Don’t get me wrong: Like many other South Africans I love animals. Cats and dogs can be good pets (loving and loyal – especially around meal times), while a tender piece of steak (cut from the carcas of a dead calf and then lightly browned in a pan and served with mushrooms) can be extremely delicious.
Yet, I find it absurd that former North West agriculture MEC Jan Serfontein is facing nine charges under the Animal Protection Act. They stand accused of dumping tens of thousands of male chicks in an empty farm dam and leaving them to die every week, because they were “economically worthless”.
This move seems to me to reflect the extreme double standard our society have towards animals. We are allowed to murder animals, then cook and eat them, but it is a criminal offense to have sex with an animal or to mistreat an animal. Yet, on farms where animals are raised for consumption, such animals are often subjected to extremely cruel treatment. Let’s face it, its a good thing that a chicken is not a very bright animal because chickens are often treated appalingly in order to fatten them up quickly for slaughter or in order to extract the maximum amount of eggs from them.
Yet, the law does not seem to address this kind of cruelty. As long as the animal is mistreated with the aim of later slaughtering it and selling it as meat, everything is hunky dory. But as soon as one mistreats an animal not with the aim of later murderinga nd eating it, then it suddenly becomes animal cruelty.
I suspect the reason for this double standard has much to do with the fact that as a society we do not want to take ethical responsibility for the fact that we are generally not vegetarians and therefore like to eat meat. And as we do not have to see how animals are mistreated while being prepared for the table, we can happily coo about cute furry animals and we can get outraged by the mistreatment of pets or even chickens, goats and sheep, while buying our plastic wrapped dead animals at the supermarket.
Mr Serfontein’s mistake was that he decided for good commercial reasons that it was more profitable to kill the little chickens than to mistreat them for several weaks before slaughtering them and packaging them for sale in the Pick & Pay, where the same animal lovers who would be outraged by his actions would happily buy the dead chickens for their braai.
One solution is to criminalise the cruel treatment of all animals – even those we will eat later – or to prohibit humans from eating meat. But that will never happen because we love our meat almost as much as we love our alcohol. So we do the next best thing: we adopt animal cruelty laws that will be selectively enforced to make us feel better about ourselves without forcing us to make the difficult choices required to live an ethical life regarding animals.
It really does not make sense. It’s a bit like prosecuting Schabir Shaik for arms deal corruption, but then not to prosecute all the other crooks who benefited from the arms deal or paid the bribes to secure arms deal contracts. It demonstrates the inability of us humans to act consistently ethically.
The issue I think was not so much the fact that the chicks were killed but rather the manner in which this was done.
How bizarre to introduce an argument about having sex with animals to support an ‘ethical’ stance! Come Pierre, I would have credited you with a little more intelligence than that. Or is it that you take pleasure in extravagant contrasts?
I also do not think that the issue is about the killing of chickens per se. It is much deeper than that. The primary problem here is the methodology that the hounorably MEC employed to achieve his commercial needs. As they say, it is not what you say or do that matters , it is how you do it or say it.
Ron, are you suggesting that it doesn’t happen that human beings for good or bad, ethical or unethical reasons engage in sex with animals?
If your answer is NO – meaning it does happen – are you saying, still you think Pierre should not raise it because it is bad and unethical?
Or, alternatively, are you saying Pierre should not have put it in the manner that appears he support it (for pleasure reasons) and it is a good thing to do; but rather condemn it?
I am trying to understand your post.
Now to something constitutional.
Prof and anyone who can help, why do companies and some of the government agencies have policies that make it compulsory for employees (a) to join a medical scheme and (b) the scheme of that company or department’s choice? Surprisingly the kinds of work that these companies and departments do are not in anyway hazardous to the employees to warrant such a policy.
This happen even against the employee’s will. The worse part of it is that these schemes are often a group covers meaning once such employee resign or leave such department and companies without having used a cent from their schemes they cannot claim anything on the ground that it was a group scheme. These policies are often enforced also against the employees who are earning very little to afford the best but still unfavorable options to their (employees) personal and family situation which starts at +R1000.
Clearly these policies do not benefit employees but rather the companies and departments that implement them. Who really benefit from this?
Are these policies compliant with the constitution? Are they not in any way violating some of the employees rights contained in the Bill of Rights?
Am I the only one who smell a rat in this practice?
Ron, you label the Professor’s election to introduce an argument about people having sex with animals as being ‘bizarre’.
I think it is reasonably fair to assume that most animals would prefer not to be killed so that they could be eaten by humans. So in a sense, killing an animal with a view to eating it constitutes a clear impairment of an interest which it has.
An animal may well have an interest in not being compelled to have sex with people. So by introducing the controversial and, as some may see it, fairly repugnant topic of people having sex with animals, the Professor was, at least to my mind, merely outlining the following hypocrisy: as a society, we conveniently countenance the impairment of some interests which animals have but condemn the violation of others.
And moreover, it seems that there is not much in the way of difference between the interests of these animals which happen to be at issue. That is, I cannot really see how murdering a cow for consumption can amount to an impairment deserving of condonation whereas having sex with the poor beast would not – although I would say that the introduction of certain parameters could conceivably make the position clearer.
The fact is the former MEC clearly violated the procedures to be followed when getting rid unusable product, which in this case was simply dumping them in a dried-up dam and letting the elements and hunger have their way with the tiny cocks.
I am sure that when anything is executed (be it man or beast) that it is both ethically, morally and legally accepted that it be done quickly) – anything else would be considered torture.
Its funny that this simple ideology seems to be harped on when applying to some sick and twisted human individuals (who have done more heinous acts than simply dumping small feather-balls in a dam) when awaiting their capital punishment. This is considered as “cruel, inhuman or degrading punishment” and was infamously commented on by the former CJ (who I truly think was smoking something as well) in that both controversial and politically motivated judgment – S v Makwanyane.
