Becoming Symbolic: Some Remarks on the Judicial Rewriting of the Offence of Animal Abuse in Poland

Abstract

The discussion on symbolic legislation unveils intriguing relationships between law and politics. However, the abundance of observations often results in conceptual chaos and raises numerous problematic questions. These inquiries revolve around the scope of the concept of symbolic legislation (is it a marginal or universal phenomenon in the legal system?), as well as the circumstances determining whether a provision or legal act is classified as symbolic legislation. Of particular interest is the question of whether a provision or legal act can “become symbolic” over time. The research goal of this study is to analyse the process of “becoming symbolic” and derive conclusions that deepen the understanding of the phenomenon of symbolic legislation. This study organises the current discussion on symbolic legislation, focusing on a case study of the structure of the crime of animal abuse in the Polish Animal Protection Act. The author illustrates how certain elements of this provision “became symbolic,” demonstrating that this process is largely independent of the motives of the legislators. In conclusion, the author emphasises the importance of consistently separating the sphere of motives from the sphere of effects in the discussion on symbolic legislation. Furthermore, the author highlights the static nature of the former and the dynamic nature of the latter.

1 Introduction

Legislation in the field of animal protection is a matter to which the typical means of solving certain social problems—imposing obligations and securing them with sanctions—are not necessarily best suited. The Polish animal protection law does not merely aim to achieve a state in which people refrain from certain behaviours because they are incompatible with the law and punishable. It sets more ambitious goals, i.e. getting people to refrain from certain behaviours because they consider them wrong. The latter ensures higher efficiency in protecting animals. If someone sees nothing wrong with keeping a dog on a chain every day, they will only desist from this behaviour if they are actually threatened with some sort of punishment for it, yet the resources available to the legal system to supervise human behaviour are relatively small and will not cover every household in the country. However, if the addressee recognises this type of behaviour as bad, they will become their own best supervisor.

The ambitious goals of the animal protection law potentially lead to the use of solutions that may be somewhat alarmingly unusual for lawyers. This leads me to believe that legislation in this field is the proper area to reflect on the broader phenomenon known in the literature as symbolic legislation, see e.g. [47: 87; 12: 13; 5]. The concept of symbolic legislation has been the subject of extensive debate, with various interpretations contributing to an ongoing discourse. The primary challenge in this discussion is not merely the diversity of perspectives but the partial interconnection among these approaches. Although they emphasize different facets of the same phenomenon, they often conflict in their finer details (as further discussed in part 5 of this study).

The initial framework for understanding symbolic legislation emerged from the observation of provisions that merely appear to address a particular issue but are, in fact, inadequate to achieve their intended goals—thus rendering them symbolic in the sense of being "inadequate." However, the term "symbolic" can also be understood as signifying "possessing an additional function or meaning" beyond what is explicitly stated. Consequently, legislation that aims to express the values or preferences of the legislator, rather than establishing strictly enforceable norms, can also be categorized as symbolic. This expression of legislative intent may serve various purposes, one of which is to influence the attitudes and assessments of individual members of society. The underlying assumption is that legislative endorsement of a particular state of affairs may encourage the law's addressees to adopt a positive view of that state, and conversely, legislative condemnation may reinforce or inspire negative assessments. Thus, certain legislation may be designed to "educate" rather than "command."

A case that will contribute to further consideration of symbolic legislation concerns the way in which the prohibition on animal abuse is regulated in the Polish Animal Protection Act (PAPA).¹ This behaviour is an offence, but the way the law addresses it raises significant questions about the scope of criminalisation. In fact, the legislator does not stop at establishing a prohibition on animal abuse under the threat of criminal liability, it also introduces a general definition of this behaviour, as well as a list of examples of animal abuse. Although, by design, this elaborate criminal law structure is intended to provide the broadest possible protection for animals, it raises serious doubts, removed only by a specific interpretation of the provision in the judicial decisions of the Polish Supreme Court. The interpretation proposed by the Court makes some of the elements of the regulation prohibiting animal abuse redundant at first sight. However, are they really “redundant”? And did they have to become that way?

In the discussion of symbolic legislation so far, one can see a strong focus on the perspective of the legislative decision itself; legislation is symbolic because it was, to some extent, assumed to be that way by its authors (leaving aside the question of how to identify these authors and how to determine their motivation).The Polish regulation prohibiting animal abuse, however, is perceived in a different light. While it is true that the legislators’ motives in this case are hard to discover, more importantly the prohibition has only become symbolic following the way it has been interpreted in judicial decisions. However, the situation could also be completely different, as the purpose of the analysed elements of those provisions was not enshrined in them, so the judicial decisions could also address them as if they were not symbolic.

