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Reply - Justice Laurie Ackermann 227
dangers to attributing rights to such a group. Apart from the
conceptual legal problem of attributing rights generally, and dignity
in particular, to an unincorporated group, it can have serious political
consequences. Just as the identity and individual responsibility of the
individual can be sucked up into the identity of the nation or some
other collective, and thereby destroyed, as was the case with German
fascism and Russian communism, so too the idea of the dignity of the
collective could become destructive of individual dignity. I am not
suggesting that this is Woolman’s aim or strategy; in fact I am sure
that his purpose is quite the opposite. I merely point to the
conceptual and con-sequential difficulties and dangers. Nor do I, for
one moment, see individuals and their dignity as existing in isolation
from society. It is vitally important that the associational individual
rights of individuals be recognised and protected as, inter alia, FC
sections 17-19 and 29-31 do, because without such recognition and
protection it is not possible for humans to develop their individual
personalities fully. Nor do I deny the obligation of society generally,
whether this be a legal, ethical or moral one, to facilitate the
capabilities of the poor and the weak. But this is all a far cry from
attributing dignity (human worth) to an unincorporated group or
collective, or to a nation.
5 Kelsen rather than Hart
I must furthermore join issue with Woolman’s presentation of dignity
as something that ‘operates as a first order rule, a second order rule,
a correlative right, a value and a Grundnorm.’ Woolman is using, in
my view mistakenly, the language and concepts of HLA Hart where our
Constitution cries out for a Kelsenian approach. In this regard I would
invoke the support of Ronald Dworkin who rejects such an approach
as:
a taxonomic concept of law: it supposes that any political community
that has law in the sociological sense also has a collection of discrete
rules and other kinds of standards that are legal standards as opposed to
moral or customary or some other kinds of standards. Legal philosophers
use this taxonomic concept when they ask whether certain moral
principles are also principles of law. The idea of law as a set of discrete
standards, which we might in principle individuate and count, seems to
me a scholastic fiction. 25
What occurred in 1994, and was continued in 1996, was a revolution
in the fully substantive sense that Kelsen uses, but it was not a
revolution in the procedural sense, because there was ‘no discon-
25 Justice in robes (2006) 4.