Even now in countries which correctly hold on to the death penalty, the use of lethal injection which research has shown to be near perfect in its ability to allow the exectionee to “go immediately and painlessly” is being attacked!!! Talk about double standards!!!
So in conclusion Mr Serfontein must account for his non-compliance with seems to be simple instructions on how to rid himself of “economically worthless” product.
Though I wouldn’t expect him to face the death penalty – though I think their are many tree-hugging individuals who would want that fate for him, he must be punished in order to deter other unscrupulous chicken farmers and to do as the act stipulates. SIMPLE!!!
As matters stand, the entire discussion is in part at least inaccurate as our law (and indeed most legal systems) does (do) not recognise animals as being capable of holding rights. Nor is it legally possible to “murder” an animal. Rather, what is protected is the sensbilities of the fellow human that an animal should not be subject to uncessary suffering. Thus, when I take my fit young healthy dog to be euthanased by the vet simply because he has become an inconvenience to me, nothing is said. Yet should I beat that dog to death with a stick or a stone, this is regarded as reprehensible. So, no-one could hold the farmer blameworthy for killing the chicks but rather that he did so in a manner which caused suffering.
But societal hypocrisy is very much there. I quote from Wikipedia:
“For her book Slaughterhouse, Gail Eisnitz, chief investigator for the Humane Farming Association (HFA), interviewed slaughterhouse workers in the U.S. who say that, because of the speed with which they are required to work, animals are routinely skinned while apparently alive, and still blinking, kicking, and shrieking. Eisnitz argues that this is not only cruel to the animals, but also dangerous for the human workers, as cows weighing several thousands of pounds thrashing around in pain are likely to kick out and debilitate anyone working near them.[10]
According to the HFA, Eiznitz interviewed slaughterhouse workers representing over two million hours of experience, who, without exception, told her that they have beaten, strangled, boiled, and dismembered animals alive, or have failed to report those who do. The workers described the effects the violence has had on their personal lives, with several admitting to being physically abusive or taking to alcohol and drugs.[11]
The HFA alleges that workers are required to kill up to 1,100 hogs an hour, and end up taking their frustration out on the animals.[11] Eisnitz interviewed one worker, who had worked in ten slaughterhouses, about pig production. He told her:
“ Hogs get stressed out pretty easy. If you prod them too much, they have heart attacks. If you get a hog in the chute that’s had the shit prodded out of him and has a heart attack or refuses to move, you take a meat hook and hook it into his bunghole (anus). You try to do this by clipping the hipbone. Then you drag him backwards. You’re dragging these hogs alive, and a lot of times the meat hook rips out of the bunghole. I’ve seen hams — thighs — completely ripped open. I’ve also seen intestines come out. If the hog collapses near the front of the chute, you shove the meat hook into his cheek and drag him forward.[12]”
But of course, you don’t need to think of that when you pick up a nice sterile packed steak on the supermarket shelf, now do you?
It must be noted that while sexual intercourse with animals is illegal in our country, other countries do not hold to this – Denmark for one.
So the Prof was only speaking in the South African context.
CD, you are quite correct to make out that one cannot be convicted for murdering an animal. In our jurisprudence, murder involves the causation of a person’s death. I merely meant to use a more interesting word than ‘killing’ and did not anticipate anyone opting for the construction that I meant to suggest that someone could face murder charges for killing an animal.
And seeing how currently constitutional supreme states go about business ….
legalize gay marriages
legalize prostitution
legalize bestiality/zoophilia or/and lowering the age of consent
Think I am joking? If you asked anyone 25 years ago about the possibility that a gay couple could marry and I am pretty sure you would of been laughed at and told to go make a bowel movement!
Currently the debate is whether prostitution should be legalized in light of the coming Soccer World cup.
Thus the next logical step in constitutional evolution ……
CD, sorry to take up more of your time, but does anyone actually assert that animals are capable of holding ‘rights’? I said animals have interests. But I for one deliberately avoided using the word ‘rights’ and if you would forgive me for having conducted a fairly cursory inspection of the other posts, it seems no one has used that specific term.
So, could it be that apart from what I see as being an unnecessary inference of an allegation of possible criminal liability for murder, could it be that your claim of inaccuracy is itself somewhat inaccurate?
@ Harold
Many countries and states do not have laws against Zoophilia or beastiality, and never have.
However, most do have laws against animal cruelty.
For interest:
21 states in the US have no bestiality laws.
ALASKA, COLORADO, Connecticut, FLORIDA, Hawaii, Iowa, Kentucky, Louisiana, MISSOURI, NEBRASKA, Nevada, New hampshire, New jersey, New mexico, Ohio, South Dakota, TEXAS, vermont, West virginia and Wyoming
So the question is whether bestiality or zoophilia amounts to animal cruelty or not?
I think what the Professor was trying to say in part was that we subject animals to many acts which can be considered atrocious but somehow, in his opinion, are overlooked.
Thanks for the extra info Andy. I do have an academic interest in the subject matter and how it relates to social changes which occur under a human rights based/ constitutional supreme society.
I am concerned by Pierre’s apparent willingness to excuse eating meat on the basis that it is ‘extremely delicious’, as if the wrongfulness of rape would somehow be mitigated if the rapist found the act ‘extremely pleasurable’. Perhaps he is being facetious and pointing out how selfish and inconsistent other people typically are in this respect; I cannot be sure from the text. But if he is himself a vegetarian then I’m not sure why he doesn’t just say so, rather than providing the disclaimer that he likes a good steak just as much as the next South African. If he is not a vegetarian then his sanctimonious tone in criticising the inconsistency inherent in eating meat is spectacularly hypocritical.
