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226 Chapter 13
but freedom to enable self-actualisation is of course essential for
human dignity. Art 2 of the German Basic Law, deals with personal
freedoms and Art 2(1) specifically with the free development of
everyone’s personality (‘die freie Entfaltung seiner Persönlichkeit’).
Article 2(1) is universally regarded as relating back also to Art 1 and
as establishing, with Art 1, a general personality right. 22 However,
Woolman’s statement in footnote 22 that ‘dignity qua self-governance
is, in fact, where the Constitutional Court falters most conspicuously’
seems to me a broad criticism with shaky support. One would have
thought that the Court’s judgments on the human worth (dignity)
rights of gays and lesbians — which he later correctly identifies as one
of the most transformative areas of the Court’s jurisprudence — point
firmly in the opposite direction. Woolman’s criticism, for example, of
Prince in this regard simply ignores the crucial fact that the
constitutional validity of South Africa’s drug legislation (which inter
alia proscribes the possession and use of dagga, the substance whose
use was in issue in the case) was not generally challenged by the
complainant. 23 The Court was accordingly obliged to have regard to
the disastrous effect that permitting the religious use of dagga (which
religious use was, on the complainant’s own case, virtually unlimited
as to time and place) would have on the enforcement of the
legislation in question.
4 Collective dignity?
The way that Woolman presents the idea of ‘collective responsibility
for the material conditions for agency’ is a welcome addition to our
local debate on dignity and equality, as is his reference to Amartya
Sen’s idea of capability equality. 24 I would also readily agree that
when the state harms the dignity of one person this, in a certain
manner of speaking, diminishes the dignity of us all. But the ‘us’ in
this proposition refers to the totality of our individual dignities. It is,
however, a far cry from this understanding to extrapolate from the
Court’s jurisprudence postulate a ‘collective notion of dignity.’
(Woolman does, it must be noted, acknowledge that that ‘notion’
allegedly implicit in the Court’s judgments refers not to some
romantic idea of the ‘volk’, but to a commitment to providing all
individuals with the material means necessary to create a Kantian
‘kingdom of ends’.) There are serious potential objections and
dangers to attributing dignity to a group which does not otherwise
enjoy legal personality, as there are fundamental objections and
22 See, eg, I von Münch P Kunig (eds) Grundgesetz-Kommentar 4 ed (1992) vol 1, Art 2
23
Rn 30.
Prince v President, Cape Law Society & Others 2002 2 SA 794 (CC), 2002 3 BCLR
24
231 (CC).
In this regard, see also S Cowen ‘Can “dignity” guide South Africa’s Equality
Jurisprudence’ (2001) 17 South African Journal on Human Rights 34.