In terms of animal protection, France has paved the way for Spain to adopt a solid legislation. French and Spain legislations are based on the Roman law tradition and encounter difficulties to detach themselves from the concept of animal-machine. The penal protection was at first initiated in both countries on the ground of the protection of public morality. Later on, the criminal provisions relating to intentional cruelty towards animals have been shaped around the notion of maltreatment.
The French and Spanish legal systems evolved around the key notion of property.
Animals have always had an economic value for the majority of the population that was essentially farmers. Animals were used for harvesting fields; they could be ridden, eaten, traded or sold.
Primarily, the law dealt with animals solely because of the economic value they represented [ 1 ] . The notion of property defined animals in the legal system, everything was articulated around the duality of owned/ not owned. If an animal has an owner, it is considered ‘res propriae’ (Latin for ‘something that belongs to someone’ ), if not then it is a ‘res nullius’ (Latin for ‘something that belongs to no one’ ).
In the case of ‘res nullius’ , it can be the subject of appropriation and logically become a ‘ res propriae.’ The interaction between the two terms is quite clear, if we take the example of hunting. Dogs are pursuing a wild deer while the hunter is following them. In that case scenario, the dogs are the property of the hunter ( res propria ) while the wild deer does not belong to anyone ( res nullius ). If the hunter catches and kills the deer, its carcass will be considered his property ( res propriae ).
As both countries come from the Roman law tradition, animals are nowadays granted the same legal status.
In France, the Civil Code and the Rural Code refer directly to animals’ legal status.
According to the Civil Code, animals are either considered movable or immovable assets.
On movables, article 528 reads: "Animals and things which can move from one place to another, whether they move by themselves, or whether they can move only as the result of an extraneous power, are movables by their nature" [ 2 ].
On immovables, article 524 reads: “Animals and things that the owner of a tenement placed thereon for the use and working of the tenement are immovable by destination” [ 3 ] .
Surprisingly, the Rural Code, which does only apply for farm animals, reads in article L. 214-1, “Any animal is a sensitive being and therefore shall be put by its owner in conditions compatibles with the biological imperatives corresponding to its specie” [ 4 ] .
Spain uses the same terminology as the one in force in France. The Spanish national Civil Code reads in article 333, “All things which are or can be subject to appropriation are considered movables or immovables." [ 5 ]
Article 334 includes as “immovables: The reservoirs of animals, dovecots, beehives, fish-ponds or analogous breeding-places, when the owner has placed them or preserves them with the intention of keeping them joined to the estate, and forming a part of it in a permanent way” [ 6 ] .
Next to the national Civil Code, the Autonomous Community of Catalonia has its own Civil Code, which only applies within its borders. Article 511-1 reads, “Animals, which are not considered to be things, are under the special protection of the laws” [ 7 ].
In France as well as in Spain the incoherence is striking between animals’ legal status laid down in the civil provisions and the criminal provisions that provide animals a special protection in addition to the protection related to property.
II. Ancient Anti-Maltreatment Laws: Protecting Public Morality
The French legal system greatly influenced Spain; it is likely to find similitudes between the two countries. The influence of France on Spain can be noticed in the first anti-maltreatment laws.
To be exactly correct, it is more appropriate to talk about laws relating to maltreatments rather than animal cruelty, as the concept of cruelty was not yet introduced in the ancient laws.
A. French laws relating to public maltreatments on animals
Primarily, the first anti-cruelty law was established in France in 1850 to incriminate public maltreatments made by humans on domestic animals.
General de Grammont initiated the bill of the Law on maltreatments towards domestic animals in 1849. The final draft was voted and adopted on 2 July 1850.
The one-article law was included in the French Criminal Code.
The legal value of this text was the full protection of public morality by providing a partial legal protection for domestic animals.
The Grammont Law stipulated, “Will be punished by a 5 to 15 francs fine, and could face a 5-day jail sentence, those who will have publicly and abusively maltreated domestic animals” [ 8 ] .
Ancient documents [ 9 ] show General de Grammont’s original draft was substantially different from the final version, as the notion of publicity was primarily not included.
M. Defontaine introduced the concept of publicity during the text’s third lecture. While giving the example of someone slaughtering his horse at a public square, because the animal was not able to perform the carrying task, M. Defontaine defended his positions saying he shared General de Grammont’s intention of incriminating maltreatments on animals, but only on the ground of the protection of public morality.