The research goal of this study is to analyse the process of “becoming symbolic” and draw conclusions that deepen the understanding of the phenomenon of symbolic legislation. This study employs a case study approach, centering on the Polish regulation that prohibits animal cruelty. The analysis will scrutinize the structure of this provision through the lens of legislative theory, with particular emphasis on the interpretation established by the landmark 2009 ruling of the Polish Supreme Court. Using this case as a foundation, I will engage in a critical examination of the existing literature on symbolic legislation, ultimately aiming to contribute to a future synthesis in this area of legal scholarship.

I will first make a more in-depth characterisation of the offence of animal abuse in the PAPA, taking into account its interpretation in judicial decisions (part 2). I will also isolate three fundamental problems in the process of applying the law resulting from the way in which the provision was formulated in the act (part 3). Next, I will determine what role is played by selected elements of the legal prohibition on animal abuse, interpreted as in judicial decisions. I will present a link hypothesis and a justification hypothesis, leaning towards the latter, which better explains the sense of the presence of the analysed elements in the act (part 4). By examining this hypothesis, which posits that the sense of certain legal provisions lies in producing effects often described as symbolic, we can begin to unravel the underlying complexities. Consequently, it becomes necessary to undertake a partial reorganisation of the existing scientific discourse surrounding symbolic legislation. This re-evaluation will provide a clearer understanding of what it truly means for legislation to become symbolic (part 5). Building upon this conceptual framework, a re-examination of the phenomenon of animal abuse becomes possible, which allows us to deepen our comprehension of both the offence itself and the broader concept of legislation acquiring symbolic significance (part 6).

Before undertaking detailed examination of the legal construction of the Polish crime of cruelty to animals, it is essential to highlight the unique dynamics inherent in animal protection law. In Poland, as in many other countries, animals have been legally "deobjectified" or "dereified"—their sentience has been recognized by law [14: 145 ff.; 29: 99; 32: 117 ff.]. However, this recognition does not extend to granting animals full subjectivity in the legal sense, cf. [7: 121–125; 27: 1–14]. This situation has been criticized by legal scholars, who argue that it represents merely a "minimum program" aimed at preventing "unnecessary suffering" and ensuring animal welfare, rather than establishing comprehensive animal rights [18: 51–52; cf. 39: 533–560; 23: 423].

The categorization of animals as neither persons nor things is relatively new and remains problematic [21]. The implications of this legal status are still being shaped in practice. Consequently, animal protection law is inherently developmental in nature. The legislator encourages legal entities, particularly courts, to assess whether, in specific cases, there is a basis for extending greater protection to animals—albeit without excessively compromising human interests. One scholar has rightly observed that the principle of "relative respect for the economic and cultural premises of animal exploitation" should still be considered a fundamental tenet of animal protection law [28: 294–306]. Courts are thus tasked with determining what constitutes necessary versus unnecessary animal suffering.

Polish courts frequently invoke Article 1(1–2) of the Polish Animal Protection Act (PAPA) to justify decisions that favor animals in non-obvious cases [23: 420–422]. In addition to the Polish Supreme Court, whose case law I will soon address, the Supreme Administrative Court has also played a significant role in this regard. The Court's decisions encompass a range of issues where animals are at risk of suffering, with particular attention to cases involving the so-called administrative confiscation of animals. This legal mechanism is designed to provide additional protection to animals suspected of being abused by removing them from their owners long before any criminal case is resolved. However, this institution has raised numerous concerns in practical application. In such cases, the Polish Supreme Administrative Court has often faced a choice between protecting property rights and safeguarding animal welfare. Despite the constitutional protection of property rights in Poland, cf. [18: 51–52], the Court has frequently prioritized the latter, often citing the statutory exclusion of animals from the legal definition of property:

ownership of an animal is primarily an obligation, and the scope and content of rights towards an animal are modified by the need to treat it humanely; in relation to animals, humans should demonstrate behaviours that refer to living beings capable of certain feelings (e.g. suffering), and not objects [50,51,52].

Courts are often required to balance human interests against the need to prevent animal suffering, which contributes to the dynamic nature of animal protection law. This ongoing shift in legal boundaries in favor of animals can, at times, lead to the sacrifice of even strongly protected human interests, such as the principle of foreseeability in criminal liability. In the Supreme Court ruling under analysis, this principle was subordinated to the protection of animals. The Court effectively reinterpreted the provision to favor the animals rather than the defendant.

2 Explanation of the Legal Condition

In addition to various misdemeanours and administrative torts, the PAPA describes two basic types of offences against animals:

• 1. killing, putting to death or slaughtering an animal in violation of the provisions of the act²;

• 2. animal abuse.³

Both offences are punishable by imprisonment for up to three years. If the perpetrator of any of these offences acts with particular cruelty, the possible penalty of imprisonment rises to five years.⁴

Animal abuse is described by the Polish legislator as “inflicting or knowingly allowing the infliction of pain or suffering.”⁵ In the following discussion, I will not address the issue of animal abuse by omission (“knowingly allowing”), so when referring to the discussed definition, I will refer in short to “inflicting pain or suffering.” The intensional definition cited here is supplemented by a partial extensional definition, i.e. a list of examples of animal abuse, consisting of as many as 17 different types of behaviour. Among other things, the legislator considered the following to constitute animal abuse, i.e. the infliction of pain or suffering:

