Download this publication - PULP

18 Chapter 1
on dignity, five definitions of human dignity employed by the Court.
These definitions range from (1) the conventional command not to
treat a person simply as a means, but also as an end, to (2) the need
to treat people with equal concern and respect, to (3) the recognition
of others as self-governing and self-actualising beings, and finally to
(4) the recognition that our own dignity is linked to the material
conditions in which our fellow South Africans live. Woolman thus gives
discernable, concrete content to what sceptics like to glibly dismiss
as a term that means anything and everything and therefore nothing.
Secondly, Woolman explains the different ways in which dignity —
in all its guises — is employed in the Final Constitution. Woolman
argues that dignity has four distinct roles: as a first order rule; as a
second-order rule; as a correlative right; and as a grundnorm. As a
first order rule litigants can rely on dignity to secure relief that would
not be available under any other right. As a second order rule dignity
informs — and even determines — the content of other rights — in
particular the right to equality. Dignity also operates as a correlative
right: the Court requires that litigants simultaneously assert all
relevant rights — and dignity often features in challenges based upon
privacy, freedom and security of the person, freedom of trade,
occupation and profession and various socio-economic rights. Dignity
as a grundnorm refers to the role dignity plays as a value that informs
the interpretation of all the substantive rights found in the Bill of
Rights and many of the remaining provisions of the Constitution.
In his concluding section, Woolman asks how dignity can be used
to promote the transformation of South African society. He suggests
that dignity can be profitably linked to Amartya Sen’s theory of
capabilities. 33 Such a view of dignity would require that all people are
not only free from interference by the State and other private actors,
but that they are provided with the material conditions that enable
them ‘to pursue [their] preferred way of being in the world.’
Justice Ackermann, one of the primary architects of the
Constitutional Court’s dignity jurisprudence, expresses his broad
agreement with Woolman’s take on dignity, particularly his reliance
on Kantian principles. However, the Justice still articulates what he
believes to be a number of small but significant points of
disagreement.
But they are not, in fact, small at all. In a path-breaking account
of the relationship between dignity and the possession of a soul,
Ackermann suggests that our study of dignity should not only focus on
the external content of human dignity — or what Ackermann prefers
33 See A Sen Development as freedom (1999).