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Paper by Eitan Stern (eitanstern@gmail.com)

About Eitan

Animals are Persons Too:

A proposition for the development of animal rights

Hath not a Jew eyes? Hath not a Jew hands, organs,
dimensions, senses, affections, passions; fed with
the same food, hurt with the same weapons, subject
to the same diseases, heal'd by the same means,
warm'd and cool'd by the same winter and summer
as a Christian is? If you prick us, do we not bleed?
If you tickle us, do we not laugh? If you poison us,
do we not die? And if you wrong us, shall we not revenge?

- William Shakespeare - The Merchant of Venice

Eitan Stern

STREIT001

UCT Final Year Thesis 2010

Table of Contents

Section I: The inhumanity of humans: An introduction to the animal issue 3

Section II: Animal welfarism: The current law in relation to animals 5

Section III: What are rights? And who gets them? 10

Section IV: What makes an animal a thing? The development of animal thinghood 14

Section V: The Earth is flat and homosexuals cannot marry: How does law develop? 16

Section VI: All men are created equal, but some are more equal than others 17

Section VII: To what rights should animals be entitled? 25

Section VIII: Conclusion 26

Bibliography 28

Section I: The inhumanity of humans: An introduction to the animal issue

A hundred years ago animal farms were entirely family-owned businesses. Animals grazed in pastures, lived in barns in the countryside. [1] Farmers tended to their flocks, knew each animal individually and aimed to produce the best quality livestock that they could.[2] The birth of 'factory farming' happened by chance in 1923 when a farmer in Delaware, USA, experimented to see if a flock of chicks could survive indoors through the winter, after she had mistakenly ordered 500 chicks instead of a regular 50.[3] The trial was a success, and the factory farming experiment continued.

Animals were given vitamins A and D to replace their lack of exercise and sunlight. Automated fans and lights were introduced to replace the diurnal cycles and appropriate climate. The aim was to produce more food, at a quicker pace, for less cost. By 1945 the American government had started funding genetic engineering research to produce animals with more meat and smaller bones. Later, sulfa drugs and antibiotics were introduced to stimulate growth and prevent disease. Today fully-sized cows are slaughtered at between twelve and fourteen months old, as opposed to the four to five years that they used to live.[4] The vast majority of meat eaten today is the produce of faeces-covered battery cages, grotesquely deformed sore-ridden bodies, diseased-infested inhumane slaughter houses, and animal cruelty, which is intentionally kept secret by meat production factories, which used to be known as farms.

However, this paper is not about inhumane farming methods. It is also not about 39 to 75 percent of retail sold chickens that are infected with E.coli or other faecal related diseases.[5] It is also not about the Swine Flu epidemic of 2009, the Avian Flu of 2005 or even the estimated 70 million people who died in less than a year from the 1918 Spanish Flu; diseases that have been directly linked to haphazard farming methods. It is also not about the fact that animal agriculture is the single biggest contributor to global warming on earth.[6] This paper is about the injustice of the relationship between humans and animals, and the laws that govern this relationship.

The world seems to have forgotten that animals are living creatures. Through generations of legal development, the law in regard to animals has been structured in a way in which animals are classified as 'legal things'. They are property, yet they are alive. They can be acquired, terminated and treated as a means to an end, subject only to minimal and avoidable legislative limitations. This paper intends to advocate away from this current trend in animal legislation, animal 'welfarism', to the acceptance of animals as 'legal persons', capable of enjoying certain rights. It will be asserted that it is only by the acceptance of animal rights that animals gain adequate protection under the law.

Admittedly, this is an extreme suggestion, and one that may seem absurd at first. However, as will be explained below, it seems no more absurd than the allocation of rights to slaves, women or homosexuals seemed in a time before they were the norm. The slave movement did not end overnight, and homosexuals were not permitted to marry after one initial protest. Similarly, it is unlikely that a cynical reader will reject their pre-existing belief that animals are things, and fully accept animal 'personhood' immediately. Thus this paper does not intend to conclusively prove that animals should bear rights beyond reasonable doubt. Rather, it intends to open the possibility, and thus open the discussion of animal rights. If this paper can open the cynic's mind to a possibility that their accepted view of animals may be outdated, then there is one less step toward the realization of animal rights.

This argument will be built progressively. Section II will analysis the current trend of animal welfarism. In doing so, it will highlight the strengths and shortcomings of welfarism, and why it will never allow for adequate protection of animals. Section III will explore the notion of rights in answering the question: How do rights work and who is entitled to them? Section IV will explain the development of animal 'thinghood' to show that their classification as things is based upon shaky foundations and outdated principles, representative of an old-fashioned way of thinking. Section V will briefly explain how the world develops in social and legal terms. Section VI holds the crux of the argument for animal rights. It will show that the justification for granting humans rights is the same justification for granting them to animal. It will also deal with some common hurdles allegedly preventing animal from having rights. Finally, section VII will delve briefly into a few possible rights to which animals may be entitled.

It is important to note that this paper does not advocate for equal rights between animals and humans. It is unlikely that a logical claim could be made for an animal's right to vote. It is also unlikely for an animal's right to life or bodily integrity to be on the same level as that of humans. Rather, animals should be awarded rights that provide them with the protection that suits their lives. In this way, animal rights can be both idealistic and realistic simultaneously.

Section II: Animal welfarism: The current law in relation to animals

While animals do not have rights, they are not completely unprotected by the law. Many states implement a system of 'animal welfare' (welfarism). These are laws and policies aimed at protecting animals and regulating their use within society. Through a system of guidelines, duties and punishments, states manage the relationship between animals and humans. The underlying notion of animal welfare is simply that animals should be treated 'humanely' and not subjected to 'unnecessary suffering'.[7] While humans are entitled to use animals, they must do so according to laws based on these standards.

Animals can be useful. However the risks of animal abuse are extreme, so states employ a system of welfarism to curtail abuse. What then is the problem? The answer is twofold: Firstly, if the aim of welfarism is to ensure 'humane usage' and 'unnecessary suffering', then it is simply not working. And secondly, welfarism is founded on the notion that animals have only instrumental value. A system of animal protection based on such a notion can never offer adequate protection.