• 1. inflicting intentional injury or mutilation of an animal⁶;

• 2. overloading draught and pack animals with loads clearly inappropriate to their strength and condition or to the state of the roads, or forcing such animals to run too fast⁷;

• 3. performing surgical procedures and operations on animals by individuals without the required authorisation or in violation of the principles of veterinary medicine, without the necessary care and caution or in a manner that causes preventable pain⁸;

• 4. keeping animals in improper housing conditions, including keeping them in a state of gross neglect or sloppiness, or in enclosures or cages that prevent them from staying in their natural position⁹;

• 5. abandoning an animal, especially a dog or cat, by the owner or by another person under whose care the animal remains¹⁰;

• 6. having sexual intercourse with an animal.¹¹

From the point of view of legislative procedure, this list of examples of animal abuse should be considered prima facie redundant. After all, each of these behaviours falls within the scope of the term “infliction of pain or suffering,” so eliminating any of these example forms, or even the entire list, would not change the content of the provision. However, even if the list is redundant, it is not useless; it fulfils the important pragmatic function of creating a state of certainty about what animal abuse definitely is—certainty in both the courts and the other addressees of the legislation.¹²

It is worth noting that, in terms of criminalising animal abuse, the PAPA to some extent duplicates its historical model, i.e. the Polish 1928 regulation.¹³ It also prohibited animal abuse under pain of penalty.¹⁴ Unlike in the current state of the law, however, the intensional definition of the concept was not formulated, and instead there was an extensional definition, i.e. a list of example behaviours that are considered animal abuse.¹⁵ The list consisted of 10 items, analogous to those placed in Article 6(2) of the PAPA, starting with the most general form of animal abuse, i.e. “any infliction of suffering on animals in general without a valid and legitimate need.”¹⁶

Thus, the modern regulation coincides with the historical one in the very fact of criminalising the general offence (taking many forms) of animal abuse, and in developing it with a partial extensional definition, a list of examples of more specific behaviours. The difference, however, is the way in which this offence is expanded to behaviour other than that explicitly indicated by the legislator. Historically, the Regulation did so “in the summary”, with the clause of “any infliction of suffering on animals in general without a valid and legitimate need.” By contrast, the modern act does so “at the beginning”, in the intensional definition that is an introduction to the list of example forms of animal abuse.

Prima facie the modern method of criminalisation leads to the conclusion that the element of “inflicting pain or suffering” is an additional characteristic of each of the behaviours recognised by the legislator as animal abuse. It is therefore not enough to establish, for example, that the perpetrator kept an animal in improper housing conditions. Attention must also be paid to whether this resulted in inflicting pain or suffering on the animal (since all animal abuse is supposed to consist in this, as the legislator indicates in the intensional definition).

In 2009, however, the Polish Supreme Court issued a judgment [53] that—without exaggeration—should be called crucial for the interpretation of the content of the offence of animal abuse in the PAPA. Following the examination of a cassation filed by a pro-animal organisation, the court revoked the appealed judgements acquitting the offender of the offence of animal abuse. Socially, the case was all the more important because the defendant was a long-time director of Wrocław Zoo, who was also a long-time host of a popular TV show and was widely known as a friend of animals. The defendant was accused of keeping a male brown bear—Mago—in a cramped concrete room for 10 years. Mago was placed there because of his strong sexual desire for his sister, also a resident of Wrocław Zoo, with whom he even sired three offspring. At the same time, the defendant ruled out the possibility of castrating Mago in the belief that it would destroy valuable genetic material. However, the next director decided to ligate Mago's vas deferens and let him out of the small concrete space into a proper enclosure with other bears.¹⁷

The defendant was charged with the offence of animal abuse, i.e. inflicting pain or suffering by keeping Mago in inappropriate housing conditions, including keeping him in a cage that prevented him from maintaining his natural position.¹⁸ However, as I mentioned, the defendant was acquitted by both the first and second instance courts. This is because the perpetrator did not act with the direct intention of inflicting pain or suffering on Mago, he did not want it to occur. In the opinion of both courts, on the other hand, it is not possible to mistreat animals with conditional intent, i.e. merely accepting that pain or suffering will be inflicted on an animal by a certain act. To illustrate, it could be said that, in the view of the courts, animal abuse can only be the result of sadism—but not of indifference or stupidity [28: 194]. The perpetrator must want to inflict pain or suffering. The courts based their belief that the perpetrator must act with direct intent on the analogy to the offence of human abuse, among others.¹⁹ If the perpetrator does not intend to abuse a person, they are considered not to commit this offence; the element of sadism is essential here.

