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Does transformative constitutionalism require the recognition of animal rights? 195
In relation to non-human animals, specifically, it is clear that we have
certain strong ingrained prejudices in favour of humans which again
should make us particularly wary against concluding that the interests of
such creatures should be granted lesser weight. Inevitably, judgments that
impact upon laws are always going to be made by human beings in
relation to non-human animals: There is thus an inescapable likelihood of
bias in favour of the human. Moreover, many humans have a strong selfinterest
in relegating animals to a second-class moral status which would
enable human interests easily to outweigh animal interests. Many of these
interests are very close to human beings and include the eating of meat, the
development of medicines, clothing and entertainment. As a result of these
interests, over time, human beings have developed a range of strategies to
render them less sensitive to animal suffering. Intellectual honesty requires
that we recognise already that there will be a strong likelihood of bias against
animals in any decisions relating to them. These reasonable apprehensions
of bias on our part reinforce the view that the presumption in this context
needs to be firmly in favour of equal moral weight being attached to animal
interests unless there are good reasons to depart from this. This
presumption does not mean that animal interests would always win out: 72
It simply means that in considering a law or practice that infringes on an
animal’s rights, they must be given fair and equal moral weight in any
constitutional evaluation. 73
It is important to point out, that a commitment to equal moral weight
being attributed to animal interests does not entail identical treatment. The
72
Metz in Woolman & Bilchitz (n 36 above) 217 gives several examples with which he
seeks to support the unequal moral status of humans and animals. The one example
involves two humans (A and B) who are starving along with a pig. Metz claims that it
would be permissible to shoot the pig to feed A and B, but it would not be permissible
(indeed, it would be gravely disrespectful) for A to shoot B to feed himself and the pig.
This example, suggests Metz, is best explained by the unequal moral status of the pig and
the two humans. Even if we agree with Metz’s description of what should happen in
this example, his conclusion does not follow. Consider an example where there are
three humans, X, Y and Z who are all about to starve and are running out of rations. X
and Y are roughly 25 years old and Z is 90 years old. One of the humans has to be
allowed to die if the others are to survive. Most people it would seem would judge it
better for Z to be killed than either X or Y on account of his age. Does this mean that
older people have less moral status than younger ones?
73 Metz in Woolman & Bilchitz (n 36 above) 218 - 9, in his response to this article, clearly
demonstrates the dangers of failing to grant equal moral weight to animal interests. He
suggests that to expend any resources to enforce even the most minimal protections for
animal interests could constitute ‘disrespect’ for Africans where so many are suffering. I
have already provided a response to the compensatory justice argument: However, it
is important to recognise that ‘disrespect’ could only be understood if one thinks that
animals are not entitled to equal consideration in distributive decisions. Moreover,
Metz’s point seems to suggest that no resources should be dedicated to protecting
animal interests, thus, even failing to grant their interests minimal weight. The lack of
equal concern thus translates into a lack of any form of concern at all from the point of
view of public institutions. The simple point is that if animals count morally (and I have
provided reasons for thinking they should count equally), some resources at least will
have to be distributed towards defending their interests (if not actively advancing
them). The alternative is arbitrarily to prejudice the interests of non-human animals,
something proscribed by the grundnorm underlying our Constitution.