Introduction
Long considered the exclusive domain of human rights and interests, constitutional law is increasingly expanding its scope to include non-human animals.Footnote 1 A growing number of constitutional texts throughout the world make explicit reference to animals or ‘animal protection’, and also in constitutional legal scholarship, the critique of the narrow anthropocentric basis of traditional constitutionalism is gaining traction.Footnote 2 The references to animals in constitutions are particularly diverse, ranging from substantive norms on the prevention of cruelty to animals, to formalistic state objectives.Footnote 3 Nevertheless, even when their substantive scope seems limited, the constitutional references to animals have at times provided a ground for further development of animal-centric judgments, such as for instance in Brazil, where the provision prohibiting cruelty to animals was interpreted as meaning that ‘animals are beings of their own value, therefore deserving respect and care, so that the legal system grants them rights and dignity’.Footnote 4 Although not as innovative, in Europe, too, a growing number of countries have amended their constitutions to include a reference to animals.Footnote 5 Constitutional law – in theory as well as in practice – is thus slowly moving beyond the human to include regard for other species.
The trend towards ‘animal constitutionalism’,Footnote 6 as it is sometimes called, has received mixed responses in animal law scholarship. On the one hand, authors point to the paradoxical nature of these provisions, superficially including animals within the constitutional framework while still allowing for their exploitation and instrumentalisation, arguing that constitutional animal protection cannot possibly lead to radical change within the constraints of a welfarist legal system.Footnote 7 Others have applauded the development as a desirable step towards a more ‘zoocentric’ legal sphere, placing animal interests on a somewhat more equal footing with constitutionally protected human interests.Footnote 8 These divergent responses can partly be explained by the different legal effects constitutional recognition of animals has across legal systems. In some jurisdictions, the provisions have provided a direct ground for standing and litigation ‘in the name of animals’; in others, they are placed in constitutional chapters that remain essentially non-justiciable, functioning merely as a ‘guideline’ for different branches of law; in still others, they remain outside of the review powers of the judiciary.Footnote 9 It is therefore difficult to draw general conclusions regarding the significance of animal constitutionalism.
Still, as this article suggests, placing animals in the most important legal document of a legal system has implications that go beyond mere symbolism, even if the provision itself lacks direct legal effect. Constitutionally recognising animals elevates animal protection to a value that precludes sudden and rapid changes at the legislative level and brings animals into the more enduring constitutional polity. Whereas the precise legal implications may therefore differ across countries, at a more profound level the temporal implications of ‘animal constitutionalism’ are conceptually similar. This article therefore seeks to analyse the trend of including animals in constitutions by approaching it through a temporal lens. It distinguishes three distinct ways in which constitutional provisions may operate across time: as expressions of symbolic rupture with the past, as sources of standstill obligations that serve as ‘temporal anchors’ to the present, and as early signs of an emerging future form of sentient or more-than-human constitutionalism.Footnote 10 Seeing animal constitutionalism through a temporal lens then sheds light on the different ways in which this trend challenges traditional understandings of constitutionalism and constitutional legal scholarship.
Methodologically, the article adopts a comparative doctrinal approach, based on an analysis of constitutional texts and constitutional scholarship across a range of jurisdictions – all that, at the time of writing, include animals at a constitutional level, either by referring directly to the word ‘animal’ or by referring to ‘sentient beings’ or ‘living creatures’ as meaning ‘animals’. The results of the analysis are divided into two main sections. In the first part (Section “Animal constitutionalism: An overview of a global trend”), an overview of constitutional references to animals is provided to illustrate the diversity of this ‘global trend’, showing how such references may take different forms and may function as state objectives, substantive norms, fundamental rights, or a combination of these.Footnote 11 The article’s distinctive contribution lies in the second part (Section “Temporal dimensions of animal constitutionalism”), where I will conceptualise three temporal dimensions of animal constitutionalism. The aim here is not to propose a categorisation of different ‘types’ of constitutional references, but rather to reflect on the temporal implications that any of such references may have (regardless of whether they are regarded as state objectives, substantive norms, or something else). In other words, a certain constitutional reference to animals does not ‘fall into’ a single temporal category, but rather may imply all or some of the temporal dimensions discussed here. In the final part (Section “‘Posthuman constitutionalism’: Moving beyond the human?”), I will zoom out to reflect on the temporality of animal constitutionalism as part of a broader move beyond anthropocentric constitutional thought.