From reading certain of the above comments it seems to me that a clear distinction must be made between morality and legality. They are quite separate, and it is precisely the fact that the law departs so obviously from morality (on the matter of animal cruelty) that Pierre, it seems to me, is criticising. I am also not sure what the purported relevance is here of discussing whether animals have legally recognised rights, since answering this question says nothing whatsoever about whether they have rights in the moral sense (although if they do have moral rights then they should have legal rights).
Finally, with regard to Pierre’s use of the bestiality example: as I understand it, Pierre is simply pointing out that there is an inconsistency in thinking that bestiality should be illegal but that eating meat should be legal. He is not suggesting that we resolve the inconsistency by legalising all forms of animal cruelty (bestiality included); in fact, he suggests the opposite (before glibly dismissing the possibility).
Leigh,
I assert that animals are capable of holding rights. The fact that our law does not accord them this is not a matter of capacity but rather one of current policy. What is the difference after all between a man and an animal but for a matter of degree insofar as intellectual and emotional capacity is concerned? Would we would undoubtedly not deny that a very young baby or a severely mentally handicapped person is nevertheless the bearer of certain fundamental rights. Yet, we deny that to an animal which may have the same or even greater intellectual and emotional capacity.
Where is the logic in this? There isn’t except for a distorted paradigm we have inherited that says that humanity is somehow fundamentally different and superior to the rest of the natural world; that we have the right to treat the remainder of the natural world as we, collectively, decide for the reason that we regard the whole natural world as being owned collectively by humanity (individually, through juristic entities, through the state). That is the fundamental problem: that we do not recognise the remainder of the natural world as having a right to exist and be in and of itself and outside of what we perceive our own needs and requirements to be (our own needs and requirements including the right to have parks to visit and an environment which is ecologically sound and animals to appreciate). Our whole thinking is tied to “to us”, to what we need, what we desire. Even the approach of protecting the rights of future generations is dependent upon this poisonous paradigm.
Not only do we need to recognise that the natural world may hold certain rights but we need to also recognise a special relationship or duty there. We recognise that children are the holders of certain additional rights and that remainder of society has a special duty of care to them because of their inability to protect themselves. It should be similar for our relationship with the natural world.
Pierre asserts that “One solution is to criminalise the cruel treatment of all animals – even those we will eat later – or to prohibit humans from eating meat.” As far as cruelty is concerned, it is already absolutely prohibited and criminalised in terms of section 2 of the Animals Protection Act 71 OF 1962. So on that score, either Pierre is either talking rubbish or I have misunderstood what he is trying to say. He then goes on to talk about prohibiting humans from eating meat – a noble idea no doubt but as he himself recognises, probably utterly futile. In my view Pierre (and all of you) misses (miss) the point entirely: the issue is not about criminalising certain forms of conduct specifically in relation to animals but rather ensuring that the natural world is given rights in and of itself; that it has a right to be and to be unmolested, (whether sexually or otherwise) simply because it is; not because I find it offensive or Pierre finds it hypocritical or because we are dependent upon it or have a specific interest in it in some way or another. And so I say the discussion is inaccurate and addresses the wrong issues. Perhaps my earlier post was inadequate or inaccurate in explaining my view; if so I hope this clarifies it *some* extent.
I do not say that animals should not be eaten; they do after all eat each other and the concept of an apex predator is hardly a novel one. Nor do I believe that animals should be protected at all costs: the domestic cat has, through the cat food supply industry, become the greatest predator of our oceans. Like all rights, those held by animals will need to balanced and weighed against other competing requirements. But we need to start at the beginning: by according animal and the rest of the natural world certain basic rights.
Does anyone know whether JFHA has taken a stand on Zoophilia?
If not, I think it should.
Funny how cruelty to animals can be linked up with cruelty to Schabir Shaick
Harold – its not cruelty if you make it breakfast and give taxi fare.
I’m not sure that leaving the chicks in the dam could be any worse than wringing their little necks one by one or however else they could have been disposed of. At least they could cheep to each other until the end. I can imagine a few farmers, who spend their lives fattening up millions of chickens for the slaughter to feed us cityboys, having a good chuckle at this discussion.
Not to say that animals should not be treated as well as reasonably possible before they get the bolt. But if you are really serious about this discussion you would be a vegetarian.
er – that would be cityboys AND girls…..
I agree CD that nature should be interpreted according to our law (which doesn’t REALLY govern nature at all and so isn’t quite appropriate as a way of regulating our relationship with it) as having its own rights for its own sake – but this is clearly problematic in the current global climate where human rights are so poorly protected and require such desperate attention, and where the general human understanding of our relationship with nature is one of domination. I suppose we have to hope that in 100 (or 1000) years’ time humans are in a better position to understand their relationship with nature? I agree it is natural (ie lawful?) for humans to consume a small amount of meat, but clearly not on the current power-relation and scale. I suppose the answer is attempting to live an ethical life as an individual and attempting to educate those around one of the consequences of denial of the cruelty inherent in current farming and slaughtering practices?
“The greatness of a nation and its moral progress can be judged by the way its animals are treated!”…. Help us to continue to care for and protect those that cannot speak for themselves!
Harold, I’m not so coinvinced that animals need to have rights. I personally don’t like them much and I can’t stand pets. My reason is different though, how do we know what rights to give, how are they to be limited, who exercises the rights? What basic rights will be granted to which class of animals? If we are equal to them then why don’t they get the same rights? The animal can’t say much so its the human in control who has to speak for it. I think that one of the reasons animals have “interests” is because they are not capable of the same kind of reason that humans are, infants or adults.
We also take our laws from the Roman Law and Roman-Dutch Law and I doubt either one had any such rights for animals. the Constitution protects the rights of humans and NOT animals and that is rightly so. I cannot imagine why there should, or could, be an extension to accommodate animals.
