

See also 1 and 17 Nr. 1 TierSchG (Tierschutzgesetz = Animal Protection Act of Germany) [16].

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should not only mirror the status quo but also give incentive for the future by
challenging the government as well as the population to increase awareness and to
work towards a correction and readjustment in the concept of their relation to all
sentient creatures, their lives, individual rights and general well-being. Among the
most important matters of concern for any new legislation should be the support and
promotion of animal protection issues in every respect as well as the minimisation
of cruelty and suffering for the individual animal, or rather even the complete
prevention of both, and simultaneously to encourage the animal owners sense of
responsibility by including the principle of care, thus not only commission, but
also omission is now covered by the law.
Some fundamental and important deciding-factors and systems of values are:
1.
2.
3.
4.
5.
6.
7.
8.

The decision for a direct and ethical animal protection;

The conservation of life;12
The protection of well-being;
The recognition of a human-analogous capability to suffer and feel pain;
The fellow-beingness;
The demand to minimise violence;
The principle of proportionality;
The command of increased consideration for animals which are staying in the
hands of humans.13

Nowadays, the five freedoms which were established by the UK Farm Animal
Welfare Council [59, p. 12] are commonly acknowledged: Freedom from thirst,
hunger and malnutrition; freedom from discomfort; freedom from pain, injury and
disease; freedom from fear and distress; freedom to express normal behaviour. To
complement the above mentioned points the lawmaker has to ensure an effective
enforcement system, with proper and efficient tools to implement the laws.
3.1 Animal Protection Acts of Austria and Germany
Most of the more recent Animal Protection Acts, like Austrias and Germanys, are
based on this ethical approach and thus guarantee a direct and comprehensive
protection of life which covers the animals well-being as well as its dignity as a
creature andfurthermoreits freedom, including the freedom from bodily harm
[46, Ref. 42]. Both countries follow the theory of the protection of interests
(Interessenschutztheorie) whereby animals do not possess any subjective rights, but
interests concerning their physical and psychological integrity as well as at most life
per se warranting protection [38, p. 199]. The objective protective purpose of these
newer animal protection acts consists in the protection of all animals,14 namely
12
if the animal shall be protected on account of itself because, irrespective of the human interest in
its exploitation, it is bearer of an inherent value then this value has to also be awarded to its life [43, Ref.
18].*
13
Adopted with abridgements from [43, Ref. 18].* There these values are listed at the example of the
German Animal Protection Act.
14
See 3 Section 1 TSchG (Tierschutzgesetz = Bundesgesetz uber den Schutz der Tiere, Austrias
Federal Act on the Protection of Animals) [4].

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every single animal as an individual, its life and well-being, based on mans
special responsibility for the animal as a fellow-creature.15
According to 1 Clause 2 TierSchG,16 for instance, it is forbidden to cause pain,
suffering or damage to an animal without a sound reason. The term sound
reason certainly leaves room for interpretation and is seen as a legally recognised
ground of justification, i.e. the if and how of the measure which burdens the
animal has to be justified [46, 1 TierSchG Ref. 46]. In addition, sound reason
requires a choice between conflicting rights and duties according to the principle of
more-benefits-than-damage (Mehr-Nutzen-als-Schaden-Prinzip).17
Austrias new federal animal protection legislation of 2005 has been welcomed
internationally as a modern and forward-looking law and also Germany currently
ranks in the upper scale of assessments concerning contemporary animal protection
provisions.18 Contrary to Germany where the criminal offences of animal cruelty
(Tierqualerei) are regulated in the TierSchG itself, Austria also has the criminal offence
of animal cruelty laid down in the Criminal Code, 222 StGB.19 To prevent any
double punishment 38 Section 7 TSchG establishes a clause of subsidiarity which
leads an administrative offence according to 38 Section 1 to 3 TSchG to recede behind
an offence which due to the higher socially disruptive factor falls in the jurisdiction of the
courts [8, p. 2920; 47, 222 StGB Ref. 93]. Laying all animal protection related matters,
including all criminal offences, down in the Animal Protection Act certainly has its
advantages as everything is regulated in one single statute. However, a countrys
Criminal Code is still regarded as one of the fundamental measures in relation to
criminal prosecution and might be a more impressive deterrent than the name Animal
Protection Act might imply for the possible offender.
3.2 Other Applicable Criminal Code Statutes
In Germany Omission to effect an easy rescue, 323 c StGB [15], and Leaving
the scene of an accident in which one has been involved without cause, 142
StGB [15], are both penal laws which also apply when an animal is one of the
parties. In Austria, there also exists a statute comparable to Germanys 323 c
15

See 1 TSchG [4] as well as 1 Clause 1 TierSchG [16]. The animal as fellow-being means the
inclusion of the animals in the precepts of humanity, compassion and justice as well as recognition of
their dignity as a creature [43, Ref. 18].*
16

[16]: ,,ohne einen vernunftigen

,,ungerechtfertigt = unjustified.
17

Grund.

See

also

Section 1

TSchG

[4]:

For details see also [43, 1 TierSchG Ref. 4953].

18

As member states of the EU, both Austria and Germany are obliged to implement European
Community law domestically. The federal animal protection legislation of both countries has already
been aligned according to the EU law and its requirements thus ensuring conformity in this field. Besides,
Austria and Germany acceded to the Council of Europes European Conventions for the Protection of
Animals [26] and both joined the treaties for animals during international transport, for animals for
farming purposes and for pet animals; and Germany only also: for slaughter and animal research and
experimentation.
19

Strafgesetzbuch (StGB) = Criminal Code of Austria [7].

20

The comment is still listed to 38 Section 6 instead of todays actual Section 7 TSchG as initially the
paragraph only consisted of six sections.

