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180 Chapter 7
underlies constitutional interpretation in South Africa, require that
fundamental rights be extended to non-human animals and prohibit us
from discriminating unfairly against them?
Some may be surprised by such a question, for indeed, human rights have
often been understood to be simply those rights one has by virtue of being
human. 28 This understanding seems to be enshrined in the foundations of
some of the most progressive international human rights instruments. 29 The
principle of equality is also often regarded as only applying to human beings
and many writers simply fail to consider the application of this principle
beyond the human species. 30 Yet, the omission to do so does not constitute
a justification: It can simply be an instance of moral blindness.
If we are to be consistent and reject one of the key moral failings
of apartheid, we cannot simply be satisfied with a bare denial that nonhuman
animals are entitled to equal treatment or fundamental rights. That
would lead to dire consequences for a group of individuals without any
consideration as to the justification for their exclusion from key legal
protections. It would amount to a form of dogma that would use group
characteristics (membership of a species) to discriminate against members of
that group without any clear justification as to the relevance of that group
characteristic. This would be to reproduce in our new order exactly the
form of discriminatory treatment that the Constitution is designed to move
away from. If differential treatment for non-human animals is to be
justifiable, then this must be on the basis that they possess characteristics that
do not entitle them to equal treatment.
The problem when we look scientifically at the world around us is that
we find that many non-human animals possess many of the same characteristics
that human beings have. Some are able to experience pain, many experience
emotions, yet others have a rich cognitive life and yet others have strong
social bonds. 31 Many animals also exhibit the capacity for significant
forms of agency and cognitive learning. 32 These are the very characteristics
that in the case of human beings entitle them to the protection of certain
fundamental rights. And though many human beings possess other characteristics
such as moral autonomy and self-consciousness, these latter
28
See J Griffin On human rights (2008) 13 who refers to this as the Enlightenment notion of
human rights.
29 The International Covenant on Civil and Political Rights http://www2.ohchr.org/
english/law/ccpr.htm, eg, recognises that the fundamental rights it proclaims derive
from the ‘inherent dignity of the human person’. The same is true of the International
Covenant on Economic, Social and Cultural Rights http://www2.ohchr.org/english/
law/cescr.htm.
30 Albertyn & Goldblatt, eg, do not consider the application of the equality clause to nonhuman
animals. They are not alone and even a luminary philosopher such as Ronald
Dworkin who places equality at the foundation of his political philosophy simply
appears to ignore this question: See R Dworkin Sovereign virtue (2003) 1 - 7.
31 For the range and variety of mental states that may be attributed to other animals, see
D DeGrazia Taking animals seriously: Mental life and moral status (1994) 97 - 210.
32 DeGrazia (n 31 above) 158 - 165.