Animals as Subjects of Rights: Brazil's Constitutional Blueprint

Abstract

Keywords

Constitutional animal law, trends in animal law, legal status of animals, non-personal subjects of rights, Brazilian animal law.

Suggested Citation Style

Baptista-Rosa, Marina (2024). Animals as Subjects of Rights: Brazil’s Constitutional Blueprint. Journal of Animal Law, Ethics and One Health (LEOH), 146-171. DOI: 10.58590/leoh.2024.011

* PhD candidate in Animal Law at the University of Helsinki, researcher member of the Helsinki Animal Law Centre.

Content

• I. Introduction
• II. Brazilian legal framework
• 1. The constitutional animal protection provision
• 2. Ordinary law
• III. The Application of the constitutional animal protection mandate
• 1. Anthropocentric underpinnings
• 2. A turn toward ecocentrism and animal dignity approaches
• 3. Animal protection as a societal issue: The ‘Public Civil Action’
• 4. Animal testing bans
• IV. Animals as subjects of rights: Theoretical insights
• 1. Constitutional nuances and implicit recognitions
• 2. Disentangling right-holding from legal personhood
• 3. Animals as non-personal subjects of rights in the law
• 4. Transconstitutionalist theory: Bridging frontiers for animal rights
• 5. Animal standing: Integrating the conceptual analysis with the case study
• a) The Rambo & Spike case
• b) The Tokinho case
• c) Tom and Pretinha
• d) The Beethoven case
• V. Discussion
• 1. Social and constitutional tensions
• 2. Limitations: Defining animal cruelty
• 3. International significance
• VI. Conclusion

I. Introduction

• “(…) to protect the fauna and flora, prohibited, according to the law, practices that jeopardize their ecological function, cause the extinction of species or subject animals to cruelty (Art. 225, § 1, VIII, Constitution of the Federative Republic of Brazil).”

An increasing number of constitutions now include a provision dedicated to protecting animals. Following the inclusion of Belgium in 2024,[1] Italy in 2022[2] and Russia in 2020,[3] this list now comprises eleven countries,[4] which has sparked discussions in other nations and led to recent proposals in Finland, South Korea, Greece, and Chile.[5] In Brazil, the constitutional mandate for animal protection is entrenched within the human right to an ecologically balanced environment. Unlike countries such as Germany and Italy, in Brazil, the constitutional duty to animals is not the result of an amendment process but has been part of the Constitution since its inception in 1988.

While the idea of animals as legal persons or subjects of rights is still far removed from reality in most Western countries, in Brazil, animals are now already recognised as holders of rights. It all started with the enactment of Article 225, §1, VII of the Constitution marking the development of animal law as a legal field in Brazil. This provision emerged from discussions in the Constituent Assembly addressing cruel cultural practices against animals, notably the “Farra do Boi” (discussed in chapter III.2). Since then, a paradigm shift has initiated with the development of animal law doctrine and widespread enactment of local laws explicitly defining animals’ legal status as “non-personal subjects of rights”. It is important to note, however, that these rights represent only minimal normative protections, considering how easily overridden they are by competing human interests. Legal scholars, such as Saskia Stucki and Rafael Fasel and Sean Butler, describe these types of protection as instances of “simple animal rights” or rights within a “Thin Conception of rights”, distinguishing them from the fundamental animal rights typically envisioned by animal rights theorists.[6]

Nonetheless, even the limited protections stemming from laws that formally recognise animals as rights-holders have led to landmark judicial cases. Since animals achieved constitutional recognition, case law has evolved considerably. Initially, legal challenges predominantly involved constitutional reviews of contentious spectacles featuring animals. Today, there is a discernible shift towards acknowledging animals as rights holders with legal standing that can even independently seek financial compensation in cases of mistreatment. Given Brazil's adherence to a civil law system, judges and courts possess more flexibility in adopting legal precedents compared to their counterparts in common law jurisdictions. While precedents typically guide judges' decisions, the Brazilian judiciary exercises substantial autonomy, fostering substantive innovation in their rulings.

Despite the constitutional provision being enacted over 35 years ago, the recognition of animals as subjects of rights with standing in court is recent. This paper examines what aspects of the Brazilian constitutional animal protection provision, and the Brazilian legal framework make Brazil stand out among the countries with a constitutional animal protection. It connects the emerging doctrine of animal legal subjecthood to the constitutional mandate against cruelty, revealing the implications of interpreting this provision more boldly than what has been initially conceived. The analysis will show that animal protection is more than merely a component of an environmental human right in the Brazilian constitutional regime.

The progressive developments in Brazilian case law regarding animal rights have largely gone unnoticed internationally, primarily due to most literature being published in Portuguese. This article seeks to bridge that gap by introducing the innovative legal approaches that have led to the recognition of animals as rights holders in Brazil. By examining the application of Article 225, §1, VII of the Brazilian Constitution, alongside other key elements of Brazil’s legal framework, this study aims to provide valuable insights and inspire legal advocacy efforts across the globe.

The first chapter outlines the Brazilian animal law framework, including the constitutional protection and relevant animal-related ordinary laws. The second chapter reviews case law related to Article 225, § 1, VII, analysing its application to concrete cases and exploring emerging approaches and tensions. The third chapter delves into the evolving understanding that, stemming from the constitutional provision, animals in Brazil are now recognised as legal subjects with standing and rights, in spite of lacking legal personhood. Finally, the fourth chapter is dedicated to discussing the limitations of this constitutional protection and integrating the examined theoretical insights with the legal analysis of the Brazilian case study.

II. Brazilian legal framework

1. The constitutional animal protection provision

The constitutional provision for animal protection in Brazil has been in the Constitution since its inception in 1988. Article 225 is the first provision of Chapter VI, titled “On the Environment”. The provision reads:

• Art. 225. Everyone has the right to an ecologically balanced environment, a good for common use by the people and essential to a healthy quality of life, imposing on the Public Power and the community the duty to defend and preserve it for present and future generations.
• 1 To ensure the effectiveness of this right, it is incumbent upon the Public Power:
• (…)
• VII – to protect the fauna and flora, prohibited, according to the law, practices that jeopardize their ecological function, cause the extinction of species or subject animals to cruelty; (my highlights)
• (…)

This provision reveals several important points. Firstly, the few words “or subject animals to cruelty” at the end of the provision have significantly influenced the development of animal law as a legal field in Brazil, akin to the transformative impact of a few words in the German animal protection state objective.[7] The clear distinction between animals and the broader category of fauna underscores the constituent legislator's intent to protect animals as individual beings. Secondly, the article's heading is anthropocentrically framed as a human right, implying that animal protection is a subsidiary aspect of a healthy environment for human well-being. Thirdly, not only is the provision located within the constitutional chapter dedicated to environmental protection, but all the other sections of this article exclusively focus on environmental aspects.

