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186 Chapter 7
exercising duties. Indeed, recognising such an intermediate category may be
useful in the new constitutional order as it would enable us better to recognise
the differences between human beings with differing capacities: Those who
are capable of exercising duties would, for instance, be entitled to all the
rights in the Constitution, whilst those only capable of having rights and
no duties would be entitled to a more limited selection depending on their
capacities. The current category of the ‘person’ includes both categories of
individual without recognising the differences between them. 48
However, if judicial officers prefer for the law to retain the binary
classification of ‘persons’ and ‘things’, then it may be necessary to use the
ethos underlying the new constitutional order to have animals classified as
‘persons’. Indeed, once we recognise that small children and the mentallyill
are classified as persons, it becomes clear that those capable of only
exercising rights and not duties have already been included within this
category. As such, there is no clear conceptual impediment to including
animals with similar capacities within the category of being a ‘natural
person’ and this would be in line with the development of the common
law in light of the new constitutional order. 49
There is another approach that would be viable in terms of our
constitutional framework. If an artificial legal fiction such as a company
can be entitled to protections under the Bill of Rights, then a fortiori it
appears that sentient beings with fundamental interests that can affect their
very capacity to enjoy decent lives, should be entitled to such rights. Indeed,
reasoning such as this has led to the suggestion by some authors that
animals be classified as a particular type of ‘juristic person’ rather than a
‘natural person’. 50 Since the law may confer legal personality on any entity
that it wishes, and there is a strong claim on the part of animals to be
protected by law in their own right, this may offer a solution that would
extend legal personality to animals with no shift in the traditional meaning
of the ‘natural person’ in our law. Whilst this approach is certainly
possible, this taxonomy does not, however, strike me as ideal. It makes
more sense to place similar entities in the same category: since humans and
animals are both natural entities with intrinsic value in their lives and with
their own welfare, they belong in the same category and should be
considered ‘natural persons’. They are unlike companies where legal
personality is in fact a fiction.
I have thus sought to suggest a number of possibilities for the
required doctrinal shift in the law in the classification of animals: A decision
between these various approaches, however, will depend on the
48 See the critique of the current concept of the person in Bilchitz (n 38 above).
49 As above.
50
See, eg, D Favre ‘A new property status for animals’ in C Sunstein & M Nussbaum (n 18
above) 244 - 245.