In other words, the courts determined that the defendant did not intend to inflict pain or suffering on Mago, and even if he condoned it, this is not enough to assign criminal liability for animal abuse. In addition, however, the court of the second instance stated that “the circumstances of the case indicate that Mago the bear certainly did not experience physical suffering, while there is great doubt as to whether he suffered mental suffering.”

The Polish Supreme Court took a different view of the case from the courts of both instances, without challenging the facts they had established—especially the fact that the defendant did not want to inflict pain or suffering on Mago. First, however, the Court considered that doubts about whether Mago suffered physically and mentally were unfounded. No evidence is needed for this, for:

If the behaviour matches the description of any of the items [the example forms of animal abuse in Article 6(2) of the Act—author's note], the Court no longer needs to determine whether it caused pain or suffering, since it was the legislators themselves who determined that the behaviours listed in these items are abuse, i.e. they cause pain or suffering.

Second, the Court agreed that the offence of animal abuse can only be committed with direct intent, and thus accepted the analogy between this offence and the offence of human abuse. However, the Court stated that what the perpetrator wants does not have to be the infliction of pain or suffering—it is only necessary that he wanted to do one of the acts in the list in Article 6 of the PAPA. For criminal liability to be attributed to the perpetrator, it was sufficient to establish that he wanted to keep Mago in living conditions that were inappropriate for brown bears—and whether he also intended to inflict pain or suffering on him in this way, or to knowingly allow this to happen, is irrelevant.

The perpetrator must want to inflict pain or suffering only where it involves behaviour that does not fall under any item in the statutory list of example forms of animal abuse. In addition, only then will the need arise to determine whether the behaviour actually caused the animal pain or suffering.

The interpretation made by the Polish Supreme Court has become binding in practice, although the lower courts have had some difficulties in properly interpreting and applying the views expressed by the Court, cf. [56; 54; 55]. Indeed, its position was unusual and differed from typical legalistic thinking about regulations. Indeed, the Court ordered that part of the provision be disregarded when assessing the intent to commit the offence.

3 Three Problems with the Law

The above considerations make it possible to identify three main problems raised by the complex, intensional-extensional definition of animal abuse in Article 6(2) of the PAPA.

First, there is the issue of proving the existence of an effect as defined in the intensional part of the definition, i.e. that the animal feels pain or suffering. Due to the structure of the provision, which emphasises at the outset that abuse is precisely the infliction of pain or suffering, the courts have attempted to examine the creation of this effect in each case, even when the perpetrator's behaviour took one of the forms indicated in the extensional part of the definition. This is an attitude that does not need to be explained by the reluctance of the courts to protect animals—it is rather a manifestation of the general tendency of criminal law to narrow the scope of criminalisation. However, the Polish Supreme Court read the provision of Article 6(2) of the PAPA as establishing an irrebuttable legal presumption—if the basis for the presumption (engaging in conduct that has the characteristics of one of the forms of animal abuse from the extensional part of the definition) is proven, then the conclusion of the presumption (the perpetrator inflicted pain or suffering on the animal) is accepted without evidence, see also [29: 135]. There is no possibility of examining evidence against this conclusion of the presumption; it is only possible to prove that the basis for the presumption has not occurred, and therefore that the perpetrator has not engaged in behaviour that exhausts any of the example forms of animal abuse.

Second, the key issue is the object that the perpetrator must encompass with their intent in order to be criminally liable for animal abuse. The Polish Supreme Court held that the intensional part of the definition is irrelevant when assessing the intent of the perpetrator; in other words, as long as the perpetrator demonstrates any of the behaviours listed in the extensional part of the definition, it is irrelevant whether they intended to inflict pain or suffering on the animal. This is such an unusual case of interpreting a criminal statute that—not surprisingly—it has long caused serious problems for Polish lower courts.

Third, the validity of making analogies between various forms of animal abuse and the offence of human abuse may be controversial. Interestingly, although the Polish Supreme Court considered the intensional part of the definition to be almost irrelevant to criminal liability, it drew interpretive conclusions from the very fact that the legislator used the term “animal abuse”. It is precisely because of this term that the Court assessed the decisions on other abuse, namely the abuse of people, and so based its conclusion that this offence can only be committed with direct intent (and therefore one must “want” to commit it and not just “consent” to it). The legitimacy of this analogy is subject to scrutiny for several reasons. Firstly, a prevailing perspective among Polish scholars suggests that human abuse can occur not only with direct intent, but also conditional intent [20]. This nuanced understanding challenges the simplistic comparison between animal and human abuse. Secondly, the spectrum of behaviours encompassed within the realm of animal abuse far exceeds that of human abuse [48: 156–160].

However, this is the only normative meaning of the term “animal abuse”. It should be noted that even if the law did not use the term “animal abuse”, the court could also conclude that the offence can only be committed with direct intent.

