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Stu Woolman 215
material support (eg, food) and immaterial support (eg, civil liberties)
that enables individuals to pursue a meaningful and comprehensive
vision of the good — as they understand it. 67
As recent case law suggests, the Court has moved beyond a
minimalist understanding of dignity, and a negative conception of
freedom, to something richer and more substantial. In Grootboom the
Constitutional Court announced: ‘A society must seek to ensure that
the basic necessities of life are provided to all if it is to be a society
based on dignity, equality, and freedom.’ 68 In Khosa v Minister of
Social Development, the Court commits the state to the provision of
actual resources, social assistance, to an identifiable class of persons
— permanent residents. In so doing, the Court moves well beyond
dignity as negative liberty to a vision of dignity in which ‘wealthier
members of the community view the minimal well-being of the poor
as connected with their personal well-being and the well-being of the
community as a whole.’ 69
Dignity qua collective responsibility for material agency moves us
towards a Sen-like capabilities model. Moreover, it does so without
being susceptible to the critique of dignity qua negative liberty
levelled by exponents of substantive equality. The capabilities model
defines equal treatment in terms of the provision of differently
situated persons with the material and immaterial means that they,
in particular, require to pursue some specific vision of the good. So,
for example, Sen argues that pregnant women need more nutrition
than men and that any basic food program is obliged to recognise this
difference in a basic nutritional package. 70
Dignity modelled on a Sen-like capabilities model also appears to
answer the charge that a commitment to substantive autonomy reinscribes
the disadvantage of those persons who find themselves in a
state of injury. A capabilities model does not underscore the lack of
such primary goods as income or civil liberties into the capability ‘to choose a life
one has reason to value’ — or in simpler terms, the ability to pursue one’s own
ends. Sen (n 33 above) 75. The virtue of Sen’s approach is that it recognises (a)
the heterogeneity of capacity that people possess by virtue of biology, custom, or
class; (b) the heterogeneity of critical functions — from nourishment to civic
participation — that may be required to live a life one has reason to value; and (c)
the heterogeneity of capabilities that people will possess — different combinations
of more basic functions — which will, in turn, enable them to pursue
different visions of the good.
67 Sen (n 33 above) 75. See also K van Marle ‘No last word: Reflections on the
imaginary domain, dignity and intrinsic worth’ (2002) 13 Stellenbosch Law Review
299 306
68 n 29 above, para 83.
69
n 25 above, para 74.
70 Sen (n 33 above) 189–203.