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194 Chapter 7
The second factor outlined by the Court is similar to the justification
requirement of any law but the third factor can also have application to
non-human animals. Importantly, the court does not confine a
consideration of the effect of the discrimination to the impact on human
dignity alone, but recognises the possibility that there may be ‘an
impairment of a comparably serious nature’. This aspect of the Constitutional
Court’s jurisprudence widens the scope of what may constitute
unfair discrimination. An interesting implication though is that this would
seem to open the possibility that other forms of life may also have worth
and be harmed in a manner comparable to a detrimental effect on human
dignity. Indeed, it would seem clear that many forms of treatment
accorded to animals grant little or no consideration to their interests and so
treat them in a manner not consonant with their worth. These forms of
treatment would appear to be prime candidates for impacting upon animal
interests in a comparably serious manner to an impairment of human
dignity.
The Constitutional Court’s jurisprudence on equality thus contains
within it the resources to extend the protection of the equality and nondiscrimination
clauses of the Bill of Rights to non-human animals. An
important challenge, however, needs to be considered here. It is indeed
conceivable that many people will be prepared to acknowledge my claims
that animals have worth, and are entitled to certain protections. Yet, such
people may contend that animals are not entitled to exactly the same
protections as human beings as their interests do not carry equal moral
weight to those of human beings. Such a line of reasoning may be supported
by the fact that many people have in their mind a ‘Great Chain of Being’,
recognising that some non-human animals have more ‘worth’ than others
with humans at the top of the chain. The problem, such an individual may
claim, is not with recognising the worth of animals but recognising their
equal worth and consequently our being required to grant their interests
equal moral weight. Are there any good grounds to resist such an argument?
In responding to this argument, it is important to revert to the
grundnorm requiring us not to treat individuals differently without
adequate reason. Importantly, this norm places the presumption firmly
in favour of equal moral weight being given to the interests of differing
individuals. Those wishing to argue for lesser weight to be granted to animal
interests must do more than claim that this is what we generally have
thought. For, indeed, the history of claims relating to differential moral
weight being attached to interests has often led to grave forms of injustice,
including those under both the Nazi and apartheid systems. This history
draws our attention to the way in which claims of differential moral status
have been abused and so should make us extremely cautious before
accepting that individuals of different groups are of differential worth
unless there is a convincing case to this effect.