The Civil Union Act is still new and most Constitutional Democracies do not have anything similar, if they do, it does not bind the whole country.
I think that the legalization of sex-work is also an issue that is not so common. Here we would have to look at the “boni mores” as well as the moral inclinations of a country and see whether it is likely that they would take what some deem is a drastic step. The courts have been loathe to go so far as to decriminalize but if the Legislature votes in favour of such steps, or even better ones, then I’d like to think we are quite evolved and that our society is a liberated one (in mindset). I find this an interesting topic (I believe Prof does too).
I am not so sure that SA would readily lower the age of consent (for sex) as it seems to be fine the way it is. I also do not think that we will decriminalize sex with animals. The argument may be that the animal does need to have its reproductive organs guarded from perverse human conduct. I believe that the academics in the field of Criminal Law are also not in agreement on the matter.
The MECs conduct may be unfortunate. it is preferred that he used other methods. Maybe this was the cheapest but it has some form of public outcry as a result. The charges will probably not attach a great punishment, esp if he can show that since the chicks were “economacally worthless”, other means of cutting the loss would have been costly etc.
I also have a problem with what Harold said.
Harold Ferwood // Aug 17, 2009 at 3:36 pm
I am sure that when anything is executed (be it man or beast) that it is both ethically, morally and legally accepted that it be done quickly) – anything else would be considered torture.
This is considered as “cruel, inhuman or degrading punishment” and was infamously commented on by the former CJ in that both controversial and politically motivated judgment – S v Makwanyane.
Even now in countries which correctly hold on to the death penalty, the use of lethal injection which research has shown to be near perfect in its ability to allow the exectionee to “go immediately and painlessly” is being attacked!!! Talk about double standards!!!
I can’t see how execution can be morally and ethically acceptable. Esp in light of our Constitution. I therefore cannot see how the S v Makwanyane decision can said to have been politically motivated as such. Murder by the state is not justifiable in light of the Constitution, SIMPLE.
CD, thank you for your response. I read one of the salient points in your post as follows: upon honest and impassive inspection, it seems that we do not have especially strong reasons for denying animals – presumably at least some species – the enjoyment of at least a few rights.
I think you might be right. Only, it seems quite clear – as I am fairly confident you would agree – that if we were to weigh our interest in gratification against our interest in observing the dictates of our more cogent exercises in moral reasoning, the former will typically trump the latter.
I would like to thank you again for your thoughtful views. And thank you for reminding me that people do sometimes think about surprising topics and not just the usual brand of self-interest based consideration.
Nkululeko, I am also not much of an animal person. Where some people see cute, I typically see either (a) problematic or at least (b) proper irritating. So you and I are of one mind on that score.
I think you and I could also agree on another score: there are some rights which animals probably cannot properly or logically hold. And to turn to your opening paragraph: I also think that the questions which you pose therein are very relevant.
But I also think that we need to be fairly clear about something: your germane questions, although admittedly quite difficult to answer, may not be unanswerable.
Leigh,
“if we were to weigh our interest in gratification against our interest in observing the dictates of our more cogent exercises in moral reasoning, the former will typically trump the latter.”
At individual level, this is indeed true. But we as society have recognised that in many respects the rights of the individual (or his right to act as he will) needs to be curtailed in the interests of the broader society or that of certain persons in our society. Take for example competition law and the attacks on cartel activities; historically individuals were free to form cartels but eventually this was recognised as being contrary to societal interest. As a species our very existence depends upon the health of our natural world. Thus, according the natural world rights becomes a question of our own self interest. With all out technology and all our wealth we could not replace the benefits accorded us through the natural world. We are in the bell jar of the experiment. The natural world is a web of interdependence which is not readily separated into compartments. The time we live in, with the mass collapse of indicator species (amphibians for example) and the issue of global warming seems to be a watershed for the human race. There is no choice but to start looking to how to protect the natural world for in the absence of that our own existence will become increasingly precarious. The best way to do that is accord the natural world legal rights and to ensure that these are enforced.
May I suggest that, if you have not already done so, you download and read a copy of Garret Hardin’s “Tragedy of the Commons”? You will find it on the internet. It was published in “Science” journal volume 162 on 13 December 1968. It is a very cogent examination of how individual self interest can lead to the destruction of the communal interest. It addresses the issue of untrammelled population growth (on which I also hold some particular views) but by analogy it is applicable to our discussion here. Incidentally, when I refer to the natural world I do not mean only animals but the whole of creation (if you will excuse the term with religious overtones but which explains in all in a nutshell very conveniently). Also of interest may be a publication entitled “Should Trees Have Standing?”
I assert that it is only a question of time until such rights as we are discussing are recognised and that a time will come when global society as a whole will look back on the issue much as they do today on female enfranchisement – that there was and is no rational or moral justification for the contrary.
“Harold, I’m not so coinvinced that animals need to have rights. I personally don’t like them much and I can’t stand pets. My reason is different though, how do we know what rights to give, how are they to be limited, who exercises the rights? What basic rights will be granted to which class of animals? If we are equal to them then why don’t they get the same rights? The animal can’t say much so its the human in control who has to speak for it. I think that one of the reasons animals have “interests” is because they are not capable of the same kind of reason that humans are, infants or adults.
We also take our laws from the Roman Law and Roman-Dutch Law and I doubt either one had any such rights for animals. the Constitution protects the rights of humans and NOT animals and that is rightly so. I cannot imagine why there should, or could, be an extension to accommodate animals.”
In the 17th century many spoke the same way about women and slaves.
Nkululeko, thank you for your engagement. Many refrain from doing so as they possibly dismiss me as being sensationalist or without any regard for formalistic argumentations.
But I assure you that much of what I sometimes raise is exactly what matters to average south africans (and just people in general) grapple with. It sometimes eludes the academics who frequent this blog, who must be said sometimes have visions of Plato’s “Philosopher King” when strutting their stuff here.
