Constitutional Law and Nature

Course description

Questions surrounding the constitutional protection of animal interests (from animal welfare to animal rights) and ‘the environment, or ‘Nature’ are rapidly increasing across the globe. These questions result from, amongst others, key legal developments whereby countries are increasingly establishing constitutional rights for nature. These legal developments have not yet widely been incorporated into academic programmes in South Africa. The rationale for this course lies in the current shortage of comparable programmes/short courses offered, particularly in South Africa and Africa. This course focuses largely on the current regulation of animals and the environment in South African law and highlights the scope and application of animal rights and rights of Nature in foreign domestic legal contexts as possible examples from which the South African context can draw lessons. This course has dedicated seminars on the topics of both legal rights for animal and the Rights of Nature, and includes seminars on animal law and environmental law. The course raises critical questions regarding the adequacy of the current scope, structure and functioning of existing governance approaches in the fields of constitutional law, environmental law and animal law in addressing the current planetary crisis associated with the Anthropocence and in facilitating a more balanced, just and equitable coexistence between humans, nature and non-human animals.

The short course aims to fill an educational, market-based gap in a specialised manner not replicated in similar programmes offered by other institutions. To our knowledge, this course is the first offering of its kind in South Africa and potentially Africa. The only other institution that offers a similar short course is the University of Johannesburg with their Foundations of Animal Law.
The course is co-developed and co-lectured by Prof Angela van der Berg (GELC Director), and Attorney Amy Wilson (Adjunct Senior Lecturer, GELC).

Course details

WEEK 1: INTRODUCTION TO CONSTITUTIONAL LAW AND NATURE AND CURRENT APPROACHES: ANTHROPOCENTRIC PERSPECTIVES

Participants will be introduced to the various fields of law including constitutional law, environmental law and animal law, among others, both globally, and in the context of South Africa, as it relates to the scope and conceptualisation of environmental rights for humans and non-human animals. They will be introduced to key concepts to be discussed as part of the course. The seminar will deal with key concepts including the following:
• What is the environment? What is Nature?
• What are rights? What are environmental, human and animal rights?
• What is environmental law?
• What is the role of a Constitution - in general and South Africa more specifically?

WEEK 2: ENVIRONMENTAL RIGHT AND PROTECTIONS IN LAW: AN OVERVIEW OF THE STATUS QUO

The content this week provides an overview of the Constitution as it relates to the environment and focuses on the nature and scope of the protections afforded by South Africa’s constitutional environmental right. We also consider the scope of the obligations for this right as articulated in South Africa’s framework environmental legislation and specific environmental management Acts (SEMAs). Discussions include:
• What is the scope of the rights protected in section 24(a) of the Constitution? Is section 24(a) ‘fundamental human right’?
• How have the terms ‘health’ and ‘well-being’ been interpreted (also by the courts) and to the benefit of whom?
• What is the scope of the directive underpinned in section 24(b) of the Constitution?

WEEK 3: REGULATING AND PROTECTING NONHUMAN ANIMALS IN LAW: AN OVERVIEW OF THE STATUS QUO: IN SOUTH AFRICA

The content this week provides an overview of the Constitution as it relates to nonhuman animals. In particular, how nonhuman animals are governed by, included and/or excluded in Constitutions. We also focus on how nonhuman animals are regulated and protected in South African animal law. We briefly explore the South African regulatory framework with a focus on wildlife and highlight some of the shortcomings and challenges of current governance and opportunities for legal reform. Discussions include:
• What is the case for the constitutional protection for animals?
• What are the difficulties for providing constitutional protection to animals?
• How does the South African Constitution apply to animals?

WEEK 4: ENVIRONMENTAL CONSTITUTIONALISM, TRANSFORMATIVE CONSTITUTIONALISM AND ECOLOGICAL CONSTITUTIONALISM: POSSIBLE PATHWAYS TOWARDS PROTECTING HUMAN AND NON-HUMAN ENVIRONMENTAL RIGHTS?

The content this week introduces participants to the concepts of ‘environmental constitutionalism’, ‘transformative (environmental) constitutionalism’ and ‘ecological constitutionalism’ as analytical lenses through which to question and potentially re-purpose the scope of constitutional environmental right protections. Seminar discussions will centre around Ecuador’s recognition and protection of rights of nature in its Constitution and other relevant laws as a case study for critically considering the legal and constitutional protection of rights of Nature in the South African context. Discussions include:
• What is environmental constitutionalism?
• What is the motivation behind the movement towards ‘environmental constitutionalism?
• What is transformative constitutionalism? What role can transformative constitutionalism play in environmental protections?

