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190 Chapter 7
and allow for prejudicial treatment simply on the basis of the group (of
homo sapiens) to which an individual belongs. 59
Another option, however, suggests itself. This involves understanding
that whereas the Constitution does refer specifically to ‘human dignity’,
this does not seek to deny the possibility that other types of beings may also
have worth in their lives and, thus, consequently, be entitled to the
protection of certain fundamental rights provisions. The explicit textual
focus on human dignity can be explained through understanding the
proximal historical context in which the Constitution was adopted,
namely, to repudiate the massive denials of human dignity under apartheid
and to signal that, in future, all human beings would be treated as being of
equal value. 60 Against this historical backdrop, it does not appear that the
focus on ‘human dignity’ in the Constitution was designed to take a
position on the question whether only human beings have worth or
specifically to exclude non-human animals from being entitled to the
protections in the Bill of Rights. It was meant simply to assert the fact that
all humans have dignity without necessarily implying anything in relation
to other creatures. Whilst the specific provisions relating to human dignity
will not apply to non-human animals, understanding the historical context
of these provision opens up the space for an interpretation of the Constitution
that would acknowledge the worth of other creatures and enable them to
be provided with the protections afforded by the Bill of Rights. 61
The importance of not confining assumptions of worth to human beings
and providing some form of constitutional protection for non-human
animals can be illustrated by a case that arose in Germany. As has been
mentioned, the German Constitution incorporates a strong emphasis on
human dignity and the Federal Constitutional Court has provided a rich
understanding of this notion. 62 The rights in the German Constitution had
traditionally been recognised as extending only to human beings. Litigation
arose before the courts on whether a Sunni Muslim butcher was entitled
to slit the throat of an animal which, according to his religious beliefs, had to
occur without stunning it beforehand. There were many Muslim religious
authorities that allowed for pre-stunning, yet this particular sect believed it to
59 Indeed, C McConnachie ‘Human dignity is an oxymoron: An argument for a nonspeciesist
understanding of dignity’ (unpublished paper on file with author) argues
that the very notion of human dignity contains an internal contradiction and the
underpinning ideas behind this concept require extension of our ethical duties beyond
the human species.
60
Woolman (n 55 above) 36-2 - 36-4.
61 In Bilchitz (n 38 above) 50 - 65, I provide a fuller account of the problems with confining a
notion of ‘dignity’ or ‘worth’ only to human beings. Using the recent work of
Nussbaum (n 44 above), I attempt to provide an account of how animals may also be
said to have ‘dignity’. The focus of this article is, however, on the way in which historical
context can help us ground an interpretation of the Constitution that does not arbitrarily
discriminate against non-human animals.
62 See Woolman (n 55 above) 36-1.