The strange case of subjects/non subjects: animals in the Italian legal system and the need for a reform

Abstract

The paper considers the position of non-human animals in the Italian legal system, with specific reference to the qualification and status they have in the Civil Code of 1942. In fact, the national Codice Civile provides that animals are beni, that is to say goods/chattels. This qualification can be inferred from the letter of art. 812 CC, which provides the distinction between movable and immovable properties and residually set the animals in the first category. According to art. 812 CC, immovable property includes soil, water sources, water courses, trees, buildings and other constructions joined to the ground either artificially or naturally, permanently or temporarily. All the rest are movable things. Some other rules of the Civil Code confirm the classification of animals as chattels, denying subjectivity for all non-human species without any exception. In the light of these premises, the Author consequently examines whether the solution of the Civil Code, which remains highly paradigmatic for all sources of private law, is still coherent with other sources of the law. In particular, the paper suggests taking into consideration the panorama of rules applying in the same legal system because of the international rules and treaties to which Italy adheres. Other Italian sources of law are presented. For example, references are made to some regional laws that provide for animals as sentient beings. In addition, other sectorial rules, such as rules of the Codice della Strada (Code of Transport) have been amended with solutions that contrast with the idea that animals are mere chattels being the object of property rights: that Code, in particular, provides for the duty to rescue animals involved in motor accidents. The paper also mentions the most recent trends of case law, where in different situations the relation between animals and humans is compared to that between two sentient beings. This is so, for example, where the case law admits compensation for damages suffered as a consequence of the loss of a companion animal, or where it provides for a right of hospitalized persons to be visited by their animals. According to the Author, such solutions create inconsistency within the legal system. In addition, because Italy is a civil law country, similar proposals of the case law continue to find their limit for future application in the letter of Civil Code, as courts cannot create new subjects of law. Similarly, the lack of a clear and univocal qualification of animals as subjects of law raises risks of legal uncertainty and leaves the door opened to different interpretations and solutions. For this reason, the Author, also taking into consideration what is happening in the international legal landscape and in other legal systems (see for example, if we limit the analyses to Europe, the case of the Austrian, French, German, Swiss and then Spanish solution), argues for reform of the Italian Civil Code. In particular, the Author finally suggests that in order to have a more consistent legal system, even the Civil Code of 1942 should be amended providing for the separation of animals from goods (beni) and the express recognition of non-human animals as sentient beings and subjects.