“I’d like to think we are quite evolved and that our society is a liberated one (in mindset).”
Sorry to tell you but the fact is we are not liberated. The areas in which I can point to are to numerous to list. Just go about the Esteemed Professor’s website and this will maybe suffice to indicate clear signs of my above-mentioned submission.
Liberated does not mean simply being rid of moral shackles but absence of irrational prejudices which can hold a society captive just as much. But this in itself would lead to another debate and has previously.
I will unfortunately go straight to my favoured topic and where you have chosen to somewhat choose to rebut me with some contempt. I did not state that “execution can be morally and ethically acceptable (though I am at the threshold of actually making that a fact!). I did say however that when execution is to occur, “(be it man or beast), that it is both ethically, morally and legally accepted that it be done QUICKLY’. Chaskalson P commented on this in that flawed judgment when he spoke about what awaiting prisoners endure when on death row (para 26). But this rationale was already bias because in para 6 he already described the situation as intolerable.
But this crux of why I, and many others, am convinced that the judgment was politically motivated was due to when the judgment occurred. Is it coincidence it was the courts first judgment? The TRC had not yet begun and you for one know that much that came to light at the hearings, if not given amnesty, would result in our criminal system finding those who did such atrocities guilty of crimes punishable by death.
It is sad that this shows a clear indication that the courts (in this case our highest) has been compromised so early in our democracy, but even sadder is that the trend didn’t stop there, as we can see in the Judge Hlophe saga and what has slowly but surely come to light about the myth of the independence of our courts.
Peter Singer “argues that sexual activities between humans and animals that result in harm to the animal should remain illegal, but that “sex with animals does not always involve cruelty” and that “mutually satisfying activities” of a sexual nature may sometimes occur between humans and animals” it comes as a schock to me that animals n humans can have an enjoyable intercourse! commentators is this possible??
CD, you put forward that the continued relatve well being of humans is inextricably connected to the well being of our planet. You appear to say further that one way in which to safeguard planetary interests (and thus our own) would be to broaden the scope of the beings and even phenomena that can enjoy rights.
I think that if the relevant players were to earnestly consider at least the general scheme of your suggestion, we could kick off to a decent enough start indeed.
But if you will forgive me for (a) stating that which is fairly obvious and (b) turning somewhat prematurely to possible challenges, I think that one problem would present as follows: a difficulty which is common to many a jurisdiction is the inability to effectively enforce rights.
That is to say: the determination of the identity, ambit and content of the broader species of rights which you advocate is of course the anterior concern. But ensuring the efficacious enforcement and protection of those entitlements is almost bound to prove to be exceedingly problematic.
My guess is that at least two things would have to be looked at. First, we would need to find ways to effectively compel business to observe the entitlements which to advocate. And that will – unless I have completely missed the mark – probably prove to be a frustrating affair.
And secondly, the rights which you advocate would have to be compatible with the flow of commerce – another thorny if rather obvious problem.
Leigh, that is a concession I am very willing to make. If the questions are to be answered then they must be dealt with in great detail (NOT here – I won’t read it) because to suggest such a drastic, and unwarranted, move then one must be very clear about the limits to be imposed on the rights.
CD, that may be so. but that was 400 years ago. I’d hope that such rights will not be considered for as long. But, to be more reasonable, that was before the age of modern democracies, constitutions, the recognition of rights common to human beings and the pill. The changes between the 1600′s and the 2000′s is too vast to contemplate. I cannot imagine that you think we’ve changes that much in the last 60 years.
Harold, you’re far to cynical. I doubt the timing was a coincidence. The CC should have opened with a bang and made a statement that “we” are here to decide on what is in our law. What would you have liked them to do? I also do not imagine that its been smooth sailing for the CC since then. The case was before the court and the JJ decided on the matter. One needn’t suspect external influences (other then the supreme document). If you had considered what they did, how could you have truly justified a different finding?
With the application of rights there are sometimes corresponding duties that goes along. I would like to know what these possible duties would be.
This is an interesting discussion. I would caution only against ignoring the racism and HLOPHEPHOBIA implicit in some of the positions being articulated.
It has certainly not been smooth-sailing. The submission by Hlophe that certain Con judges have a personal vendetta against him and using the very institution they seat in reaching the goal of his demise. The rantings by the then accused Zuma and company, attacking the independence of judiciary was not merely stabs in the dark but clear knowledge that the judiciary has been infiltrated by other forces and have in the past submitted to their influences and thus capable of being done over and over again.
As you have submitted that the hearing of the Makwanyane matter was not a coincidence and it is thus understood then that the Court “FELT” the importance of resolving the matter before the hearings of the TRC.
I assure you that your perception of my cynicism is wrong and but unfortunately I have seen the behind the puppet show and know how the system works and thus gives the appearance of such
For all such systems to survive the essential requirement is belief in it. What amazes me in how quickly we are able to hold a belief on a false premise.
Racism? I can only see possible indication of specism in some of the articulations as you put it Mr Fassbinder.
And the mentioning of Judge Hlophe has only occurred twice under this topic and both occasions certainly cannot be said to amount to HLOPHEPHOBIA!
Harold, I for one certainly appreciate the contribution which you make to this blog. You express your views passionately but you observe certain features which many here hold dear: you do not sacrifice clarity, you offer reasons and you typically avoid rudeness. As some may well agree, this is civilised writing.
But to turn to the content of your exchange with Nkululeko: you say that the core reason as to why you feel that S v Makwanyane was politically motivated goes to when it was handed down. You expand thereon by advancing that the TRC had not yet commenced and many of the people who were not given amnesty would have incurred liability punishable by death had the Court regarded the death penalty as being constitutionally permissible.