Hence, animal law was initially categorised as a subset of environmental law in the Brazilian legal system. However, over the past few decades, animal law has expanded significantly, establishing itself as an independent legal field. The concept of environment in Article 225 has been broadly interpreted in both legal scholarship and case law. It encompasses the natural environment, urban landscapes, and everything else potentially constituting the conditions for human life to exist and flourish. The law that constitutes the National Environmental Policy[8] defines environment as “the set of conditions, laws, influences and interactions of a physical, chemical and biological nature, which allows, shelters and governs life in all its forms”. Consequently, a balanced environment stems from whatever amounts to the perception of a healthy quality of life, which could include, for instance, good public infrastructure, clean air and water, and sound cultural practices.

In this context, the protection of the fauna and the flora extends from these perceived ideals of a balanced environment conducive to human well-being. However, the legislator found it pertinent to distinguish between fauna, safeguarded from extinction and practices threatening their ecological function, and animals, protected against cruelty. This distinction has been fundamental in shaping the development of animal law theory and case law. Numerous legal scholars and court rulings have cited this textual interpretation as a justification for attributing intrinsic worth to animals, without which it would make no sense to safeguard them individually against cruelty.[9]

2. Ordinary law

Legislative competence in the field of animal law is shared among the federal government, states, and municipalities.[10] While it's beyond the scope of this article to provide an exhaustive list of animal-related laws in Brazil, it is worth mentioning that legislation covers various aspects, including the protection of wild animals,[11] the regulation of the use of animals in science,[12] the export of live ruminants,[13] the welfare of farm animals during production and transport,[14] the pre-slaughter, humane slaughter and stunning methods,[15] and the functioning of zoos.[16] Despite recent strides in animal welfare regulations, it is important to note that welfare standards are typically not as high as those established by the European Union, for example.

These welfarist statutes adopt a preventive protection approach for animals, moving away from the traditional reliance on criminal laws for post fact intervention. From an animal’s perspective, the penalties imposed on human beings for misconduct are only secondary, even though criminal laws may have some preventive effects in society. In this regard, compared to welfarist protections alone, constitutional protection takes a more progressive stance by elevating animal protection to an abstract principle, endowing it with symbolic significance, and imposing binding obligations on the legislature, authorities, and the public.

Notably, Brazil’s first animal protection laws date from the early to mid-1900s, well before the 1988 Constitution. A particularly instrumental law in the realm of animal protection is Decree n. 24.645, from 1934.[17] Article 2 reads:

• Art. 2º Anyone who mistreats an animal will be penalised by a fine and a prison sentence, whether or not the offender is the owner of the animal, without prejudice to the civil action that may apply.
• (…)
• 3 The animals will be assisted in court by representatives of the Public Prosecution Office, their legal substitutes and by members of animal protection societies.
  (my highlights).

In addition to introducing criminal sanctions, this remarkably progressive legislation permits civil actions and outlines representation formats, granting animals legal standing in courts through the Public Prosecution Office, legal substitutes, or animal protection societies. Moreover, it supplements the definition of animal cruelty with a list of more than 30 unlawful practices and situations including, e.g. keeping animals in unhygienic places and making an animal travel on foot for more than ten kilometres without rest.

Lastly, the Law of Environmental Crimes[18] holds particular significance in the field of animal protection. Article 32 defines animal cruelty, a concept central to the constitutional provision, as “committing an act of abuse, mistreatment, injuring or mutilating wild, domestic or domesticated, native or exotic animals”. This definition encompasses domesticated, wild, and companion animals. With the groundwork of the national legal framework now established, the subsequent chapter will scrutinize how the constitutional animal protection has been applied to concrete cases.

III. The Application of the constitutional animal protection mandate

The application of Article 225, §1°, VII in case law is most evident in constitutional judicial review cases, where designated actors challenge the legality of certain ordinary laws allegedly conflicting with constitutional values.[19] This chapter delves into significant cases of constitutional review related to animal cruelty in Brazil.[20]

1. Anthropocentric underpinnings

The first wave of animal law case law in Brazil was framed in an anthropocentric perspective that only indirectly benefitted animals. Article 225 is classified as an environmental right, and, as such, it falls within the category of third-generation rights,[21] which emphasises values of fraternity or solidarity with an intergenerational ideal.[22] The Supreme Court, in prohibiting practices subjecting animals to cruelty, has formulated its rulings based on the assertion that an environment free from animal cruelty is essential for the well-being of present and future generations of human beings. Thus, the prohibition of animal cruelty is viewed as an incidental necessity for ensuring a healthy environment where humans can thrive.

An example of this type of argumentation is found in the Cockfights[23] case, from 1998, where a constitutional review lawsuit sought to declare a law regulating bird competitions in the state of Rio de Janeiro unconstitutional.[24] The Supreme Court deemed the law was unconstitutional, criminalising the activities nationwide. Despite the favourable outcome from an animal perspective, the ruling’s arguments were notably anthropocentric. The Court referred to the human right to a preserved environment as a concept that translates a broad and comprehensive notion of the natural, cultural, and artificial environment, including even urban spaces. In this scenario, activities such as bird fights are detrimental to an environment where human beings can attain a healthy quality of life.[25]

In addition, there was an expressed concern with the prohibition of torture. The Court resorted to a textual interpretation of the Constitution to argue that the animal protection mandate is part of a coherent constitutional ideology that speaks of a fraternal and prejudice-free society, incompatible with all kinds of cruelty. The ruling asserts that this interpretation provides the basis to restrain activities such as bird fights, as it takes “only a step from torturing a rooster to torturing a human being”.[26] The ruling also shows a concern that these practices “offend the constitutional protection of the dignity of the human person.”[27] The Cockfights case marks the early development of animal law jurisprudence in Brazil, highlighting that, at that stage, the protection of animals was contingent upon the benefit of human beings. The ruling showcases a legal thought still grappling with the treatment of individual animals, where animal law is considered a subset of environmental law, and animal protection aligns with the well-being of humans.

2. A turn toward ecocentrism and animal dignity approaches

Over time, the rationale embraced in the case law evolved from anthropocentrism to a more pronounced focus on protecting animals for their intrinsic worth. An illustrative example of this shift can be found in the Vaquejada[28] case, adjudicated by the Supreme Court in 2016. The lawsuit sought to declare unconstitutional a law[29] regulating the activity of “vaquejada” as a sporting and cultural practice in the state of Ceará. This activity involves cowboys mounted on horses attempting to bring down a bull by pulling its tail within a designated area. The act typically involves twisting the tail until the bull is subdued, a practice criticised for its inherent cruelty towards all animals involved, particularly the bull, subjected to confinement, flogging, and provocation before the event.[30] The Supreme Court ultimately ruled the law unconstitutional.

