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Animal rights and the interpretation of the South African Constitution 219
to expend severely limited resources on the urgent interests of animals. Or,
at the very least, it might reasonably be perceived to express such disrespect,
akin to sacrificing an African’s life for the sake of saving a pig.
5 Conclusion
I have argued that, even supposing that Bilchitz is correct that substantive
principles of distributive justice entail that animals warrant constitutional
protection, there are other, potentially weightier forms of injustice that
would probably be done by interpreting the Bill of Rights as already applying
to animals, namely, formal injustice and compensatory injustice. Formal
injustice would apparently result from such a reading of the Constitution in
that the South African state would fail to speak with one voice upon
according legal rights to animals. Compensatory injustice would likely
result from such a reading in that the law would not only suppress facets
of culture that many Africans deem important to their self-conception, but
also require spending scarce resources on animals that could have gone
toward saving African lives and livelihoods. Human rights not to be denied
life-saving healthcare and not to suffer from poverty continue to be
violated as a result of apartheid era policies. If the state must choose
between acting for the sake of the urgent interests of animals and those of
humans, humans must take priority, even assuming that animals have a kind
of dignity that morally forbids harming them in our private lives.
I am not certain that interpreting the Constitution as already according
rights to animals would violate principles of formal and compensatory
justice. Perhaps doing so would justifiably infringe them, or, less plausibly,
maybe doing so would be consistent with them. My aim has been to
indicate some moral and legal issues that need to be thought through
before making a conclusive judgment about whether to read the
Constitution in the ways Bilchitz proposes. Even if he is correct that
principles of distributive justice entail interpreting the Constitution’s Bill of
Rights as it stands as applying to animals, this consideration must be
weighed up against principles of formal and compensatory justice that
appear to conflict with such an interpretation. 18
18 For helpful comments on an earlier draft of this article, I thank David Bilchitz, an
anonymous referee for SA Public Law, and participants in a seminar sponsored by
SAIFAC.