Animal constitutionalism: An overview of a global trend
Even though animal constitutionalism is often described as a ‘global trend’, the way in which animals have been incorporated into constitutions varies significantly across jurisdictions.Footnote 12 First, in several countries, animal protection is mentioned solely as a domain in which the federal or regional state is competent to legislate – a form of ‘state objective’ that instructs governments to pursue the protection of animals without specifying any substantive norms.Footnote 13 Second, in some jurisdictions (sometimes in addition to the function of state objective), the constitutional reference also includes a more substantive norm, most notably the prohibition or prevention of cruelty to animals, the duty to care for animals or show compassion for them or the recognition of the sentience (or in one case even ‘dignity’) of animals.Footnote 14 These provisions therefore contain substantive content, rather than merely setting out a formalistic objective to legislate on animal protection. Third, animals may potentially appear as constitutional rightsholders, with a dedicated chapter of fundamental rights for animals. However, to date, this last form exists only in the form of proposals.Footnote 15 In many cases, the provisions combine some of these functions, for instance, serving as a state objective while also codifying a substantive norm.Footnote 16
Animal protection as a state objective
The first and arguably most common way animals appear in constitutions is through references to ‘animal protection’ as part of so-called ‘state objectives’, ‘fundamental objectives’, ‘policy principles’ or ‘directive principles of state policy’.Footnote 17 This relatively recent form of constitutional provision, which was introduced in various jurisdictions from the second half of the 20th century onwards, typically does not create directly enforceable legal rights for citizens, but instead expresses a formal commitment to a socio-political aim of the state.Footnote 18 According to Janneke Vink, state objectives can be regarded as ‘a type of governmental self-binding with the purpose of securing a lasting investment in a certain social-political goal’.Footnote 19 She notes that, despite their formalistic nature, such objectives may have four potential effects: they can serve as a basis for limiting fundamental legal rights; influence the development, interpretation, application and review of statutory animal welfare legislation; require consideration of animals in legislative and executive processes; and safeguard progress in animal protection.Footnote 20 The most notable examples of such state objectives can be found in Switzerland, Germany, Austria, Russia and Italy.
Switzerland – widely regarded as a pioneer in animal law – was one of the first countries to include the protection of animals as a state objective.Footnote 21 Article 80(1), introduced in 1973, states: ‘The Confederation shall legislate to ensure the protection of animals’, and lists various fields of animal use requiring legislation.Footnote 22 The Confederation is legally obliged to adopt regulations covering animal care, animal testing and procedures on live animals, the use of animals, the importation of animals and animal-derived products, trade in animals, transport and slaughtering practices.Footnote 23 Enforcement of these regulations, however, falls under the responsibility of the cantons (Swiss federal states). In 1992, (now) Article 120 moreover introduced the recognition of the dignity of living beings, which includes animals.Footnote 24 The provision reads: ‘The Confederation shall legislate on the use of reproductive and genetic material of animals, plants and other organisms. In doing so, it shall take into account the dignity of living beings, as well as the safety of human beings, animals, and the environment’.Footnote 25 This recognition of the dignity of living beings is considered the foundation for the broader recognition of animal dignity in Swiss animal protection law.Footnote 26 Although it is also framed as a formalistic state objective, the recognition of dignity has had substantive effects in shaping animal protection legislation across different levels, and thus goes beyond a purely symbolic mention. It is regarded a central principle of Swiss animal protection law.Footnote 27
In 2002, Germany joined the constitutional trend by adding the words ‘and the animals’ to Article 20a: ‘The state shall also, mindful of its responsibility towards future generations, protect the natural foundations of life and the animals within the framework of the constitutional order by legislation and, pursuant to law and justice, by executive and judicial means’.Footnote 28 This amendment followed the so-called Schächt-Urteil judgment, in which the Federal Constitutional Court ruled that a Muslim butcher who had been denied a permit for ritual slaughter must be granted permission.Footnote 29 This ruling caused broad public outrage, prompting the Christian Democratic Union to explicitly advocate for a constitutional amendment to protect animal welfare, which eventually was passed in 2002.Footnote 30 The provision applies only to public authorities and does not grant subjective rights to humans or animals.Footnote 31 Even though it consists of only three words and does not explicitly acknowledge animal sentience or living nature, it has nonetheless had some substantive legal effects.Footnote 32 Most significant is that it allows for the limitation of human rights on the basis of animal interests. Kate Nattras discusses three examples of human rights – freedom of profession, freedom of artistic expression and freedom of research – that, prior to the amendment, would automatically override animal interests.Footnote 33 For instance, even acts considered cruel (such as gluing a bird to the ground as part of an art project) could not be deemed violations of the animal protection act, as they fell under the constitutionally protected freedom of artistic expression.Footnote 34 The constitutional amendment changed this dynamic. It elevated animal protection to a constitutional value, placing it on equal footing with human rights. Since 2002, it is no longer possible to justify animal cruelty solely on the basis of human freedoms; the proportionality test in human rights balancing now requires consideration of animal interests.
In 2013, Austria adopted the Federal Constitutional Law of 23 May 2013 on sustainable development and animal welfare, which in § 2 requires the state ‘to protect animals’.Footnote 35 The explanatory memorandum outlines the rationale for the provision: the inclusion of animal welfare as a national constitutional objective. It aims to protect the life and well-being of animals, based on humans’ special responsibility for animals as fellow creatures. Similar to the situation in Germany, the provision applies only to public authorities and does not impose obligations on private individuals.Footnote 36 Russia followed in 2020, introducing a constitutional provision under Article 114(f5), which states that the federal government ‘shall take measures to ensure a responsible attitude towards animals in society’.Footnote 37 Interestingly, the provision thus does not concern animal protection per se, but rather an obligation to ensure a responsible attitude of the citizens towards animals – a quite indirect and open type of state objective. A few years later, Italy amended Article 9 of its Constitution to include a reference to animals, stating: ‘The State shall regulate the methods and forms of animal protection’.Footnote 38 In all these cases, the state objective is formulated in a formalistic way, without much substantive guidance on the normative contents of such legislation.
