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Does transformative constitutionalism require the recognition of animal rights? 199
animal rights, for instance, what is at stake often in relation to wild animals
is simply our non-interference with their natural environment and allowing
them to conduct their own lives. Negative obligations are thus paramount
though there may be some limited forms of positive involvement as well. In the
context of domestic animals and animals in captivity, positive obligations
assume greater prominence in that we are often required actively to provide
domestic animals with food and shelter. Negative obligations that involve not
subjecting an animal to cruel treatment nevertheless remain of importance. 83
Though, the notion of ‘progressive realisation’ was developed in general in
relation to positive obligations flowing from socio-economic rights, in the
context of animal rights, I would argue, it can usefully be applied both in
relation to the negative and positive duties we owe to animals. Courts would
need to decide that the notion be of application beyond the express context of
socio-economic rights (even without clear textual pointers). Doing so could
have a number of advantages.
At present, it does not seem that South African society is ready to accept
the full realisation of animal rights: Nevertheless, it may be possible to
achieve some form of ‘partial realisation’ thereof. As has been seen, the
‘equality principle’ mandates that we give attention to ensuring that such
rights are not simply arbitrarily curtailed. This partial realisation could
involve the recognition of a minimum core of rights which could be
developed to provide an understanding of what each animal is entitled to as
a matter of priority. It is unlikely that the right to life would be part of such
a core (given current societal expectations concerning meat-eating) but
other rights of great importance for creatures could be seen to be part of that
core: Indeed the right to bodily integrity and rights to sufficient food and
water (when in the care of humans) would immediately seem to be
candidates for such a minimum. 84 Deliberately retrogressive measures
against animals could be banned and a strict justification required for any
such measures to be passed. The government could also be required to
develop a plan progressively to extend and develop the rights animals
have over time and to educate individuals to have a more respectful
attitude towards them.
The concept of progressive realisation thus could be useful in providing a
sense in which certain animal rights are protected now with the idea that their
entitlements will be expanded over time. It also contains an in-built flexibility
which may be useful in this context though also a subject of critique. For the
concept does little in itself to provide the basis upon which we can
distinguish between the rights (or features thereof) that will be partially
83 Nussbaum (n 44 above) 373 - 380 recognises that negative obligations may assume a
greater importance in relation to animals but contends that there are still significant
positive obligations upon humans.
84 This core could, eg, include rights that initially protect five freedoms developed by the UK
Farm Animal Welfare Council: freedom from thirst and hunger, freedom from
discomfort, freedom from pain, injury and disease, freedom to express normal behaviour,
freedom from fear and distress. See http://www.fawc.org.uk/freedoms.htm.