Why is welfarism not working? From an analysis of existing animal welfare legislation, it is unclear whether welfarism is actually aimed at sincere and sufficient protection of animals. There is no concrete body of animal law; instead animal-related laws are scattered across many other legal areas, including criminal law, environmental law and administrative law.[8] Welfare legislation is also not far-reaching enough. A review of animal care legislation by the South African Veterinary Foundation found that there are overlaps between existing welfare laws, which cause confusion for those looking to abide by or apply these laws. [9] Other studies have shown there to be little standardization of terms such as 'cruelty' or 'abuse', which has lead to contradictions and confusion from within the legislation itself. [10] Moreover, the law often condones cruelty. Violent farming methods, exploitation of animals at zoos, and painful medical testing are not frowned upon, but legalized and protected.[11] For instance, one can train an animal to perform in a circus if licensed correctly, according to the Performing Animals Protection Act.[12] A legal system committed to limiting animal suffering should aim to develop well-informed jurisprudence, concerned with animal protection and not protection of animal exploitation.

Secondly, welfarism makes the state the sole enforcer of animal protection. If a person fails to comply with a welfare provision, that person can be criminally liable for his/her conduct. For example, the Animal Protection Act instructs that "any person who…infuriates, tortures or maims…any animal... shall, subject to the provisions of this Act, be guilty of an offence and liable on conviction to a fine not exceeding R4000".[13]

The problem with this type of system is that "enforcement can only occur through public prosecution, [and] the state has a monopoly on implementation."[14] If the state decides to not take action against an offender, there is no other recourse possible. The animal is not a right bearer, thus neither it nor an interested party on its behalf can take any action against the offender. In a country such as South Africa, where the public prosecutor has a backlog of cases, animal cruelty does not sit high on their priority list.

Yet many of these issues of animal welfarism could be fixed. Harsher legislation covering a wider array of issues could be implemented, and penalties could be more severe. Additional attention could be given to limit harmful behaviour. Even some animal protection activists have argued that 'animal rights' is elitist, unrealistic and avoidable, if adequate welfare legislation, based on sympathy, compassion and care is developed. [15] The next part of this section contests this suggestion, and aims to shows that welfarism by its very nature is flawed, and thus has not and will never lead to the eradication of animal cruelty and exploitation. [16]

The problem with welfarism is that animals are still considered to be legal things. A legal thing has no 'intrinsic value' in and of itself. Rather, it has only 'instrumental value'; meaning its worth is measured only according to the extent that it is valued by a right holder. Humans on the other hand are right holders. Right holders have intrinsic value in and of themselves. Their value is not only their use to someone else.

According to 'Kantianism', it is the inherent 'dignity' in humans which allows them to possess rights. Human dignity must be protected, and thus they "may not be used or sacrificed for the benefit of others".[17] Tom Regan introduces what he calls the 'Respect Principle' which states that any being with an inherent value (such as human beings) may not be treated as a means to an end in order to maximize the greatest desirable outcome.[18] This idea is explicit in most legal systems. Take the example of one person killing another person in order to save the lives of ten other people. While there may be a moral discussion over whether this is legitimate conduct, in law it is generally prohibited.[19] This is because people may not be used as means to achieve the greatest ends. The law rejects utilitarianism, and adopts Kantianism as a standard to measure human worth.

However, this same logic does not apply to all sentient beings. Animals for example, have only instrumental value, as they are property.[20] Even wild animals, un-owned by individuals, are the property of the state.[21] Animal worth is measured by utilitarianism as opposed to Kantianism. [22] Animals can be used, harmed, or killed if the benefit gained is greater than the loss inflicted.[23] In this way it is legitimate to use animals as a means to an end. This is reflected explicitly in law, as it is legal for animals to be killed for food, tortured for science, or humiliated for entertainment, as long as the greater good is served.

In deciding whether it is permissible to harm an animal, the law essentially asks whether the greater good be served, or whether it is considered as necessary? In this way, animal welfarism is based on the notion of preventing 'unnecessary cruelty' to animals. [24] For example, the South African Animal Protection Act uses 'necessity' as the standard by which animal treatment should be measured. [25]

The inherent flaw of welfarism lies in the inadequacy of the standard of necessity. The balancing of human and animal interest in deciding what is necessary is lopsided as it balances the interests of two different entities.[26] One entity has intrinsic value (humans) and the other has only instrumental worth (animals). Nozick describes it as "utilitarianism for animals, Kantianism for people."[27] By this balancing technique, animal interests will almost always lose, as even the most trivial of human interests trump the most important of animal interests.[28] For instance, an animal's interest in life is trumped by the human interest in eating cheap, produced meat.

The inequality of the balancing act is exacerbated by the inclusion of human property rights, as not only are animals less worthy beings, but they are also the property of humans.[29] Much like ownership of a computer, animals are subject to the property rights of their owner and can be brought, used, sold or destroyed at will. The object of welfarism however, is to limit the property rights of humans to avoid cruelty.[30]

Yet the reality is that "the property status of animals dominates the way in which political and legal systems think about non-humans". [31] This is evident in that there are few general duties or good samaritanship owed to animals not within one's care. Most animal-related legislation governs the voluntary property relationships with animals; such as owner and driver, master and performer.[32]

The use of language such as 'unnecessary cruelty' and 'humane treatment' implies that welfarism is for the benefit of animals. However, the irony is that welfarism is not rooted in the notion of protecting animals because they inherently deserve protection. Rather, its foundations lie in the protection of human property. In this way, the level of animal protection is limited to that "which most efficiently facilitates the exploitation of animals."[33] Innate in welfarism is the currently controversial assumption that humans should have dominion over animals to inflict cruelty and mistreatment in the first place. It is this assumption that forms the basis of discussion in this paper.

It is this inherent inequality within welfarism that suggests that the system cannot ever effectively exterminate animal mistreatment or exploitation. While there have been decades of successful welfarist developments, it is hard to imagine any significant detrimental effect to animal users. As welfarism has increased, so have factory farming cruelty, scientific testing and animal exploitation. [34] Welfarism is not only ineffective as a means of curtailing cruelty, but it has also become a tool for animal exploiters to defend their conduct.[35]

In the welfare paradigm, the balancing of human and animal interests will always result in animal suffering, as just about anything can be justified when weighing the interests of person and property. That is not to say that welfarism serves no use or should be terminated. On the contrary, it is likely that animal rights can only be achieved by incremental development, which would entail successful implementation of welfarist policies.[36] However, for legal reform to make a substantial difference to animal cruelty, the concept of animal ownership must be addressed. It is only in this way that the playing field between humans and animals can be leveled.[37] In order for this to happen, the question of animal rights must be opened.

