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208 Chapter 12
4.2 Dignity as a second order rule
Dignity often operates as a second order rule. That is, dignity either
informs or determines how a first order rule disposes of a given
matter. Dignity, as a second order rule, features most prominently in
equality (FC section 9) cases. It does so in two ways. First, an
impairment of human dignity may determine whether mere
differentiation amounts to actual discrimination. Second, when
attempting to determine whether discrimination amounts to unfair
discrimination, the Constitutional Court will ask to what extent the
law or the conduct in question impairs the dignity of the complainant
and whether the law or the conduct in question re-inscribes systemic
patterns of disadvantage for — and thus impairs the dignity of — a
specific class of persons. Similarly, dignity, as a second order rule,
determines: (a) whether punishments are disproportionate (FC
section 12); (b) whether the state has a duty of care with respect to
the physical security of its citizens (FC sections 11 and 12); (c) the
extent of the state’s interest in foetal life (FC section 11); (d) the
parameters of contractual autonomy (FC section 22); (e) the
circumstances under which an individual may legitimately claim that
his or her home is an impregnable castle (FC section 14); (f) when the
conditions of existence amount to slavery (FC section 13); and (g)
when expressive conduct constitutes hate speech (FC section 16).
4.3 Dignity as a correlative 40 right
The Constitutional Court often deploys rights simultaneously in the
service of its arguments. It likes to describe rights as interdependent
and symbiotic. This talk of ‘interdependence’ is especially evident in
challenges to law or to conduct grounded in the right to dignity.
However, for my immediate purpose — to distinguish dignity as a
correlative right from dignity as a first order rule, dignity as a second
order rule or dignity as a value — I must show that dignity functions,
in some respects, independently of other rights in constitutional
challenges that rely upon multiple rights.
S v Jordan provides a paradigmatic instance of dignity deployed
as a correlative right. Justices O’Regan and Sachs note that although
the rights to dignity, privacy, and freedom of the person intersect and
overlap, the challenges brought in terms of each of these rights
cannot be consolidated into a single challenge grounded in some
‘unenumerated’ right to autonomy. Each challenge based upon a
40 Pace L Ackermann ‘correlative’ does indeed mean a ‘complementary, parallel or
reciprocal relationship, especially a structural, functional or qualitative
correspondence.’ See www.answers.com (accessed 13 July 2008).