Sentience. A necessary but insufficient condition. Commentary on the judgments c-408 of 2024 and c-468 of 2024 of the Colombian Constitutional Court

Abstract

The Colombian Constitutional Court has repeatedly used the qualification of non-human animals as sentient beings to support part of its arguments in defence of the constitutional mandate to protect animals, and even of the existence of a constitutional prohibition of mistreatment, even before the incorporation of such a qualification into the legal system, which occurred with the reform of the Civil Code introduced by Law 1774 of 2016. As was to be expected, this qualification provided a powerful argument to justify the differentiated treatment of animals, since the free will of human beings has found some limits in those behaviours that could mistreat them, precisely because they have the capacity to feel, which seemed logical and appropriate to common sense. In the legal system, however, there are still ancient statutes that do not reflect this, and therefore reiterate the foundations of legal positivism, such as the possibility of issuing confiscation orders against animals, or of performing painful surgical operations on them that respond to inconsequential purposes, such as those that are merely aesthetic. In this way, we analyse the recent pronouncements of the Constitutional Court, which have finally declared these practices unconstitutional, and which, although appropriate and opportune, reflect the persistence of a deep-rooted legal contradiction that is difficult to overcome. Non-human animals cannot coherently be goods and sentient beings, since these are antagonistic qualifications.