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Does transformative constitutionalism require the recognition of animal rights? 201
However, importantly, this requirement also means that any
limitation on animal rights must be explicitly provided for in law. This
entails that, in general, parliament would need to have engaged with the
reasons for a particular practice that limits such rights and provide
specifically in a statute for the regulation of that practice. This flows from
the fact that rights may not be limited by laws which contain no express
criteria concerning the circumstances where they can be limited and
simply leave the limitation of rights up to the discretion of an official. 87
This requirement that parliament engages with the limitation on animal
rights could have several effects: On the one hand, it does involve
parliament actively permitting certain violations of animal rights, which might
appear to to provide a stamp of approval for ethically unacceptable practices.
Yet, on the other hand, South African legislation has to go through a public
participation process which allows for members of the public to provide
submissions in this regard. There would thus have to be transparent public
engagement and openness as to the kinds of practices that occur in relation
to animals, many of which often happen behind closed doors. Simply shedding
light on some of these practices may be sufficient to demonstrate the
lack of justification for the cruel treatment involved. In other cases, it may lead
to the amelioration of the worst forms of suffering that flow from them. The
process parliament follows would thus in itself require active deliberation
concerning the manner in which animals should be treated. This in itself would
involve a step forward and ensure that their interests are at least placed within
the realm of public discussion.
Over time, and with education as to the interests and needs of animals,
it is possible (perhaps even likely) that such public engagement could lead
to wider protection for their rights. Indeed, recently in the United States,
referenda were held in several states concerning the permissibility of
practices such as sow stalls and veal crates being used in the meat industry. 88
These referenda appeal directly to individuals in the political community
and bypass the legislatures and lobby interest groups involved in
agriculture. Almost without exception, these referenda have shown the
public unprepared to tolerate the worst excesses of animal cruelty and laws
banning these practices have as a result had to be passed. Whilst a similar
direct form of democracy does not exist in South Africa, the requirement
that parliament would have to pass laws that expressly limit animal rights
could enable the public’s abhorrence at the worst forms of cruelty to
enter into parliamentary deliberations through the public participative
processes that have to take place surrounding legislation.
87 See Dawood (n 58 above).
88 M Sullivan & J Wolfson ‘What’s good for the goose … The Israeli Supreme Court, foie
gras, and the future of farmed animals in the United States’ (2007) Law and
Contemporary Problems 139 170.