WEEK5: EARTH JURISPRUDENCE AND RIGHTS OF NATURE: PHILOSOPHICAL AND JURISPRUDENTIAL GROUNDINGS AND THEIR REFLECTION IN LAW

This content this week provides an introduction to ‘Earth Jurisprudence’, Rights of Nature and non-anthropocentric approaches to the protection of Nature. It provides examples of how it is being implemented at an international level. Discussions include:
• Who can claim the protection of the law?
• To whom do we owe moral duties? To whom do we owe legal duties?
• What are the reasons that have been provided for restricting rights/value only to humans?
• What is Earth jurisprudence?

WEEK 6: RIGHTS FOR NON-HUMANS AND ANIMALS AROUND THE WORLD AND LOOKING AHEAD

During the final week participants will examine legal rights for nonhuman animals and how these are being captured in legal systems around the world. Through an exploration of case law and legislation, seminar discussions will highlight that an increasing number of jurisdictions are moving beyond a welfare approach to one which recognises and protects rights of individual animals. Discussions include:
• How are animals regulated in law in other countries?
• What are some of the landmark cases and their holdings from other countries?
• What are some of the creative ways lawyers and other groups use to advance animal protection in other countries?
• Which countries have recognised the rights of animals?

Statement of purpose

The purpose of the course is to equip practitioners/participants with the required knowledge around progressive legal developments and reforms relating to the environment and animals. Particularly, how governance systems may be utilised and adapted to achieve greater protections for the environment, animals and humans and advance their interests.

The world has entered a new geological epoch whereby Earth’s ecological and planetary systems are dominated and altered by human activity. This era, described as the ‘Anthropocene’ is characterised by socio-economic converging crises including climate change, Earth system degradation and decay, irreversible impacts on planetary integrity, pandemics, unprecedented habitat and biodiversity loss, ocean acidification and mass animal and species extinction, among others. The current regulatory frameworks are, justifiably, often criticised for being wholly inadequate and antiquated - failing to properly account for the current situation facing our planet - rather sanctioning its destruction.

The Anthropocene signals the tipping point of the relationship between the human and non-human world and signifies an urgent need for radical regulatory reforms, particularly in the context of governance and the articulation and protection of rights, beyond the Homo sapiens species. In an effort to rethink and reconfigure governance to address the crises of the Anthropocene, there have been dedicated movements and efforts towards a more “Nature”, “ecocentric” or “Earth” centred approaches to law and rights. This can be seen through the emergence of discourse and efforts relating to human / anthropocentrically framed environmental rights (in constitutions and otherwise) as well as the explicit recognition that Nature (or Earth) should be acknowledged itself, as a holder of rights - a legal subject for protection in constitutional or legal texts, and for vindication by constitutional and other courts. This paradigm shift is often linked to ‘environmental constitutionalism’, ‘Earth jurisprudence’ and ‘rights of Nature’. In parallel, is a growing global movement for the legal protection of nonhuman animals through the ‘animal rights’ and ‘animal welfare’ movements and more recently, the field of ‘animal law’. While certain aspects of this can fall under the rights of Nature approach (as animals can be considered as a component or part of Nature), the animal protection movement diverges from the rights of Nature approach in various ways acknowledging the need to protect not only species, and ranges from protecting animal interests for the sake of humans (animal welfare) to the recognition of their sentience and intrinsic worth as individuals with rights of their own (animal rights).

The Constitutional Law and Nature short course aims to challenge current planetary governance systems and to question their appropriateness to deal with the current realities facing Earth. Furthermore, it interrogates concepts of justice and who or what is deemed worthy of protection in legal systems around the world. Through bringing together fundamental concepts and topics in the converging fields of environmental law, constitutional law, rights of Nature, and animal law. The short course considers some of the most critical and difficult legal questions of our current time.

Over the period of six weeks, the weekly themes, selected materials and interactive seminar discussions aim to equip participants with the necessary critical thinking skills and knowledge to analyse and debate the value and legitimacy of constitutionalism and its potential for both harming and strengthening the recognition and protection of Nature (and all of its components - both human and nonhuman). The short course aims to enable participants to examine the philosophical and jurisprudential bases for the current status of stakeholders including Nature and non-human animals in contemporary legal systems and will discuss the history of, and future trends regarding, that status. Against the background of realities and the new Constitutional dispensation in South Africa, participants will critically engage with the various scientific, ethical and public policy considerations which are implicated in balancing the interests of human beings, Nature as well as non-human animals. Some of the topics covered in this short course include: legal personhood and rights of Nature, animal rights and animal welfare, sustainability, development, transformative environmental constitutionalism, Earth jurisprudence, social justice intrinsic worth, standing, including adjudication and enforcement mechanisms.