Those deeds could be perceived as offenses towards public morality given the fact they often exposed shocking brutality for the population.
M. Defontaine felt General de Grammont’s original draft was going too far in the name of animal protection, and did not want the law to intrude or invade the population’s privacy.
Furthermore, he did not want this law to limit the right to property, especially in the “use” or the “dispose” components, as animals’ interest did not seem great enough.
B. Spanish laws relating to public maltreatments on animals
In Spain, the first reference to the protection of animals in the Spanish legal system can be found in 1877, in the Municipal Ordinance of the town of Palma de Mallorca (Title III referring to Dogs). Though the scope of this provision was strictly limited to dogs, the text was highly progressive. Article 206 read, “Remains forbidden maltreating dogs with a stick, a stone or any other mean” [ 10 ] . The text did not refer to the publicity criteria, as it was mentioned in the French Grammont Law.
Nevertheless, its legal value was restricted to local level.
At national level, the Criminal Code of 1928, under the dictatorship of General Primo de Rivera, was the first legal text to incriminate maltreatments on domestic animals.
The article 810 n°4 read, “those who publicly maltreated domestic animals or who obliged them to excessive tiredness” [ 11 ] would be condemned to pay a 50 to 500 pesetas fine.
Compared to the French Grammont Law, this provision is more progressive in the scope. Indeed, the present law includes two different types of human deeds. The first one is maltreatment, and does not differ from the Grammont Law, but the second one is forcing animals to perform tasks until they reach the point of fatigue.
The publicity condition still stands, in that sense, it is safe to say that article 810 protected public morality rather than animals themselves.
Discussions arose in Spain, in relation to the modification of the article mentioned, in the nineteen eighties and the nineties.
For instance, in 1980, the Union of the Democratic Centre (UCD) made a Proposal for a new Criminal Code. The article 685 read, “those who, by maltreating cruelly animals, offended the feelings of the people there present, will be punished by a 10 to 60-day fine” [ 12 ] . This provision was reused, in 1983, in article 607 of the Proposal for a new Criminal Code draft bill, but this time under the section “Faults against public order” [ 13 ] .
Provisions regarding maltreating animals were also introduced in the proposals for a new Criminal Code in 1992 and 1994.
The provisions of the 1994 draft bill were put under the section “Faults against general interests” . The article 620 read, “Those who maltreated with cruelty domestic animals or any other in unlawful events, and offending the feelings of the people there present, will be punished by a 10 to 60-day fine” [ 14 ] .
None of the previous provisions were adopted and it had to wait 1995 to notice a real evolution from the provisions originally laid down in 1928, notably with the abandonment of the “offending the feeling of the people there present” criteria.
The 1994 draft bill has its importance, as it announced the Spanish Criminal Code of 1995.
Even though the aforementioned laws in France and Spain were mainly focused on the protection of people’s feelings, public morality and general order, it is crucial not to undermine their impact on the later legal texts.
III. Current Anti-Maltreatment Laws: Protecting Animals for Themselves
In France, the founding legal text in terms of animal protection is the Decree n° 59-1051 repressing maltreatments towards animals, adopted on 7 September 1959.
The decree incriminated “those who, without necessity, publicly or not, maltreated domestic or tame animals or animals held in captivity” [ 15 ] . The removal of the condition of publicity, unveiled the legislature’s intention to protect animals for themselves by incriminating some human deeds. As from 1959, the public dimension was no longer a condition.
In Spain, it is with the 1995 Criminal Code that animals could benefit from a real legal protection. Article 632 read, “Those who ill treated cruelly domestic animals or any other in unlawful events, will be punished by a 10 to 60-day fine” [ 16 ] . Compared to the 1994 draft bill, this text represents a major evolution. As from 1995, the “offending the feeling of the people there present” condition was removed from the redaction.
The Law 16/70 relating to Danger and Social Rehabilitation, adopted on 4 August 1970, greatly influenced the animal related legislation. This present Law laid down a definition of what is a dangerous state. According to article 2.9, it refers to “obvious contempt to the community," and “prejudice to animals, plants or things” [ 17 ] .
This text allowed the development of an animal-based legislation, from which article 632 of the 1995 Criminal Code is a part of.
The texts aforementioned were the groundbreaking provisions from which the actual legislations were allowed to evolve from.