The extensive argumentation in the Vaquejada case reflects a profound understanding of various philosophical theories on animal treatment among the Justices.[31] The ruling followed an ecocentric approach, with references made to the Earth Charter,[32] subscribed to by Brazil, which establishes, among its many principles, that “all beings are interconnected, and that each form of life has value, regardless of its usefulness to human beings”. This ruling acknowledges that while the welfarist and animal rights approaches differ fundamentally, both share a common goal of urging people to reconsider the moral standing of animals and question their biases in treatment.[33]

The shift in orientation reflected in the Supreme Court’s case law of the 2010s, as opposed to that of the 1990s, demonstrates a more nuanced examination of the constitutional norm set forth in Article 225. Unlike the emphasis on human dignity expressed in the Cockfights ruling, the Vaquejada’s ruling contended that humanity’s current stage of evolution necessitates recognising dignity beyond the human person. The Court invoked the constitutional provision to “monitor the level of enlightenment achieved by humanity in the sense of overcoming the anthropocentric limitation that places man at the centre of everything and everything else as an instrument at its service, in favour of the recognition that animals have their own dignity that must be respected”.[34] This decision imparts a more holistic matrix to Article 225, §1°, VII, establishing a precedent for subsequent cases.

However, the Vaquejada case serves as a powerful example of the limitations of constitutional provisions in driving progress when confronted with strong opposing forces, such as cultural traditions and political interests, that impact animal protection efforts. In a regrettable turn of events, in response to this progressive ruling, Parliament passed a constitutional amendment exempting the activity of vaquejada and other contentious practices from the scope of Article 225. This “backlash effect” represents a conservative political reaction — a phenomenon not unique to Brazil.[35] Despite the extensive arguments considered in the Supreme Court's thorough analysis, cultural traditions were ultimately prioritised over animal protection and the maintenance of an ecologically balanced environment, with minimal in-depth legal reasoning to support this choice. Since the amendment, various advocates and legal scholars[36] have contested its constitutionality, leading to ongoing constitutional review lawsuits that remain pending judgment.[37] While the amendment marks a setback, the constitutional challenges it has provoked underscore the enduring commitment of scholars and advocates to uphold the constitutional mandate, signalling that the impact of constitutional protections for animals remains a contested yet resilient force.

3. Animal protection as a societal issue: The ‘Public Civil Action’

In addition to constitutional review cases, animal lawyers and advocates in Brazil have effectively employed the Public Civil Action[38] as a legal strategy. While Decree No. 24.645/1934 establishes prohibitions and basic principles for the procedural representation of animals, the Public Civil Action provides one of the most resourceful procedural means for the application of these protections in practice. This legal mechanism allows for holding both natural or legal entities accountable for damages inflicted on collective and diffuse rights and goods. Unlike individual-focused litigation, the Public Civil Action emphasises the social dimension of disputes, benefiting society as a whole. In this sense, it is akin to an actio popularis, as both seek to protect diffuse and collective interests that extend beyond the individual and concerns the entire society. However, while an actio popularis can be typically initiated by any citizen, only certain bodies and entities defined by law have the standing to initiate a Public Civil Action.

A noteworthy instance of the Public Civil Action in the realm of animal protection is exemplified by the Farra do Boi case. Fábio Feldmann, one of the constituent legislators involved in drafting the constitutional animal protection clause, emphasised that deterring activities like “Farra do Boi” was a primary objective of the provision. This bloodsport involved villagers chasing, assaulting, and attacking an ox using various instruments. Rooted in Portuguese colonization, the practice held cultural significance and religious symbolism, portraying the ox as a representation of Judas, the devil, or the suffering of Jesus Christ during Lent.[39]

In 1992, an animal protection association initiated a Public Civil Action[40] against the state of Santa Catarina, where the practice was held, to prohibit it. A Supreme Court decision in 1997 rendered the activity illegal. This precedent laid the groundwork for subsequent rulings on activities like Cockfights and Vaquejada, setting the stage for the prohibition or restriction of public spectacles involving animals. In this case, there was no local law regulating the activity; therefore, a constitutional review lawsuit would not have been possible. The Public Civil Action, in this instance, provided a fitting legal avenue to bring the matter before the judiciary. Without it, individuals or animal protection organizations would have lacked the legal interest and legitimacy to initiate a lawsuit.

This case demonstrates the importance and effectiveness of mechanisms like the Public Civil Action for advancing animal protection and addressing collective grievances. While the outcome of the Farra do Boi case was positive for animals, it speaks just as much about the procedural efficacy of the Public Civil Action as a means to operationalize the constitutional mandate, as it speaks of the Constitution itself. Without access to a mechanism such as the Public Civil Action, advocates would have lacked the legal means to defend animals in court, despite the constitutional mandate to protect them from cruelty.

4. Animal testing bans

Animal testing has been challenged by advocacy groups on the grounds that it hurts the constitutional mandate to protect animals from cruelty. In 2015, the federated state of Amazonas took a pioneering step in prohibiting the use of animals for the testing of cosmetics and cleaning products, as well as their components.[41] This ban faced a constitutional review challenge initiated by the cosmetics industry association, asserting a lack of competence for the state to legislate on this matter.[42] Subsequently, in 2017, the federated state of Rio de Janeiro enacted an almost identical law,[43] prompting a parallel challenge from the industry association.[44] The organization Humane Society International was admitted to both cases in the status of amicus curiae.

These legal battles, thereupon collectively termed Restrictions on Animal Testing, reached their respective conclusions in 2020 and 2021. In both instances, the Supreme Court upheld the local prohibitions, affirming that state laws against animal testing align with their legitimate legislative competence, as no federal legislation addressed this specific domain. The rulings emphasised that the proactiveness of these states to legislate on this matter was in accordance with the constitutional mandate to protect animals from cruelty. Following the states of Amazonas and Rio de Janeiro, ten other states have implemented similar laws to ban animal testing for cosmetic purposes.[45] The momentum for nationwide reform was established with the enactment of Resolution 58/2023, which instituted a prohibition on animal testing for cosmetic and personal hygiene products across the country.[46]

While questions of legislative competence were central to the rulings on Restrictions on Animal Testing, the Court’s reasoning was significantly shaped by the constitutional mandate to protect animals. The Court consistently referenced the constitutional imperative to safeguard animals from cruelty to underscore the value and legitimacy of the state legislators' proactive efforts. These developments signify a harmonious convergence of state-led initiatives and constitutional values, reflecting other far-reaching effects deriving from the constitutional animal protection.