Course outcomes

1. Identify the nature, scope and limitations of domestic and international law for enhancing the protection of human rights, the environment, Nature and non-human animals including in the areas of environmental, constitutional, customary and animal law.
2. Discuss the taxonomy of environmental constitutionalism and other legal approaches to protecting the environment, Nature and its components.
3. Recognise Earth jurisprudence, the field of animal law and non-anthropocentric approaches to governance and justice and how these are reflected in legal systems and efforts around the world.
4. Consider the limitations and challenges of, and opportunities for environmental constitutionalism, environmental law and animal law and other legal approaches to protecting the environment, Nature and its components.
5. Question the scope and application of core concepts related to the environmental constitutionalism debate and other legal approaches to protecting the environment, Nature and its components including animals.
6. Consider the scope of enforcement for environmental constitutionalism and its components including human and animals including the enforcement of environmental laws and animal laws (local and international).
7. Identify and discuss key challenges and opportunities for adjudicating environmental constitutionalism and other legal approaches to protecting the environment, Nature and its components including animals including through human rights, environmental law and rights of Nature and animal law.
8. With a comparative perspective, consider the current and potential application of the South African constitution and regulatory framework away from a purely anthropocentric approach, towards a stronger more ‘Nature focused’ context including the environment and nonhuman animals.
9. Discuss the outcomes of recent domestic, foreign and international case law relevant to environmental constitutionalism and other legal approaches to protecting the environment and its components and apply the principles/arguments underpinned in the case law to real life (practical) scenarios.

Entry level requirements

Entry level requirements

Given that the course is presented at NQF level 6 and above, it is suitable to the following persons:
• Current lawyers and legal practitioners
• Government representatives, including those working in the governmental sector including from the Department of Forestry, Fisheries and Environment (DFFE) and provincial and local environmental departments, the Department of Agriculture, Land Reform and Rural Development (DALRRD) and provincial and local agricultural departments, as well as other national, local and provincial departments with a mandate and work relating to environmental, animal, social justice and constitutional matters
• Current law learners (LLB, or in undergraduate BA, BCom or BSC) in their third or fourth year of study, ideally those who are enrolled for an environmental law elective or have completed environmental law
• Those who have experience or who currently work in the environmental and animal welfare and protection sector, including in environment and conservation, or with animals professionally (for example in organisations, in animal industry, as animal inspectors or as veterinarians).
• Academics and practitioners in other areas who wish to expand their knowledge their knowledge of the intersection of the environment and animals and their areas of expertise

Planned course dates

2025 dates to be confirmed

Course evaluation

This will take place through analysis of course completion rates, assessment results and participant feedback questionnaires. The evaluation results will be disseminated to the faculty in order to improve the curriculum, increase participant enrolment and respond to any changes in the legal environment.

Assessment criteria

• Answer weekly MCQ and short answer class tests based on the materials covered including but not limited to the existing regulatory frameworks and application of the law
• Apply the knowledge from the prescribed materials on selected issues to the topic in the form of a short written legal assignment of [1500 - 2000] words

Assessment methods

Assessment will be continuous and will test the ability of participants to practically apply theoretical knowledge and interactive learning in real-life scenarios.

Assessments include the following:

• Compulsory 1 x weekly online class tests (MCQ and short answer) to be completed by the end of each week. 6 tests in total. Two attempts per test allowed. [60%]
• Written assignment of 1500 – 2000 words: Each learner will undertake a written assignment of up to [2000] words in the form of a legal opinion or an essay on a topic determined by the lecturers wherein they apply their knowledge and critically engage with relevant literature. [40%]

Total 100%

Teaching & learning strategies

The teaching and learning strategy for this course aims to use the tools of a student-centred interactive learning approach in an online course using both synchronous and asynchronous learning, teaching and assessment. Technology, the university’s learning management system, Aspire, will be used to interact with other participants, and with the lecturer as well as Zoom for the seminar sessions.

Interactive learning: promotes flexible access and interaction with the learning material by a diverse student body. It increases opportunities for collaboration between participants in different geographical locations. Interactive learning also enhances participant skills at using technology to find information, to learn independently, to analyse, to present and apply their knowledge.
Interactive learning activities have the potential to:
- engage participants with the subject of environmental law, animal law, animal welfare and rights, constitutional law and human rights, and Earth jurisprudence, through online collaboration
- promote the application of critical thinking and problem solving to the legal challenges that arise in the implementation and adjudication of animal law, environmental law and Earth jurisprudence legislation and related matters

Questions and debates during the seminars and interactive engagement in the discussion forum, all involve a student-centred, interactive approach in that participants engage actively with the material and with each other. An inquiry-based learning methodology is used where participants upload learning material for the class. Problem-based learning is also used in the course in that real-world scenarios in the online discussion form and court judgments are used to evoke critical thinking, problem-solving, collaboration, and self-management. Problem-based learning is an effective teaching strategy in that it engages participants, improves learning, and makes participants more aware of real-world issues

Seminars (lectures) and videos: course content will be covered in live lectures held via Zoom. The recorded lectures (seminars) and lecturer powerpoint presentations will be uploaded to Ikamva (or similar online platform), for participants, who wish to revise the work and who want to further engage with the content in their own time. Supplementary videos related to the course content will also be uploaded to Aspire for participants to engage with in their own time.