With all respect, I see the following potential oversight in your interesting observations: your theory may overlook the view that the various judgments penned as regards that case reflected convincing constructions of (a)constitutional values and (b) the relevant content of our Bill of Rights.
So my basic point is this: it appears rather unfair to assert that our highest court was compromised early on in our constitutional adventure. But I shall concede that I am just a little over protective
Harold, thank you for your remarks on so-called Hlophephobia. It is, in my respectful view, about as misguided and shallowly considered a catch phrase as we are likely to see this year. And curiously, many of the people who use it are precisely the people who (a) defend Hlophe on grounds which have nothing to do with the distaste which he inspires or (b) fail to consider why people actually dislike him.
Leigh, I assure you that your contribution is far more learned and neutral as any one person can be, given that the ideal is certainly impossible.
I do envy the ability of yourself and many of the avid contributors to this blog to articulate themselves well with both sound and factual reasoning. However where I lack in this gift i make up tons in my ability to see past the academic blinkers that unfortunately get put on some of your thorough bred colleagues. Also be assured that the passion you sense is well-directed.
Your suggested potential oversight are one of the countless things in our past which will never be reviewed (others include the Arms Deal and Chris Hani’s assassination).
With regard to Hlophe. What we seeing transpire is startlingly similar to Jacob Zuma’s woes before reaching the Presidency. He was able to show the appearance of a conceited effort to discredit him by the previous presidency. This is not to say that I disagree with whether the allegations of a corruption on his part are false. But it will soon come to light that there is an agenda to conspire to rid the judiciary of the likes of Judge Hlophe.
Do you know that they are other cases involving misconduct of judges pending before the JSC which were on the roll long before the Hlophe Saga and for some reason has been shelved by them until the matter on hand is resolved?
Media reports on this has certainly been limited.
HAHA! No doubt that I’m gonna be labeled a conspiracy theorist after this.
Sipho, I thoroughly enjoyed your post and I am sorry that I only noticed it fairly belatedly.
I would respectfully mention that one aspect of your post strikes me as being potentially problematic. That is, there seems to me to be something of a jurisprudential inconsistency in your post.
To my mind, that inconsistency is this: in your second paragraph you say that a clear distinction must be made between morality and legality. I think that this smacks mightily of positivism – which, very broadly stated, advances that there is no necessary connection between law and morality.
But then in the same paragraph you advance that if animals have moral rights then they have legal rights too. This puts one in mind of the general stance adopted by natural law theorists that there is a necessary connection between morality and law.
Forgive me if I am wrong – I always did hate jurisprudence
- but if I do have the right of this, then Hart (may he have moved on to a better world) and Raz might be mighty peeved to see you apparently embrace their position only to abandon it in short order.
Is there then no room for hybrids of the theories?
Harold, you sell yourself far too short. You reason well. And clearly stating demonstrable views with a bit a passion goes directly to rhetoric – the business of persuasion.
To turn to your views about a possible conspiracy against Hlophe: to my knowledge, no one on this blog has offered a believable theory of a conspiracy against Hlophe let alone any decent evidence in support of such a theory. And in a broader context, Hlophe has still not produced the proof of a conspiracy against him which that dignified and wise man Moseneke DCJ dared him to supply.
And as for Paul Ngobeni, with all respect, I think that man would say anything. I would not trust him to tell me the right time.
Hi Prof
Maybe you’ve heard there’s a situation in District 9.
In our constitution, do “Prawns” have rights?
They are not human.
Can we exterminate them?
You are absolutely right in your assessment that no ‘believable’ theory of conspiracy has been put forward, much like I have been doing earlier. But you can already see comparisons between the Hlophe and Zuma saga in that the two camps are similar in “holding their cards” very close to the chests yet boasting they have won already. It was virtually at the doorstep of this year’s elections that Zuma came forward with the controversial tapes which essentially resulted in the charging being withdrawn.
Somehow I have a sense that the same strategist has been assisting the two camps as fundamentally their ultimate goal is the same, which at this stage still regrettably eludes me.
Prawns in the “ocean basket” sense or the land sort the Tutis were referred to as?
Your reference to “District 9″ implies you might be also be hinting towards the film’s storyline of “ALIENS” residing in JHB and whether they qualify as “everyone under our Constitution.
Fictional as this group is, (and prejudice to boot – see my post on
« Black racism or black prejudice and bigotry?
I have a feeling they would be afforded fundamental rights faster than when we took away fetus’.
Leigh, thanks for your post. I think you’ve misinterpreted me, but understandably so as I was not particularly clear. I was certainly not advocating positivism. Rather, I was meaning to point out that there is a difference between the questions:
1. Is X moral?
and
2. Is X legal?
And I felt that earlier posters were conflating these by suggesting that animals are not worthy of moral consideration because ‘no legal system gives animals rights’, for example. It is quite possible that the law is simply immoral, so it is no good to try and answer moral or normative questions by appealing to what the law as a matter of fact states. My bracketed comment is–as you correctly point out–the position of a natural law theorist, in that I think that the law ought to conform to morality. But because of the conceptual and factual divergence of the two, the reverse is not the case.
Exactly!
“Prawns” = Aliens from “District 9″
It is a hypothetical question.
And I am being provocative.
It strikes me though that if “Prawns” do have rights then why not other species?
If “Prawns” don’t have rights, then the humans in Jhb can ethically exterminate them?
{{# Sipho // Aug 18, 2009 at 3:49 pm
My bracketed comment is–as you correctly point out–the position of a natural law theorist, in that I think that the law ought to conform to morality. But because of the conceptual and factual divergence of the two, the reverse is not the case.}}
Sipho, what do you propose the relationship between law and morality is? Does morality give rise to law or does law create learned morality or are the two mutually self-reinforcing?
Sipho, thank you for your reply.
