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Does transformative constitutionalism require the recognition of animal rights? 175
grouping – namely, homo sapiens. The dangers of restricting the recognition of
dignity to human beings alone will be illustrated by reference to an
important case that arose in Germany. Thirdly, the value of equality is
considered. An argument is provided to the effect that the Constitution
should not simply recognise that members of other species have some worth
in their lives: rather, the presumption should be in favour of recognising that
they have equal worth. Such a presumption does not, however, entail identical
treatment and the protections accorded non-human animals should indeed
vary with their capabilities.
If the arguments of section two are convincing and animal rights are
recognised, the circumstances under which they can be limited become of key
concern. Indeed, this raises a major problem in that South African society, as it
stands, does not seem ready to acknowledge fully the implications of the
recognition of animal rights which would, for instance, require a general ban
on eating meat. It is unlikely that many individuals in South Africa would
support such a position and, politically, it seems unlikely that the full
implications of animal rights will be recognised in law. It is thus necessary to
consider ways in which to limit such rights in the shorter-term without
rendering them meaningless. Part III seeks to consider two facets of the Bill of
Rights that can assist in this process: the notion of ‘progressive realisation’ and
the general limitations enquiry. An important case in which judges grappled
with these complex issues in Israel will be discussed. The article concludes by
suggesting that the logic underlying human rights in fact provides the
foundation for recognising animal rights. South African society will only
truly be transformed once it realises the full implications of the grundnorm
at its heart and extends the protections of its Constitution to all who deserve
them irrespective of the species to which they belong.
1 The historical imperative: No arbitrary discrimination
1.1 History and constitutional interpretation
The project of transformative constitutionalism has been characterised by
Klare as involving a ‘long-term project of constitutional enactment,
interpretation, and enforcement committed … to transforming a country’s
political and social institutions and power relationships in a democratic,
participatory and egalitarian direction’. 7 What Klare’s statement
foregrounds is the importance of understanding the changes required by the
Constitution and the values which should guide this transformation. Any
characterisation of the changes required by the Constitution, however, must
require reference to an understanding of the injustices that it represents a
reaction against. These points have been underscored by the
Constitutional Court in numerous judgments, one of the most celebrated of
7 Klare (n 1 above) 150.