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StGB, which is 94 Section 1 StGB, but this only relates to humans. Instead, the
obligation to grant the necessary first aid to an animal is directly regulated in 9
TSchG for any person who recognisably hurt or jeopardized an animal and in
15 TSchG as a special duty of care without delay in the case of sickness or injury
of the animal. Both offences are committed by simple omission [42, p. 52 and
pp. 6162). The duty of medical attention in case of illness is not as explicitly stated
in the German Law, but one can assume that Pflege (care) according to 2 No. 1
TierSchG would also cover this obligation. Sexual acts with animals are punished in
Austria as per 5 Section 2 No. 17 TSchG. Germany used to have a corresponding
regulation on illicit sexual relations with animals in the Criminal Code ( 175 b
StGB) until 1969 when this penal provision was abolished without replacement as it
was a crime politically regarded as not necessary. Now 17 No. 2 a TierSchG
would cover such offences [43, Ref. 91].

4 Animals in the Sphere of Civil Law

Prompted by the progressive change of an animals moral value and its position within
todays society, together with the acknowledgement within responsive animal
protection laws of mans special responsibility for the animal as a sentient creature and
fellow-being, legislators in Austria and Germany have made efforts to emphasise and
embed the central idea of an ethically founded animal protection also in the civil law
[10, pp. 1 and 5]. With these endeavours, expression should also be granted to the
emotional relationship between man and the animal as a social partner [46, Ref. 131].
Particular significance is given to the need to eliminate the concept of animals as
inanimate objects. Henceforth, animals are neither things nor persons. This intention
shall be clearly stressed, and it underlines the lawmakers objective to provide for
the animal as a fellow-being in special need of protection, particular care and
circumspection. Furthermore, there are also amendments of the law directly aimed
by the legislator towards the heightening of public awareness [10, p. 5].
Therefore Austria introduced 285 a ABGB21 in 1998, which abolished the
equating of animals with things, and in this way detached it from the pure status of an
object. In Germany 90 a BGB22 came into force which also no longer classifies
animals as things, but as fellow-beings. In both laws the wording: ,,Animals are no
[in Germany: not] things and ,,[T]hey are protected by special statutes specifically
emphasises that recognition of the special need for protection also has to be
acknowledged outside of the civil law, so has to be respected and taken into account
by the whole legal system. Still, according to 285 a Clause 2 ABGB and 90 a
Clause 3 BGB animals remain things under substantive lawand thus all the
corresponding rules applyas long as no other regulations exist. This administration
of law ensures that all provisions remain invariably applicable where the term
thing (or object or property respectively) is used and now simultaneously
receives an animal protective function. On the other hand the legal system wants to
21

Allgemeines Burgerliches Gesetzbuch = General Civil Code of Austria [2].

22

Burgerliches Gesetzbuch = German Civil Code [9].

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guarantee that animals, even if they do receive certain legal positions, concurrently
remain objects of legal relations (Rechtsverkehr) [39, p. 84].
The repeal of the classification of an animal as a thing has, in particular, taken
effect in the law of damages related to the reimbursement of the cost of curative
treatment,23 1332 a ABGB and 251 (2) Clause 2 BGB. Before the amendments
of the laws in the years 1988 (Austria) and 1990 (Germany) the animal owner only
received compensation for the costs for any curative treatment up to the simple
replacement cost of the animal. Now the expenses of the actual curative treatment
which has been carried out are recoverable, even if they exceed the fair market
value of the animal.24 In addition, the liability for compensation is not dependent on
the animal having any market value at all [40, 1332a, Ref. 13].25
In addition, the addendum of clause 2 to Germanys 903 BGB [9] explicitly
underlines the special duties of man with respect to the animal for its protection and
care. Clause 2 serves as clarification that the owner of an animal only has the
discretion to deal with their own animal providing he/she observes the Animal
Protection Act itself and all other relevant provisions concerning animal welfare and
protection [10, p. 7]. The owner of an animal has to tolerate interventions in their
right of disposal which are permissible according to these regulations and designed
for the protection and well-being of the animal [43, Ref. 65].26
All this still may not hide the fact that the majority of regulations of animal
relevance within the Civil Law are not geared to the animal on its own account. In
the above mentioned and also in a number of other provisions,27 the animal is at
23
Costs of curative treatment in relation to animals are defined identically to those for humans [27,
1332 a ABGB Ref. 3] and are expenses which have been caused by a bodily injury and have been
made with regard to the usual expenses which would have been required without the accident in the
intention to eliminate the health damages of the accident or at least to improve them [31, 1325 ABGB,
p. 626],*
24
1332 a ABGB is rated restrictively inasmuch as it only benefits the pet animal but not the farm
animal. According to Austrian jurisdiction, farm animals with [supposedly] no emotional bond to the
animal keeper shall exclusively be referred to 1323 ABGB, i.e. restitution in kind or compensation in
money of the costs of the curative treatment up to the limit of the corresponding market or replacement
value of the individual animal [27, 1332 a ABGB Ref. 2].
In Germany on the other hand 251 (2) Clause 2 BGB also refers to farm animals and assessing the
extent of the recoverable costs of curative treatments requiresjust as with pet animalsan additional
balancing of facts like age, state of health as well as the existence and intensity of an emotional
relationship to the owner [41, 251 BGB Ref. 8].
25
To complete the picture concerning the law of compensation at this point the liability for animals as
per 1320 ABGB and 833 f. BGB should also be mentioned which obliges the animal owner to pay
compensation if damage was caused by an animal in his sphere of responsibility, as well as the liability
and warranty for defects under 924 ff. and 932 f. ABGB and 433, 434 ff. and 476 BGB
respectively.
26

This means that also an animal owners claim for its return could be an abuse of legal rights when the
animal thus would be exposed to imminent danger and the previously extended lawful assistance in need
would therefore be so to say thwarted [46, Ref. 135136].
27
Only to name a few further examples, i.e. 295 ABGBgame as appurtenance of property; 383
ABGB and 960 (1) Clause 1 BGBappropriation through owner of hunting rights; 405 ABGB and
99 (1) BGB and 953 BGBfruits of a thing; as well as the rules and problems regarding lost property:
388 (1) ABGB and 965 (1) BGB; and willful abandoning: 444 and 349 ABGB or 959 BGB,
respectively.