On somethng of a sentimental note, I tend very much to agree with you: our laws ought to conform to moral dictates. And I agree with your position: one cannot properly answer the normative question of whether animals ought to enjoy entitlements by looking at what laws as social facts contemplate.
But I think I shall also opt for the cautious approach which you appear to adopt. That is, I will not express an opinion on whether the dictates of morality denote that animals have rights – I do not know.
And I will thank you again for your elegantly penned post – makes for dead good reading.
Leigh and Harold: There is but little point in the two of you denying that this country has suffered a crippling outbreak of HLOPHEPHOBIA! I suspect — although I cannot prove — that the bizarre references to Zoophilia and bestial nuptials are but a liberal attempt to distract us all from this affliction.
CD, as I am sure you know, the questions which you ask of Sipho are exceedingly interesting. They are also at the core of an investigation that spans several generations and which which will probablyi intrigue legal philosophers for some while.
Mikhail, with all respect, I think the Professor’s point in a previous post deserves to be regarded in another light. Initially I thought you were admirably bold if somewhat misguided. But on reflection, maybe you are truly just taking the mick. I hope so.
Well, the Constitutional Court has stated that the rights in the Bill of Rights apply to all persons (except where this is limited explicitly to all citizens). The “Prawns” in District 9, as I understand it, are not humans and therefore will not be able to invoke the right to life and the right against cruel inhuman and degrading treatment or punishment. Whether this ought to be the position – ethically speaking – is surely what you have been asking. Then we get into a complicated philosophical argument about why we accept treating some beings better than others. Is it because they are sentient beings or is it because they belong to the human species? If we go the former route – like Buddhists or an animal rights activist often do – we will argue that many species who are not humans deserve some respect and protection, both ethically and legally. That seems to me a more coherent and less hypocritical position than the sentimental but incoherent attitude of most humans towards animals or – if we were to accept that “Prawns” actually existed – other non-human life forms. Sadly on this issue I am a rank hypocrite because I am a “speciest” of note – even if in a movie like District 9 I will probably sentimentalise the aliens and even when I say “aaahhh” every time I see a kitten or even a piglet.
Andy, I thought as much that you meant ALIENS ….
It is certainly provocative. And is actually a well place submission in this particular topic where we are dealing with similar subject matter.
Correct me if I’m wrong but what i sense without you having to even write it, is that given the nature of us human beings in our treatment of each other and other species for that matter, you have already concluded that we may treat them much the same – with much indifference.
It saddens me that with contemporary opinion about aliens telling us that they are of superior intelligence, they would still choose to live in JHB – whose populace has shown severe contempt for immigrants and even their own people with issues of service delivery.
This must be coupled with the phenomena in which aliens have been said to do unauthorized inspections of people’s rear ends (without them even going through customs) and making clear differentiation between whites and blacks … This will surely not be in their favour.
I know I should probably start with our Supreme law, but I assure you that it will start first with face to face confrontations before ending up in front of Con Court.
They do exist! Alec Irwin …. oh wait, he’s actually from Middle Earth ;-(
Correct me if I’m wrong … But what Mr Fassbinder /is accusing Leigh and myself of is HLOPHE_PREJUDICE and not HLOPHEPHOBIA?
In my defence though I am quite fond of the HLOPHE phenomena. He represent the evolution of the new breed of legal practitioners that has emerged who though understand the concepts which our constitution but don’t have any of the baggage of struggle credentials which still seems to be a prerequisite in getting the higher judicial positions. I think i’ve mentioned this before that those candidates are running short and we will soon grapple with the likes of Hlophe sooner than later.
CD, the question ‘What is the relationship between law and morality?’ is ambiguous; one may mean this in either a normative or descriptive sense. In other words, one can discern two separate enquiries here:
1. How do morality and law actually relate to each other in the real world? That is, how have moral convictions and legal institutions informed or contradicted one another throughout history?
and
2. What should the relationship between morality and law be? For example, is it a good thing if the law conforms with morality?
I tried to answer this second question earlier, in response to Leigh’s post. Briefly, I think the law should be constructed so as to cohere with morality. This is an uncontroversial view, and one which follows almost immediately from the very definition of morality. (Positivism, as I understand it, doesn’t actually contradict this.)
But I suspect that you are actually asking the former question. This one is harder to answer. I don’t think there can be any doubt that morality generally does give rise to law. The Bill of Rights, for example, is grounded in a series of moral convictions. Even something as mechanistic as property law is essentially attempting to solve moral problems (however banal) by using reason and moral intuition. Of course, this does not exclude the possibility that the law-makers moral convictions are simply wrong, or that they do not reflect those of later societies. Consider, for example, laws which permitted slavery. And sometimes law-makers create law which is just plain self-interested and immoral, even by their own standards.
I am sure that law also shapes moral convictions (but to a lesser extent). As Sachs J argues in Fourie, law is important not only because of its legal consequences, but also because society ‘assimilates’ the values enshrined in law. For example, one is likely to accept that slavery is moral if everyone around one is doing it without legal censure, but as soon as it is outlawed one begins to regard it as wrong.
I hope this goes some way to answering your question, although I have neither the time nor the expertise to give you a more comprehensive answer!
Leigh, I did not mean to suggest that I am unable to decide whether or not animals have (moral) rights. I am firmly convinced that they do, since there is no morally relevant difference between (all) animals and (all) humans which would allow one to ascribe rights to the latter but not the former. It seems to me that to deny this one would have to arbitrarily discriminate against animals simply because they are not from one’s own species–which is no more defensible than arbitrarily discriminating against races other than one’s own. What is the reason for your uncertainty on the matter?
Harold, no, I am accusing you precisely of HLOPHEPHOBIA!. I suspect also (although I cannot prove), that you may be HUMAN RIGHTS FUNDAMENTALIST.