There are also some examples of state objectives that not only stipulate the aims to protect animals, but also include some substantive recognition by explicitly recognising the ‘sentience’ of animals. As a somewhat separate case, at the supra-national level in the Treaty for the Functioning of the European Union (which can, together with the TEU and the EU Charter be regarded as a form of ‘constitution’ of the European Union), animals have been recognised as ‘sentient beings’ in Article 13 since 2009.Footnote 39 The provision states that Member States are required, when formulating and implementing Union policies in the areas of agriculture, fisheries, transport, internal market, research and technological development and space, to ‘pay full regard to the welfare requirements of animals as sentient beings’. However, they must respect national legal or administrative provisions and customs, in particular regarding religious rites, cultural traditions and regional heritage. According to the commentary on article 13 by Mangiameli, the provision ‘ushers in a major paradigm shift in how man-animal relations are viewed, in that (in its way) it transcends the radical nature of anthropocentric and biocentric prejudice and acknowledges – for the very first time – that animals have the status of beings worthy of attention and legal protection, irrespective of how useful they may be for human health’.Footnote 40 Vink describes it as a form of a ‘meta-state objective’, an objective specified at a supra-state level.Footnote 41 Article 13 TFEU is a horizontal clause, also known as a mainstreaming clause or principle of integration. Just like the national state objectives, it is not a subjective right in itself but establishes an overarching goal for EU legislation and policymaking. Nevertheless, farmed animals are still classified as food products under EU law, resulting in a somewhat dubious dual status at the European level.Footnote 42
The EU constitutional reference to animals as ‘sentient beings’ arguably inspired some of the Member States in their formulation of the constitutional norm referring to animals. In the new Constitution of Luxembourg, adopted in 2023, Article 41(3) reads as follows: ‘The state recognises animals as non-human living beings endowed with sensitivity and ensures the protection of their well-being’.Footnote 43 This constitutes a clear recognition of animal sentience, and again formulates this as a state objective; an aim of the state to pursue, rather than the basis for subjective rights, yet adds the substantive recognition of their sentience but also interestingly refers to animals as ‘nonhuman living beings’. In 2024, Belgium furthermore amended its Constitution to include a reference to animals and a duty for all levels of government to protect them as sentient beings, again combining the state objective with a substantive recognition of their sentience. Article 7bis now states: ‘In the exercise of their respective powers, the federal state, the communities and the regions aim to protect and care for animals as sentient beings’.Footnote 44 This provision is noteworthy for being the only constitutional clause in Belgium that does not relate directly to human interests. Its inclusion marked the culmination of a long and complex legislative process.Footnote 45 Shortly after the amendment was adopted, the Court of Cassation issued a decision confirming the limited legal scope of Article 7bis.Footnote 46 The case concerned the admissibility of legal standing for animal welfare organisations, and the Court reiterated that the new provision expresses a general policy objective rather than a directly enforceable right. While it may serve as a guiding principle for legislative interpretation, it therefore does not create new procedural entitlements or impose concrete new obligations on the judiciary or legislature.Footnote 47
Animal protection as a substantive norm
A second way in which animals are referenced in constitutions is through more substantive norms, thus setting out specific prohibitions. The judicial interpretation of these provisions has, in some cases, endowed them with greater significance, allowing them to serve as substantive standards against which legislation can be tested, or even as a basis for recognising certain legal rights for animals. The most notable examples are India, Brazil, Slovenia, Mexico and Egypt.