Thus, in its judicial decisions, the Polish Supreme Court “studied” the provision of Article 6(2) of the PAPA in a way that can be illustrated as follows using the example of the act against Mago the bear:

Animal abuse is understood as inflicting or knowingly allowing the infliction of pain or suffering on animals, in particular (...) 10) keeping animals in inappropriate housing conditions, including keeping them in a state of gross neglect or sloppiness, or in enclosures or cages that prevent them from maintaining their natural position (...).

This does not mean that the crossed-out passage above has completely lost its normative significance, though the study by the Polish Supreme Court made it the last, most general item in the list of forms of animal abuse. Indeed, the Court did not challenge the possibility of incurring criminal liability for animal abuse as a result of conduct that does not meet the characteristics of any of the forms indicated in the list. Thus, it can be said that, as a result of these acts, the final part of the provision of Article 6(2) of the PAPA acquired the following wording:

19) keeping an animal without adequate food or water for a period exceeding the minimum needs specific to the species;

20) inflicting or knowingly allowing the infliction of pain or suffering.

The above, of course, brings to mind the structure used in the Polish 1928 Regulation, which did not formulate an intensional definition of abuse, but offered a limited list of example forms of animal abuse with precisely this kind of very general clause. This is an example of the surprising durability of some normative solutions. The very structure of the offence of animal abuse in the text of the PAPA is a clear example of legislative inertia, and therefore the persistence in the law of certain solutions through inertia, or perhaps more out of habit, cf. [11: 1202 ff.; 24: 668–669]. The more common term in English-language literature, especially American, is “legislative inaction”, see [10]. However, this article proposes a broader understanding of legislative inertia, suggesting that it can also stem from a “enslavement by the past” phenomenon. This entails a tendency to replicate past solutions not necessarily because of their inherent value, but rather due to the psychological challenge of deviating from the status quo [40: 139 ff.]. In our thinking and acting, we very often give priority to a certain status quo, simply because it is already known and “intellectually domesticated”, and lawmaking is no exception, see [17: 197–199; 19: 625–630].

Indeed, let us note that what was taken directly from the regulation was, primarily, the technique of criminalising a very general type of offence in the form of “abuse of animals”, and secondly—its specification in the form of a list of example forms, in which the offence can be committed. The important technical innovation was the introduction of an intensional definition of animal abuse, but the judicial study of this provision actually led to a complete recovery of the solution used in the Polish 1928 Regulation.

4 Link Hypothesis and Justification Hypothesis

The discussion of Article 6(2) of the PAPA so far shows that, of the three elements of that provision—the definiendum (“animal abuse”), the intensional definiens (“inflicting or knowingly allowing the infliction of pain or suffering”) and the extensional definiens (a list of example forms of animal abuse)—only the latter is indeed normatively relevant. The scope of criminalisation would not change if the term “animal abuse” were eliminated or if we were to positivise the changes to the wording of the provision, already discussed above, which were in fact introduced into it by the Supreme Court through its judicial decisions. Therefore, what would be equivalent to the status quo, in terms of substance, would be to separate the uniform offence of animal abuse into more than a dozen stand-alone offences, including a very general type in the form of “inflicting or knowingly allowing the infliction of pain or suffering.” The latter, very general type, would probably be customarily referred to in the doctrine as just “animal abuse”—with the legislator itself not having to use the term.

Moreover, such a solution would eliminate the troubles caused by the correct application, i.e. consistent with the position of the Polish Supreme Court, of the provision of Article 6(2) of the PAPA. For the courts would no longer have any doubts as to whether the “pain or suffering” of the animal must be proven or result from direct intent. Indeed, this circumstance, which brings about doubts, would cease to be part of the provisions criminalising more than a dozen acts that currently form a list of example forms of animal abuse.

In this state of affairs, it is worth considering what role these elements currently play in the legal text, that is, the definiendum of “animal abuse” and its intensional definition expressed in the words “inflicting or allowing the infliction of pain or suffering.” As has already been established, they do not affect the scope of criminalisation; only the term “abuse” itself is used as a bridge to justify the transfer to the PAPA of views as to the intent that the perpetrator of this offence must exhibit. However, this is not a necessary element for recognising that the acts covered by Article 6(2) of the PAPA can only be committed with direct intent. In other words, neither the definiendum nor the intensional definition is now, even indirectly, in any way necessary to determine what is an offence and what is not—as far as the acts included in the list of example forms of animal abuse are concerned.

Link Hypothesis. The term “animal abuse” can be viewed as a technical-legislative solution that acts as a link between a group of diverse behaviours and their legal consequences. Why is it wrong to intentionally injure animals? Because this is animal abuse, and animal abuse is prohibited and punishable by imprisonment for up to three years, or up to five years if it involves particular cruelty. However, the analysed term could be omitted from this statement and its role could just as well be filled by the concept of “the acts under Article 6” which is also used in the provisions of the PAPA. Moreover, while the role of a link can be attributed to the term “animal abuse”, it would be difficult to explain the point of maintaining an intensional definition in the law, referring to infliction of pain or suffering. In summary, the link hypothesis as a means of explaining the presence in the law of the definiendum and intensional definition of animal abuse, should be considered unconvincing.