IV. Animals as subjects of rights: Theoretical insights

The cases discussed in the preceding chapter marked important jurisprudential milestones, emphasising the need to consider animal protection as a constitutional value. Over the past decade, animal law jurisprudence has transcended the confines of constitutional reviews and Public Civil Action cases. Strategic litigation, spanning tort law, family law, criminal law, and administrative law, has played a pivotal role in securing essential judicial advancements. Notably, this includes the recognition of animals' legal standing and their status as rights holders, sparking a paradigm shift in the legal landscape.

Before delving into specific examples, let us clarify the terminology surrounding legal standing. Defined by the US Legal Dictionary, standing is the party's ability to bring a lawsuit based on their stake in the outcome, requiring a sufficient connection to and harm from the challenged law or action.[47] Therefore, acknowledging the legal standing of an animal, per definition, entails a) that their entitlement is recognised by the legal system and enforceable in court; b) that they are empowered by the legal system to pursue the suit in their own name.

In this sense, Visa Kurki distinguishes two elements: the invested aspect of standing, which presupposes that one has a stake on the outcome, and the competence-related aspect, pertaining to the ability to pursue a case in court.[48] Thus, in the emerging Brazilian doctrine recognising animals standing, the animals themselves have invested standing, while specific entities, as defined by law,[49] have competence-related standing.

1. Constitutional nuances and implicit recognitions

This section explores the constitutional nuances surrounding the protection of animals in Brazil. Traditionally, constitutional animal protection was viewed as contingent upon the broader right to a healthy environment. A closer examination of the development of case law over the years reveals a corrective shift, challenging the previously limited understanding of Article 225. The explicit inclusion of the duty to protect animals from cruelty underscores a more nuanced and contextually rich interpretation, signalling a move towards increased consideration of animals for their inherent worth.

The constitutional differentiation between animals, deserving protection from cruelty, and fauna, requiring preservation of ecological functions, introduces both a negative and a positive dimension to the hermeneutics of Article 225. The negative aspect is evident in the prohibition of cruelty, while the positive dimension implies implicit recognitions, such as animal sentience and moral worth, without which this constitutional differentiation loses significance. Ambitious interpretations by Brazilian animal law scholars such as Tagore Trajano[50] and Ataide Junior[51] go as far as to derive fundamental animal rights and the recognition of the concept of animal dignity from these implicit recognitions.[52]

The implicit acknowledgment of animal sentience can be inferred from the principle that protection from cruelty presupposes an animal's capacity to experience suffering. If animals need to be protected from cruelty is because they can feel it. The singularization of animals, differentiating them from the broader concept of fauna, establishes a foundation for individual animal rights in Brazilian doctrine. Animals compose the fauna, but their individual experiences matter beyond environmental objectives. The recognition of animals’ individual experiences extends to their moral worth and, fundamentally, to the concept of animal dignity, which forms the basis for legal protection through rights. While the practical significance of such dignity and rights remains a crucial point of contention, the growing consensus on animals’ legal status is evident in theory. This is reflected by the widespread enactment of ordinary laws that affirm animals as rights holders in Brazil.

Moreover, in Brazil, the capacity to be a party in a lawsuit is contingent upon the existence of any right. According to the constitutional doctrine,[53] the capacity to be a party stems from the interpretation of article 5º of the Constitution, which ascertains that “the law shall not exclude any harm or threat to rights from the appreciation of the Judiciary”.[54] In this sense, assuming animals are already recognised as subjects of rights, they meet the criteria for the capacity to be a party.[55]

2. Disentangling right-holding from legal personhood

Scholars such as Visa Kurki and Tomasz Pietrzykowski have relatively recently argued that the status of subject of rights should be distinguished from legal personhood.[56] Pietrzykowski elaborates on how non-personal subjecthood can address the legal status of sentient animals, distinguishing them from both persons and things, and providing a framework for recognising their rights within the legal system.[57] This nuanced approach facilitates a more effective application of animal protection laws and is more aligned with the evolving ethical considerations regarding the treatment of animals.[58] In Brazil, this distinction has been put forward and confirmed in case law much before these international developments. The traditional view correlating the capacity to be a party in a lawsuit with legal personality has been challenged in Brazil, where the understanding that animals are non-personal subjects of rights is becoming firmly established. Below are some examples of the practical application of this doctrine in case law.

In a lawsuit referred to as the Boss case, the Court recognised the plaintiff, a dog named Boss, as a rights holder. However, the Court simultaneously denied him standing to file a lawsuit due to applying an outdated interpretation of what constitutes the capacity to be a party.[59] The ruling understood that even though the Constitution safeguards Boss’ rights and dignified existence, it does not confer him legal personality. While some courts may still adhere to orthodox approaches that associate the capacity to be a party with legal personality, they confusingly still recognise animals as subjects of rights entitled to judicial protection. This raises a critical issue: how can an entity be entitled to judicial protection if it lacks the legal capacity to be a party in court proceedings? This question highlights a contradiction inherent in animal protection laws, which recognise animals as beings deserving of protection without conferring upon them the standing needed to seek such protection directly. In the Boss case, while the Court acknowledged the dog as a subject of rights, it stopped short of granting him the procedural status required to actively exercise those rights within the legal system.

Animal lawyer Giseli Cheim offered a valuable theoretical explanation in a writ of mandamus she filed, seeking to compel an administrative body to acknowledge an animal's right to participate as a party in an administrative proceeding.[60] Cheim's argument posited that the universe of subjects of rights extends beyond personhood, encompassing any entity that the law empowers to engage in a legal relationship. Diagram 1 illustrates this argument.

• Diagram 1 / [The Broader Universe of Rights Subjects Beyond Personhood]

Cheim argued that the capacity to be a party is a symmetrical concept to that of being a subject of rights, in line with the constitutional premise that any harm or threats to rights are subjected to judicial appreciation. In other words, if one is a subject of rights, they necessarily have the capacity to be a party in a lawsuit. In 2020, a surge of lawsuits initiated across Brazil saw animals, represented by their tutors or protective organizations, demanding civil reparation. This wave of litigation reflects a growing recognition that, as subjects of rights, animals possess the inherent capacity to be parties in lawsuits.

3. Animals as non-personal subjects of rights in the law

The past decade in Brazil has witnessed a significant legislative shift affirming the rights of animals, positioning them as “non-personal subjects of rights” within the legal framework. The impetus for this movement stems from the growing acknowledgment that animals, even without a legal personality, inherently possess certain rights, as demonstrated in the preceding section. This shift is exemplified by various local laws enacted in different federated states and municipalities, emphasising the enduring impact of the constitutional commandment of Article 225, even decades after its enactment. Most of these laws have references to the constitutional commandment in either their preambles or first provisions.[61]

The groundbreaking Code of Animal Law of the Federated State of Paraíba,[62] drafted in 2020, set the stage by extending protection to all vertebrate and invertebrate animals, explicitly recognising all of them as sentient beings entitled to a “dignified existence”. [63] This law formally recognises that “every animal has rights”[64] and beyond physical welfare, it safeguards the psychological well-being of animals.[65] Similarly, the Law on Animal Cruelty in the Federated States of Minas Gerais[66] explicitly designate animals as non-personal subjects of rights who are entitled to judicial protection in the event their rights are violated.[67] Likewise, the Code for the Protection of Animals of the Federated State of Santa Catarina[68] and the Environmental Code of the Federated State of Rio Grande do Sul[69] were amended to formally recognise animals as non-personal subjects of rights, but in these two cases, the laws apply only to dogs and cats.

