A Legal Argument against Vivisection
PROTECTING ANIMALS AGAINST CRUEL & INHUMANE
TREATMENT
By: Kevin Hopkins; BA, LLB (Rhodes) LLM (Wits); Senior
Lecturer in Law at the University of the Witwatersrand, Johannesburg and
Advocate of the High Court.
1. In South Africa, as in most parts of the
world, people are the subjects of the legal system. The idea of law is to create
rules that prescribe human conduct. One of the primary functions of law is to
create a system of social controls to regulate the behaviour of people in
society. Paul Boberg (at page 2) states the position as follows "the importance
of being a person in the eyes of the law lies in the fact that only a person can
have rights and duties." Thus the law’s focus is on people. Only people owe
legal duties under the law and conversely only people are afforded the
protection of legal rights under the law. Boberg (at page 3) goes on to state
that "things, on the other hand, neither have, nor are they capable of having,
rights and duties: they are the objects of the rights and duties of persons."
Animals are classified by our law as things (in other words ‘property’) and not
as people. Animals consequently have no rights under South African law - not
even the right to be free from being inflicted with cruelty and suffering.
2. In line with my submission in paragraph 1,
the anti-animal cruelty laws in South Africa are therefore not designed to
protect animals - since animals are not entitled to the protection of the law.
The purpose behind the anti-animal cruelty laws is to protect people who are
sensitive to animal suffering. Schwartz (at page 676) confirms this when he says
that "it is not the mistreated dog who is the ultimate object of concern... our
concern is for the feelings of other human beings, a large proportion of whom,
although accustomed to the slaughter of animals for food, readily identify
themselves with a tortured dog or horse and respond with great sensitivity to
its feelings." That animals have no rights in South African law is trite.
Karstaedt (at page 351), citing various cases heard in South African courts,
says something similar "according to our case law, it [anti-animal cruelty
legislation] was not even intended to protect animals. The legislature’s
intention, we are told, was to protect human beings who are sensitive to animal
suffering from affronts to their sensibilities and to prevent degeneration of
the finer human values in the sphere of animal treatment."
3. The traditional approach
adopted by anti-animal cruelty activists generally seems to be a focused
campaign on achieving some kind of respect for ‘animal rights’. This is a tall
order in the current South African legal system because, as I have pointed out,
it is clear that animals have no rights. Thus a necessary precondition for
success, if one persists with the traditional approach of the activists, would
require not only the general revision of legal theory in the South African
domestic legal order, but also the particular doctrinal revision of accepted
rights discourse. This is probably an unrealistic expectation. I suggest that
the campaign shift its emphasis away from trying to create new and unprecedented
rules of law and rather shift it towards operating within the existing framework
of established and accepted laws. This will, in our opinion, give the
anti-animal cruelty campaign a considerably better prospect of success.
4. Within the established and existing South African common law rules,
as I have stated, animals are regarded as the property of their owners. An
animal is thus completely subject to the control of its owner. According to
Silberberg & Schoeman (at page 161) "ownership is the right that potentially
confers the most complete or comprehensive control over a thing, which means
that the right of ownership empowers the owner to do with his (sic) property as
he deems fit." According to the South African common law an owner has certain
entitlements with regard to his/her property. These entitlements, summarized by
Andre Van der Walt (at page 46), include " the entitlement to control which is
the right to physically control and keep the thing; the entitlement to use which
is the right to use and benefit from the thing; and the entitlement the alienate
the thing which is the right to transfer the thing to someone else." The
last-mentioned, the right to alienate, is accepted as being broad enough to
include, as Silberberg & Schoeman (at page 162) tell us, "the right to
destroy the thing."
5. Notwithstanding the
apparent comprehensiveness of ownership as a legal right, the entitlements that
an owner has with regard to his/her property are not absolute. As Van der Walt
(at page 48) says "ownership is sometimes wrongfully characterized as absolute.
The absoluteness of ownership is ostensibly found in the owner’s entitlement to
do with the thing ‘what he wants’, that is to say to have absolute and unlimited
control of the thing by using it as he sees fit. The conclusion is then that
ownership provides the holder of the right with unlimited and exclusive control
of the thing. However the abovementioned point of view is wrong." The point that
Van der Walt is making, which has been accepted by our courts, is that an
owner’s right to do with his property as he wishes is a limited right. The right
is limited by law. The common law recognizes the maxim sic utere tuo ut
alienum non laedas which means that every owner must use their property in
such a way that no other person is unreasonably prejudiced. The High Court
confirmed this maxim in the Gien case when it stated that every owner’s right to
use and enjoy his/her property is always going to be restricted by the rights of
other members of the community.