Section III: What are rights? And who gets them?

To summarize, there is a problem of animal mistreatment and exploitation. Animal welfare laws have been established to address this problem. However, the laws are proving ineffective and the problem is increasing. So what is to be done?

Animals are not the only group in history to be treated with brutality. Six million Jews were killed in the Holocaust. Generations of black people were born and died as slaves. Women were barred from the work place. A common feature of these groups is that part of their suffering was related to their lack of rights; rights which they do enjoy today. Jews lacked the right to citizenship, slaves lacked the right to freedom, and women lacked rights of equal treatment to men. By allocating of these rights, and through the social movements that surrounded these legal developments, adequate protection and respect for these groups began to be achieved.

Over many centuries, legal theorists and judges have dealt with the characteristics and consequences of rights. Yet, to understand why animals should be granted rights, a brief discussion on three different aspects of rights is necessary. This section will attempt to illustrate; what rights are, how they work, and how they offer protection.

'Rights' come from the ancient Greek concept of 'a just claim'. Today, humans are entitled to many different types of rights, such as contractual rights, delictual rights, and property rights. The contemporary concept of 'human rights' was developed after World War Two as world leaders acknowledged the need to establish consensus amongst states, and prevent a reoccurrence of a similar event. [38] Human rights were established to protect the dignity, liberty and equality of all humans.

The United Nations founded the Universal Declaration of Human Rights (UNDHR)[39], and the International Covenant of Civil and Political Rights (ICCPR)[40] as a means of codifying basic human needs; such as the right to life, the right to freedom and the right to bodily integrity. As Greek law was concerned with achieving the highest good, rights were seen as a tool to further this aim. In the modern context of human rights this is safety and protection. [41] It is unsurprising that it took a world war to spark the development of human rights, as it is during wartime that the greatest injustices occur, and consequently, the discussion of rights is most prevalent. [42]

How then does a legal right work? Firstly, rights protect liberties. "Liberty is the ability to do as one pleases with no duty to do otherwise". [43] Liberties come in two forms, 'positive liberties' and 'negative liberties'. Or in other words, 'freedom to…' and 'freedom from…'[44] For instance, one may have the positive liberty, or freedom to, walk down the street. One may also have the negative liberty to walk down the street free from being attacked. It is these negative liberties, specifically the liberty of bodily integrity and bodily freedom, that form the basis of human rights. [45] The Holocaust and the Rwandan genocide occurred in a context where human negative liberties were absent or ignored. Similarly, where an animal's negative liberty is absent, factory farming and medical testing can occur. [46]

Central to the idea of rights is, notion that a right creates a corresponding duty to respect that right. [47] For instance, one's right to own property creates a duty on others to respect that ownership. Thus, "to say that Mary has a right against John that John stay away from Mary's land is equivalent to saying that John has a duty to Mary to stay off her land."[48] Rights are of no use if there is no one to hold the corresponding duty. It is said that before Eve, Adam could have had no rights as there was no one to hold the corresponding duty. [49]

However rights alone do not create solutions. An infringement of a right entitles one to a 'claim'. It is the claim, not the liberty, which gives rights the ability to demand respect.[50] If Kelly's right is infringed, for example if her negative liberty of bodily integrity is ignored, then she is entitled to a claim, which can be taken to a court for consideration. [51]

The next question is: Who is entitled to rights? There are two important aspects to this answer. The first is that, contrary to natural law, rights are not automatic. Natural law assumes that rights and duties exist between all beings on the earth as a natural feature of the world.[52] Natural law dominated legal discussions until the end of the eighteenth century, [53] and many aspects of natural law have been incorporated into some modern constitutions and international declarations.[54] While natural law still resonates in modern law, uncodified natural rights and duties are not binding in democratic legal systems which observe the rule of law.

Instead, fundamental to the concept of legal rights is the notion that rights must be specifically granted in the law to right holders. [55] In this way, every right can be traced directly to a legitimate legal source. For instance, in South African law, the right to water is found in the Constitution[56], the right to remain silent is in the Criminal Procedure Act..[57]Animals do not have rights, not because they do not deserve them, but merely because nowhere in the law does it state that animals have rights.

The second aspect of rights is personhood. The law distinguishes between 'persons' and 'things'. Or as discussed above, 'right bearers' and 'objects of rights'. A human being is a legal person, while a computer is a legal thing. No entity can have any rights unless it has some level of personhood. It is for this reason that the UNDHR guarantees that "everyone has the right to recognition everywhere as a person before the law".[58] The idea behind this is that if international law guaranteed every human being personhood, then it would be more difficult for a repeat of a regime, such as the Nazis, that denies rights to a group of humans, on the reasoning that they are not persons.[59]

It is unclear exactly what characteristic of humans entitle us to personhood. This is because there are other non-human entities which also enjoy personhood.[60] Some degree of personhood is given to 'juristic persons'. These are corporate entities which enjoy certain juristic rights, such as the right to own property. South African law has recognized limited personhood for fetuses, entitling them to inheritance rights.[61] States, municipalities and even ships are examples of other non-human entities which enjoy a degree of personhood entitling them to rights that they require. [62] It is true that these extensions of personhood are for the benefit or convenience of humans. Nevertheless, they serve as precedent that it is not only flesh-and-blood humans who can have personhood.

Yet what is "the problem with being a legal thing?"[63] Dred Scott was a slave living in the USA in the 1830s who sued his owner for freedom. The court, however, refused to hear his case on the basis that slaves had no legal personhood, and things had no right to sue. 150 years later, animal activists tried to represent Karma, a dolphin, in a suit against the US Navy, its owners. Similarly to Scott, the doors to the courts were closed as animals lack personhood.[64] Personhood is the ticket to the rights party. Without personhood there can be no rights and without rights there is limited recourse.

It could be argued that rights are not the only recourse, and that welfarism provides criminal sanctions that offer satisfactory recourse for animals. It could also be argued that granting an animal rights does not automatically initiate protection. However, these claims are refutable. "Introducing the notion of something having a 'right', brings into the legal system a flexibility and open-endedness that no series of specifically stated legal rules…can capture."[65] Rights have a forceful meaning within a legal system, and are interpreted in a manner than commands respect and elicit action.[66] Furthermore, the existence of rights encourages courts to develop a "viable body of law" to give effect to that right. In this way, rights build jurisprudence. [67] If these assertions are not true, then it is unclear why democratic legal systems employ rights, as opposed to welfarism, as the primary means of human legal protection.

