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Does transformative constitutionalism require the recognition of animal rights? 181
characteristics do not seem relevant to the provision of certain types of
protections. 33 The fact that a mentally ill individual may lack moral autonomy
or self-consciousness does not mean that such an individual lacks the
capacity to experience pain or emotions or social connections. Generally,
we recognise that such mentally-ill individuals have certain rights: rights not
to be subjected to pain, rights to express their emotions, rights to enable them
to live lives that are able to express their social bonds. This must mean that
having moral autonomy or self-consciousness is not necessary for having
certain rights. If this be the case, and capacities to experience pleasure and
pain, an emotional life, and/or social bonds provide the underlying grounds
for possessing such rights, then it is unclear why non-human animals who
have these characteristics are not equally entitled to such rights. 34 The denial
of such rights to non-human animals would only be justifiable if there were
some good reason to do so. Yet, the only reason appears to be the intuition
of some individuals that they are non-human. Yet, that comes down
ultimately to an arbitrary preference for the human without any grounding
in the actual nature of the beings in question. 35
If the Constitution were to include an arbitrary preference for the human
without any sufficient justification, then it will simply reproduce the moral
failings underlying apartheid in relation to a different group (those who are
not human). This would fail to realise the Constitution’s promise as a
transformative document, designed to place future South African society on a
different and better moral foundation.
The Constitution must therefore be interpreted in such a way as to avoid
this severe moral blunder. 36 Currently, as it stands, the Constitution provides
no express protections to non-human animals. The common law has
traditionally classified animals as being forms of property who lack the
33
They are obviously relevant to some kinds of protections such as those relating to
freedom of expression, association and religion.
34 This is a version of what may be termed ‘the argument from marginal cases’. The
argument is found in a variety of literature on the subject: Examples include P Singer
Animal liberation (1995) 16 - 20 and P Cavalieri The animal question (2001) 76.
35 These issues raise the question often posed in philosophy of the characteristics that ground
‘moral status’. T Metz ‘For the sake of friendship: Relationality and relationship as
grounds for beneficence’ (2010) Theoria 54 - 76 suggests a theory – a form of ‘relational
theory of moral status’ – that grounds moral status in relational properties that exist in
the world rather than in certain intrinsic properties. It is not clear whether relational
properties are fundamental and can ground a satisfactory view of moral status; even if
they could, it is unclear that they do so in such a way as to include all and only humans.
A full critique of this view lies beyond the scope of this paper.
36 This follows from the purposive and contextual approach adopted by the
Constitutional Court. Metz, in his response to this article, (T Metz ‘Animal rights and
the interpretation of the South African constitution’ in S Woolman & D Bilchitz (eds) Is
this seat taken? Conversations at the Bar, the bench and the academy about the South African
Constitution (2012) 209 claims that my interpretive approach fails to respect certain
principles of ‘formal justice’ such as the ‘fit’ requirement that Dworkin elaborates. This
means that interpretations need to be based upon political principles that make sense of
the ‘recent history of their legal systems as a whole’ and are consonant with formal
features of the system such as precedent. I shall raise two main points in response:
First, the ‘fit’ requirement needs to be understood in the context of South African