First, India’s Constitution recognises a duty of compassion for living creatures under Article 51A, introduced in 1976 as part of the ‘Fundamental Duties of Citizens’.Footnote 48 Although these duties are not justiciable and are generally considered moral and civic norms intended to guide citizens, they have influenced legislative, executive and judicial action.Footnote 49 Article 51A(g) states that all Indian citizens have a duty ‘to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures’. While seemingly quite indirectly referring to animals, it has been extensively cited in jurisprudence and has served as a foundation for recognising animal rights. In NR Nair and others v. Union of India, the High Court of Kerala for instance built upon this provision to recognise animals as rightsholders, stating that: ‘Many believe that the lives of humans and animals are equally valuable and that their interests should count equally. […] Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognise and protect their rights’.Footnote 50 In Animal Welfare Board v. A. Nagaraja, the Supreme Court build upon this and held that Article 21 of the Constitution (the right to life) also applies to animals.Footnote 51
The Constitution of Brazil explicitly mentions animals in the context of environmental protection – a state objective to defend and preserve the environment. Article 225, §1°, VII, adopted in 1998, states that the Government and the community shall ‘protect the fauna and flora, with prohibition, in the manner prescribed by law, of practices that jeopardise their ecological function, cause species extinction or subject animals to cruelty’.Footnote 52 This provision has become the basis for a growing body of jurisprudence that affirms animals’ intrinsic value and recognises their subjective rights. In the Vaquejada case (2016), the Supreme Court for instance declared a law regulating bullfighting unconstitutional, stating that ‘all beings are interconnected, and that each form of life has value, regardless of its usefulness to human beings’, and emphasising the need to ‘overcome the anthropocentric limitation that places humans at the centre of everything’.Footnote 53 In the Wild Parrot case, the Court went even further, asserting that ‘the very idea of the humane treatment of animals should seek its foundation no longer in human dignity or human compassion, but in the very dignity inherent in the existences of non-human animals’.Footnote 54 In 2020, a Court of Appeal in Paraná referred to Article 225 in a case concerning the abuse of two dogs, stating that the constitutional prohibition of cruelty ‘presupposes, albeit implicitly, the recognition of a fundamental right to non-human animals, that is, animal dignity’.Footnote 55 In her discussion of this development, Baptista-Rosa therefore concludes that Brazil has recognised animals as subjects of rights via the constitutional prohibition of animal cruelty.Footnote 56
A similar substantive norm can be found in the Constitution of Slovenia, though it has not served as a basis for recognising animal rights in this context. Since 1991, Article 72 includes a prohibition on animal cruelty within the broader right to a healthy living environment. The final sentence of the provision states: ‘The protection of animals from cruelty shall be regulated by law’.Footnote 57 This reference was considered an ‘upgrade’ of the legal value of animal protection, giving greater weight to animal interests in the constitutional order. In a 2018 case, the Slovenian Constitutional Court upheld a ban on slaughter without stunning, partly on the basis of Article 72’s reference to animal protection.Footnote 58 Also in the Constitution of Mexico, a reference to the prohibition of animal cruelty is made. Since December 2024. Article 4 now provides: ‘Animal cruelty is prohibited. The Mexican State must guarantee the protection, proper treatment, conservation, and care of animals, as determined by the relevant laws’.Footnote 59 Notably, this refers not only to the protection of individual animals but also of species: wild and domesticated animals are addressed together here. Moreover, the placement of this paragraph is remarkable, as Article 4 also contains the fundamental rights of human beings, such as equality before the law, the right to nutritious food, health protection and the right to a healthy environment. The article can therefore be regarded as a combination of programmatic state objectives that guide public policy, and more enforceable subjective rights of citizens.Footnote 60 In 2014, Egypt became the first Arab country to recognise animals in its Constitution, stating in article 45 that: ‘The state also commits to the protection and development of green space in urban areas; the protection of plants, livestock and fisheries; the protection of endangered species; and the prevention of cruelty to animals. All the foregoing takes place as regulated by law.’Footnote 61 In all these cases, the constitution thus incorporates a substantive norm regarding a prohibition of certain behaviours (most notably ‘cruelty’) towards animals by citizens.
Animals as subjects of constitutional rights
A third way in which animals may appear in constitutional texts is as subjects of fundamental rights - rights that are justiciable in their own name. Although no constitution currently includes a dedicated chapter on ‘fundamental animal rights’, several proposals have been made. The most notable is the proposed amendment to the Finnish Constitution, widely recognised in animal law scholarship as one of the most comprehensive and radical attempts to enshrine animal rights in a constitution.Footnote 62 It outlines a full chapter of fundamental rights for animals, including ‘the right to life’ and ‘the right to freedom’, and is, at the time of writing, under parliamentary consideration.Footnote 63 The chance of it being adopted however seems rather low, as it would arguably imply a radical transformation of Finnish society.
Then, there is the somewhat separate case of Ecuador, where animals have been effectively ‘read into’ the constitution by the Constitutional Court. In a landmark 2022 judgment, the Court interpreted the constitutional rights of nature (Articles 71–74) as encompassing the rights of individual animals, even though animals are not explicitly mentioned.Footnote 64 According to the Court, animals are ‘parts of nature’ and therefore their rights constitute a ‘specific dimension of nature’s rights.’Footnote 65 The Court also ordered the legislature to adopt a law codifying animal rights, which is currently being debated.Footnote 66 In this way, (wild) animals are now regarded as subjects of constitutional rights in Ecuador, with rights that are fully ‘justiciable’. However, as some critical animal law scholars note, the rights of animals are proven to be rather weak, seemingly only including wild animals and making important exceptions for culling invasive species.Footnote 67
Lastly, a proposal of particular note is the Swiss initiative to amend the constitution of Basel-Stadt, a canton within the federal state of Switzerland, so as to include animals.Footnote 68 This proposal emerged from a referendum aimed at recognising the fundamental rights of primates, initiated by the organisation Sentience. It was subsequently challenged before the Constitutional Court of Basel-Stadt (and after that before the Federal Supreme Court) on the grounds that cantons lacked competence to recognise fundamental animal rights. In a remarkable judgment, however, the Constitutional Court held that it was possible to ‘expand rights beyond the anthropological barrier’, thereby allowing the referendum to proceed.Footnote 69 Although the citizens of Basel-Stadt ultimately rejected the proposal and animal rights were therefore not constitutionally recognised, the Court’s clear position on the possibility of such recognition remains significant.
