The second ingredient is human dignity — the inestimable worth of each and every person. It is because human beings have this worth that they can justifiably demand that certain kinds of actions never be performed against them. To say that a person has a right is to say that her claim cannot be overridden by simply balancing it against a competing basket of goods. Even if governments can realize great gains in war by targeting civilians or torturing suspects, they must refrain from these actions if they are respectful of human rights.
Not all human rights are absolute, of course; in fact, only a few core rights are. Torture is never justified, for example, but claims for religious freedom cannot justify rituals of child sacrifice, to take an obvious example. Yet even when rights are not absolute, there is a strong presumption against overriding them. What systems of principles or traditions of thought contain and ground these three ingredients? We can easily rule out postmodernism, all forms of relativism, and traditions bound to particular cultures. All lack the crucial characteristic of universality. Nor does the realist tradition in international relations favor human rights.
Realists have long been skeptical of human rights claims, regarding them as masks for the power and interests of states. Realists also do not support the pursuit of rights when they conflict with the national interest, defined in terms of power and security. What traditions of thought, then, assert universal norms, human dignity, and trump card status? Religions holding that God revealed certain commandments to be binding on everyone, essential for human flourishing and dignity, and admitting little room for violation or exception are strong candidates.
Theologians and philosophers in these traditions have derived a right to life from the commandment to not murder, a right to property from the commandment to not steal, and so on. In these religions, the ingredients for human rights are cemented in an eternal and unchanging being who takes an interest in every person. Not all religions posit a single God, to be sure. Hindus differ over God and gods, while Buddhists generally do not believe in God.
In these faiths, as Arvind Sharma notes in openGlobalRights, human rights find their grounding insofar as they can offer a transcendent basis for universal norms, human dignity, and the trumping value of rights. The biggest challenge to my argument may be the claim that reason can make the case for human rights without reference to God. As the philosopher Alan Donagan argued in his book, The Theory of Morality , the West hosts two strands of common morality — a natural law strand dating back to Thomas Aquinas and a strand dating back to Kant. Several non-western traditions also entail a teaching about what the great writer C.
Lewis, in his book The Abolition of Man , called the tao — natural law or a closely related version of universal, rationally accessible morality. Most of these versions of universal morality rationally articulate and defend the three ingredients needed for human rights. The question, however, is whether these arguments rooted in reason can achieve validity without God.
In fact, the most influential articulators of common morality views did not divorce their views from God. Kant, similarly, thought God was necessary for morality, though in a different sense than Thomists do. There are good reasons why reason and God have gone together in arguments for human rights. In accounting for the validity of universal norms, the basis of dignity, and the trump card status of rights claims, articulators of reason-based arguments usually point to certain features of human beings that give them unique value among animals: their rationality, their free will, their capacity for moral knowledge, their capacity to realize basic goods like knowledge, and their capacity for transcendent reflection.
But where do such capacities originate? And what sustains them? Were the universe a closed system made up only of material causes, it would be difficult to argue that these uniquely human capacities are real and have value. Persons would be little more than sophisticated biological contraptions of synapses. The discrimination enquiry focuses on the categorisation used in order to differentiate between individuals or groups.
Section 9 3 provides a lengthy list of suspect categorisations or grounds. However, it is clear from the formulation of the provision, that these grounds are not exclusive and that other suspect grounds may be identified by the Constitutional Court. The distinction between listed and unenumerated grounds is important from a procedural point of view in that, as already noted, discrimination is assumed if based on one of the specified grounds, but must be proven if reliance is placed on an unenumerated ground.
This issue is not well explored in the cases because only a small minority of applications brought under section 9 3 have involved allegations of discrimination on an unenumerated ground. Factors which were taken into consideration by the Court included the minority status and lack of political power of non-citizens, their lack of control over their citizenship and the history of disadvantage suffered by black individuals deprived of citizenship in apartheid South Africa. But it falls short of a comprehensive approach. In the vast majority of cases that invoke the grounds specified in section 9 3 , the Court will assume discrimination, for the reasons stated in Harksen.
Therefore, the second stage of the enquiry, establishing unfairness, is in most instances decisive. The Harksen framework specifies that unfairness is to be determined on the basis of the experience of the victim. The manner in which discrimination is experienced on grounds of race or sex or religion or disability varies considerably …. The commonality that unites them all is the injury to dignity imposed upon people as a consequence of their belonging to certain groups. Dignity in the context of equality has to be understood in this light.
The focus on dignity results in emphasis being placed simultaneously on context, impact and the point of view of the affected persons. Such focus is in fact the guarantor of substantive as opposed to formal equality. Fundamental to the critique of formal equality is its inability to address the historical disadvantage suffered by those subject to discrimination and to recognise that the effect of differential treatment may in fact be heightened as a result.