Essentially, animals have no rights. Outside of the welfare guidelines, it is up to human judgment to determine how to treat animals. [68] Some will care for them deeply, others will callously abuse them. The problem with being a thing is that if mistreated, the absence of rights also means the absence of adequate recourse.[69] Furthermore, something cannot have rights until it is seen to have intrinsic value. Yet it is hard to imagine an object's intrinsic value until there is reason to grant it rights. However, this reason is almost always going to seem inconceivable to a lot of people, at first. [70]

Section IV: What makes an animal a thing? The development of animal thinghood

There is an injustice in the legal relationship with animals. The allocation of rights has helped offer other groups protection against injustice. However, animals are barred from accessing rights, and thus adequate protection, as they lack personhood. According to Steven Wise, a leading academic in animal rights, by examining the history of animals' legal thinghood, it may demonstrate that it is not their fate to remain things forever.

The distinction between humans and animals began in ancient Greece with 'the Great Chain of Being'. [71] According to Greek philosophers, a hierarchy of all beings was handed down by the Gods. All beings were ordered from the most rational at top, to the least rational at the bottom. Gods above men, men above women, humans above animals, animals above plants… Those lower on the chain were created to serve those above, and in this way rationality meant power. [72]

As the Greek empire spread, their philosophy and ideas spread to new societies. As a result of this, elements of the Chain of Being are found in Roman philosophy, Stoic ideology and within major religions such as Judaism and Christianity. History demonstrates that law, good or bad, tends to survive. It is much easier to borrow existing laws than to create new ones.[73] As a result, the Great Chain of Being and the surrounding laws were handed down between empires, societies and religions. [74] Today, the justification of human entitlement to rights is based on concepts of rationality, use of language, and other human capabilities, distinct from those of animals or plants.[75]

In the 2nd century, the Roman Jurist, Gauis, classified law according to things, persons, and actions. Anything that lacked 'free will' (the new expression of rationality) was considered to be a thing, which at various points in history has included; women, children, slaves and of course animals.[76] The idea that animals were lesser beings was so deeply ingrained in philosophy and law that it was largely just accepted and never actually justified. The laws differed in bits and pieces, but the result was always the same; animals fell below humans in the natural hierarchy, and thus in law.[77] How could it be justified? After all, it is only recently that scientists have some understanding of the animal mind.

The legal fate of animal thinghood was finally sealed in the 18th century when William Blackstone, an American legal scholar, classified animals as legal things. Blackstone amalgamated religion, philosophy and centuries of legal development in finding "that humans owned any animal they occupied".[78] Law developed on this basis, and animal thinghood was codified in legal systems around the world.

According to Genesis, God granted man "rule over the fish of the earth, the birds of the sky, and all living things that creep on the earth". [79] Later, the Chain of Being placed irrational animals in the service of rational humans. Hundreds of years on, in medieval Europe, farm animals that killed humans were put to death for upsetting the natural hierarchy established by God. These ideas of natural law and order were influential in the formation of international treaties, declarations of rights and constitutions all around the world.[80]

The result of this progression is a considerable gap between the two species. A gap created by religion, philosophy and unscientific natural hierarchies[81]- the same hierarchies that saw Blacks, women and Jews as lower forms of humans. Most implications of these theories have been abrogated in constitutional legal systems. Social and legal struggles have been fought to rid societies of the remnants of hierarchies that favour one group over another. The battle is always tough, and it can take generations to convince a community to let go of their beliefs.

Today, the fight for equality of mankind is being won, and almost all nations believe that slavery is wrong. [82] Yet in some societies the battle is still being fought. In South Africa less than twenty years ago, Blacks were considered lesser humans than Whites. In Saudi Arabia, many married women are considered the property of their husbands. These beliefs are contrary to democracy, and, in one way or another, the remnants of the hierarchy in the Great Chain of Being.

The time has come to accept that the foundations of the animal thinghood have rotted away, and thus laws based on these foundations should be reconsidered. If one accepts animals as legal things, then one should also accept that Jews must be hung upside-down for killing a Christian (to help invert the natural hierarchy back to normal)[83], that women should not vote, and that Blacks are natural born slaves. All these inequalities stem from the same philosophical origin, however in most part, only one inequality still remains.

Section V: The Earth is flat and homosexuals cannot marry: How does law develop?

There are two relevant ways in society and laws develop. The first is that scientific discoveries can change the way that people think. It was accepted that God created the Earth as the center of the universe, until Galileo saw objects moving in space, and with great effort, convinced people otherwise.[84] People once believed God created the world in seven days, until Darwin's theory of evolution suggested that it may have taken a little longer than that. As we understand more about the world, the existing theories fall away, and the effects of that are widespread. Science toppled the Great Chain of Being, and its destruction led to the liberation of slaves and equality of sexes. If so much has been misunderstood before, is it not possible that the thinghood of animals may also be misunderstood?

Secondly, societies progress through law. Law is not stagnant, it develops.[85] It is this flexibility that has allowed law to survive. The law develops by an intricate balancing of two principles. The first is stare decisis - like cases should be judged alike.[86] However, secondly, law must reflect the boni mores (values) of society.[87] The objective of any law-making institution is to allow the law to progress in the correct way and at an appropriate speed. Law must reflect social values, but must do so legitimately. For instance, in simplified terms, homosexuality was outlawed in a time when that sexual preference was considered immoral. As homosexuality became more accepted, the law developed to become more inclusive. Homosexuality was unbanned and eventually civil unions were allowed. [88] In essence, it is possible for the law to develop; there just has to be a good enough reason for it. The next section will explore the possibility of the law developing to give rights to animals.

Section VI: All men are created equal, but some are more equal than others

What has been established up to this point is that there is an injustice in the legal relationship between animals and humans. It is the position of this paper that rights discourse is the chosen solution to alleviate maltreatment.[89] However, generations of social and legal development has cast animals as things, prohibited from bearing rights. Yet these foundations are weak, and legal progression has saved other groups from injustice. Therefore the question remains, what can be done about the status of animals?

