Wednesday, March 22

Sensitivity and sentience of animals: an unclear reform of the Civil Code

A few weeks ago the expected reform of the Civil Code, the Law of Civil Procedure and the Mortgage Law on the legal regime of animals. So, in light of the new wording of article 333 bis of the Civil Code, non-human animals change their legal status of things (movable property) and are considered “beings endowed with sensitivity” and “sentient beings” . In the following lines we are only going to focus on these two concepts.

First of all, it is convenient to read the first two sections of article 333 bis:

“1. Animals are sentient beings.. The legal regime of goods and things will only be applicable to them to the extent that it is compatible with their nature or with the provisions intended for their protection.

2. The owner, possessor or holder of any other right over an animal must exercise their rights over it and their duties of care respecting its quality of being sentientensuring their well-being according to the characteristics of each species and respecting the limitations established in this and other regulations in force.”

Apparently clear wording. At a certain point it is. And yet, we could ask ourselves the following questions: sensitivity is synonymous with sentience? Does the Civil Code differentiate between the rest of the animals and those that are linked to a human? What are the consequences of assuming that a being is sentient and that another is sentient? Let’s try to answer all of them step by step.

There are words that are polysemic, that is, they can have several meanings. A virtue at times and a stumbling block at others. Sometimes a concept is simply misapplied. The word sensitivity it is, according to the dictionary of the Spanish language, the “faculty of feeling, typical of animated beings” or “quality of being sensitive”. Animated beings can be those that are “endowed with a soul” or “endowed with movement”. Based on this, both plants (as beings endowed with movement thanks to nastias and tropisms) and animals (some endowed with a certain personality, if I may dispense with the concept of soul) can be sentient living beings. Regarding the word sensitive we find ten meanings in the dictionary, but let us agree that it is “said of a living being: capable of experiencing sensations”, that is, the impression that is perceived “when one of its receptor organs is stimulated”. Even though sensation it is also the “psychic perception of a fact”. And what about the senses? For a sense is “the ability to perceive external or internal stimuli through certain organs.” And yes, plants also perceive and react to these stimuli through their organs. Namely root, stem and leaves.

In short, depending on the meaning we choose, sensitivity does not seem to be a characteristic of animals. The truth is that the definitions provided by dictionaries are never, in academic terms, very precise. Let us see, then, how the preamble of the reform defines these concepts. And well, surprise, he says nothing about it.

So let’s turn to other sources. Renowned neuroscientist Antonio Damasio states (read The strange order of things or feel and know) that all living organisms have the ability to detect or feel. In other words, organisms can respond to what they feel. Even, according to the Portuguese scientist, all living organisms have a non-explicit intelligence, a remarkable type of intelligence (homeostasis) that carries out the process “by which the physiological parameters of a living organism are maintained within the most appropriate range to optimize their functionality and survivability”.

On the other hand, in animal ethics, sensitivity is spoken of as the morally relevant capacity to feel pleasure and pain. This is what we usually mean when we talk about feel. It is, therefore, a concrete definition, a specific type of sensitivity. Under this prism, plants are not sensitive: they only react to stimuli, but they do not have the capacity to experience those sensations as their own. Animal welfare is based on this criterion: the important thing is that the animal does not suffer, does not feel pain. So the fact of staying alive is not considered relevant. This is known as sensocentrism or pathocentrism (pathos means suffering or emotion). Does the Civil Code refer to this meaning? I guess so, but then why does he mention sentience?

The truth is that there is some confusion with the terms. If we go to the definition Given by the Fundéu, we observe that sentience would be the ability to feel, assimilating it to mere sensitivity. However, strictly speaking, sentience can be defined as the ability to have subjective experiences, to be consciously affected. These experiences can be positive or negative, including pleasure and pain. Now, sentience would go further, what would be morally relevant would be the ability to subjectively feel vital experiences, such as life itself. That is, sentient beings learn, to a greater or lesser extent, what happens outside and inside our bodies. Sentient beings think and get excited, that’s why our lives matter.

To be sentient it is necessary to have a central nervous system, although this is not a closed question. Under sentience we include all vertebrate animals and many of the invertebrates. Indeed, there is no doubt here: plants are not sentient beings, despite the fact that they perceive stimuli, since these do not translate into subjective experiences. Therefore, they cannot feel enjoyment or suffering. They are unaware. As Damasio says, “consciousness makes mental experiences possible, from pleasure to pain, along with everything we perceive, memorize […] during the process of observing, thinking and reasoning”. Consciousness makes us unique beings. It is not only the pain or pleasure that we feel that matters, but also our ability to experience subjectively through emotions and feelings. Feeling sensations does not It is the same as feeling feelings (and emotions), because the latter are what provide us with conscious knowledge, although, again, these affirmations will depend on the meaning that we select.