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most indirectly protected. Directly protected is however the human and his very
often economical interest in the animal [39, pp. 7781].
4.1 Animal Protection in Tenant, Family and Inheritance Law
The keeping of animals is neither expressly dealt with in the ABGB nor in the BGB.
Thus, in general, one has to consult the individual lease agreement for detailed
arrangements. Unfortunately, the jurisdiction is still rather controversial in this
regard. Nevertheless, although the keeping of animals might in general be
prohibited in lease agreements, the keeping of dogs and cats is still regarded as
normal use within residential purposes, except where there are important reasons
against it e.g. intolerable disturbance of the neighbours or failure to secure
appropriate living conditions for the animal [43, Ref. 6974].
Also, pets hold a special position in the sphere of family law. Legally they are
seen as household effects.28 Animals are treated as an integral part of the family,
and thus seen to contribute as a member of this social unitoften as an essential
component of the emotional coexistence and family life of spouses and children. In
the case of a divorce entailing disagreement between husband and wife, the court
decides about the legal relations of the home and the household effects.29
If an animal is awarded to one of the spouses, the court decision has to be issued
according to the suitability of the future animal owner as a person with whom the
animal can relate closelytaking into account aspects of human qualifications as
well as the necessary requirements to meet animal protection demands. This means
that custody will be granted to the spouse which is not only willing to fulfil the
duties as an animal keeper,30 but is also capable of guaranteeing the well-being of
the animal. Here it can be clearly seen that the previous concept of ownership in
property law has now been supplemented with an animal protective care and
custody component [46, Ref. 146]. So could this lead to the controversial idea
analogous to the right of access for one parent with their joint childthat a divorced
spouse can be awarded access to an animal that had played an important role within
the family? This has been answered in the affirmative by the local court of Bad
Mergentheim in Germany. As per 90 a BGB it took into account the legal grounds
committed to respect animals as fellow-beings of mankind, with the consequence
that ,,contrary to what would be possible with lifeless and insensitive objects, one
can not dispose of them [animals] without consideration for their nature and
feelings [46, Ref. 147].* The proposal to give right of access for a non-human
family member will certainly sound very appealing to those who have and love their
pets and find the suggestion of parting with them due to a break-up of the marriage
to be an additional trauma. The emotional bond and often very close partnership
between animal and human has to be treasured, and resolving a highly problematic
situation by offering such a compromise is certainly a more acceptable path for both
28
In Austria: 81 Section 2 EheG (Marriage Act). In Germany: 1 Section 1 HausratsVO (Decree on
Household Effects) and 8 HausratsVO.
29

85 EheG (Austria) and 1 Section 1 HausratsVO (Germany).

30

12 f. TSchG [4] and 2 TierSchG [16] respectively. [See also 43, Ref. 66].

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S. Lennkh

parties than the unpalatable alternative of completely severing the relationship

between pet and defeated spouse.
As regards the position of the animal in inheritance law, three different case
categories come into effect. First of all, if the animal is the property of the deceased it
will automatically become part of the estate itself. In this context, animals are treated
just like all other objects or assets owned by the bequeather, and all the provisions on
leaving property will apply whereby in the case of several heirs the decision to whom
the animal is granted will bejust like in family lawin favour of the person with
the best aptitude to care for the animal properly. The second variant is the fact that a
testator wants to appoint an animal as heir or beneficiary under a will. In this instance
the German law expresses very unequivocally in 1922 Section 1 BGB [9] that:
Upon the death of a person [], that persons property (inheritance) passes as a
whole to one or more than one other persons (heirs). So the attribute of being
considered a person is the decisive characteristic for making a being eligible to
inherit at all or to be the beneficiary of a legacy. Hence a third aspect is the desire of
the testator to guarantee the companion animal some kind of personal and financial
security. This can currently only be realised by burdening a heir, i.e. an actual person,
with an obligation to perform an act, for instance granting the animal a lifelong
upkeep to ensure that its future care, wellbeing and health is secured after the animals
owners demise. Just to round off the picture, as the owner can deal with his property
at his own discretion an animal can also be given away as a gift with the relating
regulations finding application.
4.2 Digression: The Idea of Animal Protection within the Law of Debt
Enforcement
Austria 29 Section 1 Clause 4 AbgEO31 determines that pets which are not
intended for sale are excluded from the seizure levied upon a deptors property. In
1990 Germany amended 765 a ZPO32 to the extent that within the framework of
debt enforcement the concept of animal protection also has to be taken into account.
This means that every permissible dept enforcement has to be in conformity with
1 Clause 1 TierSchG. In addition to the emotional bonds of the debtor to his pet,
now life, integrity, well-being and housing according to the animals needs etc. also
have to be balanced with the interests of the creditor as separate legal interests [43,
Ref. 67*; 44, 765 a Ref. 12].33 Within the problems of eviction from a property
animals should not be subsumed under the term movable objects, 885
Section 24 ZPO. As a result, under certain circumstances the right to eviction
would become unenforceable. Also, enforcement measures do not justify the killing
of an animal, for example, for the reason of lack of shelter facilities [46, Ref.

31

Abgabenexekutionsordnung (AbgEO) = Fiscal Execution Code of Austria [1].

32

Zivilprozessordnung (ZPO) = Code of Civil Procedure in Germany [18].

33

Furthermore pets in a more narrow sense are or can be subjected to the exemption of seizure. In
Austria see 250 Section 1 No. 4 EO = Exekutionsordnung (Execution Rules) [5] and in Germany
according to 811 c ZPO.