Animals should be given legal personhood. Once declared persons, they will be entitled to rights. Rights will help animals achieve adequate legal recognition and protection. This development is not unprecedented, as personhood has already been extended to other non-human entities. By analyzing the justification for granting humans rights, it becomes evident that on the same grounds animals may be entitled to rights. Essentially, animals should be given rights for the same reason that humans are given them. Claws and fur aside, humans are not that different to animals. This section justify this claim, as well as tackle some prevalent conceptual and scientific objections to the development of animal rights.

What is the justification for giving humans rights? Firstly, rights are the most successful legal mechanism to encourage human protection and advance human survival.[90] They do so by creating protective relationships within the law. In the case of Government of the Republic of South Africa v Grootboom[91], the court interpreted the constitutionally guaranteed right to housing[92] to place a duty on the government to provide citizens in need with houses.[93] In this way, the strength of rights is in their ability to "construct relationships - of power, responsibility, trust and obligation."[94] Rights essentially create an accountable relationship between citizens and government, which ensures that other ordinary laws are enforced. [95] In converse, rights also limit government power, as a governments' ability to act is constrained by citizens' rights.[96] For example, while a government is the overall protector of its land, it cannot build anywhere it wants, as it must respect its citizens' property rights. Not only do rights put limits on state action, they also restrict the conduct of private individuals by forming relationships between private, right bearing parties. Rights force people to consider the effects of one's conduct and duties towards others, before acting.[97]

Political and legal language is infused with rights. Every state constitution guarantees certain basic rights. International conventions and declarations ensure unequivocal rights that should not be ignored by person or state. Under a well orchestrated system of constitutional rights, arbitrary preference and bias are not permitted, and the interests of the most vulnerable are protected. [98]

A further justification for rights is that rights give effect to values.[99] A society can have a number of values that it sees as important for the promotion of a good life. These could include dignity, equality or autonomy. Rights are the tools which acknowledge the existence, and give implementable substance to these values in law. [100] Thus, right bearers are also the bearers of the values which underlie rights. In this way, the ability to be a right bearer indicates that one has intrinsic value in and of oneself, and is thus deserving of the protection that rights offer. [101] In short, rights recognize that a being is not a means to an end, and thus must not be treated as one.

In sum, humans are given rights, as we are sentient beings who can feel pain. We have certain basic needs for survival, such as water and housing, and are often weak and open to abuse. As a result we form protective relationships with our governments and society at large, to ensure our liberties and intrinsic values are secured, in the most effective way possible. This is, in practical and crude summary, the justification for granting humans rights.

Yet is this justification applicable to humans alone? Animals are also sentient beings that feel pain and are vulnerable to abuse. They could also benefit from protective relationships with governments and humans, such as their owners, that will protect their liberties and their intrinsic value (if they had intrinsic value). On these grounds it seems that they, as opposed to other legal things, should also be granted the greatest form of security possible.

While this claim seems logical at first, it is laden with legal absurdities. Humans can have rights because they are legal persons, and animals cannot because they are things. This implies that there must be a characteristic that humans encompass, that does not exist within animals. The lack of this characteristic is seen as a 'defect', preventing animals from accessing rights.[102] However, after thousands of years of rights theory, and modern scientific discoveries about the human and animal mind, evidence of this characteristic is still a mystery.[103]

The aim of this paper is not to conclusively prove that animals deserve rights, but rather to show that there is a possibility that the current classification of animal is incorrect and needs to be readdressed. This section will discuss a number of theorized characteristics which differentiate humans from animals. If these legal hurdles can be successfully overcome, then the absurdity of animal rights begins to look more like a real possibility.

One of the hurdles, used to justify denying animal rights, is the claim that animals cannot use language to communicate, and this ability is necessary to engage with what it means to be a right holder.[104] However, not all humans have the ability to speak. Babies, mute and certain mentally challenged humans cannot speak or communicate at all. Is it then permissible for them to be eaten or subjected to scientific experiments?[105] Moreover, juristic persons, such as corporations or ships, which enjoy rights, also cannot speak.[106]

Furthermore, there has been ample scientific research into the communicative abilities of animals. The results have varied. In one study, chimpanzees learned and communicated to humans and other chimpanzees in American Sign Language. [107] Other studies have shown less positive results. In general, humans know relatively little about animal communication. However, ignorance does not mean absence, and for these reasons, the ability to speak cannot be an obstacle preventing animal rights.

Another hurdle is human consciousness. John Locke thought that "the essential characteristic of a person was consciousness". [108] It is an animal's lack of consciousness which prevents it from being a right holder. Initially a similar argument to that of language is relevant. Could a human injured in a car accident, be available for fast-food if there is evidence of no higher cognitive functioning or consciousness?[109] What about a person in a deep sleep? The answer is no. Courts allow even unconscious or brain-dead humans the ability to choose whether to exercise their rights, even if they don't know that they have them.[110]

In addition, there is little consensus on what it actually means to be conscious. Consciousness has been the subject of much scientific and psychological research. Human memory, 'blindsight', 'rings of consciousness' and 'thoughtless words' are different approaches that scientists have used to try explain human consciousness.[111] Similar experiments have been conducted on animals in an attempt to answer the same question:[112] What makes the mind work? What makes one conscious? Some results have shown that humans are conscious, while animals are not. Some have shown that both are conscious. Others have shown a full-grown animal to have the mental capacity of a human child.[113]

The difficulty in using consciousness as a standard for rights is firstly, there is no consensus on a definition of consciousness. And secondly, the scientific understanding of human and animal minds is insufficient to draw concrete conclusions. If scientists have had troubles understanding what makes the human mind work, how are we to understand the minds of a different species?[114] What is clear from science is that there are differences and similarities between humans and animals. "Even a dog distinguishes between being stumbled over and being kicked".[115] For a lack of sufficient evidence, consciousness cannot be a barrier preventing animal rights or personhood.

There is one especially high hurdle that has caused a lot of discomfort for those advocating for animal rights. This is the concept of dignity. Central to most constitutions and international rights declarations, is the idea that rights are derived from dignity inherent in all humans.[116] Davis J dealt with the concept of dignity in the recent Kylie case. [117] Once it is recognized that a prostitute has inherent dignity, the constitution must offer her protective rights, as its purpose is to protect bearers of dignity.[118] Thus, the law must accord rights to anything with inherent dignity. The claim to dignity has two different interpretations. Both of these interpretations can be refuted to show that animals also have inherent dignity.