It is possible to identify two key dimensions that allowed such evolution: the scope of animals protected determined which kind of animals could benefit from the criminal provisions.
The terminology used in the provisions permits the identification of the incriminated human deeds.
A. Animals protected by the criminal provisions
The scope of the criminal provisions allows us to measure their legal value, as well as determining which animals the anti-maltreatments laws cover.
Both countries certainly evolved in the nearly same direction: providing other than domestic animals a greater and wider legal protection, but at a different time scale.
Furthermore, the two scopes that will be discussed are not unlimited.
1. Distinction between domestic and non-domestic species
The French and Spanish legislatures went in the direction of extending the scope of animals protected. Little by little, criminal provisions were allowed to apply to not exclusively domestic animals but also to some kind of wild animals.
a. A clear enough delimitation in France
While the Grammont Law could only apply to domestic animals, the Decree n° 59-1051 repressing maltreatments towards animals increased greatly the scope of animals protected by its provisions.
It is fair to say the Grammont Law was only limited to domestic animals mainly because at that time the determination of which animals were domestic or wild, was not relevant enough. Nonetheless, following the law’s adoption, the distinction between domestic and non-domestic species was introduced into public discussion.
The Court of Cassation, France’s highest judicial court, defined on 14 March 1861, what is a domestic animal. In its decision, the court says the term ‘domestic animals’ refers to “animated beings that; live, are reared and fed, are bred under the roof and care of humans” [ 18 ] .
The definition was too restrictive [ 19 ] therefore; the Court expanded its definition on 16 February 1895 in a new decision. A domestic animal “lives under human surveillance, and not only under his roof” [ 20 ] .
According to the judge, at that time, the key factor that determined whether an animal was domestic or wild; the interaction it had with humans.
Surely, the contemporary perception of wild and domestic animals differs greatly.
In French Law, the non-binding document Instruction NP/94/6 [ 21 ] laid down in 1994, gives the definitions of what were domestic and non-domestic species.
According to that document:
“Are considered as belonging to non-domestic species, animals which have not been modified by any selection process from humans’ part. To the contrary, domestic species have been continuous and constant selective pressure. This selective pressure led to the formation of a group of animals that acquired genetically transmissible steady characteristics. The fact that an animal from a non-domestic specie is born in the wild or in captivity, and the period of time held in captivity do not have any influence on is non-domestic nature; at the most can we say it is an animal from a wild specie that is ‘tamed’ or ‘kept in captivity.’”
The Circulaire relating to the list of species, races and varieties of domestic animals [ 22 ] reaffirmed the previous definition.
In 2006, a Ministerial Order [ 23 ] , which is a binding document, modified the definition adopted in 1994 and gave instead a highly technical definition.
“Are considered as domestic animals: animals that belong to selected animal populations, or that have the two parents from selected animal populations.
We call selected animal population a population of animals that differs from populations genetically the closest by a set of recognizable and hereditary characteristics that are the consequence of a specific and reasoned management policy of the matings.
A domestic specie is a specie from which all the representatives belong to selected animal populations, or come from two parents that belong to selected animal populations.”
The World Organisation for Animal Health (OIE) defined as well the term ‘ wild animal .' The definition is oriented on the process of artificial selection in animals.
According to the OIE, the term "'wild animal’ means an animal that has a phenotype unaffected by human selection and lives independent of direct human supervision or control” [ 24 ] . By analogy, the term "'domestic animal’ means an animal that has a phenotype affected by human selection and lives dependent of direct human supervision or control.”
The distinction is now well established in France and keeps, for instance, a lot of individuals from being wild animals owners.
b. A blurry approach in Spain
If the determination between domestic and wild animals is a clear concept in France, it is not the same situation in Spain.
Indeed, there is no national list establishing which species are considered domestic.
Article 465 of the Spanish Civil Code [ 25 ] makes the distinction between four terms:
- Domestic animals (by nature)
- Tame animals
- Animals that have been domesticated
- Animals that have been tamed
The distinction is not easy; nonetheless, the last two categories seem to refer to animals that are being put under the process of domestication or taming.
The article says domesticated animals are assimilated to domestic ones, while tamed animals are assimilated to tame ones, as long as they keep the habit of returning to the owner’s house.
All others animals are considered as components of wildlife ( res nullius ).
To those national provisions, can be added regional ones. Indeed, seventeen (nineteen with the two cities) Autonomous Communities are composing the Spanish state. In theory, each Community has passed its own legislation regarding animal protection. The scope of those regional provisions usually has its own definition regarding what is a domestic animal.
