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Difference between ubuntu and dignity 225
possibility of guiding our actions through practical reason. We should, as a
moral mandate – and in the case of Justice Ackermann’s ‘New South
Africa’ also as a constitutional mandate – regard all other human beings
through the representation of that possibility. Thus, Kant introduces the
idea of horizontal thinking, by which I mean the recognition that all creatures
defined by this possibility have equal worth. Therefore, any return to
hierarchies that deny to any human being that he or she partakes in this
possibility must be rejected.
As an ideal attribution, dignity can be violated even as it remains the
basis of our moral worth, because as creatures that have at least the possibility
of moral action we might be able to bring about a new beginning. That is,
dignity as an ideal attribution of our sameness before this possibility can be
violated, but not lost. Here we see the difference between sameness and
likeness for Kant. We are the same before this possibility even if as a matter
of actual life many, if not all of us, give ourselves long (sometimes endless)
moral holidays. Nor does it matter for a defence of our intrinsic equal
worth that we are actually different in our physical selves. Kant defends a
view of autonomy rooted in how we might be: In this sense he does not offer
a moral or ethical ontology of who we are rooted in any theory of human
nature. Indeed, to the degree that Kant speculated in the anthropology of
his time, he had a rather sour view of human nature.
For the former Justice Ackermann, the moral categorical imperative for the
new South Africa is precisely the recognition of this sameness, which, of
course, is a complete moral inversion of the dreadful history of apartheid. For
the former Justice Ackermann, the constitutional imperative demands that
never again will dignity be violated, and that its respect requires that dignity
not only be treated as a right (as it must be under section 10 of the
Constitution) but also as an ideal that informs how the other rights in the Bill
of Rights are to be interpreted. On this understanding, when a justice uses
dignity as a constitutional imperative, that justice is not locked into a kind of
formalistic reasoning that says we respect the Constitution because it is the
Constitution – as some critics of the dignity jurisprudence have suggested.
For Ackermann, it is dignity that is the grundnorm of the entire Constitution.
Again, a grundnorm is the moral or ethical principle or ideal that
undergirds the moral as well as the legal order of society. We need to note
that the distinction between moral and legal rights is only made in Anglo-
American jurisprudence, while for Kant legal rights are moral rights. The
meaningful distinction in Kant is between the realm of internal freedom –
morality – and the realm of external freedom, law. More on that
distinction shortly.
In the case of South Africa, this understanding of dignity can yield an
interpretation of section 10 of the South African Constitution that separates