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200 Chapter 12
How then to understand Kant in a way that is neither sentimental
nor woolly? Consider Oscar Schachter’s gloss on the categorical
imperative: ‘Respect for the intrinsic worth of every person should
mean that individuals are not to be perceived or treated merely as
instruments or objects of the will of others.’ 11 Dignity, on this
account, sets a floor below which ethical — and legal — behaviour may
not fall. Although some relationships will be purely instrumental, no
individual person can be treated as a mere instrument over the entire
domain of her social interactions. This floor supports — as the Dawood
Court suggests — Chapter 2’s express prohibitions on slavery,
servitude and forced labour. 12 This definition of dignity also bars punishments
that either extinguish the humanity of another entirely —
say, the death penalty 13 — or through their disproportionality reduce
a human being to a mere signal — a warning, a disincentive — within
a large and impersonal system of social control. 14
3.2 Dignity 2: Equal concern and equal respect
Another version of Kant’s moral law — more accurately described as a
principle of justice — yields another dimension of dignity: ‘Any action
is right if it can coexist with everyone’s freedom in accordance with
a universal law, or if on its maxim the freedom of choice of each can
coexist with everyone’s freedom in accordance with a universal
law.’ 15 This primarily negative obligation not to treat another merely
as a means and to recognise in that Other the freedom to act as an
end in itself — the ability to act as an autonomous moral agent —
underwrites a conception of dignity as a formal entitlement to equal
concern and to equal respect. 16 From this conception, the Constitutional
Court has constructed two different, though not entirely
distinct, tests in terms of FC section 9 (the right to equality): (1) a
right to equal treatment which ensures (a) that the law does not
irrationally differentiate between classes of person and (b) that the
11 O Schachter ‘Human dignity as a normative concept’ (1983) 77 American Journal
of International Law 848 849.
12 Dawood & Another v Minister of Home Affairs & Others 2000 3 SA 936 (CC), 2000
8 BCLR 837 (CC) para 35.
13
See Makwanyane (n 3 above).
14 See S v Dodo 2001 3 SA 382 (CC), 2001 5 BCLR 423 (CC).
15 See I Kant Metaphysics of morals trans M Gregor (1991) 56 231 395.
16
Kant offers a more accessible, and less rarefied, account of dignity qua equal
concern and equal respect in the Metaphysics of morals, when he writes:
[A] human being regarded as a person ... is exalted above any price; for
as a person ... he is not merely to be valued merely as a means to the
ends of others or even to his own ends, but as an end in itself, that is, he
possesses a dignity (an absolute inner worth) by which he exacts respect
for himself from all other rational beings in the world. He can measure
himself with every other being of this kind and value himself on a footing
of equality with them.
Kant (n 15 above) 557 (my emphasis).