About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

25 S. Afr. J. on Hum. Rts. [i] (2009)

handle is hein.journals/soafjhr25 and id is 1 raw text is: SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS VOLUME 25 PART 1 2009 CONTENTS Page Articles EQUALITY, PLURALITY AND STRUCTURAL POWER Henk Botha 1 This article deals with the paradox that, in order to remedy discrimination and redress dis- advantage, we have to invoke broad social categories and identities which are themselves implicated in relations of inequality and subordination. This paradox is explored from three different angles. First, the article argues for a complex understanding of equality. In terms of this understanding, the right to equality is underpinned by at least three interdependent, yet constantly shifting values, namely dignity, equality and democracy. Secondly, a radical under- standing of difference is advocated, which seeks to destabilise the symbolic oppositions and hierarchies that underlie inequality and exclusion, and which avoids the uncritical equation of difference with supposedly self-contained individual and collective identities. Thirdly, the article echoes calls for a memorial understanding of constitutionalism which resists the monu- mentalisation of past struggles and is concerned with the limits of the law in detecting and responding to disadvantage. It is argued that these three perspectives, taken together, enable a transformative discourse on equality, which remains open to the capacity of disadvantage and difference to resist the closure into which law inevitably lapses. MOVING BEYOND ARBITRARINESS: THE LEGAL PERSON- HOOD AND DIGNITY OF NON-HUMAN ANIMALS David Bilchitz 38 This article considers the legal personhood and dignity of non-human animals. It first argues that the concept of legal personhood can embrace all those who are capable of having rights or duties. Since the concept includes those who are rights-bearers, without necessarily being duty- bearers, it is necessary to investigate whether it is possible for animals to be rights-bearers within our law. It is argued that the traditional classification of animals as legal objects has already been challenged by the enactment of animal welfare legislation. Certain traditional justifications for such legislation cannot withstand scrutiny and it is shown that such legislation rests upon the recognition that animals have important interests in their own lives and so require legal protec- tions in their own right. This provides the basis for recognising that they have certain rights within the law, and consequently, if we take the argument to its logical conclusion that they are natural persons rather than things. This conclusion can be reached through courts simply drawing out the implications of the existing legal regime in relation to animals. An alternative basis for restricting the category of legal personhood only to those who are members of the human species is often rooted in the notion that human beings have a special 'worth' or 'dignity' not possessed by other animals. The dignity claim is shown to be capable of two different interpretations: one that asserts the special value of human beings as a category and the other that asserts the special value of certain complex characteristics- such as rational agency - largely found only within the human species. Both interpretations are shown to be flawed and, ultimately, provide no accept- able justification for recognising that only human beings are capable of having rights that must be respected. The notion of dignity, it is argued, can be developed to remove the arbitrary exclusion of non-human animals. The concept, as developed recently by Martha Nussbaum, embraces all those who have the capacity to flourish and can recognise the variable nature of the good for diverse beings. The adoption of the revised conception of dignity paves the way for the recogni- tion of the legal personhood of animals. The final part of this article considers the possibilities for interpreting both the common law and constitutional provisions so as to recognise the dignity and personhood of animals. Akey problem that is addressed is whether South African society is ready to embrace the full implications of this recognition. The legal concept of 'progressive realisation' of animal rights is proposed as offering the possibility of ensuring greater protections for ani- mals through recognising their dignity and personhood whilst embracing a gradualist approach towards the full realisation of their rights, thus preventing a wholesale disjunction between the law and the attitudes of wider South African society.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most