Guess its ok then. Live chicks were gassed or crushed, not starved says Serfontein: http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=139809&sn=Detail
Sipho, I read the main thrust of your position as follows: to claim that humans have rights but that animals do not is to impute rights to the former but not the latter despite there being no morally relevant difference between the two and thus, the discrimination in question is arbitrary and quite unjustifiable.
Now while I am certainly inclined to enbrace your view, I am somewhat reluctant to do so given that I am not sure about a few things. In the first place, I do know whether there exists no morally germane difference between humans and animals.
Secondly, I do not even know how to determine whether a difference would amount to a morally relevant one.
So with respect, I tend to suspect that your assertion to the effect that there exists no morally relevant difference between animals and humans could be premised on an assumption – although if you are able to proffer cogent views as to (a) how to determine which differences are morally relevant and (b) that no such differences exist, I would be happy to revisit my stance.
What if, for instance that is, we were to assume for a moment that human beings generally enjoy greater spiritual potential than animals? And what if, given that difference, it could be said that to violate a human’s interest would constitute a greater moral transgression than to breach a comparable interest that an animal might enjoy? Would such a context disclose a morally relevant reason for according rights (or even just broader rights) to humans as a class but not to animals? I do not know.
Incidentally, my uncertainty in this regard leads me into my answer to your question.
As I mentioned earlier, I would like to think that animals have rights. But if you would excuse my fairly circumspect reason for refraining from wholeheartedly embracing the view, I would say that I have never had to defend my basis for holding that if humans have certain rights then surely animals must enjoy them too. Thus I do not know whether my position can withstand scrutiny.
For the sake of producing a fair response, I would briefly state my favoured stance as follows: many animals (in very much the same way as humans) have an obvious interest in the absence of pain. Therefore, if human beings can enjoy the right to bodily integrity, it seems fair to contend that animals that can experience pain it ways comparable to humans should enjoy at least that right as well.
And if animals have other interests which are comparable to those of humans, and if humans enjoy rights in respect of those interests, it could well be that we cannot produce convincing reasons as to why humans should enjoy the relevant entitlements but that animals should not.
Prof, what he says and what was caught on film do not correspond.
HUMAN RIGHTS FUNDAMENTALIST!
You have truly touched a nerve there! I’ve been called many things but I must put that up there with the worst ever.
Thankfully it was all said in jest!
Leigh, you are correct to point out that the argument for animal rights depends on whether or not there is a morally relevant difference between animals and humans. But the person averring that there is a morally relevant difference is the one that must bear the onus, for it is not possible for me to prove that each and every one of the infinitely many differences between animals and humans are morally irrelevant.
While there is no mechanical way of defining what would constitute a morally relevant difference, we are clearly able to know one when we see it. For example, we all agree that there is a morally relevant difference between a person and a rock, but that there is no morally relevant difference between a white person and a black person. The difference seems to be that a rock does not have consciousness, and is accordingly unable to have morally relevant interests or the capacity to be harmed by my actions. But white and black people, as well as non-human animals, do have some degree of consciousness and therefore can have morally relevant interests.
Note firstly that saying animals have a lower level of, say, ‘spiritual potential’ does not mean they have no rights; it might simply mean that they are worthy of LESS moral consideration than humans. And surely not so much less consideration that my interest in having a slightly tastier dinner trumps their interest in not being subjected to lifelong suffering and painful death.
But even this is a surprisingly difficult claim to make. The person averring that there is a morally relevant difference between humans and animals does not simply need to show that the average human is more conscious or capable of suffering than the average animal, they need to show that ALL the humans whose interests we wish to protect are more conscious or capable of suffering than ALL the animals whose interests we do not wish to protect. So, for example, that person needs to show that a pig (a surprisingly intelligent animal who is alleged to have the mental capacity of a four year old) has less interest in not being tortured and killed than a severely mentally retarded human. Most people would be abhorred if we said we should kill and eat the latter, but it is not at all clear why we then should be allowed to kill and eat the former if it has a greater degree of consciousness than the profoundly retarded human. And it surely bears no repeating that the species of the respective animals can make no moral difference.
Perhaps the foregoing is academic, though, because towards the end of your comment you seem to concede that, because animals are capable of suffering, they deserve at least some moral consideration.
Sipho, I’m a bit lost.
It seems we’ve moved on from the argument of morals to one of consciousness and pain. Do animals have morals? How do we know this? I think that are alive and can suffer pain. If we kill them for food then we are happy with them suffering pain in that way (though we don’t know exactly how they were killed), as Prof pointed out. We also accept that it is morally reprehensible to needlessly torture or ill-treat animals.
So, are we saying that we can only hurt animals with the intention of eating them? The chicks, can anyone say how long they would survive and how well they would do/ If their chances were slim then why should they have been put through that pain.
I don’t think that there are any rights that animals should acquire. They simply have intersets and the people who are responsible for them should have the interests of the animals at heart, but not sacrifice those that are enshrined in our Bill or Rights.
The morality v legality debate. Here it may depend on the very morals of society. I don’t think that either thoery would be useful enough here. The positivisms may get the upper hand by not having to prove any moral link but simply the power to pass the law. They could note, however, that the protection of the intersts of animals has become custom and is now the expected norm in society (not a rule).
PdV wrote:{{ As long as the animal is mistreated with the aim of later
slaughtering it and selling it as meat, everything is hunky
dory. But as soon as one mistreats an animal not with the aim
of later murderinga and eating it, then it suddenly becomes
animal cruelty. }}
This seems to be consistent with many other legal-criteria,
where the *intention* of the action is to be considered rather
that the action or its effect. But related hereto, what really
slays me, is the common: “the accused SHOWED no remorse”.
Is it about *showing*, or having? Can we open an acting school
for assused criminals to learn how to *show/act* remorse ?