The first interpretation is that 'dignity' acknowledges a special value inherent within humans alone. By virtue of being born human, one has inherent dignity. [119] Yet is it true that only humans posses dignity? The concept of dignity, or dignitas hominis, stems from Roman philosophy, as a way of conveying status. Honour and respect should be awarded to anyone worthy of honour and respect based on their status.[120] There was nothing in this usage that conferred dignity solely onto humans. In fact originally, not all humans possessed dignity. Instead it was only the aristocracy[121], the state and the crown who were envisaged to have inherent value. [122]

It was only in scattered roman writings that dignity conveyed an exclusively human characteristic known as dignitas. During the social and legal development of the Middle Ages described in section IV, the offshoot notion of dignitas was used to differentiate humans, created in God's image, from other species.[123]

Today, dignity is not used in a human context exclusively. In international law, sovereign states are considered to have inherent dignity.[124] Hungarian courts have explicitly recognized that non-human entities can have dignity. [125] In German jurisprudence, dignity has been recognized in dead humans. In Israel, courts have been willing to accept inherent dignity in animals. The court acknowledged a crocodile's dignity, by reasoning that if the acts of cruelty inflicted on the crocodile were to be inflicted on a human, they would be considered undignified. [126] Although not all legal systems have accepted that non-human entities can poses dignity, some have. Thus, not only is there precedent, but there is also good reason to revert back to the original meaning of dignity - a status of honour and respect for anything which is deserving of it, which surely, in this environmental era, includes animals.

Furthermore it is arbitrary to recognize dignity in humans and not in other sentient beings, without any justification. [127] Why is it that humans have inherent worth, but elephants or whales do not? This is called 'speciesism', and has led to endless damage to animal interest. According to Singer, "speciesism is no more morally defensible than racism, sexism or other forms of discrimination that arbitrarily exclude humans from the scope of moral concern". [128] A racist permits arbitrary preferential treatment of his/her race without justification. A speciesist permits similar treatment of his/her species with a similar lack of justification. [129] An explanation for additional moral concern for humans over animals, could also serve to justify favouring men over women.

The other interpretation of dignity asserts that dignity represents characteristics, such as 'free will', 'rationality' or speech, only possessed by humans. As only humans have this quality, only humans have dignity, and consequently only humans have intrinsic worth [130] According to Immanuel Kant, this characteristic was rationality; the ability to act according to a moral code. Since only humans were rational, only humans could be treated as an end rather than as a means to an end. [131]

However, this argument is flawed. Firstly, Kant does not explain why it is rationality, as opposed to say a beating heart, which is the precondition for dignity. Kant's claim can only be true if an additional argument justifying the importance of rationality is added. [132] Secondly, if rationality is accepted as the precondition, what is to say that there are not other preconditions for dignity?[133] Science has not proven (or disproven) that animals live by a moral code. However, there is evidence of remarkable abilities of animal minds, which would have been thought impossible in Kant's lifetime. It may not be the ability to make moral decisions, but scientific evidence shows dolphins and chimpanzees to be intelligent beings. [134] Lions may not consider the morality of murder before a hunt, but their hunting tactics indicate that they are making strategic decisions. Do animals not posses rationality, or is rationality defined in such a way as to include only humans?

Already there are schools of thought that reject dignity as a precondition for rights. Some claim that dignity is not as useful in rights theory as once thought. A medical ethics professor for example, claims that dignity is a vague concept and a mere restatement of other values, and could be eradicated with little effect on the field of medical ethics.[135] If dignity is important in rights theory, it is still unlikely to be an insurmountable hurdle preventing animals from accessing legal rights.

To claim that there are characteristics, exclusive to all humans, that determine intrinsic worth is peculiar. The mental, cultural and social differences within humanity are enormous. "Scientists have long known that American minds differ from East Asian minds". [136] Language, moral codes, taste, skin colour and sleeping patterns can differ extensively amongst humans. The differences between two humans could be akin to that of Human and Martian. [137] The advantage of rights, in modern democratic systems, is that difference is embraced and protected equally. It is likely true that a chimpanzee cannot understand the subtleties of Shakespeare, however the same may hold true for many humans.

The ability to speak, consciousness and dignity are three major hurdles preventing animal personhood. However, as can be seen, these hurdles are flawed. The distinctions that separate humans and animals are often based on outdated concepts with little scientific backing. Today, real scientific evidence indicates that humans are in fact very similar, in DNA[138] and in mind, to some animals, such as chimpanzees and bonobos.[139]

Humans are sentient being which feel pain, are open to abuse, and live under a system in which some liberties are surrendered in the relationship with government. It is these circumstances that make rights essential. Animals are similar beings which live under the similar circumstances. But for a number of characteristics, thought to be exclusive to humans, they would be granted rights. If these characteristics are shown not to be exclusive, then on what basis are animals denied access to legal rights? The answer; '…because they are animals' is no longer sufficient.


Section VII: To what rights should animals be entitled?

The aim of this paper is to argue that animals should be given legal personhood, which will in effect entitle them to legal rights. The question of which specific rights animals should be granted is the next stage of the argument, and will not be explored in great depth in this paper. However, to complete the picture that is being painted, it is necessary to briefly discuss a few of the possible specific rights which animals may be given.

The US Supreme Court has called the right to sue, "the right conservative of all other rights".[140] Not anyone can bring a claim to court. In order to do so, one must have locus standi (the right to sue). Without the ability to bring an issue to court, there can be no recourse for an infringed right. If animals are to have adequate protection under the law, they must be able to bring claims to court in instances of mistreatment or abuse.

Obviously animals cannot approach a court themselves. The law thus makes it possible for claims to be brought by representation, on behalf of a person who cannot do so themselves. For instance, it is possible for parents to represent their babies for harm suffered. If animals are granted locus standi, then the burden of animal protection does not fall solely on the state. Instead it is shared amongst interested parties. [141] All that must then be shown is that the person representing the animals has a sufficient interest in the claim. This is another bridge to cross, but it is crossed with less difficulty once animal personhood is permitted.

Another right to consider is the right to bodily integrity. Modern farming methods, scientific testing, and other animal uses will need to be rethought if the bodily integrity of an animal is protected. This may not mean that animals cannot be farmed or eaten, but rather that courts will need to develop jurisprudence around what it means to farm animals, while still respecting their bodily integrity and dignity.

