Abstrakt: | Animal protection as an emerging field of legislation needs to be constitutionalized as
well as comprehensively expounded by legal scholars. As it is a growing body of regulation and
accompanying legal theories, it needs to develop a solid conceptual and axiological framework,
in particular a set of basic values and principles on which detailed rules are to be founded.
Lacking these, the domain of animal law is still in the pre-paradigm stage and remains an
assemblage of dispersed ideas, concepts and regulatory measures. It yet has to develop into
a coherent whole that may grow to be a mature regulatory and doctrinal domain of the law. In
order to reach this stage, it should be founded on clear theoretical and constitutional grounds.
Lacking those, its further development, and effective operation may be seriously impeded.
There seem to be two basic approaches that may serve as the possible foundations for a viable
model of animal protection law. The first may be referred to as the “dignity” approach and the
other, as the “sentientist” approach. According to the first of those two approaches, animal
protection law should rely on the concept of animal dignity as its philosophical foundation.
The second approach rejects the idea that the concept of animal dignity as the basis for
the relevant legislation as philosophically dubious and entailing objectionable normative consequences for the scope and content of legal protections of animals. Thus, it aims rather
at legal norms and policies being based directly on scientifically informed theories of sentience,
evolutionarily developed nervous structures underlying cognitive and emotional capabilities
or species-typical biological and psychological needs that condition the subjective well-being
of a given creature. The aim of this paper is to analyse and discuss both these approaches and
to argue that the former is philosophically, conceptually and practically flawed. The second
approach, even despite some serious disadvantages, is therefore deemed to be preferable and
more promising. |