This book, by a retired Justice of the first South African Constitutional Court, provides an in-depth analysis of human dignity and its relationship to equality in South African law. While concentrating on the South African law, it is also a comparative study, seeking guidance from Canadian and German jurisprudence (widely defined).
A lack of proper linguistic and logical analysis on the part of lawyers has rendered the legal discussion of equality and non-discrimination confused (and confusing), unnecessarily sceptical, and needlessly complex. The main contention in this regard is that, in a special logico-grammatical sense the noun equality and the adjective equal, cannot be used substantively, but only in an attributive sense. Put more simply, intelligible meaning can only be given to equality, as applied to humans, if the antecedent question “Equality of what?” is first asked, or, more expansively, “In respect of what are all human beings equal and in respect of what may no-one be discriminated against?” The author argues that human dignity is the attributive key that unlocks the constitutional meaning of equality and unfair discrimination. The work, in different fields, of Peter Geach, Philippa Foot, and Amartya Sen is invoked in this context.
The philosophical and Abrahamic religious roots of these constitutional concepts of dignity and equality are investigated. No higher constitutional claim is made for the theological perspectives than for the secular philosophical, but are presented in an attempt to establish as broad as possible an “overlapping consensus” (in the Rawlsian sense) as possible. These concepts are then further explored and illustrated in the comparative context of South African, German and Canadian constitutional jurisprudence.
Clashes and tensions between rights inevitably occur when the equality and non-discrimination rights of a Bill of Rights are applied horizontally, that is between subjects of the state themselves. The most obvious examples are clashes between the constitutional rights of equality and non-discrimination of one subject, and those of the freedom, privacy and property rights of another. This can arise, by way of example, when a white seller of immoveable property seeks in the deed of sale to prohibit the seller from in turn re-selling the property to a black purchaser. The human dignity of the contestants plays a vital role in resolving such tensions and conflicts. Reliance is in this regard placed on the pioneering work of the late Louis Henkin of Columbia University; and the role of human dignity in resolving clashes between the competing horizontal rights of subjects is defended as “a neutral principle of constitutional adjudication” in the sense that this concept has been developed by Herbert Wechsler and Kent Greenawalt.
Constitutionally mandated restitutionary (compensatory) equality is examined and it is argued that it should be seen as a public law manifestation of unjustified enrichment, but with its own unique remedies. It is contended that seeing the remedy as a restitutionary one will help to dispel the negative and often hostile perceptions of those who are called upon to make restitution. Human dignity has a determining function when applying constitutionally mandated restitutionary (compensatory) equality and when determining what the legitimate extent and duration of such restitution is. The dangers of simplistically importing the concept of “affirmative action” from the USA are highlighted. A distinction has to be drawn between a political majority applying restitutionary or compensatory remedial equality against its own interest and a political majority applying it in its own favour. When it is a political majority applying restitutionary equality in its own favour, it behoves such majority to take particular care not to infringe the human dignity of those called upon to make restitution. Wherever possible provision should be made for “special cases.” These issues are also considered in a comparative constitutional context.
It is incumbent on those who are sceptical of the human dignity concept and its use in constitutional law to play closer attention to the more than sixty years of rich and thought-provoking German jurisprudence. This book endeavours to convey some of this richness.