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Does transformative constitutionalism require the recognition of animal rights? 207
to show how they could provide support for the extension of rights to
animals. I also provided a number of arguments as to why we should adopt
a presumption in favour of recognising that non-human animals have
equal worth and why we should be suspicious of judgments of differential
worth. Equal worth does not, however, require identical treatment and I
outlined the way in which equality could be applied beyond the human
species.
Finally, I considered the difficult question where human and animal
rights conflict. In particular, the problem arises in that human society,
whilst extremely powerful with respect to animals, is not yet ready to
recognise the full implications of animal rights. I outlined two strategies to
address this problem both rooted in concepts based in the South African
Constitution. The first involves the notion of ‘progressive realisation’ which
I argue can be adapted to the context of animal rights. It would involve a
recognition that the full realisation of such rights may not be possible now
though a minimum core of such rights must be protected. Progressive
steps must be taken towards the full realisation of such rights over time.
Secondly, I argue that the general limitations clause of the Constitution
provides important principles that should be used when considering
limits on animal rights and dealing with circumstances of conflict. In
particular, the proportionality test provides a rubric for considering the
differing interests and their respective weight. The ‘less restrictive means’
requirement would also be of great importance to ensuring that the
extension of rights to animals makes a difference to animal lives without
going too far beyond what society is prepared to accept in this regard.
The interpretation of the Constitution I have defended is one that draws
out the deepest principles of the new constitutional order and applies them
in a way that would perhaps surprise many in our society. Yet, this should
not be a reason to refuse to acknowledge the power of the argument or
the interpretation provided. The Constitution was not designed to
entrench the status quo: It was designed to transform our society into
something different, to allow ourselves to imagine a social order based on
firm principles of justice and equality. Leaving out animals would be
completely inimical to this ethos and perpetrate unjustifiable
discrimination in the new order. It is time, both philosophically and in
concrete terms, to take the logic of fundamental rights to its ultimate
conclusion: to recognise that all beings with interests – irrespective of the
classifications we give them, or the physical make-up of their bodies – are
entitled to the protections offered by the rights in the Bill of Rights.