Procedural theory of the subject of law and non-human animals: Criteria for recognition of legal subjectivity from the perspective of critical theory

Abstract

This article has the following research problem: what is it like to be a subject of law? As a general objective, it aims to understand how the subject of law is formed. As a specific objective, it intends to answer the following question: are non-human animals subject of law? It is based on the assumption of a critical and analytical theory of law. By this, we mean that we will focus on the relationship between the individual and the norm. As a result, we obtain three processes for the formation of the subject of law. The emancipatory process is responsible for the struggle to form and transform the individual into a subject. The recognition process presupposes that there is in interspecies relations a connection between the subjects of law already consolidated and those who have just entered the legal norm. The subjectification process and personification process refers to the legal system's granting of personality in the face of the claimant subject's demands. Thus, we can conclude that non-human animals are not considered subjects of law because they do not dominate the language and cannot fight against legal domination and exercise by themselves their rights and duties, an elementary and indispensable condition for the configuration of this legal category. Thus, one contributes to the thesis of the procedural theory of the subject of law to the extent that one can reduce contingencies and social complexity, being them directly proportional. This does not mean that animals cannot be protected. The environmental protection established in the Federal Constitution is apt and efficient for such exercise since these non-human animals will be considered centers of legal imputation and deserving of security based on environmental law, and not in their condition as subjects of law. The methodology used to develop this reasoning is the integrated revision and bibliographical research.