Justification Hypothesis. It is noteworthy that both the definiendum and the intensional definition of animal abuse are phrased in simpler, more understandable terms than at least some of the acts in the list of example forms of animal abuse (e.g. “marking warm-blooded animals by burning or freezing” or “maliciously frightening or teasing animals”). Above all, however, both elements, the rationale for the presence of which in the act is questionable at this point, are highly emotionally charged, divested of the technicality of describing the respective behaviours in the extensional definition (different ways of speaking about animals and their emotional background are analysed in [37]). “Animal abuse” and “infliction of pain or suffering” are phrases that are commonly understood and elicit an immediate, negative evaluation from the vast majority of the population. It is hard to imagine anyone justifying the abuse of animals or the infliction of pain or suffering on them. The evil of the acts so characterised is much more obvious to the general public than the evil of even “marking warm-blooded animals by burning or freezing” or “maliciously frightening or teasing animals.” Therefore, it can be concluded that both the definiendum and the intensional definition of animal abuse act as a justification for the criminalisation of the respective behaviours covered by the extensional definition. This is despite the fact that, according to Polish rules of legislative procedure, justifications for formulated norms must not be included in the law.²⁰ However, this does not change the fact that, in practice, such situations in the legislative area do occur.

Justifying the “evil” of certain behaviours toward animals is important, as it can still be questionable for many people, for example, because “it has always been done that way” or “the animal will not feel anything from it.” Of course, the very criminalisation of a certain behaviour can contribute to the spread of disapproval of it within society. However, it is not out of the question that this effect can be enhanced by a close link to the message about the reasons for criminalisation. By indicating that a certain behaviour involves inflicting pain or suffering on an animal and calling it “animal abuse”, the legislator can affect social judgments directly and indirectly. Directly—by providing the addressees with an explanation of why the behaviour deserves to be criminalised (“infliction of pain or suffering”), thus treating legislation as an educational tool. Indirectly—by naming the behaviour in a way that then, by being repeated in the public debate, helps to perpetuate negative associations with the behaviour itself (“animal abuse”), cf. [16: 126; 42: 293–294]. The latter is a manifestation of structuring public debate through the law. Unfortunately, the occurrence, let alone the magnitude, of both of these effects, is something that is extremely difficult to study empirically, if only because of the very limited possibilities of using an experiment in socio-legal research.

5 Notions on Symbolic Legislation

The above discussion of the role of the definiendum and the intensional definition of animal abuse in the PAPA prompts some additional comments regarding the concept of symbolic legislation. The concept is as inspiring as it is vague, cf. [13: 103 ff.]. The term functions in its various applications to evaluate certain unusual cases of legislation, rather than as a precisely designed research tool with an established definition representing its “essence”. Notably, many scholars have made significant contributions to the topic through the method of a case study, to mention just [2; 3; 9; 26; 41]. The concepts of symbolic legislation are often developed independently by scholars,²¹ making it challenging to provide a cohesive general outline of this phenomenon that encompasses the insights of various researchers.

The term “symbolic” often refers to laws that are intentionally ineffective in achieving their officially declared aims, see e.g. [31: 1; 35: 293–294; 3] cf. Lembcke [22: 92–93] who excludes “alibi legislation” from the scope of “symbolic law”. However, it is inappropriate to conclude this solely on the inadmissibility of symbolic legislation as a breach of the rule of law, the internal morality of law, or similar values. Even laws that are intentionally ineffective in achieving their stated goals may not be entirely redundant. A closer examination reveals surprising ways in which legislation can impact its recipients. According to Ferraro, symbolic legislation possesses a “puzzling rationality”; while it may appear ineffective in achieving its intended purpose, it may indirectly serve that purpose or fulfil some other hidden objective, or at least be axiologically, if not instrumentally, rational, see [13: 113–120; 45: 24; 46: 84–87]. These insights often prompt scholars to reconsider provisions or acts that might initially be condemned as manipulative, cf. [35: 279–283; 32: 143–150; 30: 102–103].

What surprising functions can symbolic legislation serve in society? It may, for example, declare support for values that are important to different social groups. This phenomenon itself is not unusual; what is at issue here, however, is a situation in which these values are in conflict with each other and even no attempt is made to find a compromise between them, which would make it possible to protect them, at least in part, in a viable way through means typical for the law. It is a common feature of constitutions that, in order to gain broad public support, they “promise everyone what they would like to receive”, while ignoring the conflicting interests in society (constitutions are “plurivocal”, see [25: 38 ff.]). In this sense, we are dealing only with symbolic, incomplete, unreal protection of values—although perhaps it would be best to describe this protection of values as merely declarative.