Some municipalities also started to be proactive. The city of Viana in Espírito Santo, for instance, enacted a Municipal Animal Welfare Code, affirming animals as subjects of rights.[70] Municipalities like Pato Branco in the state of Rio Grande do Sul utilised their legislative competence to address areas where federal or state laws were lacking. Notably, this municipality legislated the inclusion of animal welfare in the public education curricula,[71] establishing that public school teachers must be trained to teach about the topic and that classes should objectively address issues such as animal abuse, the need for reducing the number of stray dogs, and the need to adopt animals.[72]

Amid the burgeoning local laws, a Bill[73] was proposed to the National Congress aiming to standardize the legal status of animals at the federal level. The proposed amendment to the Civil Code seeks to establish a new legal regime, sui generis, formally recognising them as non-personal subjects of rights. The one-page rationale document accompanying the Bill justifies that the norms in force that provide for the rights of animals disregard animals’ intrinsic interests. The document states that although animals lack legal personhood they have “their own personality, according to their own species, biological nature, and sensitivity”. While initially inclusive of all animals, the Senate amended the proposal to exclude those used for agricultural purposes.[74]

The rapidly evolving legislative landscape signals a transformative shift, with animals increasingly recognised as legal subjects. The proposed federal standardisation represents a continuing effort to affirm animals’ moral and legal status. However, the deliberate exclusion of animals used for food reveals the persistent influence of political and economic interests that prioritise human benefit, suggesting that, while animals may be recognised as rights holders, their protections remain conditional and subject to exceptions. This highlights an essential tension in contemporary animal rights law; while animals are increasingly recognised in law, the scope of these rights is often restricted, reflecting a welfarist approach that stops short of granting animals fully enforceable and robust normative protections as proposed by animal rights advocates.[75]

4. Transconstitutionalist theory: Bridging frontiers for animal rights

While the absence of a federal law addressing the legal status of animals in Brazil leaves the debate unresolved, scholars contend that progressive local laws can already exert influence beyond their jurisdictions. This transboundary application is attributed to the transfederative nature of these regulations.[76] For example, Vicente de Paula, a judge and scholar involved in crafting the abovementioned Code of Paraíba,[77] asserts that animals are universally recognised as subjects of rights, irrespective of their geographical location within the country. Consequently, the Code of Paraíba, notably the most progressive ordinary law in the country from the perspective of animal protection, can be invoked in other states and even at the federal level. The rights animals are entitled due to these local laws, rather than being limited to specific animals or confined to specific jurisdictions, are deemed universally owned by animals and applicable throughout the national territory. This universality arises from the idea that the catalogue of rights within these laws constitutes a constitutional command — a public duty to establish rights capable of protecting animals from cruelty.[78]

Termed as “transconstitutionalism”, “cooperative federalism”, or “transfederalism” by scholars such as Vicente de Paula,[79] Ingo Wolfgang Sarlet,[80] and Marcelo Neves,[81] this concept posits a collaborative synergy between internal legal orders to ensure the realisation of constitutional rights. According to this theory, when a federated state takes proactive measures to catalogue or strengthen the protection of a constitutional right, other states can invoke this normative discipline if they have not yet legislated on the matter. Even the federal government could theoretically invoke the law of a proactive federated state if it has not fulfilled its duty to establish general rules enabling the realization of a specific right.

Consequently, transconstitutionalism presupposes a constitutional commandment that imposes a public duty to realize rights. The applicability of Article 225 to the criteria of a right is generally undisputed, as the article emphasises the human right to a healthy environment. Therefore, even without a federal law asserting the status of animals as right-holders, in the presence of multiple states that have advanced in cataloguing these rights, this discipline can be invoked, in theory, in any part of the country.

5. Animal standing: Integrating the conceptual analysis with the case study

This section examines recent case law in Brazil to substantiate the emerging doctrine recognising that animals meet the criteria for legal standing in court. This perspective is gaining momentum across Brazil, grounded in two key premises: i) animals inherently possess the status of right-holding entities, intricately linked to the constitutional mandate — through the hermeneutical nuances and implicit recognitions (sentience, intrinsic value, and dignity) discussed in this paper; and ii) courts are duty-bound by the Constitution to address any harm or threat to rights, whoever the beneficiary.[82]

a) The Rambo & Spike case

Rambo and Spike, two dogs who were victims of neglect in 2020, became the focus of a legal battle launched on their behalf by an animal protection organization. The lawsuit was initiated in the animals’ own names asking for financial compensation for the damages they suffered. Initially dismissed on the grounds of the dogs lacking the capacity to be a party in a lawsuit,[83] the Appellate Court reversed the decision, recognising Rambo and Spike's legal standing. According to the court, the constitutional rule prohibiting cruelty to animals “presupposes, albeit implicitly, the recognition of a fundamental right to non-human animals, that is, animal dignity”.[84] This hyperbolic positive interpretation of the constitutional animal protection provision is also present is other cases analysed in this section. Recent judicial analyses derive many implicit recognitions from the constitutional mandate that culminate in an understanding that animals have dignity and even fundamental rights. The Rambo & Spike ruling reinforced the theory that the constitutional protection of animals must be enforced regardless of whether there are consequences for the environment, but for the sake of animals themselves. It reads:

• “The interpretation of Article 225 recognises the importance of the non-human animal as an individual, since their suffering, physical or mental, matters in itself, as the sentient being that it is recognised to be, both by legislation and by doctrine and jurisprudence. This is in respect for the constitutional commandment, and in view of the fact that the prediction of prohibition of cruelty in the final part of the mentioned provision would make no sense if the Constitution did not recognise the sentience of non-human animals and, consequently, the protection of their dignity through judicial protection”[85] (my highlights).

The verdict sustained that if the animal is a sentient being for whom freedom from cruelty is constitutionally guaranteed, the judiciary is bound to recognise that he or she is able to be a party in a lawsuit. Thus, this ruling presupposes that the capacity to be a party in a lawsuit has a pre-procedural assumption because it concerns the claim to legal protection. In other words, whoever has rights, has the right to go to court to defend themselves. Therefore, said capacity is prior to and independent of legal personality. In sum, as subjects of rights, animals are endowed with the capacity to be a party in court.

