Download this publication - PULP

226 Chapter 9
the two clauses of section 10. 5 If everyone has dignity as an ideal attribution,
then it is that ideal attribution that is recognised as a right. Dignity is what
Justice Ackermann establishes as the grundnorm, following Kelsen’s
definition, and he thus places dignity at the heart of the substantive
revolution of South Africa. For Kelsen, two kinds of revolution are possible. 6
The first is the more familiar kind of revolution, a full revolution. A full
revolution in South Africa would have obliterated the entire preceding legal
system, which would have included firing all the judges and declaring all
former law invalid. A substantive revolution, on the other hand, is when the
new order proceeds legally even as the old order validates the creation of a new
government – and yet it still turns the world upside down by creating a new
objective, normative legal order that is based on an ethical principle that
negates the ethical acceptability of the old order. Hence, the word revolution
applies. Under Justice Ackermann’s dignity jurisprudence, the South
African Constitution is the law of a substantive revolution. The newness of
this process is that it is one of a very few substantive revolutions to take place
in world history (depending on how one reads some of the new dispensations
in South America). Thus, if the Constitution ceased striving to embody the
ideals of an objective normative order worthy of a substantive revolution, it
would no longer be worthy of respect as the supreme law of the land of the new
South Africa. This is not what the letter of the Constitution says, but it is the
very spirit of the constitutional mandate that Justice Ackermann seeks to
express in his judgments concerning the moral and constitutional significance
of dignity.
But how is the social bond that undergirds Kant’s notion of law as the
realm of external freedom represented? The relationship between the realm
of internal freedom (of morality) and the realm of external freedom (of
right or Recht) has long been debated in Kantian scholarship. As Allen
Wood explains:
It is unclear whether Kant holds that the two moral legislations of right and ethics
are derived from a common principle such as the supreme principles of morality
that receives a three-fold formulation in the groundwork. It speaks in favour of a
common or unified basis that Kant regards duties of right as categorical
imperatives and also that he grounds the single innate right possessed by persons
(the right to freedom) on the humanity of persons (hence apparently on the
second main formula of the principle of morality, the formula of humanity as an
end in itself)[…] But it speaks against a unified basis of right and ethics that the
principle of right is described as analytic, whereas the principle of morality is
synthetic, and also that the principle of right itself does not actually command us
to do anything, but merely tells us what it takes for an action to have the status of
a ‘right’ action within the system of right. 7
5 Sec 10 of the Constitution of the Republic of South Africa, 1996 reads, ‘Everyone has
inherent dignity and the right to have their dignity respected and protected.’
6 Kelsen (n 3 above) 117.
7 A Wood ‘Human dignity, right and the realm of ends’ in J Barnard-Naudé et al (eds)
Dignity, freedom, and the post-apartheid order: The critical jurisprudence of Laurie Ackermann
(2008) 47 56 - 57.