Prescribed, Recommended and Additional Materials: consisting of South African, foreign and international Court judgments, legislation, policy documents, book chapters, academic and journal articles, and scientific reports, as well as less formal sources including documentaries, videos, articles and blogs: These will be uploaded from the UWC Law Library for the participants and placed on the course webpage.

Course material & equipment

The course outline, timetable, assignments, schedule of activities, marking system and deadlines will appear on the course webpage. There is no prescribed textbook – this course content is based on emerging themes within the convergence of constitutional law, animal law, environmental law and Earth jurisprudence. Prescribed materials consist of: academic publications (journal articles, chapters in books) case law, legislation, policy documents, scientific reports, documentaries, podcasts, educational videos, articles and blogs.

Each week includes a list of readings and resources for each seminar. Participants will also be provided with a list of questions and topics to be covered in each class. The materials are uploaded from the UWC Law Library Online Database and placed on the course webpage.

Participants are required to have access to a laptop with a camera and microphone, as well as a stable internet connection.

Modes of delivery

Modes of delivery: Fully Online via Zoom or other relevant platforms.

The short course will have both synchronous and asynchronous components. Participants will be required to provide input in the weekly online discussion forums on a subject matter posted by the lecturers. This will be supplemented by podcasts/blog posts and/or online documentaries which will be made available on the online learning platform, for the participants to peruse on their own time. These aspects of the course, as well as making input in the weekly discussion forums, are envisaged as asynchronous activities. The synchronous aspect of the course will be the 2-hour online live seminars for each week of the programme using Zoom or other relevant platform. The discussion forums will include allocated topics, analysis of scenarios and for question-and-answer interactions with each other and the lecturers. Participants will be expected to demonstrate that they have understood the theoretical underpinnings of the topics under discussion and that they are able to apply such knowledge to real-life scenarios and to analysis of the case law and scenarios. The skills developed in these activities – inter alia, in-depth analysis, tolerance for diverse views, mentoring peers in group work – provide the foundation for lifelong learning.

Course venue

Online via Zoom and or other relevant platforms.

Alignment with UWC mission & strategic initiatives

This course, the Constitutional Law and Nature aligns with the mission of UWC, especially the aims of ‘academic excellence’ through being ‘responsive to the needs of a changing world’ and fostering collegiality and collaboration through creating an enabling environment of ‘productive partnerships and networks beyond the confines of disciplinary and geographic boundaries’. It aligns to the following strategic areas:

Goal area 1: The student experience
The course lay the foundations to apply theoretical knowledge in participants daily work life. The curriculum will be up-to-date and relevant, enabling growth and development at a personal level as well as in their institutional environments.

Goal area 2: Teaching and learning
The course will promote teaching and learning in an area where there is a growing need for a curriculum that is responsive to addressing global social, economic and environmental challenges through research and preparing participants who are responsible citizens and ethical professionals able to contribute to finding solutions towards a more equitable, just and sustainable society. This course aims to promote critical thinking skills regarding the current global environmental crisis and the role of governance systems in this regard as well as enabling them to be a part of the solution for legal reform. Participants will attain the skills and knowledge required for constructive participation in their workplaces.

Goal area 4: Excellent talent
The short course will promote learning in a specialised but much-needed and evolving area of law. The course will build talent by attracting a diverse group of professionals in this learning area to UWC and equipping them with analytical skills and knowledge that they can apply in their respective workplaces and institutions.

Goal area 5: Financial sustainability
This new course is an initiative to secure an income stream in a cross-cutting subject area where there is currently a lacuna in the Western Cape.

The course is further aligned with the following UN SDGs:

The recognition of Rights of Nature and the protection of animal welfare is a powerful legal, non-anthropocentric, and holistic tool relevant for addressing a broad range of interconnected planetary crises. It is particularly important for addressing the global biodiversity loss and the impacts of climate change. It relates to the achievement of Sustainable Consumption and Production Practices (SDG 12), Climate Action (SDG 13), Ecosystem and Biodiversity Conservation (SDG 15), Preventing the Extinction of Species (SGD 15), and the building of Peaceful, Inclusive and Just Societies for All (SDG 16) among others.