Punitive populism, considerations regarding the crime of animal abuse and the limits of the punitive power of the State, with special emphasis on the principle of proportionality

Abstract

According to Antonio Carrillo Flores, historically, the fundamental rights of peoples have achieved or are achieving recognition not thanks to passive awareness, but rather to militant awareness, in the sense of fighting and taking risks for a cause in which they believe. Clear examples of this are the American and French revolutions. However, these processes fought for very specific rights, such as freedom, equality, and the abolition of slavery. Today, we see a conceptual problem regarding what is considered fundamental rights, and this seems to have led to significant problems. In this regard, it is worth considering the questions raised by Carrillo Flores and applying them to the specific issue of criminal protection for animals. Are we willing to fight for the recognition of animal rights? Will we assume the risks and consequences of doing so? If the answer is yes, we can then ask: is criminal protection by the state the best solution, or are there more effective alternatives? The recognition of animals as holders of a criminal legal right is contrary to the principles that guide the path to a functional criminal law that respects human rights. Therefore, the following study analyzes, in light of these principles, whether criminal protection of animals is appropriate.