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149152]. Animals still hold their own legal position in other areas of the law, but at
this point we will not explore these additional provisions in detail.

5 The Legal Status of Animals

In the current order of law, the human is a person and born with certain
rights.34 Thus, humans are bestowed with the attribute of being a legal personality.
An animal however is not a person in the concept of todays statutes. Over the
decades, or even centuries, a number of theories have been put forward trying to
construct personhood for the animal. Some ideas might be tempting for advocates
of this notion. For instance, Leonard Nelsons suggestion which gives every
creatureas far as it has any intereststhe quality of being a subject of possible
rights. For this assumption it is not necessary for the creature to be capable of
simultaneously acting according to its interests.35 If an animal could be regarded as
a person on the other hand, this would be a separate topic which would require
more detailed elaboration beyond the scope of this paper.36 Instead, the central
question is now whether animals might be due their own rights, and whether they
could possibly even be classified as a legal personality. In addition we will
examine where within the legal system animal protection has already been
established and, in particular which formal increase in value in its legal status is
granted to the individual animal within the various models with regard to the
procedural rules. In this context we will therefore not pay any further attention to the
substantive aspects of the previously mentioned Animal Protection Acts.
The creation of those rights for the individual animal could be founded on a
preceding justice: a legal idea which is above the law itself, as well as on moral or
legislative aspects. The latter point of view is, in particular, captured and carried by
the idea of the rule of law (Rechtsstaatsgedanken) which recognises human rights
and at the same time demands moral rights for animals. Today we are at what could
be considered an intermediate stage between a right of the animal that is only
morally constituted and one that is actually legally acknowledged [46, Ref. 119].

34

16 ABGB (Austria) and 1 BGB (Germany).

35

Based on the principle of personal dignity every creature that has interests, so every person, is
entitled to the respect of its interests. This entitlement is the right of the person. Every person thus is a
subject of rights because it [the person] is in its term a subject of interests (Cited according to 25, 149].*
36
Austria recently achieved international press coverage with the court case of Hiasl, a chimpanzee. In
2006, somebody donated a sum of money to the president of the animal rights association VGT under
the condition that he may only take possession of it if Hiasl has been appointed a legal guardian, who can
receive this money [19] on Hiasls behalf. VTG stands for Verein gegen Tierfabriken = Association against Animal Factories. Subsequently an application by the president of the VGT was made at a
district court in Lower Austria to appoint for Matthias Hiasl Pan a legal guardian. This would
presuppose Hiasl would be recognized as a personas otherwise no guardianship could be granted.
The court of first instance reasoned that formal prerequisites were not fulfilled. In the meantime after
going through all stages of appeal in Austria with no avail (as no decision was made in the causa itself due
to the lack of the right to appeal for the president of the VGT at the court of resort), the case is now
pending at the European Court of Human Rights. For further reading: [19; 20, 335342; 2830].

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5.1 Animal Protection and Constitutional Law

Forerunner in this field was Switzerland, which as the first country in Europe has
since 1992 afforded the dignity of the creature37 constitutional protection thus
giving all non-human beings explicit recognition at the highest legal level [22,
p. 13]. In 2008 safeguarding this dignity of the creature has also been specifically
established as a key principle in the Swiss Animal Protection Act itself [23, p. 18].
According to its wording dignity stands for the intrinsic value of the animal
which has to be respected in all dealings with it.38 Thus in addition particular
emphasis is now given to the protection of animals from humiliation, from
intervention in their appearance as well as from excessive instrumentalisation.
In 2002 Germany as the first state in the European Union amended its Article 20
a GG39 to the effect that now besides the natural bases of life, animals are also
protected through the state. With this action animal protection has been elevated to a
state objective or state goal (Staatsziel).40 However, even the constitutionally
guaranteed protection of animals which opens up the possibility to limit the basic
rights, even when these are unconditionally guaranteed [43, Article 20 a GG Ref.
8]* is in competition with other fundamental rights such as occupational freedom,
the right to freedom of expression including the freedom of the arts, sciences,
research and doctrine, and the freedom of religion. To determine the protection of
animals as a state objective means the state has to consider the interests of animals
when acting both internallyfor instance, by appraising the potential impacts on
animal protection concerns of any legal measures or provisions they plan to
undertake in the futureand externallyfor example, internationally when
ratifying guidelines and trade agreements. Furthermore, animal protection as an
objective of the state signifies that the state also has the mandate to secure effective
protection. It is obliged to intervene against violations. At the same time it accepts
37

Article 120 Bundesverfassung (BV) der Schweiz = Switzerland Constitution [24].

38

Article 3 Section a. TSchG (Tierschutzgesetz, Swiss Animal Protection Act)* [58].

Disregard therefore constitutes an offence of cruelty to animals as per Article 26 Section a. TSchG
irrespective of the animal experiencing any pain, suffering, damage or not. Still this does not comprise a
total prohibition of any incrimination per se as here also a balancing of interests has to take place.
However, defining the term dignity of the creature in more detail will remain a task for the Swiss courts
eventually. [23, p. 44].
39

Grundgesetz (GG) = Basic Law of the Federal Republic of Germany [13, 14].
Wording of Article 20 a GG: Mindful also of its responsibility toward future generations, the state
shall protect the natural bases of life and the animals by legislation and, in accordance with law and
justice, by executive and juridical action, all within the framework of the constitutional order. [14;
Quote adapted to the new version of the GG as of 2002].*
40

