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CHAPTER
7
DOES TRANSFORMATIVE
CONSTITUTIONALISM REQUIRE
THE RECOGNITION OF
ANIMAL RIGHTS?
David Bilchitz*
At the heart of the South African Constitutional order lies an enterprise
that has been characterised as ‘transformative constitutionalism’. 1 This
entails that the Constitution in South Africa was not designed simply to
entrench the status quo: rather, it was enacted for the purpose of
fundamentally transforming society. 2
However, the notion of transformation or change alone tells us very
little: in order to comprehend what the Constitution is designed to achieve,
it is necessary to have an understanding of the features of the past that must
be discarded and to have a vision of the type of future towards which South
African society should be heading. This point is enshrined in the Preamble of
the Constitution which outlines its aim as being ‘to heal the divisions of the
past and to establish a society based on democratic values, social justice
and fundamental human rights’. 3 The Constitution also places three
central values at the core of the society it is designed to create: human
dignity, the achievement of equality and the advancement of human rights
and freedoms. 4
* BA (Hons) LLB (Wits); MPhil PhD (Cantab). Associate Professor, Faculty of Law,
University of Johannesburg; Director of the South African Institute for Advanced
Constitutional, Public, Human Rights and International Law (SAIFAC). I would like
to thank Thad Metz and participants in the seminar held at SAIFAC for helpful
feedback. My responses to Metz’s reply to this piece will be contained in footnotes.
1
One of the most influential contributions in the literature has been K Klare
‘Legal culture and transformative constitutionalism’ (1998) SAJHR 146 - 188. E
Mureinik ‘A bridge to where? Introducing the interim Bill of Rights’ (1994) SAJHR 31 -
48 essentially saw the Constitution in similar terms. But see also T Roux
‘Transformative constitutionalism and the best interpretation of the South African
Constitution: A distinction without a difference?’ (2009) Stell LR 258 - 285 for a critique
of Klare.
2 In Klare’s words, the enterprise is one of ‘inducing large-scale social change through
non-violent political processes grounded in law’ Klare (n 1 above) 150.
3
Preamble to the Constitution of the Republic of South Africa 1996.
4 Constitution sec 1.
173