The kinds of disadvantages suffered as a result of the racial discrimination imposed under the apartheid regime are many and varied. The economic deprivation experienced by millions of people as a result of apartheid is well known. Thus the Court has identified stereotyping, especially in cases concerned with sexual orientation, and vulnerability as different types of disadvantage arising from discrimination.
In the second in a series of challenges brought by the National Coalition for Gay and Lesbian Equality, National Coalition v Minister of Home Affairs , Ackermann J made clear the connection between these ideas: This Court has recognized that the more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair.
Vulnerability in turn depends to a very significant extent on past patterns of disadvantage, stereotyping and the like. This is why an enquiry into past disadvantage is so important. The first contextual factor thus recognises that the circumstances in which an individual complainant finds him or herself crucially affects the impact of discrimination and it will be necessary to address those circumstances in order to truly eliminate discrimination. In requiring an enquiry into the range of matters encompassed under the umbrella of the first contextual factor, the South African Constitutional Court has created a nuanced approach which allows it to take account of the different dimensions of human dignity, from material deprivation to denial of opportunity for development, denial of worth or political vulnerability amongst others.
It should, however, be emphasised, as Sachs J does in National Coalition v Minister of Justice , that disadvantage is not relevant to the equality enquiry for its own sake. The relevance of disadvantage lies in its connection with dignity. Addressing disadvantage is an aspect of protecting human dignity; it is not a separate concern. Consideration of disadvantage is thus an integral component in determining infringement of dignity. This means that in the South African conception questions of historical and structural barriers to equality are integrated into the determination of equality.
But because disadvantage is determined by reference to the reality experienced by a group or groups to which the applicant belongs, at the same time the integration of disadvantage into the question of infringement of dignity, precludes an exclusively individualistic focus. The fact that remedial or corrective action is an issue which impacts on the determination of discrimination under section 9 3 means that there is a potential overlap between the application of that provision and the corrective action clause.
This overlap led to differing approaches by members of the Court in the case of Minister of Finance v Van Heerden. The rules provided for a lower employer contribution in respect of those members of parliament who benefited from both a pre pension fund, which was closed to those who took office for the first time after the general election, and the post Political Office-Bearers Pension Fund. In most cases, the applicants, to whom the lower employer contributions applied, were in fact financially better off than other members because of the high level of benefits payable under the pre fund.
While the Court was unanimous in rejecting a claim of breach of section 9, the majority of the Court held that the measure was aimed at ameliorating past disadvantage, and therefore fell within the ambit of section 9 2 , while the minority held that the matter should be resolved under the non-discrimination clause, section 9 3. In the view of the minority, the fact that the measure was designed to ameliorate past disadvantage was an important consideration in reaching the conclusion that the measure was not unfairly discriminatory.
Time will tell whether the plea for a holistic approach will be heeded. However, what emerges from the above discussion is that the relevance of corrective action is not confined to section 9 2. Corrective action as a means of ensuring equality has been built into the unfairness enquiry as one of the contextual factors that courts must consider. This has two important consequences. The first is that discrimination must be assessed with reference to the broader community and what is required to ensure equality overall, rather than focussing only on the needs of particular individuals or groups.
This echoes the approach to balancing the interests of the individual against the interests of the broader community in the German interpretation of human dignity. And secondly, by including a requirement to consider what is required to ensure equality overall, the South African Constitutional Court has ensured that the transformative vision of the Constitution is concretised within the discrimination enquiry. Discrimination, in this conception, is not just about how one individual is treated, it is about creating a society in which everyone is valued equally.
The third contextual factor requires consideration of the impact of the impugned measure on the individual complainant, in particular the impact on the dignity of the individual. The issue in the case was the constitutional validity of the common law crime of sodomy and related offences. In relation to the first contextual factor, the Court noted first the minority status of gay men—the group affected.
In its view, the vulnerability of members of this group is increased as a consequence of their minority status, because their lack of political power renders it difficult for them to secure legislative protection. Thus while the assessment of the contextual factors, particularly the first and third factors, overlap and reinforce each other, a difference in emphasis can be discerned.
In relation to the first factor, the focus is on group membership; in relation to the third, on the individual. But, as is clear from the judgment of Sachs J in National Coalition v Minister of Justice , it is the multi-dimensional conception of human dignity that ensures that the whole range of issues that play a role in discrimination—whether these relate to the individual, the group or the community as a whole—are given proper consideration.
In his view, discrimination impacts in different ways on different groups.