Including animal protection as a state objective takes into account the need of a morally responsible
treatment of the animal by the human. The capability to suffer and to feel, especially of higher developed
animals, demands an ethical minimum in regard to human conduct. The duty to respect animals in their
fellow-beingness and to spare them avoidable suffering follows from that. [] Establishing animal
protection in the constitution shall strengthen simple legal statutes on animal protection and guarantee the
effectiveness of animal protective provisions. [] The jurisdiction can only accomplish this adequately if
the legislator included the protection of animals explicitly into the structure of the Basic Law of the
Federal Republic of Germany. This serves legal security. By adding the words and the animals in
Article 20 a GG the mandate to protect also applies to the individual animal. Ethical animal protection is
thus conferred constitutional rank [11, p. 3 in excerpts].*

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319

the responsibility for controlling general conduct, both directly by laws and
prohibitions and indirectly, for instance through targeted public relations work and
education. On top of that an animal protective retrogression prohibition, a ban on a
legal worsening, exists. This means that animal protection can only get stronger
not weakerin the future. [See also 43, Article 20 a GG Ref. 1220].
In Austria, animal protection has not yet been embedded in the constitution. The
amendment of the Bundesverfassungsgesetz in 2004 concerning the introduction of
Article 11 Section 1 No. 8 B-VG [3] is merely an authorisation of the state to
legislative power in issues of animal protection. The newly created state
competence of animal protection has the sole aim of covering the area of the
protection of the individual animal (Individualtierschutz), i.e. to serve the protection
of the life and well-being of the animal [8, p. 4].41
5.2 A Right for the Animal
With classifying the animal as a fellow-being the animal has been bestowed an
inherent value, an identity as well as dignity. If this is not to remain an empty shell
without substance, man has to be committed to the interest of the individual animal by
binding statutes. In case of such an assessment and classification, the respective
national animal protection acts can be judged as compulsory regulations of a just
treatment of animals for mankind, and thus as objective animal rights [46, Ref. 122].
Apart from these general demands to realise an improvement in the position of animal
protection, there is also a desire of procedural reform within the substantial rules.
Various possibilities to counteract those enforcement deficiencies [25, p. 495]
in the animal protection context have been in discussion time and again, but until
now not one of the mentioned legislators has decided to lead the way and set an
example by translating the possible solutions into action and passing corresponding
laws. Animals are not in a position to express and attend to their own interest. Thus
in the three-pole relation between animal users, authorities and animals [in need of
protection] a situation of legal imbalance and missing equality of weapons exists
[] If the authority issues a decision at the expense of the animal users they can
take remedies against those actions [] If a decision is passed at the expense of the
animal, then the possibility of a juridical review is according to the current legal
situation not available at all [43, Ref. 56 in excerpts].* This again leads to a partial
devaluation of the provisions aimed at protecting the animals. In this context, it
should be pointed out that the authorities in charge of animal protection according to
the various federal or state animal protection acts have to be ruled out as custodians
in view of matters of animal protection itself as they represent the connecting link
between animal protection and animal exploitation and therefore should act as the
objective third party [25, pp. 498499). This matter could be remedied by
establishing provisions for legal action to be taken by an animal protection or
41
In March 1996 a petition for a referendum strived to elevate the protection of animals to constitutional
status [46, Ref. 36].
Then in 2004 the constitutional convention (Verfassungskonvent) made a suggestion relating the
incorporation of animal protection as a state objective into Article 10 B-VG. But ultimately this phrasing
was not adopted for the wording of the draft [6].

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S. Lennkh

welfare organisation.42 Germany already introduced the possibility of legal action

being taken by an environmental organisations back in 2002.43 Animal protection
organisations, however, are not in a position to take countermeasures against
administrative acts or a failure of the authorities to act in animal protection adverse
or unlawful situations. The animal itself lacks the legal personality, meaning the
capacity to be the subject of legal rights and duties, and thus the capability to be a
party in any proceedings, 61 VwGO,44 and the animal protection organisation on
the other hand is missing the involvement, i.e. being personally affected in its own
rights by the occurrence, 42 Section 2 VwGO [25, pp. 496497].
After establishing animal protection as a state objective within the constitution of
the Federal Republic of Germany, the legislator now also has the duty to convert
those ideals into applied law by utilising the most effective measures for its
realisation, including within procedural regulations. Therefore recognised animal
welfare societies with legal personality should be conferred with the right of action
within the framework of an altruistic legal action (as is already allowed to be taken
by other associations) and, according to the draft bill, be explicitly eligible to file
remedies without being prejudiced in its own rights [12, p. 4: suggested new
wording of 20 Section 1 TierSchG].* Consequently only the solution to allow a
legal action to be taken by an animal protection organisation would ensure a direct
and full right of complaint against sovereign decisions [25, p. 511]. However, in this
construct the public interest is once again to the fore and the state for its part has the
discretion in shaping and elaborating this power of representation. The legal action
undertaken by an animal welfare organisation thus only applies to the infringement
of objective rights at the expense of animals. From this solution, the model of the
recognition and enforcement of possible subjective rights of the individual animal
has to be distinguished.
Possible subjective individual rights have not yet been awarded to animals in
Austria or Germany according to currently applicable law. In principle, however,
there is nothing to stand against proceeding in this way, as the legislator is able to
stipulate the capability of animals holding legal rights. In this context, it is often
cited that only rational creatures can be legal entities, i.e. it is required that they can
be simultaneously subjects of rights as well as subjects of duty. Although Kants
moral concept is based on the idea that only a person owes duties to another person,
the rights-duty-symmetry-thesis (Recht-Pflicht-Symmetriethese) is already rendered invalid by the existence of an animal protection act as the latter specifically
imposes on man duties in relation to the animal [46, Ref. 163]. Particularly terms
such as fellow-beingness and the dignity of the creature are synonymous with
the intrinsic value which is awarded to the individual animal by statute. In contrast
to the altruistic legal action undertaken by an animal welfare organisation, animals
shall therefore not only be protected within the objective law butfurthermore
42
Not only a too much of animal protection but also a too little has to be accessible to a juridical
review if the mandate of the state objective to protect and control shall be performed effectively [43,
Article 20 a GG, Ref. 18].*
43

5861 Bundesnaturschutzgesetz (BnatSchG) = Federal Nature Conservation Act of Germany.

44

Verwaltungsgerichtsordnung (VWGO) = Rules of the Administrative Courts of Germany [17].