In addition, the Appellate Judge referred to Decree n. 24.645/1934, which establishes the model of representation of animals in court. This device lists those responsible for supplying animals’ lack of competence-related standing, using Kurki’s terminology, or as the Court referred, “procedural capacity stricto sensu”, which is not to be confused with the capacity to be a party, broadly speaking. Animals already have rights and the standing to enforce these rights in court. However, what they lack is the ability to act in order to enforce their rights, much like a young child who is similarly unable to do so. This is the gap filled by legal representatives. Overall, the Rambo & Spike case illustrates the reasoning commonly employed by Brazilian courts to conclude that animals have legal standing, a status that ultimately derives from their recognition as rights holders under the implicit constitutional recognitions.

b) The Tokinho case

In 2023, Tokinho, a pup assaulted with a stick, sued for moral damages.[86] The court recognised his legal standing and referred to the doctrine[87] that “all animals are subjects of fundamental rights flowing from the Constitution, which recognises their dignity”.[88] The ruling reads:

• “It is possible to safely say that, at least in Brazil, animals’ ability to be a party is provided for by law. Brazilian Law contemplates the possibility of animals suing in court in their own name. (...) In this way, and already in a conclusive sense, it is clear that animals, as subjects of subjective rights, are endowed with the capacity of being a party in court (judicial personality), whose legitimacy derives not only from natural law, but also from positive law, as expressly provided for in article 2, § 3, of Decree 24,645/1934 (…) as well as in attention to the Fundamental Rights and Guarantees of a Democratic State of Law".[89]

In this case, Tokinho was recognised as having invested standing, as the case could be brought to Court in Tokinho’s own name. In addition, the Court not only recognised the dog’s legal status as a non-personal rights-holder but affirmed that he had fundamental rights, similar to the type of language used in the Rambo & Spyke case. All in all, both these cases showcase legal recognitions to animals that would have been deemed unimaginable in case law only a decade ago.

c) Tom and Pretinha

In 2021, two dogs, named Tom and Pretinha, were injured by gunshots. The dogs sued the assailant asking for financial compensation on the grounds of the material and moral damages they had suffered. The Court recognised the animals’ standing and the existence of material and moral damages to be compensated. Furthermore, this ruling specified that the amount of the conviction would have to be reverted exclusively in favour of the animals through treatments dedicated exclusively to them, such as bathing, grooming, massage, aesthetic treatment, snacks, and food, at the owner's choice. The Court’s decision puts into practical application the constitutional guarantee that any harm to rights should be subject to judicial review. As right-holders, the demands of the two animals were taken seriously and legitimised by the Constitution.[90]

The three cases examined in this section collectively demonstrate the increasing recognition of animals as rights-bearing entities within the Brazilian legal system. They reveal the judiciary's evolving approach to animal rights and standing, grounded in the rights-holding status of animals linked to the constitutional protection, as well the judiciary's duty to address any harm to these rights. This paradigm shift establishes a novel legal basis for animals’ standing, disconnected from personhood, although challenges and uncertainties persist in this rapidly evolving legal landscape.

d) The Beethoven case

In 2021, Beethoven, a dog shot by a neighbour, faced a distinct legal outcome. In additional to the criminal complaints, the dog filed a lawsuit asking for financial compensation for the physical and moral damages he suffered as a result of the aggression. Beethoven signed the formal complaint with his own pawprint alongside his lawyer’s signature, as shown in Image 1.

• Image 1. [Beethoven’s signature in his petition.]

The Court granted a protective order to ensure the assailant maintained a distance from the animal, emphasising the legality of protecting the dog’s physical and psychological well-being in connection to the constitutional mandate. However, the Court did not recognise Beethoven's capacity to be a party. The ruling defectively determined that the animal’s owner substituted him as the plaintiff before the merit of the claim could be appreciated. However, the law mandates that an animal’s representative meet the criterion of competence-standing, or the ability to bring a case to court. This requirement exists because animals, like young children, lack the capacity to initiate legal proceedings on their own. Therefore, the Court should have recognised the animal’s owner as his representative, not his substitute. The legal framework already supports that Beethoven has invested standing, i.e. having a stake in the outcome.

It is important to acknowledge that a degree of legal uncertainty persists as the doctrine establishing standing for animals continues to evolve. Given the novelty of this discussion, animal lawyers who have been successful in their claims had to provide the courts with a full account of legal theory and the legal basis for animal legal capacity in the Brazilian legal system before they even begin to discuss the facts and merit of their claims. Similar to what happened in the Boss’ case, despite the ambiguities in the Court’s representation model, the Beethoven ruling did not dispute the dog’s legal status as a non-personal right-holder. Furthermore, the decision accounted for the animal's physical and psychological well-being, providing a level of consideration that surpasses the conventional safeguards outlined in welfarist legislation.

V. Discussion

1. Social and constitutional tensions

Navigating the complexities of animal use and defining cruelty within the confines of Article 225 requires a nuanced examination of several social, economic, and cultural issues. Notably, disparities emerge when evaluating the public perception of certain practices. While activities like horse racing or polo may result in injuries to horses, their elite status often shields them from public scrutiny compared to regional practices like rodeos and “vaquejada”, which are prevalent in poorer rural areas. Another intricate facet is the animal sacrifice for religious purposes, a practice frowned upon publicly yet not inherently too distant from the typical slaughter of animals for food.

A case that brings these tensions to the forefront is the Religious Slaughter[91] lawsuit, initiated by an animal protection society against the state of Rio Grande do Sul. This case centred on the local authorisation of religious animal sacrifice in African-origin religions.[92] The case files elucidate that the reason for singling out African religions was the stigmatisation of the Afro-Brazilian culture, victim of historical prejudice and a centuries-old history of intolerance in Brazil. In 2019, the Supreme Court unanimously concluded that this form of religious killing of animals should remain legal. The Religious Slaughter ruling drew distinctions between religious sacrifice and activities like “vaquejada”, highlighting that the former is rooted in the exercise of the fundamental right to religious freedom rather than entertainment.[93] Additionally, the absence of evidence indicating prolonged animal suffering beyond the moment of slaughtering contributed to the differentiation. Furthermore, the Court acknowledged that, in most instances, animals killed in religious ceremonies were fully utilised, benefiting low-income families in the community.[94]

The Religious Slaughter case illustrates the challenges of achieving logical and moral coherence in judicial decision-making. The Justices debated that preventing religious sacrifice while disregarding practices in the meat and dairy industry would be logically inconsistent in the absence of prolonged animal suffering. The right to religious freedom took precedence in the balancing of conflicting constitutional values at stake, which is a result of the cross-sectoral social and historical tensions of this case. The verdict is clear in its intention to rectify past injustices and avoid perpetuating prejudices against the Afro-Brazilian community. On the other hand, the right to cultural manifestation, also constitutionally protected,[95] was not deemed sufficient to override animal protection in the rulings of Vaquejada or Cockfights. These constitutional tensions reveal the intricate balance required when adjudicating animal protection cases, considering the complex definition of cruelty, moral coherence amidst various forms of animal use, cultural nuances, and historical injustices.

