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Does transformative constitutionalism require the recognition of animal rights? 191
be impermissible. 63 A constitutional argument was raised by the Sunni
Muslims in question claiming that their right to slaughter without pre-stunning
was an incident of their right to freedom of religion. 64 This argument
succeeded in the Federal Constitutional Court largely as a result of the fact
that there was no countervailing constitutional interest on the part of the
animals that the court could take into account. 65 The rights of the human
beings in question were absolute in relation to the animals concerned as the
animals had no interests that were protected at the constitutional level and
that could be balanced by the court against those of the human beings in
question. If we are adequately to capture the complexity of the moral
evaluations to be undertaken in a case such as this, the interests of the
animals must at least be capable of holding some weight in a court’s
deliberations. Even if ultimately the human interests in such an instance
would outweigh those of the animals, the problem lies in the fact that
without some form of constitutional protection, there was no balancing at all
to be done in legal terms. The difficult moral evaluation in question could not
be articulated in constitutional terms. As a result of this case, the German
legislature introduced an amendment to the Constitution which recognised
the interests of animals and the environment. 66
Whilst the wording of the clause in question is far from optimal, it
allows for animal interests to be protected at the constitutional level and
thus provides the scope for legal argumentation that could, in certain cases,
limit human rights on the basis of animal interests.
This case illustrates the importance of recognising that animals have
some worth and interests which must be taken into account at the
constitutional level. Failure to do so leaves animals at the mercy of humans
who can often attempt to defend their actions on grounds of fundamental
rights. Without any countervailing constitutional interests on the part of
animals, invariably, the humans will triumph simply because they belong to
the group of homo sapiens. This would preclude a proportionality inquiry
into which interests should take precedence and always places human
interests above those of animals even where the substantive
considerations at issue are in favour of the animals: To do so, would thus
clearly violate the grundnorm proscribing prejudicial treatment against
63 The account of this issue is based on M Nattrass ‘… Und die tiere: Constitutional
protection for Germany’s animals’ (2004) Animal Law 283.
64
See Grundgesetz art 4.
65 Nattrass (n 63 above) 301.
66 See Grundgesetz article 20a: ‘[M]indful also of its responsibility toward future generations,
the state shall protect the natural foundations of life and animals by legislation and, in
accordance with law and justice, by executive and judicial action, all within the
framework of the constitutional order’ (translation by Sebastian Seedorf). The
recognition, however, is not adequate as it fails to grant rights to animals and simply
places animal interests as a value and goal to be taken into account by the state –
something that would nevertheless be progressive in South Africa where animal interests
are often disregarded. See Nattrass (n 63 above) for a discussion as to its history and
implications, some of which are relevant to South Africa.