The three examples discussed here demonstrate that the idea of animals as full constitutional subjects has gained little traction; only in three jurisdictions worldwide has the option been seriously contemplated. Nevertheless, as will be shown in the following section, even where animals are not legally incorporated as constitutional subjects, provisions referring to them carry temporal implications that challenge and extend constitutional thought beyond anthropocentrism.
Temporal dimensions of animal constitutionalism
The emergent picture of animal constitutionalism in its varied and diverse manifestations represents a notable departure from the traditional human-centred foundations of constitutional law.Footnote 70 Historically built around the concept of ‘human dignity’, constitutional law has long rested on a fundamental distinction between humans and other animals.Footnote 71 Against this backdrop, the inclusion of animals in constitutional texts is particularly significant; it not only disrupts the conventional anthropocentric framework but also raises deeper questions about the scope and function of constitutional norms.Footnote 72 Even when such provisions do not translate into directly enforceable legal rights for animals, they still affirm that animals and their interests count constitutionally. In some cases, constitutional references may also impose limitations on human rights, such as the freedom of religion.Footnote 73 In this respect, the nature of these provisions differs markedly from most constitutional norms, which are typically anthropocentric in orientation and designed to advance human interests solely.Footnote 74
At a basic level, referencing animals in the constitution therefore carries symbolic power, marking a break with the anthropocentric past. Second, it may function as an ‘anchor’ in time, stabilising the present by safeguarding existing levels of animal protection against regression. Viewed from a future-oriented perspective, it may even alter the constitutional order itself, expanding the scope of constitutional thought to include non-human animals. Below, I will shortly reflect on each of these potential temporal dimensions of animal constitutionalism.
Symbolism: Breaking with the past
A first temporal implication of animal constitutionalism is that, at the moment of introduction, a certain break with the anthropocentric constitutional past takes place. Once animals become ‘of constitutional concern’, the traditional human-centred legal order is fundamentally changed: animals matter for law regardless of whether humans attach importance to their protection. This initial temporal effect is evident in all of the examples of animal constitutionalism discussed above. Even when the constitutional reference is framed as merely a state objective, animals are not recognised as constitutional subjects and the provision is neither considered justiciable, the acknowledgement of their existence can still be interpreted as a departure from a purely anthropocentric reading of constitutional law.Footnote 75 By identifying the protection of non-human interests as a goal in itself, the state implicitly affirms that interests beyond the human are relevant to constitutional consideration. This signals an axiological shift: it redefines who ‘matters’ within the legal system. Moreover, constitutions are not only legal instruments; they also serve as sites of collective meaning-making and normative articulation of political identity.Footnote 76 A constitutional reference makes clear that a state considers the aim of protecting animals significant enough to warrant inclusion in the most important legal document, binding the legislator, executive, as well as the judiciary to the aim of protecting animals.
This first temporal dimension, which happens right when a constitutional provision is adopted, aligns with the observations of Eisen, who argues that constitutional recognition of animals confers intrinsic legal relevance upon them, even if it does not elevate their status to that of full constitutional subjects.Footnote 77 Her comparative analysis of constitutional references to animals demonstrates that, although such provisions have not fundamentally transformed human–animal relations and still permit a wide range of practices that, if applied to humans, would constitute violations of fundamental rights, they nonetheless mark a departure from the historically anthropocentric rationale underpinning constitutional law.Footnote 78 The meaning of intrinsic legal relevance becomes clear when contrasted with early animal protection laws in which the ratio legis was still purely human-centred. For instance the well-known Loi Grammont (Law of 2 July 1850 on the ill-treatment of domestic animals) in France – one of the first laws against animal cruelty – prohibited the mistreatment of animals only when it occurred publicly and was offensive, thus primarily prohibiting animal cruelty in order to protect humans from having to witness cruelty.Footnote 79 Similar rationes legis existed in other countries; in a Dutch court case in 1886, for example, a man was acquitted after mistreating an animal because the abuse had taken place indoors, meaning that there could have been no affront to public morality or to the sense of compassion of bystanders.Footnote 80 More recently, the Belgian Constitutional Court noted in a 2021 case regarding animal protection that ‘animal welfare must be regarded as a moral value … aimed at protecting the rights and freedoms of persons who, in their worldview, attach importance to the welfare of animals’.Footnote 81 In this interpretation, the rights and freedoms of persons thus form the ground for the protection of animals. When the protection of animals as sentient beings is explicitly mentioned as constitutional aim, such indirect legitimation is no longer necessary: animal protection is relevant in and of itself.
Understood in this way, the constitutional recognition of animals also challenges the long-standing assumption that animals are mere legal objects with purely instrumental value.Footnote 82 Animals, as it were, become visible within the legal order, aligning with a broader trend in private law that is sometimes called ‘dereification’, whereby animals are increasingly distinguished from ‘things’ and placed in a separate category that is neither person nor thing.Footnote 83 As Deckha notes (despite her critique of the trend), ‘the inclusion of nonhumans in a constitution is a significant symbolic step towards re-positioning animals from exploited property to respected beings’, a shift that, she argues, has the potential to generate more animal-friendly jurisprudence.Footnote 84 While this repositioning may not immediately result in enforceable rights or institutional transformation, it nonetheless reflects a growing cultural willingness to approach animals as more than property and to attribute to them moral and legal significance. In this way, the symbolic rupture carries tangible immediate force: it recalibrates collective memory and identity, suggesting that legal interpretation centred solely on human interests is no longer sufficient.