In short, it is not the same to base ourselves on an ethic of sensitivity (sensocentrism) than on an ethic that defends sentience as a relevant moral fact. The first is aligned with purely welfarist policies, while the second expands moral consideration to the very lives of sentient animals, which is advocated by supporters of animal rights theories. The first holds that we can painlessly kill animals for human benefit, however unnecessary. The second holds that sentient life matters and that their interests and needs must be respected.

After differentiating both concepts, we find several problems when approaching the drafting of the Civil Code. Let’s examine the various options.

1. Sensitivity and sentience are understood as synonyms. This is the line that apparently marks the legislation. It is enough to observe the translation that was made of article 13 of the Treaty on the Functioning of the European Union. Read the English Version: “since animals are sentient beings”. And now the translated version: “of animals as sentient beings”. Although in English sentient can mention both concepts, according to the academic literature it would be more correct to translate it by sentient.

In this way, both sensitivity and sentience refer only to the ability to feel pain and pleasure. It is, therefore, the only moral criterion that governs, in line with the welfare approach of the Spanish legal system and European legislation.

The objection that could be raised would focus on the lack of rigor in the application of the terms from an ethical approach. Omitting, therefore, the details of each term and not assuming the philosophical and legal consequences that would have to be derived from opting for one concept or another. Thus, assuming that sensitivity and sentience are synonymous leads to confusion when developing arguments. Especially when not even the reform itself explicitly assumes such an interpretation. Well, as has been shown, these terms can be approached from a biological approach (with various meanings) and, on the other hand, an ethical approach. And both perspectives do not necessarily coincide.

2. Sensitivity and sentience are different concepts, which emphasize -in the norm- a distinction between non-human animals. In this sense, we could understand that the wording differentiates all non-human animals as sentient beings, while animals subject to humans are considered sentient beings. Inconsistency from a scientific perspective, specifically, biological; but a partially consistent distinction with respect to companion animals. However, this interpretation is not solid, because we would also have to understand animals that humans exploit and kill for consumption and entertainment as sentient. For this reason, this interpretation is perhaps the least consistent of all.

3. Sensitivity and sentience are different concepts, which refer to two different approaches to moral consideration towards non-human animals. In the first place, it would be necessary to establish what we understand by sensitivity, since, as we have verified, there are different meanings. Assuming that we understand sensitivity as the ability to feel pain and pleasure, the writing should only use this term and not sentience. That’s right, morally accepting that non-human animals are also sentient entails, to say the least, a much more protective stance towards them. Many authors and many authors, in fact, maintain that sentience is the basis for defending that animals have rights: to life, to physical and mental integrity or to freedom, among others. All of them with nuances, as occurs with human rights.

In the legal field, we resort to different methods to interpret legal provisions: the grammatical, the systematic, the historical, the teleological (the purpose pursued by the norm) or the analogical, for example. Some (the systematic and the teleological) may be useful, but the absence of definitions does not facilitate this task. In short, I am personally inclined to think that the legislator has used sensitivity and sentience as synonyms, with the problems that this entails. Not to mention the lack of rigor. Similarly, the problem of the indeterminacy of the concepts we use also extends to the terms of consciousness and self-consciousness, where some are in favor of assimilating one concept to another, while others think that they are clearly differentiated words. Although this is another matter.

For this reason, academic articles rarely resort to the definitions offered by dictionaries, even when they are sometimes valuable. Perhaps if the legislator had known the complexity of the matter, at least he would have clarified such issue in the preamble. Moreover, this article has only drawn a few lines so that the reader can reflect on the drafting (and application) of the reform. We could stop to question if sentience is exactly the same as consciousness or what would be the different moral consequences that derive from accepting the proven fact that many animals are sentient. Furthermore, does acknowledging sensibility (or, in his case, sentience) exclude in practice the reification of animals? In other words, does it prevent appropriation and domination over them or does it simply impose limits on our right to property and enjoyment? Does it really change the legal status of non-human animals? In short, all this exceeds the purpose of this text.

So tell me, what do you think?