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Does balancing adequately capture the nature of rights? 287
a constitutional scheme. Whilst I cannot seek to accomplish this in an
exhaustive manner here, I would suggest that as a minimal starting point,
it is of importance to recognise that constitutional rights seek to protect
some of the most fundamental interests of individuals. 72 This feature of
rights helps to explain their weight. They relate to the very most basic
elements of our lives – the necessary conditions of our freedom, the
resources we need to live lives of value, and to function adequately. 73
Rights have a form of urgency that flows from the impact that they have
on our ability as individuals to lead lives of value to us. 74
Rights are thus best understood as ‘weighty principles that protect the
most fundamental interests of individuals’. At their foundation is a concern
for the value and quality of individual lives. In a just political community,
each individual life will be understood as having equal value. 75 Thus,
rights can be understood to flow from what may be termed the ‘equal
importance of individual lives’. 76 This understanding of rights is
fundamentally congruent with the text of the South African Constitution.
The fundamental values underlying the Constitution are human dignity,
equality and freedom’. 77 Human dignity involves a fundamental
assumption of the worth of each individual life and thus captures the notion
of the importance of individual lives. 78 Equality represents the notion that
each life is to be treated as equally valuable. Freedom is part of what
constitutes the value in individual lives: to be able to flourish and live
according to one’s own conception of the good.
Importantly, these three foundational values are also the ones that play a
part in determining whether the limitation of a right is justifiable or not. This
is a crucial point as it places at the heart of the enquiry to be conducted under
the limitations clause the very values that underlie fundamental rights. This
means that one of the key normative elements when deciding whether a
72 Dworkin (n 10 above) attempts to capture the importance of the interests underlying
constitutional rights in his discussion at 191 - 192; M Nussbaum Women and human
development (2000) 96 - 101 also provides an account of rights as essentially protecting
important interests (or in her terms capabilities) of individuals.
73 See Nussbaum (n 72 above); A Gewirth Reason and morality (1978).
74
See Bilchitz (n 9 above) 187: This fact may mean that there may be different elements
within a particular right that have greater priority and urgency than others. This is of
particular importance in the context of socio-economic rights: See Bilchitz (n 9 above)
185 - 194.This would help explain why at times certain interferences with rights may be
more objectionable than other interferences.
75 Dworkin regards the notion of equal concern and respect to be accorded to individual
lives as the sovereign virtue of a political community: See R Dworkin Sovereign virtue
(2000) 1. I have sought to work out this idea in relation to fundamental rights in Bilchitz
(n 9 above) 57 - 65.
76
See Bilchitz (n 9 above) 57 - 65.
77 Sec 1 of the Constitution.
78 See Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister
of Home Affairs 2000 3 SA 936 (CC) para 35. In D Bilchitz ‘Does transformative
constitutionalism require the recognition of animal rights’ in S Woolman & D Bilchitz
(eds) Is this seat taken? Conversations at the Bar, the bench and the academy about the South
African Constitution (2012) 173, I argue that dignity should not be confined to human
beings alone.