Standstill: Stabilising the present
A second temporal implication of animal constitutionalism lies in the way in which it anchors the current level of animal protection. The constitutional recognition of animals as beings worthy of protection for their own sakes essentially prevents the enactment of future legislation that would diminish existing protections. In this way, it stabilises the prevailing legal standards regarding animals, which is sometimes described as the ‘standstill effect’.
Such standstill effect was explicitly debated in Belgium when the new provision recognising animals was being introduced. Two proposals lay on the table: one that would add animals to Article 23 of the Constitution on the right to a healthy environment, and one that would add animals to Article 7bis.Footnote 85 Throughout the legislative debate, the central question was whether the new provision would entail a standstill obligation.Footnote 86 In Belgian constitutional law, such obligation is well established in relation to Article 23 and means that the level of protection achieved for the protection of a healthy environment cannot be significantly reduced, only progressively improved.Footnote 87 If animals would thus be included in this provision, alongside the right to a healthy environment, this would have anchored the provision within a framework that clearly carries a standstill effect and is subject to judicial review.Footnote 88 Eventually, the Commission in charge however settled for Article 7bis, with one of the main reasons being precisely that it wanted to prevent a standstill-effect from being added to the provision – several members expressed concern that it would impede emergency measures, such as the culling of animals during zoonotic crises.Footnote 89 One even mocked the absurdity of constitutionally recognising animals, suggesting that it would lead to ‘the recognition of the rights of mosquitoes’.Footnote 90 Eventually, there was an explicit vote to avoid the inclusion of the standstill effect, and animals were added to Article 7bis instead of Article 23.Footnote 91 In contrast, in some other jurisdictions, such as Germany, courts and legal scholars have interpreted the animal-provision as automatically implying standstill, prohibiting any reduction in established welfare standards, thereby functioning as constitutional safeguards against reforms that would lower the level of animal protection (even though this is not explicitly noted in the article).Footnote 92 This became clear in a 2010 case, when the German Constitutional Court invoked the standstill principle in relation to animal protection to strike down an amendment to animal welfare legislation that would have weakened standards for housing laying hens.Footnote 93 Here, the constitutional mention thus functioned as a clear anchor in time, freezing animal protections to at least the level they had at the time of introduction.
The contentious debate surrounding the Belgian amendment however highlights the various considerations in the present-oriented temporal dimension of animal constitutionalism. When a constitution affirms the protection of animals, prohibits cruelty or codifies a duty of care towards them, it creates a constitutional expectation that legislation must exist to realise that aim, and that such legislation cannot be repealed or weakened by a future government with different priorities. In this way, the constitutional reference serves as a temporal anchor, locking in a minimum standard of protection, ensuring legal continuity amid shifting political, economic or ideological contexts. Even if a standstill effect is not explicitly derived from the provision, its constitutional status makes it difficult to reverse animal protection through ordinary legislative processes, especially when the provision is justiciable before a constitutional court. To some extent, all constitutional references to animals thus exert such a ‘locking effect’, which, as Vink argues, has an inherently progressive character by preventing the adoption of legislation that would undermine the constitutional norm.Footnote 94 Depending on the provision’s placement within the constitution, as well as the particular interpretation, legal culture and review powers of constitutional courts, this may be a more fortified implication (such as in Germany), or a rather modest one (such as in Belgium), but at the very least, the constitutional anchoring precludes the possibility to annul or repeal animal protection legislation in its entirety, as the provision requires the State to protect animals.
The standstill effect is not unique to animal constitutionalism. In a broader sense, the principle of non-regression is well established in constitutional, environmental and human rights law, particularly in relation to social rights such as housing, healthcare and education.Footnote 95 It holds that once a certain level of protection has been achieved, it acquires a certain degree of progress, and regressive adjustment would require particularly compelling justification, if it is permitted at all. This thus has implications for the legislator, who cannot pass laws that would decrease the level of protection, as such laws risk to be struck down by the judiciary. However, it should be noted in this context that animals themselves lack the capacity to challenge regulations in court, meaning the enforcement of the provision typically depends on NGOs, human claimants and judicial willingness to extend standing or interpret constitutional provisions purposively. For constitutional references to animals to function effectively as temporal anchors, they thus must be accompanied by provisions that make it possible to represent animal interests before the court.Footnote 96
In sum, constitutional references to animals can be understood through a temporal lens as anchoring the present level of animal protection. Although they typically do not create subjective rights enforceable by individual claimants – human or animal – they nonetheless constrain legislative discretion by requiring that certain minimum standards of animal protection be upheld over time.
Subjectivity: Imagining the future
Constitutional provisions concerning animals also have a future-oriented dimension. As Vink observes, the inclusion of animals at the constitutional level ‘functions as a guide for future legislative action and the development of society in the long term’.Footnote 97 In this sense, constitutional references to animals lay the conceptual groundwork for a potential expanded future understanding of legal subjectivity as inclusive of non-human animals. Even if animal subjectivity is not yet explicitly recognised in the existing examples of animal constitutionalism, such provisions offer a foundation for prefiguratively imagining such a future legal order.
