Download this publication - PULP

Stu Woolman 201
law does not reflect the ‘naked preferences’ of government; and (2)
a right to equal treatment that guarantees that individuals are not
subject to unfair discrimination on the basis of largely ascriptive
characteristics. 17 Of this demand for equal concern and equal
respect, Justice Ackermann writes:
[A]t the heart of the prohibition of unfair discrimination lies the
recognition that the purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will be
accorded equal dignity and respect regardless of their membership in
particular groups. The achievement of such a society in the context of
our deeply inegalitarian past will not be easy, but that that is the goal of
the Constitution should not be forgotten or overlooked. 18
3.3 Dignity 3: Self-actualisation
Another formulation of the categorical imperative shapes a third
strand of the Court’s dignity jurisprudence. Kant writes: ‘Act only on
the maxim through which you can at the same time will that it should
become a universal law.’ 19 Here, the term that warrants the closest
scrutiny is ‘will’. For Kant, the hallmark of humanity is its ability to
‘will’ or to shape its ends through ‘reason’. But when Kant writes that
our humanity consists, at least in part, in our power to rationally set
and will an end, he is not speaking solely of an individual’s capacity
to adopt an end for purely moral reasons. While Kant certainly
contends that the defining feature of humanity is our capacity to
overcome our instincts and that we are only truly free when we are
moral, he maintains that we define ourselves — and our humanity —
through the rational choice of all of our ends and not just those that
are explicitly moral. This broader capacity to create meaning — to
‘will’ value into the world — gives rise to the modern political and
ethical pre-occupation with ‘self-actualisation’. An individual’s
capacity to create meaning generates an entitlement to respect for
the unique set of ends that the individual pursues. In Ferreira v Levin,
Justice Ackermann writes:
Human dignity cannot be fully valued or respected unless individuals are
able to develop their humanity, their ‘humanness’ to the full extent of
its potential. Each human being is uniquely talented. Part of the dignity
of every human being is the fact and awareness of this uniqueness. An
17 See President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC), 1997 6
BCLR 708 (CC) para 41 (‘[T]he purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will be accorded
equal respect regardless of their membership in particular groups.’ (My
emphasis.))
18 LWH Ackermann ‘Equality under the 1996 South African Constitution’ in Wolfrem
(ed) Gleichheit und Nichtdiskriminierung im Nationalen und Internationalen
Mesenchenrechtssschutz (2003) 547.
19 Kant (n 8 above) 37-38.