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321

also on their own account as an individual being with their own legal status [25,
p. 512*; and pp. 517519].
Nowadays one is rather directed towards the theory of a limited equality in rights
(eingeschrankte Rechtsgleichheit) or a graded transfer of rights (abgestufte
Rechtszuschreibung) respectively. The in parts demanded egalitarian status of an
absolute equality for animals according to the motto: Interest is interest, whose
interest it however might be [25, p. 122*, see also pp. 125129] would turn out to be
problematic as in case of a conflict balancing of interests has to be undertaken. For the
concept that legal rights could indeed be attributed to a sensitive and sentient nonhuman creature, a certain inequality would not have to represent an impediment [25,
p. 129]. However, it is not proposed to develop a more detailed discussion in
connection with the various facets of this subject concerning the classification of
animals at this point. To realise these subjective rights, would require the procedural
expansion of the capacity to be a party to legal proceedings by adding animals to the
natural and artificial legal person as possible parties in interest. But as animals would
be unable to safeguard their (assumed existing) rights, they would have to engage a
representative for the assertion of their subjective rights and interests. That results in
the conclusion that within the framework of the altruistic legal action undertaken by an
animal welfare organisation itself, even if none of the organisations interests are
injured, the association may assert and enforce the objective rights of animals.
Whereas in the case of the concept of individual rights for animals, the enforcement of
those subjective rights can only be feasibly attained by means of a representative
(Stellvertreter) or trustee (Treuhander). Thus, delegation of rights of power and
participation to a third party is always unavoidable.
If one now assumes that animals are indeed entitled to the enforcement of their
own subjective rights and that animals under these particular circumstances would
have to use representatives of interests then, in this context, it has to be clarified how
this procedural enforcement could be constructed. Whereby two options would have
to be considered: the pure model of a representative (reine Vertretermodell) or
the statutory assignment of the right in action (gesetzliche Prozessstandschaft).
The pure model of a representative would mean conducting the law suit in the
name of the animal simply as a representative having the power of attorney or
rather, in this case, authority to act on behalf of the actual plaintiff, the animal. In
the alternative of the statutory assignment of the right in action the legally
recognised association sues as a party ex officio for a third persons right in its own
name [46, Ref. 167].* For this solution one would need either an expansion of the
procedural rules by adding this authority to act within the framework of a statutory
assignment of the right in action and/or the legal power of attorney to represent a
party in action (gesetzliche Prozessbevollmachtigung) would have to be explicitly
stipulated within the provisions of the animal protection act itself.45
45
The decisive factor between both options is that in the concept of the pure model of a representative,
the involved animal is itself the plaintiff and only represented by an agent. On the other hand, in the
statutory assignment of the right in action, the animal welfare organization itself is a party of the
litigation. It prosecutes an action for the benefit of a third party whereby the concerned animals are
exclusively favoured [25, p. 521].*

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S. Lennkh

Just in parentheses some additional institutions with relevance to animal

protection issues shall be briefly mentioned. The office of the Rechtsanwalt fur
Tierschutz in Strafsachen (Animal Welfare Lawyer in Criminal Matters [see 53])
has been in force in the Canton of Zurich, Switzerland, since 1992. In this unique
situation, a specially appointed lawyer looks after the interests of the harmed
animalor maybe rather victim in this caseas a statutory representative within
the criminal proceedings.46 Austria has the position of an Animal Protection
Ombudsman and Germany of National Animal Protection Commissioners. Both are
first and foremost representatives of the public interest, and not really responsible
for the safeguarding and enforcement of the subjective rights of individual animals.
To complete the picture, both countries have Animal Protection Councils which
assist the government, the legislator, the ministries and executive authorities with
their expertise, their knowledge and experiences.

6 Discussion
Animal protection topics often do not rank very highly on the priority of
international agendas. Apart from the notion that there are usually more important
and urgent issues to address, there is also a tendency to view the moral dilemma
linked with these subjectswhich are still nowhere near to resolutionas a total
lose-lose situation. This is simply because it is too hotly disputed, and the multitude
of opposing interests involved often seemingly incompatible. Also the general
publics attitude towards animals, their position within mans community and their
personal lives is rather mixed: pets or commodities? Are they friends, social
partners and fellow-beings or just alien creatures to exploit and make use of?
Whether we care to deal with it now or not, under the current ubiquitous
circumstances, nobody will have a chance to remain untouched by this problem and
all the related questions eventually.
Speciesism and the belief that the human being has a unique and outstanding
position which elevates him above all other living and sentient creatures on this
planet is one way of viewing the world. We could indeed follow Kant and say that
man has no direct obligations towards animals and only human dignity
(Menschenwurde) counts. However, even Kant also saw an indirect duty of man
in relation to animalsbut only in regard to cruelty as a cause or trigger for the
dulling of the general compassion in human beings [57, pp. 100101). The other end
of the scale would be the idea of equalising all beings. According to Regan [52],
every creature who can set actions into motion to satisfy its desires would be
included.47 Regardless of the shade of the various views one would prefer to utilise,
all concepts concerning the protection of animals reflect on the idea that animals do
need safeguarding: safeguarding on account of the animal as a separate inherent
46

In Austria a petition for a referendum was held back in 1996 which unsuccessfully called for the
creation of an independent animal welfare lawyers office [46, Ref. 36].
47

I.e. all humans as well as all mammals. We are not higher or superior; they are not lower and
inferior. In terms of our morally significant, our inherent, value, we are their equals, and they are ours
[52, p. 94; see also 60, p. 39].

