The summa divisio between the person and the thing lies, traditionally, at the very basis of European private law. In a growing number of European jurisdictions however, provisions have been introduced in the Civil Code that differentiate between animals and other legal things or objects. Even though it is certain that these provisions do not vest animals with a form of legal personality similar to that of humans or corporations, it has been noted that the new legal status may influence the way animals are being addressed in other areas of private law and can sometimes even be construed as limiting the rights of persons. Perceived as such, the special status of the animal challenges the traditional dichotomy between the person and the thing, giving rise to a category that lies in between.
This article argues that EU law can be interpreted to support the current existence of legal rights for animals and nature. While these rights have not been explicitly recognised in law, the prerequisites for doing so already exist in the EU legal order. The theoretical justifications for the protection of animals and nature differ, but the protection of both may benefit from a rights approach. Further, such a rights approach helps address jurisprudential questions pertaining to direct effect and the effectiveness of EU law, and related EU law concepts. In this article, we examine EU animal and nature protection laws to analyse where these laws can be interpreted to assign rights to non‐human natural entities. We argue that the rights animals and nature already implicitly have in EU law should have consequences for how non‐human protections should be implemented and enforced in the EU context.
It is sometimes assumed that, in order for animals to be adequately protected by the legal system, their status first needs to change from property to person in one fell swoop. Legal personhood is perceived as the necessary requirement for animals to possess legal rights and become visible in law, distinguished from legal things. In this article I propose an alternative approach to animal legal personhood, which construes the road towards it as a gradual transition rather than a revolution. According to this alternative approach, animals become increasingly visible in law when their existing simple rights are shaped to function more like the rights of humans. Instead of a condition for the possession of rights, legal personhood should then be regarded as a (potential) consequence of growing animal rights.
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