2. Scope of the criminal provisions
a. Extension of the legal protection to tame and captive wild animals: based on captivity
With the evolution of the French society, it was necessary in 1959 to not limit the anti-maltreatment legislation to domestic animals only. Therefore, the provisions included in the French Criminal Code following the adoption of the aforementioned Decree applied to domestic, tamed and captive animals.
Nonetheless, there is no explicit reference to wild animals. Indeed, what mattered for the legislature was the animals’ dependence to human supervision or control factor, rather than what type of animals, domestic or wild, the law is dealing with. The reference to ‘domestic animals’ was included because it was a clear concept originally established, and because it automatically presumed such dependence.
Naturally the term ‘domestic animals’ has been removed from the title. Still, the name of the Decree can be criticized. The use of the term ‘animals’ was misleading because it assumed it covered all animals, while non-captive wild animals are excluded.
In France, since 1959, the scope of the numerous anti-maltreatment laws is unchanged; the part of the sentence “domestic or tamed animals or animals held in captivity” [ 26 ] was not modified by any legislature. It seems now established that criminal provisions can only apply for the kinds of animals aforementioned.
b. Scope of animals protected in Spain
In Spain, the scope of animals protected did not extend as radically as in France.
In 1928, the Criminal Code only referred to domestic animals. The reform of 1995 only added to preexisting provisions that covered domestic animals, “any other in unlawful shows” [ 27 ] . This term means article 632 applied to domestic animals and all the others animals used in unlawful shows such as animals fights. The criterion was the use in events that were not authorized by the administration.
In 2003, the previous scope remained unchanged. Provisions relating to abandonment (article 631.2) and serious maltreatment (337) could only apply to domestic animals.
The year 2010 operated a big change, as tamed animals were included exclusively in the scope of the serious maltreatment related provisions. Regarding minor maltreatment and abandonment, there was no extension. Respectively, only domestic and domestic and any other animals used in unlawful shows/events were covered.
The 2012 Bill for a new Criminal Code [ 28 ] would have the merit to partially correct the latent incoherence in relation to the scope of the different provisions. Indeed, while the new articles 337 and 337 bis would only recollect and compile the existing provisions, the scope for abandonment would be extended to tamed animals as well.
Compared to the French provisions, the scope of the Spanish ones is quite limited. Wild animals in captivity are totally excluded from legal protection, if not tamed.
Confusion is often made between domestic and companion animals. In order to put a little clarity in all of those provisions, France and Spain should adopt a positive list of companion animals with all the requirements. Within this list, exclusively domestic animals should be able to be kept. Another list should establish all the domestic species, focusing on the genetic approach, in accordance with the OIE definitions.
Finally, all animals that are not on those lists should be considered as wild.
Surely, a well-done reform on the distinction between companion, domestic, tamed, wild animals in captivity or in the wild, would reflect on the criminal provisions.
B. Evolution of incriminated human deeds: detailed analysis of the terminology
1. Incriminated acts in France
In France, the notion of ‘maltreatment’ has been profusely used along the development of animal protection legislation. In 1850, the Grammont Law incriminated the act of “abusively maltreating” a domestic animal. The term ‘abusively’ referred to the will to incriminate excessive maltreatments, as it was explained in the Grammont Law’s footnote. Maltreatment meant at that time a rough treatment.
While the Decree n° 59-1051 repressing maltreatments towards animals used the same notion of maltreatment, the necessity concept was introduced as an exoneration cause. Necessity is a blur concept; it is defined by article 122-7 of the French Criminal Code [ 29 ] as the situation that allows someone to commit an unlawful act in order to preserve a higher interest, without having any other option. If the defendant could prove he or she acted under necessity, the maltreatment was not reprehensible.
The Law 63-1143 of 19 November 1963 on animal protection [ 30 ] kept the concept of necessity, but substituted the maltreatment act for ‘an act of cruelty.’ It referred to a more severe level of maltreatment. With the present act, the scope of incriminated behaviors was greatly restricted, as it excluded common maltreatments (without subsequent cruelty).
The concept of cruelty is generally defined as the willingness to cause pain or suffering, and, in some circumstances, the gain of a certain pleasure related to the accomplishment of the cruel deed.
The courts were to define the concept of cruelty in the animal protection field.