These declarations themselves could satisfy the needs for recognition felt by different members of society. Importantly, symbolic legislation may fulfil this function not only to create an impression of unity within the political community, but also to exacerbate divisions in society. At times, the law may solely serve to make statements about the values “that are important for us,” particularly when they serve as banners for one group opposing others, cf. [45: 23; 41: 75–76; 15: 20–24]. In this context, Vaughan Black also employed the term “feel-good statute” [6: 6–7]. The effectiveness of preventing certain behaviour or enforcing it may become secondary in such cases; what is more important is the mere act of making a certain axiological statement through the law, cf. [38: 2023; 9: 245–247; 49: 98–99].

Symbolic legislation can also aim to change social judgments, as exemplified by the very definition and intensional definition of animal abuse. The text of a piece of legislation can serve an educational function [45: 27], offering the addressee a straightforward explanation of why certain behaviour is desirable or undesirable (“inflicting pain or suffering”). It can also structure public debate by assigning a label to a behaviour that evokes positive or negative associations (“animal abuse”). This is how the law can contribute to internalising certain assessments by its recipients, which may serve as sufficient motivation for taking or refraining from certain actions (“I will not keep the dog on a chain for the whole time, because it is bad, because it is dog abuse, because it is inflicting suffering”), cf. [38: 2025–2029, 2031–2033; 41: 75; 34: 64–67]. Additionally, symbolic legislation could structure public debate by labelling certain behaviour, evoking positive or negative associations (“animal abuse”), cf. [45: 25; 44: 42–45]. In this way, symbolic legislation could contribute not only to producing a motive for certain behaviour, but also provide a reason that allows individuals to explain their behaviour to others. The terms “motive” and “reason” are understood in this text as equivalent to “motivating reason” and “normative reason”, respectively, see [8: 6–13; 13: 105–106].

The above characterisation of some instances of the use of the qualifier “symbolic” in relation to legislation leads to the conclusion that it is a matter of the intensity of certain features. The difference between symbolic legislation and typical, normal, ordinary, real, non-symbolic legislation is quantitative, not qualitative. The mere fact of granting protection to conflicting values is a typical phenomenon in the legal field, but it can lead to the piece of legislation being considered “symbolic” when the contradiction is ignored in the legislation itself or in the practice of its implementation. Laws are often declarations of commitment to certain values, though this only draws the attention of the researchers when they prove surprisingly ineffective in putting those values into practice. Similarly, many provisions are geared to achieve a certain educational effect or to evoke positive or negative associations with a certain phenomenon. The best examples are the provisions of the Constitution (when it comes to “upbringing for good” and evoking positive associations) or criminal provisions (when it comes to “upbringing against evil” and evoking negative associations, cf. [33: 43]). The mere fact of referring to an issue in the Constitution or calling a certain behaviour an “offence”, much less a “crime”, can have a motivational effect on the addressees of the law. However, no one calls the provisions of the Constitution or criminal laws in genere symbolic. We will qualify them in this way only if these effects become the only possible rationale for their presence in the legal system (or a rationale that is somehow dominant, although of course it is difficult to abstractly establish criteria for this “dominance”). Symbolic effects are a frequent phenomenon in law²²; symbolic legislation (i.e. legislation, the effects of which are purely symbolic), is already much rarer.

The debate on symbolic legislation is challenging not only due to the omnipresence of symbolic effects, but also because of the inconsistent separation of effects from the motives of legislation. The concept of symbolic legislation was initially linked to the specific motives of legislators (“intentional ineffectiveness in achieving officially declared aims”), but researchers quickly turned their attention to the ways in which this legislation influences social reality, focusing on its effects. Motives and effects do not necessarily align. Legislation may not be intended to be symbolic (or exclusively so), yet it may have only symbolic effects; conversely, legislation intended to be symbolic may have non-symbolic (or non-exclusively non-symbolic) effects.

Separating these aspects also allows for the recognition that while motives are static (and therefore, in this sense, a given norm or act can be evaluated “once and for all” as symbolic or not), the evaluation of effects must be relative to a given moment. This is because the effects of legislation depend on the changing socio-economic circumstances in which the legislation applies, as well as on how it is interpreted within the community, cf. [43: 270–271; 9: 302–315]. All this leads to the simple conclusion that, in the sphere of effects, legislation can become symbolic or can cease to be so in a way that is basically independent of the fixed motives of legislators. This underscores the importance of clearly separating motives and effects in the scientific discussion of this topic.

6 Concluding Remarks

The above partial recapitulation of the discussion on symbolic legislation leads to three conclusions of fundamental importance for the analysed case:

• 1. The vast majority of researchers would agree that the law, which attempts to shape social evaluations and structure public debate, has symbolic effects. However, synthesising these effects proves challenging, as the discussion on symbolic legislation thus far has predominantly focused on listing individual types of symbolic effects rather than abstractly indicating their common features;

• 2. Every provision or legal act potentially has symbolic effects, but this does not automatically classify it as symbolic legislation. Symbolic legislation is distinguished by the fact that symbolic effects are the exclusive (or nearly exclusive) rationale justifying its presence in the legal system;

• 3. In the discussion on symbolic legislation, the sphere of motives should be separated from the sphere of effects. The former is static, while the latter is dynamic. Although they may align, it is also plausible that a provision or legal act intended as symbolic (in the sphere of motives) affects the addressees in a non-symbolic manner (in the sphere of effects). Conversely, an unintentional act may have symbolic effects (in the sphere of motives) predominantly or exclusively affecting the addressees in a symbolic manner (in the sphere of effects).