The most radical temporal dimension of animal constitutionalism thus lies in this capacity to envision animals as full subjects of law, protected by the constitution in the same way as members of the human species, challenging the assumed superiority of humans within the legal sphere. Full subjectivity would entail not only constitutional recognition but also the protection of animals’ fundamental interests in life and liberty, alongside (arguably) the abolition of their status as property. Such a transformation would mark a shift towards a kind of ‘Zoopolis’ – a legal and political framework in which humans are no longer placed above other species, and societies would be formed as to respect their rights.Footnote 98 In this way, animal constitutionalism enables the conceptualisation of animal-inclusive legal systems.
However, this prefigurative vision also raises complex questions. Which animals would be included within the constitutional scope; only human-like species such as chimpanzees and elephants, which have traditionally been the focus of personhood arguments by animal rights organisations, or also birds, fish and insects?Footnote 99 How would animals assert and defend their constitutional rights in human-centred courts? Would designated animal ombudspersons or organisations represent them, or would all citizens be considered guardians of non-human animals?Footnote 100 What is clear is that, eventually, this interpretation would require radical reconfiguration of the constitutional structure of Western legal systems to prevent such inclusion from remaining merely formal or symbolic. It also requires a rethinking of foundational legitimations of constitutionalism, such as the contractarian notion that constitutions govern those who have ‘consented’ to be subject to their norms.
In their work on sentience-based constitutionalism, Adenitire and Fasel propose such new legitimisation through the idea that the interests of all sentient beings governed by the constitution should be taken into account.Footnote 101 The premise of their work is that constitutional orders today are characterised by a legitimacy gap. Rooted in social contract theory, conventional constitutionalism derives legitimacy from the voluntary consent of rational agents. Traditionally, this has been limited to human beings – but, as Adenitire and Fasel point out, even then only to certain humans: those capable of rational thought and political participation. These criteria fail to account for the vulnerability of those who lack such capacities but are nonetheless deeply affected by government decisions; ‘governed’ by the constitution. Thus, both non-paradigmatic human beings (such as infants or persons with advanced dementia) and non-human animals are systematically marginalised, suffering from the exclusionary focus on a particular ‘Anthropos’ of law. Adenitire and Fasel propose an alternative model of sentience-based constitutionalism, which seeks to shift the source of constitutional legitimacy from consent to a more inclusive principle: the consideration of the interests of all morally valuable sentient beings affected by law and policy, what they term the ‘all governed interests’ principle.Footnote 102 Sentience-based constitutionalism, thus, promotes ‘more inclusive account of the constitution that gives due concern to all sentient animals, including paradigmatic and non-paradigmatic humans’.Footnote 103
Adenitire and Fasel’s approach is about more than just redefining the legitimacy of constitutions; it also entails a reconfiguration of foundational constitutional principles; fundamental rights, proportionality, the rule of law and democracy, as inclusive of other sentient animals.Footnote 104 It should be noted that this represents a far more radical interpretation than the current examples of animal constitutionalism discussed in this article, and remains thus primarily aspirational. Nevertheless, seen in this light, constitutional recognition of animals is not merely symbolic; it is an effort to address a structural exclusion that undermines the normative coherence of the constitutional order. A constitution that acknowledges the relevance of animals then essentially affirms that they are not irrelevant to the constitutional framework, but beings who, as they are governed by the constitution, have relevant interests that impose normative constraints on the exercise of public authority. The third temporal dimension of constitutional provisions therefore points in this direction, making it possible to envision a form of constitutional law that protects all sentient beings.
‘Posthuman constitutionalism’: Moving beyond the human?
The temporal lens taken in this article reveals some of the deeper conceptual implications of animal constitutionalism. As demonstrated, apart from their actual legal effects, constitutional provisions concerning animals not only symbolise a departure from the anthropocentric past and stabilise existing protections, but also project possible futures in which animals may be recognised as subjects of constitutional concern. This calls for a reconsideration of the theoretical foundations of constitutional law. As Eisen eloquently observes, ‘[c]onstitutional animal protection requires more of constitutional theory than a simple widening of the circle of dignity-bearers or correction of democratic process deficiencies… [i]t requires an account of whether and how constitutionalism might embrace the interests of subjects who will not and cannot speak in the language of law with their own voices’.Footnote 105 This task becomes particularly urgent in the context of the current era of global crises, sometimes called ‘the Anthropocene’.