“The act of cruelty differs from mere brutality in that it is inspired by thought-out malice and translates the intention of inflicting suffering.” [ 31 ]
Few concrete examples can be given in relation to what is an act of cruelty: performing castration surgery without anesthetic on a horse [ 34 ] ; shooting a dog and leaving it throat-open without veterinary care for 48 hours [ 35 ] . While the previous examples are obvious cases of animal cruelty, some are not, for instance: kicking a tame of captive white wolf [ 36 ] , without necessity, has been considered as an act of cruelty; while it was more likely to be a common maltreatment.
In 1976, the article 13 of the Law 76-629 on Nature’s Protection [ 37 ] modified article 453 of the French Criminal Code. The present Law introduced the term ‘serious maltreatments’ to the preexisting provisions. Both acts of cruelty and serious maltreatments were then reprehensible. The part relative to necessity had been kept.
In 1992, the Law 92-1336 of 16 December [ 38 ] changed the way the article relative to animal protection was redacted. While the content remained untouched, the present Law incriminated acts rather than persons. Article 453 became article 511-1 and was included in a Chapter entitled “Serious maltreatments and acts of cruelty on animals.”
In 1994, an ambitious reform of the Criminal Code was conducted. Article 511-1 became article 521-1.
Article 22 of the Law 99-5 relating to dangerous and stray animals and animal protection [ 39 ] modified article 521-1 of the Criminal by the removing the concept of necessity.
The Law 2004-204 on the adaptation of justice to developments of crime [ 40 ] added to serious maltreatments and acts of cruelty, the term “sexual maltreatment.” The three conducts are now reprehensible.
Article 521-1 of the French Criminal Code, as it is written today, reads:
“The infliction, in public or otherwise, of serious maltreatment, including sexual maltreatment, towards or the commission of an act of cruelty on any domestic or tame animal, or any animal held in captivity, is punished by two years' imprisonment and a fine of €30,000.” [ 41 ]
2. Incriminated acts in Spain:
In Spain the terminology used the animal-related criminal provisions was not the subject of constant evolution as it was the case in France.
However, it is possible to identify three major changes in the redaction.
In 1928, two types of conduct were reprehensible: ‘maltreating’ and ‘obliging the animal to excessive tiredness.’
With the reform of the Spanish Criminal Code in 1995, the part regarding the infliction of excessive tiredness, was removed. Instead, article 632 focused on a one-level infraction: 'maltreatment with cruelty.' The introduction of the term “with cruelty” as a criterion, restrained greatly the scope of provision, already limited.
With the Organic Law 15/2003 [ 42 ] , the legislature distinguished two levels of maltreatments: minor and severe.
In 2003, minor maltreatments were classified as infractions in the Spanish criminal system. The content of article 632 remained unchanged (“ maltreatment with cruelty” ), and was attributed to those kinds of maltreatments. Few changes in the redaction occurred in relation to penalties.
Severe maltreatments were qualified as “misdemeanors.” Article 337 referred to “those whom maltreat with ‘ensañamiento’ and unjustifiably.” The Spanish Criminal Code in article 139.3º [ 43 ] defines the term “ensañamiento” as “increasing deliberately and inhumanely the suffering of the victim.”
Article 337 laid down and also conditioned the prejudice on the impact of the deed on the animal’s health. The maltreatment had to cause death or injuries likely to cause a severe reduction of physical capacities.
Along with the duality of maltreatments, the infraction of abandoning domestic animals was introduced in article 631.2. The abandonment was reprehensible as long as it put the animal’s life and integrity in danger. The legislature’s intention was to fight against illicit dumping of animals in the wild and to orient people likely to abandon their companion animal towards official shelters.
Nonetheless, the redaction of article 631.2 can be criticized, as it cannot apply in the case of someone abandoning their animal in a situation that would not put the animal’s life and integrity in danger, but still would not confide it to a rescue center.
The redaction has not changed since 2003.
In 2010, the Organic Law 5/2010 [ 44 ] did not reform deeply the legislation; it merely provided animals a higher legal protection. For instance, the penalties related to abandonment had been increased.
The provisions for the infraction of minor maltreatment towards animals remain unchanged.
