Dignity (‘dignitas’) denotes a person’s sense of personal pride and self-worth.3 Along with reputation (‘fama’), body (‘corpus’) and physical freedom (‘libertas’), it makes up the bundle of physical and psychological interests that are recognised by law as the constituents of human personality. Whilst all four constituents confer justiciable rights upon the individual, dignity is accorded special importance in South African law, by
1 S v Thebus 2003 (6) SA 505 (CC) para 35.
2 See Ch 6 s4.1.
3 M Loubser & R Midgley (eds) The Law of Delict in South Africa (2010) 313; See also A De Chickera
‘Through the Lens of Dignity: An Essay on Equality and Liberty’ (2009) 4 The Equal Rights Review 35, 40: ‘dignity is a concept best understood by appealing to subjective notions of how one should be treated and one’s life valued, and applying them to society at large. Such an approach is “empathical”, demands consistency and affirms the inherent, unquantifiable value of humanity.’
124
virtue of the provisions of the 1996 Constitution.4 In South Africa, human dignity is not only a constitutionally protected right,5 but one of the founding values upon which the entire 1996 Constitution is based.6
Whilst the prominence accorded to dignity in the 1996 Constitution may be attributed primarily to reaction against the inhumanity and indignity to which so many were subjected during the years of apartheid,7 dignity is nevertheless a value implicit in, and fundamental to, any conception of society based on liberal precepts and respect for human rights.8 Thus, for example, its importance is acknowledged in the very first article of the Universal Declaration of Human Rights,9 as well as in various other instruments of international human rights.10 Since the Second World War and, more recently, the fall of the Iron Curtain, there has been an increasing tendency to refer to human dignity in national constitutions, either as a founding principle or value, or as a justiciable right, or frequently both.11 An early example may be found in the German Constitution,12 which, like our own, was formulated in the wake of a political regime that involved gross violations of human rights, without regard for human dignity.
Article 1(1) of the German Constitution now stipulates, as a precursor to the schedule of rights, that ‘the dignity of man shall be inviolable’ and the German courts, in the sixty- odd years since its adoption, have developed a substantial body of jurisprudence on the
4 The Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’).
5 Section 10 the Constitution of provides that: 'Everyone has inherent dignity and the right to have their dignity respected and protected.'
6 Section 1 of the Constitution provides: ‘The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’
7 See the Constitutional Court’s dictum in S v Makwanyane 1995 (3) SA 391 (CC) para 329: ‘Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.’ See also S Hoctor ‘Dignity, Criminal Law and the Bill of Rights’ (2004) 121 SALJ 304, 304.
8 Ibid. See also A Chaskalson ‘Human Dignity as a Foundational Value of Our Constitutional Order’
(2002) 16 SA J on Human Rights 193, 197-8.
9 Universal Declaration of Human Rights, adopted 10 December 1948, UN Doc A/810 (1948).
10 Hoctor (note 7 above) 304 and further authorities cited therein; Chaskalson (note 8 above) 197-198.
11 D Schultziner & GE Carmi ‘“Dignitizing” Constitutions Worldwide: On the Proliferation of Human Dignity in National Constitutions’ (2013), available online at http://works.bepress.com/guy_carmi/6, accessed on 1 November 2013.
12 Grundgesetz Für Die Bundesrepublik Deutschland 1949 (commonly referred to as ‘The Basic Law’).
125
right to dignity,13 which has included the review of criminal legislation by the German Federal Constitutional Court.14
Respect for human dignity demands the recognition of the intrinsic (and thus inalienable) value and moral worth of each individual person. As such, the concept of human dignity is inextricably associated with the blend of individualist, libertarian and egalitarian values that have come to typify modern liberal democratic ideology. The liberal concept of dignity is essentially Kantian and individualistic in nature: It demands that each individual be regarded as an end in himself, rather than merely a means for achieving the ends of others,15 a view evidently shared by the South African Constitutional Court, as is evident from the dictum of Ackermann J in S v Dodo:
Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as a means to an end.16
It also demands respect for each individual as ‘fully human’; that is to say, as capable of rational thought and choice, of making moral judgments and, hence, as capable of evaluating, choosing and directing his own behaviour.17 Because of this, the individual has the innate right to choose his own ends and pursue them in his own ways, as free as possible from external constraint and interference.18 The liberal concept of dignity is therefore also fundamentally libertarian, in that it requires respect for the autonomy of the individual and the protection of his personal liberty.19 And it is egalitarian, in that it assumes that, since all individuals have dignity in the same measure, they are of equal worth and are thus entitled to equal concern and respect from society and its institutions.20 In as much as the ideals of libertarianism and egalitarianism are generally
13 Chaskalson (note 8 above) 198.
14 M Gur-Arye and T Weigend ‘Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives’ (2011) 44 Israel LR 63, 67-71.
15 Hoctor (note 7 above) 305; De Chikera (note 3 above) 39.
16 S v Dodo 2001 (3) SA 382 (CC) para 38; see also Hoctor (note 7 above) 305.
17 This is commonly referred to as the doctrine of free will, or theory of self-determinism. An early proponent of this doctrine was the medieval theologian-philosopher, St Thomas Aquinas (1225 – 1274).
18 BJ Winick ‘On Autonomy: Legal and Psychological Perspectives’ (1992) 37 Villanova LR 1705, 1714- 1715.
19 Ibid; Hoctor (note 7 above) 309 note 40 and further authorities cited therein.
20 Hoctor (note 7 above) 312; De Chikera (note 3 above) 42.
126
regarded as inherently contradictory,21 dignity may be regarded as the crucial mediating factor.22 No society can be expected to guarantee its members absolute liberty, or equality in all things. However, a society founded on liberal values, with human dignity as its central value, is nevertheless required to guarantee its members liberty and equality in such matters and in such degree as may be necessary for and commensurate with their right to dignity.23