2. Limitations: Defining animal cruelty

Reaching a straightforward and morally coherent definition of what constitutes animal cruelty remains a contended issue. Although Article 32 of the Law of Environmental Crimes defines the acts that constitute animal cruelty, the judiciary faces ongoing challenges in applying a consistent definition of cruelty across the diverse contemporary forms of animal use. Given the fundamental role of the concept of cruelty for Article 225, each case demands a unique investigation.

The constitutional mandate requires recognising animals' primary interest in avoiding suffering, but the complexity arises as the judiciary cannot declare all forms of animal use unconstitutional. For instance, in trying to establish whether cruelty existed in the Vaquejada case, the Court compared the use of animals in cultural practices with the raising and killing of animals for food. The discussion in the Plenary explored the details of beef production, highlighting the stressful and unnatural conditions animals endure even in standard procedures. While acknowledging the inherent cruelty in killing animals for food, the Court faced the reality that the Constitution establishes food as a social inalienable right and posed a thought-provoking question: “Given that animals used in ‘vaquejada’ do not die from it, what would the bull prefer, to participate in a ‘vaquejada’ or a lawful slaughter?”. Rarely do judges engage in such logical exercises to analyse the limits of cruelty across practices that largely go unquestioned by society.

From a pragmatic perspective, determining cruelty across various forms of animal use is a complex issue, as a literal approach would potentially ban most uses of animals. In contributing to this provocative debate, during the Plenary discussions in the ruling of Vaquejada, Supreme Court Justice Luis Barroso contended that recognising the evolving nature of societal values suggests the possibility of a future shift toward vegetarianism. This raises the question of how the Supreme Court might respond if a constitutional review were initiated to challenge certain agricultural practices on the grounds of inflicting animal suffering. While some practices remain contentious, others, such as foie gras and veal farming, are already widely acknowledged as cruel. A consistent application of Article 225 could potentially render these and many other practices unconstitutional.

However, this type of discussion prompts the subsequent question of whether the judiciary should lead changes in customs by deeming them unconstitutional, which constitutes a contentious issue in legal and ethical circles. On one hand, as societal values evolve over time, the judiciary must adapt constitutional interpretations to reflect these changes. In the context of animal cruelty, a dynamically evolving understanding of ethical treatment and the increasing comprehension of animals as sentient beings underscore the need for legal adjustments. Yet, caution is warranted regarding the judiciary’s power to dictate which civilising milestones are correct and should be prioritised, as it could be argued that such changes should be left to legislative bodies for a more democratic transition. Overall, the challenge for the judiciary lies in striking a delicate balance between respecting established customs and ensuring constitutional protection for animals. Navigating this line requires careful consideration of evolving ethical perspectives and the impact of legal decisions on broader societal norms.

The persistent difficulty faced by courts in applying Article 225 consistently across various forms of animal use underscores a significant challenge to the argument that animals possess rights in Brazil. Despite the progressive developments mentioned in the previous chapter, animals continue to endure systematic exploitation, similar to what is seen globally. If animals continue to be bred, raised, confined, and killed for human purposes, these purported rights amount to a very thin form of protection. Accordingly, Stucki points to the evident gap between the rights that animals allegedly receive within the current welfarist paradigm and the sort of inviolable rights that animal rights theorists commonly envisage. She proposes the conceptual categories of simple animal rights versus fundamental animal rights, with the former being the weak and violable rights from animal welfare statutes, and the latter being strong rights akin to human rights, characterised by normative robustness and reduced infrangibility.[96] Likewise, Fasel and Butler explain this discrepancy by proposing the "Thin Conception of rights” framework, which posits that animals possess certain rights, flowing from welfarist protections that fall short of safeguarding their fundamental interests, such as life and freedom. In contrast, the "Thick Conception of rights” paradigm suggests that animals, in fact, currently lack meaningful legal rights, given that existing protections fail to uphold even their most basic interests.[97] Therefore, contrary to the overly optimistic interpretations of Brazilian animal law scholars and courts, as seen in the case law examined in this paper, the alleged rights that animals hold in the Brazilian legal system do not meet the criteria for meaningful, or fundamental animal rights.

In spite of the numerous ordinary laws and case law explicitly affirming animals as subjects of rights, these legal protections are often easily compromised when strong competing human interests are involved. Additionally, most attempts to increase the scope of these protections face significant political objections, as was evidenced by the Senate's decision to exclude animals used for agricultural purposes from Bill 27/2018. In this sense, even considering that the Brazilian legal framework offers more supplementary tools to support its constitutional animal protection mandate than other countries, it still does not mean that the most vulnerable animals, e.g. farmed animals, are in a better condition than in other parts of the world.

In conclusion, the Brazilian legal framework for animal protection, though progressive in many areas, reveals serious limitations. These limitations are evidenced in the judiciary’s difficulty in consistently interpreting the concept of animal cruelty amidst the multiple forms of modern animal use and in the backlash effect of the constitutional amendment after the Vaquejada ruling. Although the legal recognition of animals as subjects of rights represents a notable advancement that opens the door for future developments, these protections remain fragile and susceptible to compromise in the face of strong competing human interests. To achieve more meaningful animal rights, legislative reform and a more comprehensive approach that addresses both ethical considerations and practical realities are essential. This will ensure that the legal status of animals in Brazil evolves beyond mere symbolic recognition to substantive protections.

3. International significance

While the significant limitations discussed above might prompt questions about the ultimate effectiveness of constitutional protections for animals, I argue that such protections remain largely a positive development. Brazil’s experience indicates that granting animals constitutional importance has played a crucial role in shifting the attitudes of legislators, courts, and the general public over the decades. Along these lines, Jessica Eisen suggests that, despite the failure to address the most severe harms caused by agricultural intensification and the commodification of animals, constitutional protection is valuable for it provides formal recognition of animals’ vulnerability and sentience, which is particularly important in light of the expansion of industrial farming operations.[98] This recognition lays the groundwork for future legal and policy changes aimed at improving animal welfare. Thus, although constitutional protections may serve only as an initial step, they nonetheless mark progress toward a more comprehensive legal acknowledgment of animals’ interests, even if they do not yet fully address the root causes of harm.