No human rights without God | openDemocracy
The common denominator in all cases, however, is that the dignity of the individual as an individual and as a member of a group is affected in some way. This is precisely why dignity is central to the right to equality. In addition to the finding of discrimination in National Coalition v Minister of Justice , the Constitutional Court also held that the right to dignity protected under section 10 of the Constitution had been infringed.
The process of assessing whether dignity had been infringed for the purposes of section 10 was very similar to the contextual investigation to assess unfair discrimination, however, the focus is different. An integrated approach, which sees the right to equality and the right to dignity as complementary, rather than separating them into watertight categories, is therefore desirable. The three contextual factors which are central to the analysis of discrimination in the South African equality jurisprudence thus identify three dimensions or levels at which human dignity operates.
Consideration of the aim of the challenged measure calls attention to the needs of the society as a whole and what is required to achieve a society in which everyone is valued. And finally, the effect of discriminatory measures on the dignity of the individual is considered. The assessment of equality is therefore multi-dimensional and flexible but based on a clearly structured framework developed by the Constitutional Court. One of the issues which has been prominent in critiques of the South African approach relates to the overall assessment of unfairness based on the three identified contextual factors and the weight to be attached to the individual factors.
Critics have objected in particular to the prominent role played by personal feelings of affront in the analysis of unfair discrimination. Albertyn and Goldblatt, for example, argue: Equality has been defined in some of the judgments with reference to another value, dignity, rather than through attempting to distil its own, admittedly elusive, meaning.
The problem with this is that it centres the right on individual feeling of affront rather than locating the complainant within the context of a generally materially disadvantaged group. This shifts the emphasis away from the transformative use of the right. But there are a number of answers to the critics.
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The first is that, as we have seen, the conception of dignity revealed in the jurisprudence is not confined to individual self-worth. The way in which the contextual factors relevant to the discrimination enquiry have been framed, ensures that attention is paid to a range of different ways in which discrimination may impact on dignity. In Khumalo v Holomisa , for example, the Court explained the underlying conception of dignity as follows: The value of human dignity in our Constitution is not only concerned with an individual's sense of self-worth, but constitutes an affirmation of the worth of human beings in our society.
It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. Secondly, in line with the way in which human dignity is conceptualised in the German jurisprudence, both in defining dignity and in applying the contextual factors, the South African Constitutional Court has made clear that the individual is to be seen, not as isolated and detached but in the context of both group-membership or more often memberships and membership of the broader society.
This provides a bulwark against the kind of individualistic application of a dignity-based approach feared by some sceptics. Clearly, the Court is not beyond criticism. Consideration of the contextual factors in some cases is unnecessarily terse, lacking clear and detailed discussion of the interplay between the factors. And some judgments are rightly open to criticism for a failure to come to grips with the complexity of the contextual analysis required. Finally, analysis of the cases shows little support for the conclusion that the Constitutional Court is concerned merely with individual affront.
While in some cases personal affront does play an important role, such as in the sexual orientation cases, the context in which this is considered is that of group membership and the need to build a new society that values diversity and difference. To summarise, while more careful elucidation of the interplay between the contextual factors which form the basis of the determination of discrimination is required, the cases so far do not support the charges of indeterminacy and individualism.
The contextual analysis provides a means of determining discrimination rooted in the actual experience of the complainant. What is relevant to the enquiry is clearly identified and requires answers based on evidence. In identifying the contextual factors the Constitutional Court has ensured that the contextual investigation encompasses a range of issues which affect not only the individual in isolation, but include a group and societal dimension.
Since the aim of the contextual analysis is to determine whether the equal dignity of the complainant has been violated, the view of human dignity inherent in the analysis is, consistent with the German approach, one which encompasses the person not in isolation, devoid of context, but within the reality of his or her group and societal relationships.
But even if the particular doubts raised by critics of the dignity-centred approach to equality regarding indeterminacy and individualism can be allayed, the ultimate question remains: why is this particular approach to equality useful, or, at least, why is this approach better than any other? There are two related reasons.
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The first is that it provides a coherent approach to achieving substantive equality. The shortcomings of a formal approach to equality have been widely acknowledged. Fredman has proposed that a substantive approach to equality should seek to promote four broad aims: namely to break the cycle of disadvantage experienced by some groups within society, to promote respect for dignity by providing redress for stigma and stereotyping; to positively affirm the identity of individuals within society; and to facilitate full participation in society.
As the case law has illustrated, the way in which the South African Constitutional Court has interpreted dignity and the contextual enquiry on which the dignity-based approach is based, ensures that group based structural disadvantage as well as how discrimination actually affects the lives of individuals is fully taken into account in deciding whether the right to equality has been breached.
