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Stu Woolman 197
of the world after World War II. 4 It is no accident that dignity occupies
a central place in German constitutional jurisprudence: for ‘dignity’
is the flip-side of ‘never again’. And just as the Germans have
promised not to shovel people into stoves, so too have South Africans
promised never again to treat people like cattle to be packed off to
bantustans or to be slaughtered in the middle of the night. Dignity,
like the words ‘never again’, may now have a new and deeper
meaning post-Third Reich and post-apartheid. But ‘dignity’, like
‘never again’, writes Alan Ryan, has, in fact, ‘been the watchword all
along.’ 5 Ultimately, that watchword always returns us to first
principles: the refusal to turn away.
3 Definitions of dignity
One can identify five primary definitions of dignity in the Court’s
jurisprudence. One aim of the following taxonomy is to demonstrate
how these five definitions draw down on the same basic insight: That
we recognise all individuals as ends-in-themselves capable of selfgovernance.
(Put pithily, each definition of dignity emphasises a
different dimension of our status as relatively autonomous moral
agents.) I suggest how these definitions build upon this common
insight and interpenetrate one another to yield a theory of ‘dignity’. 6
4
See A Chaskalson ‘Human dignity as a foundational value of our constitutional
order’ (2000) 16 South African Journal on Human Rights 193 196 (‘The affirmation
of human dignity as a foundational value of the constitutional order places our
legal order firmly in line with the development of constitutionalism in the
aftermath of the second world war.’)
5
A Ryan ‘After the fall: Judt’s Postwar: A history of Europe since 1945’ New York
Review of Books 3 November 2005 16 19.
6
I stand accused — well, mildly criticised — by Justice Ackermann and others of
engaging in a rather benighted Hartian attempt to reduce ‘dignity’ to a series of
definitions or rules. I remain somewhat perplexed by this charge — since I and
most other lawyers take law to be a rule-governed exercise, and that to
understand a phenomenon as rule-governed does not entail a commitment to a
Hartian view of law or language. That said, a word or two of explanation about
this chapter’s method appears to be in order before I set out my taxonomy of
dignity and some of the black letter law FC section 10 has generated below. First,
neither the emphasis on the actual manner in which the courts have used and
defined dignity, nor the effort to distinguish first order rules from second order
rules should lead the reader to conclude that I aim to offer a purely positivist
account of this body of law. See HLA Hart The concept of law (1961) (Not even
HLA Hart, with whom the nomenclature of primary rules and secondary rules is
most often associated, assumes that such rules exhaust the universe of
obligations.) Second, if the point of a positivist account (shorn of more
controversial jurisprudential baggage) is to construct a taxonomy of all the rules
that constitute the law of dignity — made up of the primary rules that impose
4 See
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and
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the secondary
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and the
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(2000) 16
of
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— then
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Human
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Rights
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193
do
196
something
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But
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dignity
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a foundational
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of
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attempting
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places our
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a Baedeker
in line
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with
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the
sort to
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make their way
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in
body
the
aftermath
of jurisprudence.
of the second
Third,
world
such
war.’)
a Baedeker alone is insufficient to the task of
5
A
explanation.
Ryan ‘After
In
the
the
fall:
first
Judt’s
place,
Postwar:
legal
A
rules
history
often
of
perform
Europe since
more
1945’
than
New
a single
York
Review
function.
of
See
Books
JW
3 November
Harris Legal
2005
Philosophies
16 19.
(1980) 105-109 (In the accepted