Furthermore, animals may deserve rights to ensure their basic needs and survival. The 'five freedoms' of animals set a basic guideline for animal care in welfarist legislation.[142] These include: freedom from hunger, thirst, and malnutrition; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behavior. It is quite plausible that these freedoms be converted to rights. Thus, not only will these guidelines form suggestions for animal care, but there may even be a chance that they are legally enforced.

Section VIII: Conclusion

There is an injustice in the legal relationship with animals. Their status as legal things is reflected in the way that humans treat animals. Open for ownership, welfarism allows animals to be treated in a way that more resembles an inanimate object than a sentient being. Democratic legal systems have developed rights to be the primary means of legal protection. Is there a justifiable reason to deny animals this protection?

Science and philosophy have shown the foundations of animal thinghood to be flawed. This should allow for the development of animal personhood, and consequently animal rights. The problem is that some beliefs are so ingrained that contrary views may sound absurd. However, the dire situation faced by animals today, necessitates the moral cynic to entertain the idea that his/her current paradigm for thinking about animals may be outdated. Even moral and educated people supported Apartheid.

The revolution has begun. Several universities offer graduate degrees in animal protection. Animal Welfare Journal, is just one of a number of academic journals committed to the science and legal developments of animal rights and care. In 2007, Spain became the first nation to recognize the personhood of apes. There are an increasing amount of legal claims being brought to courts on behalf of animals. [143] In 2010, Switzerland held the first national referendum to propose the acceptance of animals' right to legal representation.[144] While the referendum, as well as many of the animal rights cases, was unsuccessful, they do form part of the legal movement towards animal rights. Struggles are fought in two ways; through fighting and through persuasion. Animals are notoriously bad at both. The onus thus falls on those with the ability to take a stand. Slavery did not end because people sat idle.

There have been 490 animal species that have gone extinct since 1600. Over 200 of these have taken place in the 20th century, and a significant portion of those have happened in the past 20 years.[145] Genocide is defined as "any act committed with the intent to destroy, in whole or in part…"[146] "any group that shares a nation, a politics, a culture, a race, a language, a religion, a tribe or a history."[147] The war waged against animals in the name of science, entertainment and food is akin to the iniquitous experiments of the Nazi's Dr. Mengele or the soldiers of Pol Pot.

However, genocide cannot be committed against a species of animal, as this term is reserved exclusively to describe atrocities committed against humans. There is no legal term to describe the peril of the 490 species of animals eradicated as a result of human conduct. Genocide is one on a list of legal harms which can be committed against humans alone. Assault, child abuse, acts of war, rape, homicide, and attempted homicide are others. However, besides 'animal abuse', the extreme magnitude and prevalence of harms committed against animals are legally unnamed, unpunished and unrecognized. There seems to be an injustice in this.

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[1]
[1] Jonathan Safran Foer Eating animals (2009) at 59.

[2]
[2] ibid 11.

[3]
[3] Ibid 104.

[4]
[4] ibid 131.

[5]
[5] ibid 131.

[6]
[6] Ibid 43.

[7]
[7] Gary Francione 'Animal rights and animals welfare' (1995 - 1996) 48 Rutgers Law Review 397 at 398.

[8]
[8] Jeff Welty 'Animal law: Thinking about the future' (2007) 70 1 Law & Contemporary Problems 1 at 6.

[9]
[9] South African Veterinary Foundation Animal care legislation review

http://www.savf.org.za/Documents/Animal%20Care%20Legislation%20Review.pdf (accessed on 06/03/2010) at

3 subsequently Animal care legislation review.

[10]
[10] Steven White 'Legislating for animal welfare: Making the interest of animals count' (2003) 28 Alternative Law

Journal 277 at 279.

[11]
[11] Welty (note 8) at 4.

[12]
[12] Performing Animal Protection Act 24 of 1935.

[13]
[13] Section 2 Animals Protection Act 71 of 1962.

[14]
[14] Cass Sunstein 'Standing for animals: With notes on animal rights' (1999 - 2000) 47 UCLA Law Review 1333 at

1339.

[15]
[15] Francione (note 7) at 407.

[16]
[16] Francione (note 7) at 400.

[17]
[17] Gary Francione Animals, property and the law (1995) at 105.

[18]
[18] Francione (note 7) at 417.

[19]
[19] R v Dudley and Stephens (1884) 14 QBD 273. In this case two shipwrecked sailors were convicted of the murder

of a cabin boy who they killed to eat, in order to survive. The court found in this infamous case that one cannot

murder another out of necessity.

[20]
[20] Gary Francione 'Animals, property and legal welfarism: 'unnecessary' suffering and the 'humane' treatment of

Animals' (1993 - 1994) 46 Rutgers Law Review 721 at 731.

[21]
[21] Ibid 739.

[22]
[22] Francione (note 17) at 105.

[23]
[23] Ibid 105.

[24]
[24] Francione (note 20) at 724.

[25]
[25] Section 2(b) Act 71 of 1962.

[26]
[26] Francione (note 20) at 731.

[27]
[27] Francione (note 17) at 105.

[28]
[28] Francione (note 20) at 731.

[29]
[29] Ibid 731.

[30]
[30] ibid 731.

[31]
[31] Ibid 732.

[32]
[32] Sunstein (note 14) at 1339.

[33]
[33] Francione (note 20) at 738.

[34]
[34] Francione (note 7) at 427.

[35]
[35] ibid 431.

[36]
[36] ibid 399.

[37]
[37] ibid 441.

[38]
[38] Anthony Pagden 'Human rights, natural rights, and Europe's imperial legacy' (2003) 31 2 Political Theory 171 at

191.

[39]
[39] G.A. res. 217A (III).

[40]
[40] G.A. res. 2200A (XXI).

[41]
[41] Pagden (note 38) at 172.

[42]
[42] ibid 176.

[43]
[43] Steven Wise Rattling the cage: Toward legal rights for animals (2000) at 54.

[44]
[44] ibid 55.

[45]
[45] ibid 55.

[46]
[46] ibid 56.

[47]
[47] Ibid 54.

[48]
[48] Francione (note 17) at 96.

[49]
[49] Wise (note 43) at 54.

[50]
[50] Ibid 57.

[51]
[51] ibid 56.

[52]
[52] Wise (note 43) at 32.

[53]
[53] Pagden (note 38) at 174.

[54]
[54] Wise (note 43) at 34.

[55]
[55] Oscar Schachter 'Human dignity as a normative concept' (1983) 77 American Journal of International Law 848 at

853.