Moreover, it provides an integrated framework, with human dignity at its heart, within which those issues can be addressed. Secondly, the South African approach commends itself because it is consistent with the intersectional and mutually supporting nature of human rights. As we have seen, the importance of human dignity as the foundation of human rights is a theme running through international human rights law. The South African Constitution takes this up, explicitly identifying human dignity as one of the underlying values on which the Constitution is based.
Using human dignity as the touchstone for the interpretation and application of equality provides support for the intersectional and mutually supporting nature of the rights protected under the South African Bill of Rights. Protection of the rights to dignity, equality, socio-economic well-being, privacy and so on thus form part of an integrated scheme aimed at ensuring protection for and promotion of the inherent dignity of all.
The constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. The argument presented in this article is that the dignity-based approach to equality which is being developed by the South African Constitutional Court is rooted in an established tradition that recognises human dignity as the basis of human rights.
On this foundation, the South African Constitutional Court has constructed a framework for the application of the constitutional right to equality which is carefully focussed on the realities of the legacy of poverty, social strife and divisions of South African society. By placing the question of how legislative and other measures affect an individual's ability to live a dignified life at the centre of the analysis of discrimination, the South African Constitutional Court has challenged the traditional comparative approach to the right to equality.
This is undoubtedly a radical undertaking that has provoked vigorous debate. As the analysis of the South African equality jurisprudence has shown, implementation of the Harksen framework has not always been sufficiently thoroughgoing and the conclusions drawn have sometimes lacked detailed justification. The South African Constitutional Court must do more to address the concerns of the critics and to elucidate the relationship between dignity and equality. But the potential of this approach is the ability to move beyond a superficial engagement with equality to address the realities of the suffering caused by discrimination.
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Close mobile search navigation Article Navigation. Volume 7. Article Contents. International and Comparative Perspectives on Human Dignity. Dignity and the Right to Equality in South Africa. Assessing Unfair Discrimination. Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract Inequality remains one of the most challenging issues on the global human rights agenda. The influence of the German Constitution in the drafting of the South African Constitution is widely acknowledged.
There are significant similarities in the approach of the Supreme Court of Canada in Law v Canada , supra n. However, while the South African jurisprudence owes much to the Canadian example, there are significant differences in the way in which dignity has been defined and applied in these two jurisdictions. The case law of the European Court of Human Rights has established human dignity as an important element in the interpretation of the Convention. See Frowein, supra n. Human dignity has also been invoked in a number of the post-communist Constitutions of countries in the former communist bloc, many of which have either already become members of the European Union or are on the list of candidate countries.
See Arieli, supra n. This is not to deny its role in other constitutions, many of which contain references to human dignity. For examples, see Starke, supra n. Translated by Kommers, supra n. Eckert, supra n. This view has, however, been subject to criticism. See Kommers, supra n.
The wording of Article 1 was highly controversial. Supra n. See also Life Imprisonment Case , supra n. See Eberle, supra n.
Translated in Kommers, ibid. The Court did not invalidate life imprisonment for murder, but said that the state must consider each case on its own merits in determining whether to permit the release of the prisoner. Shortly after the decision, the Criminal Code was amended. See Kommers, ibid. Why is this so? It cannot surely be argued that the dead have a right to dignity? But there is an important sense in which the whole of society has an interest in respect for the dead, manifested in a variety of ways such as the prohibition on the desecration of tombstones and regulation of use of body parts, etc.
The corollary of this is that sometimes human dignity may be used to justify constraining human autonomy. For a discussion, see Beylefeld and Brownsworth, supra n. Makwanyane , supra n. Du Toit , supra n. However, in Volks NO v Robinson and Others 5 BCLR CC , the majority of the Constitutional Court held that the dignity of the applicant had not been infringed by legislation which excluded heterosexual partners in providing for continued maintenance for spouses after the death of one spouse at para.
The connection between dignity and socio-economic rights is discussed in Liebenberg, supra n. See, for example, S v Williams , supra.
This usually also has a psychological dimension. Section 31 provides for the right of religious communities to practise their religion. See, for example, Makwanyane , supra n. The role of Section 36 is not considered in this analysis. Harksen , supra n. See Van Heerden , supra n. See section 9 5 cited earlier; and Harksen , supra n. Harksen , ibid. See also Prinsloo , supra n. See also Hugo , supra n.
Davis, supra n. Although, according to the Court in Harksen , the three factors identified are not exhaustive of what may be relevant to the unfairness enquiry. At the time of writing no further factors have been identified.