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value. Respect and compassion are at the core of todays animal protection
justifications, hand in hand with sentientism, meaning that not the faculty of reason
is the decisive criterion for a being to count morally but its capability to feel [43,
Ref. 17].48 However, maybe the actual challenge should be to respect animals not
because they are supposed to be the same as us, but because they are different from
us. Reason, intellect, soul, feelingscertainly there is more to existence in this
world than the human abilities to see, hear, feel and comprehend, or appreciate. As
there are many possibilities to interpret the sentence of Protagoras that man is the
measure of all things. Certainly to man there is no other measure available than his
own [50, p. 221].* Therefore the solution could be to adopt an ethic of
ignorance [50, pp. 249258] by admitting that we have no confirmed knowledge
about the emotional and inner life of animals. We just guess, compare and assume:
Correctly? Well, that indeed is the actual enigma we are facing.
So there we stand in a world where in most of the countries animals remain
objects and mankind is firmly holding on to an anthropocentric ethic which is at
least not challenging the unrivalled status of human beings. Speciesism, not logic,
still determines the prevalent moral perspective. But what is unthinkable at this
momentadvance coming up against limiting factors in our mindsmight be the
common body of thought in the not too distant future. Maybe not necessarily a
universal acceptance of equal rights for all sentient beings, but a sound and sincere
balancing of interests. It only needs the tipping pointthe moment of critical
masswhen the unexpected becomes expected and radical change is more
than possibility [37, pp. 12, 14] as happened with the previously conventional
attitude towards slaves and womens rights. That is the fate of reality: One can be
ignorantbut not forever. What is seen as foolishness today might very likely be
the truth of tomorrow. And then, man will simply be amazed that it took so long to
realise the facts. As Schweitzer points out: To devise the ethic of love for all
creatures: This is the most difficult task our times are confronted with. [54, p. 98].*
So we ourselves just have to learn to think further than the current restricted and
narrow barriers of the receptivity of our human intellect. These reasons also explain
why most of the efforts to resolve some of the controversial animal protective
problems have been rather unsatisfactory. They lead to half-hearted endeavours to
grant animals comprehensive legal protection, frequently on the grounds that the
existing legal system would not allow any other assessment or alternative. The
illusion that things will eventually even out is self-deception. So realism and an
appropriate and sincere approach to the subject can be the only means to proceed.
The attempt to initiate and establish comprehensive and forward-looking animal
welfare legislation requires not only understanding of, and empathy for, the issue,
but also a progressive sense of ethically founded values, commitment, conviction
and courage, combined with the readiness to consider new legal structures for
application and to accept, support and implement innovative and responsible
solutions. In this setting, sentimentality has no room. Instead, appreciation of the
48
The liberation of the weak, oppressed and marginalized can not only refer to the black, slaves or
women. It stands as it were for the suffering creature in general: The faculty of sensation thus turns into
the uniting central opposition category against any form of discrimination [25, p. 113].*

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problems and demands involved with this outstanding venture should be the focus.
Laws may not be deemed as forever embossed in stone. They are facts, certainly,
but one still has to realise that existing rules have to adapt to changing requirements
and indeed are also capable of doing so provided there is the incentive as well as the
necessity of circumstances to induce new measures.
Germanys example of including the protection of the individual animal into its
basic law as a state objective is such an open declaration comprising the explicit
mandate on the nation and its people to morally esteem and respectfully treat our
fellow-beings. At the same time: Animal protection on the level of fundamental
law, if enacted and combined with effective measures of control, provides a guiding
line for the respective entire legal system and thus surmounts the traditional
boundaries between Criminal, Civil and Public Law [36, p. 72].* With this
attitude, Germany should be a model for all other countries, leading (along with, for
example, Switzerland) the way to the constitutional recognition of animal
protection, and thus setting the highest standards possible for the complete legal
system of the state. As a result, this will be the threshold that all other provisions
and official actions will have to measure up to. This, if correctly and allembracingly implemented, will have to find its consequences in every single stratum
of the whole legal order. To convert those ideas and requirements into living,
modern law proves to be a constant trial in all aspects. In this context 2 TSchG of
Austria should briefly be given prominence as it binds the Federal, Laender and
Municipal authorities to create and deepen understanding for animal protection
[] and, [] to promote and support [] any matters of animal protection.
Ideally, this obligation should be something one would want to see in the basic laws
instead of just the animal protection act of a country. Still, the motivation behind
this pledge has to receive well-deserved credit and, with encouragement, it will
hopefully also find its way into the constitution 1 day.
Without doubt, the implementation of the 285 a ABGB in Austria and 90 a
BGB in Germany is already an expression of these gradual changes in values. With
the abolition of the definition animal equals thing, a separate category has been
invented for the animal. The animal as fellow-being will no longer be given
parity with lifeless objects, i.e. things, but a qualification comparable with the
status of a person was still not strived for. As for how they would finally have to
be regarded, this is somehow left open. So they remain a thing sui generis [46,
Ref. 121] to which the old provisions apply without change. Hence this
classification and the reference to the protection of the legal system is frequently
and quite correctly just rated as an emotive declaration without real legal content
[33, 90 a Ref. 1]* and thus, even though more than well intended, without any
direct normative effect.49 As a consequence the aspired purpose of the amendment
of the law to improve the legal status of the animal within the civil law50 would
indeed not have been achieved.
49

In view of the fact that we (and presumably all other cultural respectively legal orders) kill animals,
eat them with pleasure or process them to clothing, 285 a [ABGB] can not be more than juridical
cosmetics [45, 285 a ABGB Ref. 1].*
50
Just as the title of the German draft law of 1990 [10] itself reads: Official Statement of Reasons for the
Draft of a Law for the Improvement of the Legal Status of the Animal within the Civil Law.*