Recent scholarship has taken up the challenge of rethinking constitutionalism by moving beyond the static protection of individual rights to encompass intergenerational obligations and non-human subjects.Footnote 106 In this context, the emergence of animal constitutional provisions can be understood as part of a broader reimagining of constitutional subjecthood in the Anthropocene. This reimagining suggests that constitutionalism should be grounded not in rationality and independence, but in vulnerability, care and responsibility.Footnote 107 The constitutional inclusion of animals, from this perspective, is not based solely on their individual capacity to suffer but reflects a more fundamental redefinition of the normative foundations of constitutional orders: a search for ‘law beyond the human’.Footnote 108
Forms of more-than-human constitutionalism are diverse, encompassing approaches such as ‘earth systems law’, ‘earth jurisprudence’ and the ‘rights of nature’.Footnote 109 As Offor and Cardesa-Salzmann observe, despite their differences, five central themes emerge across various strands of more-than-human constitutional scholarship – what they refer to as ‘the constitutional turn’.Footnote 110 First is the growing recognition of the importance of networks and relationships, which challenges the individualistic and atomistic worldview that has traditionally underpinned legal thought. Second is a preference for onto-epistemologies that reject binary oppositions in favour of spectrums. This marks a clear departure from liberal approaches, which tend to preserve central binaries such as person versus thing, and nature versus culture, extending the category of ‘person’ without dismantling the underlying dichotomy. Third is an openness to pluriversality, a decolonial insight that affirms the coexistence of multiple worlds and cosmologies, recognising Western universalism as only one among many. This includes acknowledging collectives that do not conceptualise the world through the nature–culture divide. Fourth is a heightened awareness of the role of power in shaping dominant narratives, coupled with a desire to challenge and reverse existing power structures. Fifth is a recognition of the intersecting roots of various forms of oppression – against women, people of colour, queer communities, disabled individuals, non-human animals and nature – summarised under the concept of intersectionality.Footnote 111
Taken together, these themes suggest that ‘more-than-human’ constitutionalism requires a rethinking not only of the substance but also of the structure of constitutional law, calling for a radical departure from the human-centred tradition of human dignity-based constitutionalism. In this respect, it also goes beyond the form of sentience-based constitutionalism as proposed by Adenitire and Fasel and discussed above.Footnote 112 As Petersmann notes, ‘[f]rom a ‘more-than-human’ perspective, the purpose should not be to extend the subjectivity of the human onto the non-human, but to reconfigure legal thinking and practice as enactments of entangled agencies between humans and nonhumans’.Footnote 113 In this view, the task is not to grant animals constitutional rights by analogy to humans, thereby transforming them into individualistic liberal subjects, but rather to articulate a legal ontology in which animals, ecosystems and humans co-constitute the legal world. In the words of Kotzé, we need a ‘constitutionalism of the future’: a more legitimate model of constitutionalism that overcomes the deficiencies of the traditional isolated and atomistic anthropocentric model.Footnote 114
Such a vision builds on the idea that, although constitutions are constrained by the past, they are not entirely bound by it. As Eisen and Borrows suggest, the idea of the constitution can be captured by the metaphor of the ‘living tree’: slow to change, but capable of growth.Footnote 115 This metaphor is particularly apt in the context of more-than-human constitutionalism, which shifts the focus from the autonomous human individual to the network of relations of which they are a part. As Nedelsky argues, the foundational premise of such a constitution is that it would respond to and structure ‘relationships within the entire Earth community: plants, animals, water, soil, air, rocks, mountains, deserts and humans alike.Footnote 116 Critiquing the dominant Western tradition’s neglect of these relationships, she calls for the identification of core values that would facilitate a shift towards a more-than-human constitutional understanding.Footnote 117 Chief among these is the principle of mutual responsibility for the flourishing of all members of the Earth community, including specific responsibilities towards animals, conceived as fellow subjects and agents in collective cooperation.
Conclusion
This article has explored the temporal dimensions of animal constitutionalism and conceptualised these as symbolism, standstill and subjectivity. It proposed this temporal lens as a framework for understanding how constitutional references to animals reshape constitutional legal thought across time. The three dimensions illuminate how such provisions, apart from their concrete legal effects within a particular constitutional order, mark a rupture with the anthropocentric past, stabilise present protections against regression and open conceptual space for imagining futures in which animals are recognised as subjects of constitutional law. Viewed through this temporal lens, animal constitutionalism is not merely a legal innovation but also a temporal intervention that reconfigures the constitutional timeline. It challenges the legacy of human exclusivity, anchors the present by embedding animal protection within enduring legal structures and gestures towards futures in which vulnerability, interdependence and ecological responsibility redefine constitutional legitimacy. In doing so, it demands a reconsideration of the foundational premises of constitutional law: who it protects, whose interests it serves, and how its authority is justified. This reconsideration, sometimes discussed in the context of the ‘constitutional turn’, may even imply expanding constitutionalism beyond the traditional individualistic conception of a moral subject with interests.
While animals today remain largely excluded from the realm of law, their growing presence in constitutional texts suggests that the boundaries of constitutional concern are beginning to shift. In the context of the Anthropocene, where the entanglement of human and non-human life is increasingly obvious, animal constitutionalism offers a way to reimagine constitutionalism itself as a living, evolving structure (a tree, perhaps) that is responsive to the ethical demands of a more-than-human world.
Acknowledgements
The author would like to thank Dr Franco Peirone for the invitation to participate in such an inspiring event on Constitutions and Time and for his invaluable comments to earlier versions of this article. I also thank the anonymous reviewers for their constructive feedback.
Competing interests
The author declares none.
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