Nonetheless, the main change lies in the redaction of article 337 relating to severe maltreatments. The legislature decided to remove the term ‘ensañamiento,’ as it made difficult the application of such provisions. The new article 337 reads “the one who maltreats unjustifiably, with any mean, a domestic or tame animal, causing it death or injuries likely to cause severe physical capacities lessening, will face a 3-month to 1-year jail sentence.” The law also included as a penalty a 1 to 3-month impossibility to have a job related to animals.
The previous provisions are the ones that shall apply nowadays.
Given the imperfections contained in the aforementioned provisions, a major reform of the Criminal Code is in discussions since 2012.
The Draft Bill for the Organic Law 10/19 [ 45 ] of 23 November 2012 would propose another structure than the existing one. The classification functions on three levels: infraction-misdemeanor-crime would be changed, as infractions are likely to disappear.
The Organic Law 10/19 is likely to toughen offenses towards animals. The provisions of article 632 on minor maltreatment are to be included in article 337, while article 337 bis is to include the provisions relating to abandonment.
The consequence would be the upgrade of those offenses to the rank of misdemeanor.
The redaction of the new article 337 is substantially different.
Paragraph 1 still refers to “maltreating unjustifiably with the help of any mean or process,” but the part in relation to the result of the deed has been limited to “causing injuries likely to severely lessen physical capacities.” The corresponding penalties are toughened.
Paragraph 2 lays the aggravating circumstances (penalties to apply at 150%):
- Use of weapons, instruments… considered dangerous for the animal’s life,
- Presence of ‘ensañamiento’ (increasing deliberately and inhumanely the suffering),
- If the deed has for consequence for the animal the loss of an organ, limb or sense (sight, hearing, smell…),
Paragraph 3 is relative to the death of the animal following the maltreatment. In that case, special penalties shall apply: 6 to 18-month jail sentence; a 2 to 4-year impossibility to keep domestic or tame animals; and an impossibility on having a job with exposure to animal contact.
Paragraph 4 refers to minor cruel maltreatments; the corresponding penalty is a 1 to 6-month fine.
Next to quite developed animal protection legislations, France and Spain have in common world-known traditions that prejudice animals’ lives.
IV. Lawful Cruel Acts as Limits to Anti-Maltreatments Laws
In spite of the provisions against maltreatments, which can be found in the French and Spanish criminal codes, some activities remain lawful.
The two striking examples and exceptions to the previous provisions are cultural traditions such as: bullfights and cockfights. Bullfights can be encountered in Spain and in Southern France only, while cockfights are likely to be found in few parts of Spain and Northern France.
A. Bullfighting, a Lawful Cruel Show between Men and Animals
The terminology used in both countries to designate the aforementioned activity is interesting.
Indeed, in article 521-1 of the French Criminal Code, the bullfighting activity is mentioned as “course de taureaux.”
In the Spaniard traditional culture, the term used to identify this practice is “corrida de toros.” Both terms have the same meaning and can literally be translated into “bull racing.”
Bull racing and bull fighting are two terms significantly different in their meanings. Bull racing hardly implies any maltreatment on animals, while the use of the term “bull fighting” is quite explicit.
The French Constitutional Council defined precisely what the term “course de taureaux” means. It refers to “bullfights with or without slaughtering the bull, as well as, literally bull races” [ 46 ] .
As a simple reminder in the French legal system, the first anti-maltreatment law is from 1850. Bullfighting was introduced in France in 1853 near Bayonne in order to honor the Spanish Countess Eugénie Montijo, spouse of Napoléon III.
Bullfighting expanded in Southern France in the 1880’s and the question of the application of the Grammont Law that did apply only for public maltreatments towards domestic animals was laid in 1884. The Internal Affairs Ministers ceased the Court of Cassation, France’s highest judicial court.
The fundamental question was: do fighting bulls belong to a breed that can be considered domestic?
On 16 February 1895, the Court of Cassation declared the fighting bulls were considered domestic [ 47 ] . Therefore, the Grammont Law could apply, prohibit and incriminate the bullfighting events. Between 1895 and 1951, the provisions of the Grammont Law and the decision of the Court of Cassation were not respected. Regional courts were not inclined to apply the criminal provisions, as regional communities did not support a centralized Republic.
Bullfighting became a lawful practice in France in 1951. A paragraph regarding “bullfighting” or “bull racing” as mentioned in the law, was introduced to the one-article Grammont Law. The Law n°51-461 of the 24 April 1951 complementing the Law of the 2 July 1850 regarding maltreatments towards domestic animals made legal bullfighting.