[56]
[56] Section 27 The Constitution of South Africa, 1996.

[57]
[57] Section 105(A)(2)(a)(ii) Criminal Procedure Act 51 of 1977.

[58]
[58] UDHR (note 39) at Article 6.

[59]
[59] Wise (note 43) at 4.

[60]
[60] Jens Ohlin 'Is the concept of the person necessary for human rights?' (2005) 105 1 Columbia Law review 209 at 211.

[61]
[61] Pinchin and Another NO v Santam Insurance Co Ltd 1963 (4) SA 666 (A).

[62]
[62] Sunstein (note 14) at 1361.

[63]
[63] Wise (note 43) at 1.

[64]
[64] ibid 53.

[65]
[65] Christopher Stone 'Should trees have standing?' - Toward legal rights for natural objects' (1972) 45 Southern

California law review 450 at 488.

[66]
[66] ibid 448.

[67]
[67] Stone (note 65) at 489.

[68]
[68] David Bilchitz 'Moving beyond arbitrariness: the legal personhood and dignity of non-human animals' 25 1 South

African Journal of Human Rights 38 at 38.

[69]
[69] Wise (note 43 at 60.

[70]
[70] Stone (note 65) at 456.

[71]
[71] Wise (note 43) 11.

[72]
[72] ibid 11.

[73]
[73] Wise (note 43) at 24.

[74]
[74] ibid 40.

[75]
[75] Bilchitz (note 68) at 53.

[76]
[76] Wise (note 43) at 31.

[77]
[77] ibid 47.

[78]
[78] ibid 42.

[79]
[79] Genesis 1.28.

[80]
[80] Wise (note 43) at 16.

[81]
[81] Wise (note 43) at 40.

[82]
[82] Ibid 68.

[83]
[83] ibid 38.

[84]
[84] ibid 69.

[85]
[85] Wise (note 43) at 47.

[86]
[86] F du Bois (ed) Wille's principles of South Africa law 7ed (2007) at 77.

[87]
[87] Ibid 80.

[88]
[88] Fourie and Another v Minister of Home Affairs and Another 2003 (5) SA 301 (CC).

[89]
[89] Jennifer Nedelsky 'Reconceiving rights and constitutionalism' (2008) 7 Journal of Human Rights 139 at 140.

[90]
[90] Nedelsky (note 89) at 140.

[91]
[91] 2001 (1) SA 46 (CC).

[92]
[92] Section 26 The Constitution of South Africa, 1996.

[93]
[93] Theunis Roux 'Understanding Grootboom - A response to Cass R Sunstein' (2002) 12 2 Constitutional Forum 41

at 41.

[94]
[94] Nedelsky (note 89) at 141.

[95]
[95] ibid 155.

[96]
[96] ibid 155.

[97]
[97] ibid 142.

[98]
[98] Bilchitz (note 68) at 39.

[99]
[99] Nedelsky (note 89) at 145.

[100]
[100] Nedelsky (note 89) at 145.

[101]
[101] White (note 10) at 279.

[102]
[102] Francione (note 7) at 411.

[103]
[103] Ohlin (note 60) at 213.

[104]
[104] Francione (note 7) at 411.

[105]
[105] ibid 412.

[106]
[106] Stone (note 65) at 464.

[107]
[107] Wise (note 43) at 222.

[108]
[108] Ohlin (note 60) at 213.

[109]
[109] ibid 219.

[110]
[110] Wise (note 43) at 244.

[111]
[111] Ibid 141 - 155.

[112]
[112] Wise (note 43) at 155 - 162.

[113]
[113] Ibid 156.

[114]
[114] ibid 146.

[115]
[115] Oliver Wendell Holmes as cited in Adam Kolber 'Standing upright: The moral legal standing of humans and

other apes' (2001 - 2002) 54 Stanford Law Review 163 at 163.

[116]
[116] Bilchitz (note 68) at 51.

[117]
[117] Kylie v Commission for Conciliation Mediation and Arbitration and Others 2010 (4) SA 383 (LAC).

[118]
[118] ibid par 26 & 44.

[119]
[119] Bilchitz (note 68) at 38.

[120]
[120] Christopher McCrudden 'Human dignity and judicial interpretations of human rights' (2003) 19 4 The European

Journal of International Law 655 at 656.

[121]
[121] Bilchitz (note 68) at 51.

[122]
[122] McCrudden (note 120) at 657.

[123]
[123] ibid 658.

[124]
[124] ibid 657.

[125]
[125] Ibid 708.

[126]
[126] Ibid 708 "The animal is a helpless creature, much like a helpless minor. Neither of them can protect themselves,

or claim their insult, or regain their dignity".

[127]
[127] Bilchitz (note 68) 52.

[128]
[128] Francione (note 7) at 412.

[129]
[129] Bilchitz (note 68) at 53.

[130]
[130] ibid 54.

[131]
[131] Ibid 54.

[132]
[132] ibid 54.

[133]
[133] ibid 55.

[134]
[134] Louis Herman 'Exploring the cognitive world of the bottlenosed dolphin' in Susan Armstrong & Richard Botzler

(eds) The animal ethics reader (2003) 161 - 166 at 161.

[135]
[135] Ruth Macklin 'Dignity is a useless concept ' (2003) 327 British Medical Journal 1419 at 1420.

[136]
[136] Sharon Begley 'What's really human?' Newsweek (02/08/2010) 16.

[137]
[137] Ibid 16.

[138]
[138] Wise (note 43) at 132. Human DNA is 98.3% identical to that of a chimpanzee.

[139]
[139] ibid 179 - 237.

[140]
[140] Chambers v Baltimore & Ohio Railroad 207 US 142, 148 (1907) as cited in Steven Wise, Rattling the Cage 59.

[141]
[141] Sunstein (note 14) at 1333.

[142]
[142] Animal care legislation review (note 9) at 3.

[143]
[143] Sunstein (note 14) at 1348.

[144]
[144] Imogen Foulkes 'Switzerland rejects move to provide lawyers for animals'

http://news.bbc.co.uk/2/hi/europe/8554012.stm (accessed on 17/09/2010).

[145]
[145] Helen Regan et al 'The currency and tempo of extinction' (2001) 57 1 The American Naturalist 1 at 1.

[146]
[146] Article 2 G.A. Prevention and punishment of the crime of genocide, 09/12/1948 A/RES/260

[147]
[147] Wise (note 43) at 265.