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198 Chapter 12
3.1 Dignity 1: Individual as an end-in-herself
Justice Ackermann, the Court’s original exponent of dignity, grounds
the first definition of dignity in two sources that we have already
identified: apartheid and the work of Immanuel Kant:
[I]t is permissible and indeed necessary to look at the ills of the past
which [the Constitution] seeks to rectify and in this way try to establish
what equality and dignity mean. ... What lay at the heart of the
apartheid pathology was the extensive and sustained attempt to deny to
the majority of the South African population the right of selfidentification
and self-determination. ... Who you were, where you
could live, what schools and universities you could attend, what you
could do and aspire to, and with whom you could form intimate personal
relationship was determined for you by the state. ... That state did its
best to deny to blacks that which is definitional to being human, namely
the ability to understand or at least define oneself through ones own
powers and to act freely as a moral agent pursuant to such
understanding of self-definition. Blacks were treated as means to an end
and hardly ever as an end in themselves; an almost complete reversal of
the Kantian imperative and concept of priceless inner worth and
dignity. 7
For Kant, as for Ackermann, the recognition of every human being’s
inherent dignity takes the form of a variation on the golden rule, the
categorical imperative: ‘Act in such a way that you always treat
6 explanation. In the first place, legal rules often perform more than a single
function. See JW Harris Legal Philosophies (1980) 105 - 109 (In the accepted
parlance of legal positivism, primary rules are generally understood to impose
duties and obligations, while secondary rules, which are parasitic on the
existence of primary rules, determine how primary rules are to be applied or to
be altered). See also Hart (supra) at 77–96. However, I use ‘first order rule’ and
‘second order rule’ in a technical sense not meant to evoke passionate debate
about the virtues and vices of legal positivism. First order rules resolve disputes;
second order rules assist in the interpretation of—though they do not necessarily
determine— the content of first order rules in a manner that permits resolution of
disputes. See S Woolman ‘Review of Corder and Du Plessis Understanding South
Africa’s Transitional Bill of Rights’ (1996) 112 South African Law Journal 711, 715.
See also T Morawetz ‘Understanding Disagreement, the Root Issue of
Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory and Judging’
(1992) 141 University of Pennsylvania LR 371. Not only do different denotations of
dignity operate as different kinds of rules, the very same definition of ‘dignity’
may operate as both a primary rule and a secondary rule. In the second place,
while the word ‘dignity’ may not be so open-textured as to be the basic unit in a
jurisprudential ‘Lego-land’, its multiple uses confound all attempts to reduce the
courts’ jurisprudence to a finite number of rules. Fourth, two distinct dangers
attach to a purely positivist account of dignity: (a) formally fair rules may mask
substantially unjust arrangements; (b) once a constitutional norm such as dignity
is reduced to rules, obedience to the law tends to supplant considerations of
justice as the primary end of our political community. We need to be regularly
reminded that the legal rules that the right to dignity produces are only as good
as the everyday ethical practices that inform, and regularly transform, those
rules.
7 Ackermann ‘Legal Nature’ (n 1 above) 650.