As written in the aforementioned paragraph, “The provisions of the present article are not applicable to bullfights where an uninterrupted tradition can be shown” [ 48 ].
By introducing such paragraph, the Law n°51-461 acknowledges bullfighting is a form of maltreatment and fighting bulls are a domestic breed.
In 1959, the Decree n° 59-1051 repressing maltreatments towards animals added the adjective “local.”
The concept of “uninterrupted local tradition” represents a vague notion, not delimited in time and space. Given that law does not identify regions or towns where bullfighting is a tradition, the burden went off to the judges.
On that very term, the Court of Cassation and local first and second instances judges differ greatly in their respective interpretations.
The local judges tend to interpret the term generously and extensively.
For instance, the Court of Appeal of Toulouse designated the Pyrenees, Garonne, Provence, Languedoc, French Catalonia, Gascony, Landes and the Basque Country as localities with a strong bullfighting tradition. According to the Court, throwing such events in permanent or non-permanent facilities on a regular basis is the sign of a strong tradition. The Court follows “The preservation of the tradition has to be evaluated within the framework of a demographic group” [ 49 ] .
The Court of Cassation, highest judicial Court, has a more restrictive interpretation of the term of “uninterrupted local tradition.” The adjective “local” shall be interpreted in a strict way. Indeed, it has to be proven that the tradition existed in that very locality ( in situ ). The fact that the locality is close to a town where bullfighting is a tradition, is not relevant or sufficient.
To match with the term “uninterrupted,” the Court declared that bullfighting events had to been thrown ‘on a regular basis’ [ 50 ] . The fact that such events have not been thrown due to involuntary reasons such as arenas’ unavailability or administrative prohibition can be used in court.
In September 2012, the Constitutional Council declared the paragraph relating to the bullfighting derogation, in accordance with the French Constitution.
Two anti-bullfighting organizations claimed there was a breach of equality before the law. The litigious activity is, on one hand, legal in some parts of France and would, on the other hand, fall under the criminal provisions in other parts of the French territory.
The Council in its decision saw no breach of equality, as the equality principle does not prevent from treating with a different manner, persons who are in different situations [ 51 ] . The Council applied the rational connection model of equality.
It is rather unclear when to situate the birth of bullfighting. Some sources talk about 815.
What is clear is that the animal protection legislation is way posterior to the bullfighting tradition. Spanish criminal provisions have been constructed around it, and have always included a sentence that allowed derogation in order to perform the bullfighting activity.
The only exception that can be pointed out is the Civil Code of 1928, which did not refer to it. The reason was, article 810 n°4 exclusively applied to domestic animals [ 52 ] . It is likely fighting bulls were not considered at that time a domestic breed, as nowadays.
According to article 632 of the Spanish Criminal Code of 1995, bullfights are lawful shows. The scope of this article is limited to unlawful shows. Therefore, bullfighting cannot be incriminated.
A strong incoherence exists since 2003 with the creation of severe maltreatments. The provisions relating to severe maltreatments do not include any exception for lawful shows.
It is likely the term “unjustifiably” is the key word that prevents bullfighting from entering into the scope of severe maltreatments provisions. Indeed, some could argue bullfighting is justified, as it is an economic activity, a way of keeping alive a tradition, or an expression of artistic freedom.
Bullfights are not performed on the entire Spanish territory. Out of nineteen Autonomous Communities composing the territory, two do not allow such events: the Canary Islands and Catalonia.
Due to poor public frequentation, the last bullfight was performed in 1984 in the Canary Islands. In 1991, this Autonomous Community passed an Animal Protection Act that did not include in Article 5 any derogation for the bullfighting activity, while it was the case for cockfights. Invoking article 1 that established the scope, some argued the prohibition of "fights, shows and 'fiestas' that contain maltreatment, cruelty or suffering" [ 53 ] did not apply to fighting bulls, as they were not domestic animals. By contrast, article 2 says domestic animals are the ones that, for their survival, depend on human feeding.
Not a single one bullfight was performed after 1991 in the Canary Islands.
In 2010, a Popular Initiative proposed a legislation to prohibit bullfights in the Autonomous Community of Catalonia. As a consequence, the Catalan Parliament adopted the bill the same year. This initiative is more political than ethic-based. Indeed, fighting bulls are the symbol of Spain therefore the text was perceived as a form of protestation from Catalonia’s part against the Spanish state.