From this perspective, the presence of the definiendum and the intensional definiens of animal abuse in the Polish legal system can be attributed to their potential to shape social judgments and structure public debate (referred to as the “justification hypothesis”), thereby producing symbolic effects. However, it is challenging to ascertain the extent to which these symbolic effects are achieved and whether the elements of the legal provision effectively fulfil their assigned role. Unfortunately, empirical evidence in this area is notoriously difficult to obtain. Even when changes in social judgments or the nature of public debate are observed, it is often challenging to directly attribute them to the establishment and application of a specific legal provision.

In addition, as previously established, symbolic effects are almost the sole justification for the presence of a definiendum and intensional definition of animal abuse in the Polish legal system. These elements have a minimal impact on determining whether a crime has been committed (as discussed in parts 2 and 3), nor are they significant from a technical and legislative standpoint (as discussed in the “link hypothesis” in part 4).

In the analysed case, determining the motives of the Polish lawmakers is challenging due to the lack of documents illustrating the discussion on the PAPA project (and this is the reason we have not looked at them so far). It is known that Article 6 was constructed similarly to its final form from the original version of the draft law. It was intended to replicate the technique used in the 1928 Regulation, but the rationale behind the change involving the introduction of the intensional definiens of animal abuse (“causing pain or suffering”) was not explicitly explained. However, it can be assumed that the intention of the lawmakers was not to limit liability for animal cruelty to cases of acts committed “out of sadism”. Firstly, the most general goal of the act was “more widespread and effective protection of animals against cruel treatment by humans.” Secondly, one of the Polish MPs supporting the bill explained during the discussion:

Unfortunately, we often observe too much leniency even towards perpetrators of crimes committed against animals. That is why the Act lists and names cases of abuse against them, because, as we know, every fact can be interpreted in such a way that it cannot be classified as a crime.²³

It is likely that the authors of the act did not intend to narrow the scope of application of those fragments of the provision that list examples of forms of animal abuse by introducing the classic definition. However, we do not know their motives in this matter, especially whether they intended for the definiendum and the intensional definiens of animal abuse to primarily produce symbolic effects. It cannot be ruled out that none of the participants in the legislative work simply achieved the potential threat—in the form of narrowing criminal liability—posed by the introduction of the intensional definition of animal abuse.

However, does the lack of knowledge about the motives behind the legislation rule out the classification of the definiendum and the classic definition of animal abuse as cases of symbolic legislation? In my opinion it does not. We can conclude that, at present, from the perspective of the specific interpretation of the regulation of the prohibition on animal abuse by the authorities appointed for this purpose, in particular the Supreme Court, this provision can be considered an example of symbolic legislation. As long as we are dealing with a case of behaviour included in one of the items of the extensional definition, both the definiendum (“abuse of animals”) and the intensional definiens (“infliction of pain or suffering”) have a significant impact on the process of applying the provision and assigning criminal liability. The rationale for their presence in the law is their symbolic effects. The question of whether those effects were intended by legislators is secondary.

It should be noted, however, that this was not a necessary consequence of the way the legislator shaped the text of the law in this way and not in any other way. On the contrary, the use of the term “abuse” and the reference to “inflicting pain or suffering” prima facie led to conclusions opposite to those derived by the Supreme Court—namely that only sadistic behaviour is subject to criminal liability, while acts performed “out of indifference” or “out of stupidity” are not. In other words, although the analysed part of the text of the law “has become symbolic”, it did not necessarily have to be so, and its interpretation could lead to a significant reduction in the scope of criminal law protection afforded to animals in Poland. In this context, Rodriguez Ferrere writes about “unintentionally effective symbolic legislation” [32: 145–146]. However, as we have already noted, we do not possess any strong evidence that the legislation analysed herein was “intentionally symbolic”. Moreover, since even an established interpretation may eventually be abandoned by the interpretive community, it is not impossible that this case may not be included in the set of examples of symbolic legislation in the future.

Finally, it is worth emphasising once again the importance of consistently separating the motives of lawmakers from the effects of the law they create. Both of these aspects are very important for the discussion on symbolic legislation. Legislation can be “double symbolic”, but it can also be symbolic only in the sphere of the motives of the lawmakers, or only in the sphere of its effects. Since the motives are fixed, we can only discuss the “becoming symbolic” in relation to the effects of the legislation. However, the motives of the legislators do not determine whether the legislation will become symbolic in terms of its effects, as the response from the interpretive community is crucial in this matter.