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Ergo, if one purposefully and seriously aimed at a consistent and exhaustive

concept of animal protection one would have to agree with Caspar to grant the
individual animal its own legal status: Duties against animals are not only meant
to be recognised on moral grounds but moreover are [also] legally demanded
[25, p. 523*; see also p. 522]. The call for a manifestation of animal protection on a
constitutional level as well as recognising subjective and individual animal
protection regulations complete each other. Such a combination could secure a
comparatively comprehensive legal protection for the individual animal, at least on
a national level. As an ultimate and absolutely desirable objective a legislature
should therefore mature which puts increased importance and significance on
matters of animal protection in general and supports these issues actively by
awarding the legal means to distinctly and effectively advocate and attain moral,
legal and social developments in this area. Besides protection through a sheer
objective legal sphere, it would be appropriate to additionally at least concede to
animals a graded transfer of rights (see Sect. 5.2) which would confer to them as
non-human but nevertheless sentient and individual beings, enforceable subjective
rights. In Austria and Germany discussions have been underway for decades
concerning the first timid steps in this direction. But still no concrete measures, in
particular in the sector of procedural rules, have been taken to strengthen and
complement the existing substantive legal statutes and to counteract the general
deficiencies in the field of animal protection regulations determined by the
contemporary system. At this point, it should be emphasised that the regulations of
Austrias and Germanys animal protection acts mainly focus on the animals
interest of integrity as a living being, sentient and capable of feeling pain. Thus,
these provisions are not only aimed at man and its legal duty to comply with these
laws, but they could also be seen as a subjective right of the animal to freedom
from bodily harm. Such an appraisal of the current statutes as animal rights
would indeed be possible if at the same time the means would be offered to enforce
these subjective individual rights accordingly. Only the non-existence of any
relevant procedural measures prevents this from becoming a reality at this stage.
Provided one would indeed want the provisions of animal protection legislation to
be judged as legal positions in favour of the animal, these procedural prerequisites
and conditions have to be created, partly within the animal protection acts
themselves and partly in other spheres of law [25, p. 520]. Taking the principle of
the fellow-beingness as the basis, an actual improvement of the animals legal
position would as a consequence require them to be classified as a legal entity.51
All these open questions and often very emotional topics related to animal
cruelty, exploitation and welfare and the numerous alternatives to regulate them are
an issue for a majority of citizens in both Austria and Germany. A continuous
ethical and legal public discourse is under way which highlights these problems and
the multitude of views they elicit. In addition, both governments are open to all
concerns and aware of the difficulties of the situation, and they have addressed the
51
Such recognition of the capacity of the animal to be a legal personality would have to be procedurally
secured and combined with mans duty to exercise the rights of the animal as a representative on its
behalf and on a trust basis [10, p. 6].*

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predicament with the measure they view as appropriate under the circumstances.
Room for improvement undoubtedly remains in abundance. However, at least two
intermediate stages have already been reached in Austria and Germany: 1. animal
welfare and protection legislation is an issue of discussion and contemplation, for
the state as well as for the society, and 2. people have started to be sensitised to the
matter as a legitimate concern for every human being. Both circumstances will
hopefully establish a solid foundation for any advancement in this critical field
eventually. Awareness, education and enlightenment are among the factors that will
be crucial for the future development and enhancement of any animal protection
legislation.
The acceptance of novel bodies or even worlds of thought with their ambitious ideas
makes great demands on everyone. This is the moment to review and sharpen ones
ethical consciousness and personal attitude of mind in this respect, as only challenges
and changes are an incentive for the time to come and a guarantor for the creation of a
solid base and a long-term improvement of the mutual coexistence in this world. For
this reason, every nation should be obliged as a country as well as a society to work
with conviction and emphasis towards an ideological conversion and a change of
values as well as a reorientation with regard to their relation to all sensitive fellowbeings who are capable of suffering, their life, general well-being, their individual
rights and their dignity. These positive reforms should not only be revealed as an
emotional and moral responsibility, but at the same time be demonstrated with
sustainability as a humanitarian and social duty of each individual and the community
and, in particular, also in form of a clear and sweeping recognition through the state
and the legislative system. Animal welfare and protection will definitely be one of
mankinds greatest and most challenging missions of the twenty-first century.
Acknowledgments I like to express my sincerest gratitude to Prof. Dr. Michael Geistlinger of the
Faculty of Law at the Paris-Lodron-University Salzburg, Austria, for his continuous support and
encouragement. At the same time I also wish to thank Janice Cox, former International Legislative
Adviser of the World Society for the Protection of Animals and Co-founder and Director of World
Animal Net, profoundly. It was most fortunate as well as a great honour for me to receive her invaluable
co-operation in counterchecking and revising this article with the final perfecting touches of her academic
and linguistic expertise.

References
AustriaLaws and Corresponding Documents. See: Bundeskanzleramt.
Rechtsinformationssystem. (RIS). http://ris.bka.gv.at/default.aspx. Austrian
Federal Chancellery. Austrian Laws. http://ris.bka.gv.at/defaultEn.aspx.
Accessed 28 Aug 2010.
1. Abgabenexekutionsordnung. (AbgEO). (Fiscal Execution Code of Austria). See: Rechtsinformationssystem. Bundesrecht. http://ris.bka.gv.at/default.aspx. Accessed 28 Aug 2010.
2. Allgemeines Burgerliches Gesetzbuch. (ABGB). (General Civil Code). Bundesrecht. (Federal Law).
See also: http://ris.bka.gv.at/Bund/. Accessed 28 Aug 2010.
3. Bundes-Verfassungsgesetz. (B-VG). Austrian Federal Constitution in German. (As of 31st of
December 2009). http://www.bka.gv.at/site/4780/Default.aspx and http://www.bka.gv.at/DocView.
axd?CobId=30953. Accessed 28 Aug 2010.

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