Either way, the prohibition came into force in January 2012. The provisions prohibiting bullfights were included [ 54 ] in article 6 of the Decree 2/2008 approving the reformed content of the Catalan Animal Protection Law [ 55 ] . Bullfights are no longer performed in Catalonia.
The Constitutional Court has been ceased on the conformity of the Law banning bullfights, to the Spanish Constitution. The resolution is still pending.
B. Cockfighting, a Lawful Cruel Show Between Animals
Cockfighting is also a practice permitted in some parts of both countries.
In Spain, cockfights are lawful in three Autonomous Communities: the Canary Islands, Andalusia and Murcia.
Even though bullfights are forbidden in the Canary Islands, cockfights remain lawful in localities where it is a tradition. According to article 5 of the Canarian Animal Protection Act [ 56 ] , the cockfights shall take place in closed facilities and minors under 16 years old shall not attend. The construction of new cockfights arenas is forbidden.
The Autonomous Community of Murcia prohibits the use of companion animals in animal fights. Nevertheless, according to article 1 of the Companion Animals Protection Law 10/1990 [ 57 ] , roosters are not considered as companion animals; therefore, cockfights are permitted.
In Andalusia, a general prohibition regarding cockfights has been established. Nevertheless, the derogation itself, contained in article 4 of the Animal Protection Law 11/2003 [ 58 ] , is extremely permissive. Only cockfights using genetically selected roosters for that purpose are allowed.
In France, a paragraph relating to cockfights has been added in 1964. The Law 64-690 introduced, after the paragraph relative to bullfights, the following sentence: “Nor do they apply to cockfights in localities where an uninterrupted tradition can be established” [ 59 ].
It can be pointed out that the term “established” is different from the term “shown” used for bullfights. “Established” refers to a fact, while “shown” demonstrates the interest of the public.
In terms of animal protection, France has paved the way for Spain to adopt a solid legislation.
French and Spain legislations are based on the Roman law tradition and encounter difficulties to detach themselves from the concept of animal-machine.
The penal protection was at first initiated in both countries on the ground of the protection of public morality.
Later on, the criminal provisions relating to intentional cruelty towards animals have been shaped around the notion of maltreatment. Society ended up acknowledging the right for animals to not be maltreated; brought to light by Enlightenment author Jean-Jacques Rousseau in 1755 [ 60 ] .
Along the way, France and Spain increased the scope of animals protected, going from exclusively domestic animals to certain types of wild animals. The scope of human deeds has been also extended, introducing with each reform new concepts.
Case law kept on bringing new challenges regarding the interpretation of often-vague general provisions. Those challenges forced the legislature to introduce more precise terms.
At the same time, obvious cruel practices, related to tradition, have benefited from derogations to the criminal provisions, weakening the legal value and coherence of anti-maltreatment laws.
“Queda prohibido maltratar a perro alguno con palos, piedras ó de otro modo cualquiera”.
“Los que públicamente maltrataren a los animales domésticos o los obliguen a una fatiga excesiva”
“Los que maltrataren cruelmente a los animales, con ofensa de los sentimientos de los presentes, serán castigados con la pena de multa de 10 a 60 días”
“Faltas contra el orden público”
“Ofendiendo los sentimientos de los presentes”
“Los que maltrataren cruelmente a los animales domésticos o a cualquiera otros en espectáculos no autorizados legalmente, ofendiendo los sentimientos de los presentes y que serían casti- gados con la multa de diez a sesenta días”
“Los que maltrataren cruelmente a los animales domésticos o a cualesquiera otros en espectáculos no autorizados legamente, serán castigados con la pena de multa de diez a sesenta días.”
“Los que maltrataren cruelmente a los animales domésticos o a cualesquiera otros en espectáculos no autorizados legamente, serán castigados con la pena de multa de diez a sesenta días.”
 Loi n° 92-1336 du 16 décembre 1992 relative à l'entrée en vigueur du nouveau code pénal et à la modification de certaines dispositions de droit pénal et de procédure pénale rendue nécessaire par cette entrée en vigueur
"Si je suis obligé de ne faire aucun mal à mon semblable, c'est moins parce qu'il est un être raisonnable que parce qu'il est un être sensible ; qualité qui étant commune à la bête et à l'homme, doit au moins donner à l'un le droit de ne pas être maltraitée inutilement par l'autre."