The Brazilian experience holds global significance as a pivotal case study for constitutional animal protection, offering valuable insights for other countries considering expanding constitutional safeguards for animals. Brazil presents a conducive environment for enforcing such protections, given its broad standing regime and evolving doctrines concerning the status and rights of animals. Moreover, the widespread access to public interest litigation facilitates public discourse, actively involving society in shaping and refining the interpretations of constitutional values. The primary lesson from Brazil's experience is that adequate constitutional protection for animals demands more than mere recognition in the fundamental law. In examining potential institutional prescriptions, Eisen advocates for a broad standing regime that supports public interest litigation to enforce animal interests, pointing to Brazil’s Public Civil Action as an exemplary effort in this direction.[99] The emerging doctrine on animals as non-personal subjects of rights has furthered empowered the advocacy field. Beyond the Public Civil Action, the recognition of animals as rights-holders with legal standing and the expansion of case law into various fields beyond constitutional review have now created additional avenues for enforcing and operationalising this constitutional protection. Collectively, these legal developments position Brazil as one of the countries most equipped to realise its constitutional animal protection mandate and give it practical meaning.

Scholars such as Olivier Let Bot,[100] Elien Verniers,[101] and Janneke Vink[102] have examined some of the positive effects of constitutional animal protection provisions. These advantages include creating a legal basis for annulling contradictory laws, limiting conflicting human rights, providing an individual right to conscientious objection, imposing obligations on administrative authorities, influencing the interpretation of open norms in favour of animals, and preventing retrogressive measures. The Brazilian experience suggests that framing animal protection as a subset of a human right has made this provision more palatable to the judiciary, particularly in its early stages. Over time, the discourse on animal ethics has evolved, enabling developments such as judicial rulings affirming the legal standing of animals and legislative actions to standardise the recognition of animals as rights-holders.

The proactive role of both the Supreme Court and lower courts in interpreting Article 225 further underscores the judiciary’s critical function in advancing animal protections. It becomes clear that constitutional animal protection alone cannot realize its full potential. Complementary political will from legislators, judges, and decision-makers is essential for these positive impacts to materialize. When this synergy occurs, the far-reaching effects of elevating animal protection to the constitutional level are more likely to unfold. The Brazilian experience illustrates the significant political and legal shifts that continue to emerge even over three decades after the provision’s enactment.

In conclusion, the Brazilian case study highlights the intricate relationship between constitutional provisions and their practical enforcement. The progress seen in Brazil illustrates the importance of a comprehensive legal framework, proactive judicial interpretation, and favourable political will. These elements combined can lead to meaningful advancements in animal protection, setting a precedent for other nations to follow. Nevertheless, it is crucial to remain mindful of the limitations previously discussed, as these notable advances in the legal system should not be conflated with the practical outcomes envisioned by animal rights theorists. The continued evolution of legal doctrines and advocacy efforts will be key in sustaining and expanding these protections in the future.

VI. Conclusion

The analysis of the Brazilian legal framework and evolving jurisprudential trends presented in this paper position constitutional animal protection as a positive legal development. The constitutional mandate to safeguard animals from cruelty in Brazil has continued to develop and exert considerable influence nearly 40 years after its enactment. The analyses presented in this paper indicate a continued potential for further advancements in animal welfare within the country’s borders. Although the constitutional provision protecting animals is situated within the chapter addressing environmental concerns, it has consistently been interpreted as an autonomous norm. By differentiating between fauna and (individual) animals, this provision transcends a purely ecological or preservationist function, emphasising its role in upholding the moral value assigned by the constituent power to the well-being of individual animals. Judicial decisions and legislative initiatives in this area frequently draw a direct connection to the Constitution, which serves as the primary legal foundation for relevant disputes. Similarly, local laws that recognise animals as non-personal subjects of rights often reference the constitutional command to prevent animal cruelty in their preambles or initial provisions. Furthermore, positive outcomes for animals in tort law — where courts acknowledge the legal standing and rights-holding status of animals — are grounded in the constitutional protection that implicitly affirms their dignity and intrinsic value.

Outside Brazil’s borders, the influence of this analysis extends to countries contemplating the integration of animal protection into their constitutional frameworks. Brazil’s experience provides a valuable reference point, demonstrating how constitutional recognition, when coupled with a supportive legal environment and evolving judicial interpretations, can progressively shape societal attitudes toward animals. The Brazilian case study illustrates that while constitutional protections alone may not immediately address the most severe forms of animal exploitation, they create an important foundation for future legal and policy advancements. By highlighting the interplay between formal legal recognition and practical enforcement, this analysis underscores the importance of a comprehensive approach that involves active judicial interpretation, public interest litigation, and political will. Thus, the Brazilian model offers lessons for global efforts to enshrine and operationalise their own constitutional animal protections.

However, it is essential to recognise that the constitutional provision is just one component contributing to the development of animal law as a legal and scholarly field in Brazil. The definition of animal cruelty in the Law of Environmental Crimes, the constitutional mandate that any harm to rights should be judicially appreciated, the legitimacy granted by Decree 24.645/1934 for animals to be represented in court, and other constitutional rules facilitating judicial review and Public Civil Action mechanisms collectively shape the landscape of animal protection. Additionally, Brazil’s civil law tradition, which empowers judges and courts with considerable autonomy, fosters legal innovation and accelerates the evolution of legal norms. Thus, attributing the progress of Brazil’s current animal law framework solely to Article 225 would overlook the synergy between this constitutional provision, the federal system, shared legislative competencies, and supportive mechanisms that enable strategic litigation as an advocacy tool.

While notable progress has been made, the full potential of Brazil’s legal framework for animal protection remains unrealised. Significant constraints persist, particularly in extending protections to farm animals, due to constitutionally protected cultural rights and powerful agricultural interests. Considering that farm animals used for food are in the most vulnerable position — both in terms of the sheer number of animals involved and the severity of systematic abuse — it might seem tempting to view this limitation as insurmountable. Nonetheless, there is reason for optimism. The constitutional provision for animal protection has transcended its original focus on specific practices, such as the Farra do Boi, and has evolved to address much broader concerns.

The trajectory outlined in this paper regarding the application of Article 225 underscores the gradual nature of societal change. Although the provision was established with the Constitution’s inception in 1988, most legislative developments discussed have occurred in the past five years, including recent and rapidly expanding rulings on the legal standing of animals. Recognising the time required for societal shifts, it becomes clear that the clarity in the drafting and interpretation of constitutional provisions is crucial. The more explicitly a provision centres on animals’ own interests, the greater the likelihood that courts will interpret it effectively to elevate the status of animals and resolve conflicts in their favour. Therefore, the wording and structure of the provision are of utmost importance for more effective protection.

In conclusion, Brazil must strategically leverage its substantial potential to advance animal protection both domestically and internationally. Setting a global example requires ongoing progress in animal law and rights education, public engagement, and political commitment. Continued dedication to these pillars will be pivotal in shaping a more compassionate and responsible relationship between humans and animals.

Copyright (c) 2024 Marina Baptista Rosa

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