6. But what kinds of
rights are we talking about? An extremely resourceful body of common law rules
has developed with regard to the way that an owner may use her immovable
property. This is called the ‘law of nuisance’. According to this law a property
owner will be acting unlawfully if she uses her property in such a way that it
unreasonably infringes upon another individual’s personality rights. Van der
Walt (at page 100) confirms this when he says that nuisance in the narrow sense
"constitutes of an infringement of a personality right." Interestingly, there is
authority for the idea that the law of nuisance applies to both immovable
property (eg. land and houses) and movable property (eg. things like motor
vehicles and animals). As Silberberg & Schoeman (at page 191) put it "the
principles which govern the exercise of rights of ownership in land apply
mutatis mutandis to ownership in movables"
7. But how is it that one must exercise these rights? Well the
question seems to be best answered in terms of what is ‘reasonable’. In other
words, the law allows the owner of an animal to use that animal in any way that
he or she chooses provided that in so doing the personality rights of other
members of the community are not violated. Sometimes, of course, other peoples’
rights may be violated in the process. When this happens the courts will ask
whether, notwithstanding the violation, the owner’s use of her property was
nevertheless reasonable (in the circumstances). This statement, which
effectively represents a logical summary of the preceding paragraphs, raises two
big issues that require something more in the discussion: first, exactly what
kinds of personality rights of ordinary people are apparently violated when the
owner of an animal causes it to suffer in a cruel and inhumane way; and
secondly, how can we legitimately determine what kinds of things an owner can
reasonably be permitted to do to her animal and what kinds of things would be
impermissible.
8. As I have indicated above, every owner must have regard
to the personality rights of other members of the community when exercising
their entitlements. The first issue raised was: what kinds of personality rights
are apparently violated through cruelty? Neethling, Potgieter & Visser (at
page 332) state that "the right to dignity is recognized as an independent
personality right within the concept of dignitas." Dignity is thus a
personality right. Every person’s right not to have their dignity violated is
protected by law - not only in the common law, but also in the Constitution. But
this doesn’t necessarily mean that the common law and the Constitution offer
separate remedies to offended people. Rather, both of these areas of law
together help us to define our understanding of what dignity is. The action
still needs to be brought under the law of nuisance - as we indicated in
paragraph 6. The correct remedy in the law of nuisance is to apply to court for
an interdict requesting that the court find the offending conduct wrongful and
that it order the owner to abate the nuisance thus putting a stop to the
offending conduct. In other words the court will order that the cruelty come to
an end. This is a common law remedy. But section 39(2) of the Constitution
instructs the courts to develop the common law in line with constitutional
values. Thus the Constitution assists us in determining the wrongfulness of the
conduct under the common law. This is pretty much what Jonathan Burchell says
(at page 329) "protection of dignity under the common law has the same supple
overarching quality as its constitutional counterpart. This synergy serves to
enrich both complementary branches of the law." It thus follows that when we say
that an owner must have regard to the personality rights of others in the
treatment of her animals - she cannot treat them in a way that infringes upon
the personality rights of other members of the community - it in fact means that
the courts will not permit her to unreasonably do things to her animals if doing
those things violates the dignity of other members of the community. The meaning
of dignity is informed by both the common law and constitutional law
understandings. Of course we still need to show that the right is broad enough
to protect people who are sensitive to animal cruelty, as will we need to show
that certain kinds of cruelty unjustifiably violate the right - this is the
difficult part.
9. So what then, one may ask, does the right to dignity mean?
Under the common law it seems to embrace the concepts of self-respect and
self-worth (as a human being). An insult to one’s subjective sensibilities is
the most obvious way in which one’s right to dignity can be violated. In De
Langa v Costa the Appellate Division said that although one’s dignity may be
violated when one’s sensibilities are offended, the offensive conduct will only
be wrongful if "a person of ordinary sensibilities would (also) have regarded
the conduct as offensive." Burchell, writing elsewhere, says (at page 7) that
"the ultimate criterion for determining an impairment of dignity is not the
sensibilities of the plaintiff, nor that of the hypersensitive individual, but
that of a reasonable person." This view was in fact cited with approval by the
Appellate Division in De Langa v Costa.
10. The next
obvious question is how the Constitution may be able to assist us with what is
essentially a common law argument. It may be possible for the Constitution to
help in two ways: first, our understanding of dignity is broader under the
Constitution than it is under the common law; and secondly, the public policy
enquiry into whether the conduct complained of is wrongful is also more clearly
defined under the Constitution.
11. The issue of breadth is crucial
because usually it is only possible for conduct to violate the dignity of the
person against whom the conduct is being directed. It is clear that the cruel
and inhumane treatment of a human being violates the right to dignity - it
violates the right of the person that is being brutalized. This is evident from
the Constitutional Court’s ruling in the Makwanyane case where the death
penalty was abolished because it violates human dignity; it is also clear from
the ruling of the same court in the Williams case where corporal
punishment in the form of judicial whippings was abolished for the same reason -
it offends human dignity. But under the common law, only the person against whom
the miserable conduct is directed can claim to have their dignity violated. This
creates a huge problem for those who want to claim that animal cruelty is an
affront to dignity. Surely it is only the dignity of the brutalized animal that
is violated, and that can’t obviously, on its own, be used to alleviate the
animal’s plight because (as we now know from paragraphs 1 and 2) animals have no
legal right to claim the protection of their dignity. Under the Constitution,
however, it seems that even the dignity of passive bystanders is relevant. In
the Williams case, Justice Langa of the Constitutional Court held that
"there is no dignity in the act itself (whipping somebody); the recipient might
struggle against himself to maintain a semblance of dignified suffering"; there
is no dignity even in the person delivering the punishment. It is a practice
which debases everyone involved." In Makwanyane the court was even
clearer when it held that certain kinds of cruel behaviour violate "the dignity
of all of us in a caring civilization". Thus, certain kinds of cruelty
constitute not only a violation of the victim’s dignity, but in fact the dignity
of all members of the community.
