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Does transformative constitutionalism require the recognition of animal rights? 197
require that animal rights are subject to the same principles concerning
limitation as human rights. Importantly, though, there are wide-ranging
human practices that currently infringe the rights of animals. Even though
the ‘equality grundnorm’ underlying our new constitutional order may
argue in favour of the abolition of such practices, it is unlikely that they
will cease any time soon or that human beings in the South African polity
are ready to desist from such common habits as eating meat. If the new
constitutional order does not, in some way, require a concrete shift in these
practices, then it is unclear what gains will in fact be achieved by
recognising animal rights. Thus, it is of particular importance in this
regard to articulate a conceptual framework concerning limitations
through which the recognition of animal rights in the Constitution may
have an impact upon current abuses without going too far beyond what the
majority of South Africans are prepared to tolerate.
It is important to recognise that, in light of prevailing moral attitudes,
there are two kinds of limitations that may be identified in the context of
animal rights. The first kind of limitation would be one that would be akin
to those recognised in the case of human beings: Such a limitation would
flow from the differing normative claims and conflicts that arise in
connection with rights and the requirement to balance competing claims
in terms of the limitations clause. Such limitations would be fully
justifiable in terms of the grundnorm underlying our new order and simply
extend the same logic applicable to humans to other creatures.
A second kind of limitation, however, would arise not as a result of
the requirements of balancing but as a result of the general inter-subjective
acceptance by the majority of South Africans of a particular limitation on
animal rights. The general inter-subjective acceptance of such a limitation
does not entail that such a limitiation is objectively justifiable. Nevertheless,
even if it is not objectively justifiable, prior to the widespread
recognition that this is so, it will be necessary for the maintenance of
respect for the constitutional order to make provision for such widespread
inter-subjective acceptance without fatally compromising the recognition
of animal rights. Such an acceptance may not be ultimately consonant with
the equality grundnorm, but be necessary to hold out the hope of a society
that does ultimately fully instantiate the implications of such a norm. 76 The
following discussion shall consider two different conceptual features of the
South African Constitution that can provide assistance in determining the
limitations on animal rights in light of the considerations discussed. First,
I shall consider the notion of ‘progressive realisation’ and, secondly, I
shall consider certain elements of the general limitations clause that can
assist in this regard.
76 See T Roux ‘Principle and pragmatism in the South African Constitutional Court’ (2009)
International Journal of Constitutional Law 106 - 138 for a discussion of the relationship
between principle and pragmatism in the jurisprudence of the South African
Constitutional Court.