12. The Constitution
thus recognizes that not only the victim of cruelty suffers indignity, but
indeed all of us who are either "involved" (Williams) or indeed all of us
that are part of a "caring civilization" (Makwanyane ). The argument that
needs to be sold to a court is the following: if it is wrongful to treat a human
being cruelly because it offends my sensibilities when you do so, then it should
also logically be wrongful to treat an animal cruelly if the consequence of that
cruelty has the same result - an affront to my sensibilities. From the
Constitutional Court’s jurisprudence it doesn’t seem to matter who or what is
being treated cruelly, what apparently matters is that my sensibilities, as a
member of a caring society, are offended in the process. Thus, if the court
takes this argument seriously, then the cruel treatment of an animal at the
hands of its owner will be regarded by the law as an unlawful use of one’s
property. But does that necessarily mean that all cruelty will be unlawful?
Obviously not - the difficult question is to know where to draw the line, in
other words, to know where the limits to lawfulness lie: this is essentially the
second big issue that we identified in paragraph 7.
13. The second big issue (where to
draw the lines of permissibility) is also inextricably linked to the second
contribution (as stated in paragraph 10) that I felt the Constitution can help
to make the argument - it clarifies the public policy considerations. Public
policy, which is essentially the legal convictions of the community, help us
determine when human conduct is wrongful and thus impermissible. Public policy
is mostly based on criteria of reasonableness. Public policy, for example, will
not permit owners of property to use their property in such a way that it
violates the rights of other members of the community unless there is a
justification (a good reason) for such conduct - in which case the other members
of the community will simply be expected to live with the consequences. In other
words, the law allows for the violation of personality rights where there is
good reason for permitting the offending conduct. All forms of animal cruelty
are presumably offensive to animal lovers, but sometimes even the cruel
treatment of animals can be reasonable in which case animal lovers will be
expected to tolerate the offending conduct. Of course senseless cruelty (done
for no good reason), so the argument should go, can never be regarded as
reasonable - certainly not in a society that wants to define itself (in the
words of the Constitutional Court) as a "caring civilization" (per Justice
Mohammed in Makwanyane) that treats all people as "worthy of respect and
concern" (per Justice O’Regan in Makwanyane).
14. The crucial
question thus turns on what is, or else is not, acceptable to the kind of
society that our constitutional dispensation is striving to create. It is
therefore clear that not all forms of animal cruelty will be regarded as
unlawful simply because it offends the personality rights and sensibilities of
other members of the community. Each case will have to be determined on its own
merits. But the kinds of considerations that courts should make, we submit, are:
(i) is the conduct so cruel and inhumane that it offends not just the
sensibilities of the plaintiff as a specific member of the community, but even
the sensibilities of an ordinary reasonable member of the community who is, of
course, not a hyper-sensitive person; and (ii) if the answer to the first
question is affirmative, then is the conduct, although cruel and inhumane,
nevertheless reasonable because there is good reason for treating the animals in
the way that they do. If the answer to the second question is negative then the
violation of the right is quite frankly unreasonable. The violation of a
personality right through unreasonable conduct is unlawful in the law of
nuisance and ought to justify the granting of an interdict by the court. This is
confirmed by Silberberg & Schoeman (at page 169) when they state "the test
applied is, therefore, one of reasonableness, the question being whether a
reasonable man (sic), finding himself in the position of the plaintiff, would
have tolerated (the cruel and offending conduct)."
15. The courts, as guardians of a society as violent as
the South African society, should never condone senseless brutality and/or
cruelty done without good reason. The Constitution was drafted in an effort to
transform our entire society into one that respects the sensibilities and indeed
dignity of all people. It’s very difficult to argue that a court which allows
senseless cruelty is acting in furtherance of this aim. The inclusion of the
right to dignity in the Constitution is best understood as an attempt to
transform our society into one that is gentle, kind, and respectful. Of course
it’s difficult to judge a nation’s progress on how far they have gone to
achieving that goal. Mahatma Gandhi, however, claimed that a nation can be
judged by the way its animals are treated. And there have in fact been some
other very impressive thinkers who have also recognized the relationship between
the kind of ‘caring civilization’ of which Justice Mohammed speaks and the need
to respect human values in the treatment of animals: in the 13th century Thomas
Aquinas wrote "now it is evident that if a man practice a pitiable affection for
animals, he is all the more disposed to take pity on his fellow men"; and the
18th century philosopher Immanuel Kant said something similar "he who is cruel
to animals becomes hard also in his dealings with men - tender feelings towards
dumb animals develop humane feelings towards mankind."
KEVIN HOPKINS
E-mail:
hopkinsk@law.wits.ac.za
