Abstract
Inherent and universal human dignity was an entirely novel legal concept when it was promulgated by the Universal Declaration of Rights in 1948. Prior to its judicialisation, human dignity had a twofold connotation in anthropology, religion and philosophy, denoting a relationship of contingent status in human relations and relying heavily on duties, rather than rights, as a requirement to achieve dignity. In contrast, the post-WWII paradigm dictates that dignity is equal, universal and unacquired, premised on a right to have one’s inherent dignity respected and protected. The Afrocentric idea of human dignity is also contingent since dignity must be achieved through good deeds towards one’s community, meaning that an individual’s dignity is subordinate to the dignity of one’s community. It has been argued that inherent and universal human dignity is a Western concept, considering that it is rooted in individual rights rather than duties, and therefore takes an approach to human relations that is antithetical to Africa’s communitarian worldview based on duties. Therefore, this chapter explores whether inherent dignity is universal to such an extent that it can accommodate African communitarianism and whether judicialised dignity in all instances should trump the competing rights of a community over individual liberalism and autonomy.
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Notes
- 1.
The phrase European constitutionalism will be applied in this chapter, in contrast to the usual term “Western civilisation”, which references mostly the American idea. In European constitutionalism individual rights and autonomy can be curtailed in favour of a community, and legal personhood is constituted by a vision of man as an extension of his community, which differs substantially from the American situation where preference is given to individual rights over community rights.
- 2.
See Hannah Arendt (1973, ix): “… human dignity needs a new guarantee which can be found in a new law on earth, whose political validity this time must comprehend the whole of humanity …”.
- 3.
For example, the second paragraphs of the preambles of the International Covenant on Civil and Political Rights (adopted 16 December 1966), the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966) and Principle VII par 2 of the Helsinki Final Act (adopted 1 August 1975).
- 4.
All moral judgments, including rights-claims, consist directly or indirectly of precepts rooted in the philosophical principle regarding how persons ought to act toward one another. See Alan Gewirth (1979, 1143, 1148).
- 5.
Gerald Neuman (2000, 250) states that dignity, thus defined, may be contrasted with “organic theories of nationalism that submerge the individual, with authoritarian political doctrines that condemn human nature as degraded by sin, with racist doctrines of biological inferiority and with aristocratic doctrines of national hierarchy”.
- 6.
As the South African Constitutional Court held in S v Lawrence 1997 (4) SA 1176, para 168: “Indeed, there is a core to the individual conscience so intrinsic to the dignity of the human personality that it is difficult to imagine any factors whatsoever that could justify it being penetrated by the state”.
- 7.
Immanuel Kant, quoted by Jack Donnelly, 2009, “Human dignity and human rights,” www.udhr60.ch/report/donnelly-Human dignity, stating: “Every man has a legitimate claim to respect from his fellow men and is in turn bound to respect every other”.
- 8.
Ibid.
- 9.
Ubuntu is synonymous with African humanness and the idea that the essence of being human is to develop one’s personhood through one’s communitarian relationships. Human dignity, however, is not to be equated with ubuntu—see Yvonne Mokhoro and Stu Woolman (2010, 407).
- 10.
See Dikolo v Mokhatla 2006 (6) SA 235 (CC): “In our constitutional democracy the basic institutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another”. Additionally, see the explanation of Justice Langa in S v Makwanyane 1995 (3) SA 391 (CC) para 308: “Ubuntu captures, conceptually, a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such a person happens to be part of”. In the Ugandan case of Salvatori Abuki and Richard Abuga v Attorney General [1997] UGCC 10, page 9, the judge referred to S v Makwanyane: “I would gladly associate myself with the view expressed by MADALA J. in the same case (of Makwanyane (ibid) that the African concept [of ubuntu] embodies within itself humaneness, social justice and fairness, and permeates fundamental human rights. LANGA J. in the same case expressed the same ideas when he concluded that the concept carries with it the idea of human dignity and true humanity”.
- 11.
Online Translator and Dictionary, s.v. “Isithunzi”.
- 12.
Contrary to the prescript of the first element of generic dignity, the South African Constitutional Court found in S v Jordan 2002 6 SA 642 (CC) para 74 that prostitution diminishes human dignity. This view personifies human dignity in the prewar paradigm.
- 13.
S v Makwanyane 1995 (3) SA 391 (CC), para 262; Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC), para 10.
- 14.
The Citizen 1978 (Pty) Ltd. v McBride 2011 (4) SA 191 (CC), para 145.
- 15.
Albert Luthuli referred to this struggle in his Nobel lecture Africa and Freedom on 11 December 1961 after he was awarded the Nobel Prize for Peace in 1960, stating that Africans’ “strivings for nationhood and national dignity have been beaten down by force”.
- 16.
Apartheid itself, rooted in the ontological primacy of race, was a purported collective right.
- 17.
The preamble of the Constitutive Act of the African Union (adopted 11 July 2000) also refers to the “heroic” fight of the African people for their dignity and independence.
- 18.
1934 AD 167.
- 19.
Ibid, 190.
- 20.
(TPD) (unreported) case number CC254/75 of 15 December 1976.
- 21.
Ibid, 21. This phrase originated from a speech presented by Steve Biko in Cape Town in 1971. See “South African History Online.//www.sahistory.org.za/archive/quotes-steve-biko (accessed November 1, 2022)”.
- 22.
In the African context, Asmaron Legesse (1980, 129) argues that “if Africans were the sole authors of the Universal Declaration of Human Rights, they might have ranked the rights of communities above those of individuals, and they might have used a cultural idiom fundamentally different from the language in which the ideas are now formulated”.
- 23.
Additionally, see Legesse (1980, 124): “The critical difference between African and Western traditions concerns the importance of the human individual. In the liberal democracies of the Western world the ultimate repository of rights is the human person. The individual is held in a virtually sacralised position. There is a perpetual, and in our view obsessive, concern with the dignity of the individual, his worth, personal autonomy and property”.
- 24.
The African Charter has given effect to the wider principle of duties consistent with the African historical tradition and values by incorporating the instruction in para 6 of the Preamble that “the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone”.
- 25.
Additionally, compare Judge Otas’s dictum in African Echo (Pty) Ltd. t/a Times of Swaziland vs Inkhosatana Gelane Simelane (77/2013) SZSC 83 (3 December 2014) at para 34: “It needs also be emphasised that the Bogoshi decision was based on the uniquely liberal Constitution of South Africa, which exhibits some marked difference with our Constitution and should be approached with trepidation”.
- 26.
Donald Kommers (2002, 64) shares the same view: “The notion of dignity inherent in the new constitutionalism of the postwar era has a core meaning that seems to differ from the core meaning of what we Americans understand by liberty, and these meanings are often found in the different images of society and personhood that they project”.
- 27.
Eckart Klein, quoting from BVerfGE 27, 344, 351 (1970) and Donald P Kommers and Russel A Miller (2012, 362).
- 28.
30 BVerfGE 173, 193 (1971). In this judgment the Court included in its vision of the community not only the living but also the dead, by finding that the human dignity of the deceased writer Klaus Mann trumped the right to freedom of art and science, as the posthumous publishing of his novel Mephisto impinged on his human dignity. See Donald P Kommers and Russel A Miller (2012, 358, 362).
- 29.
4 BVerfGE 7 (1954).
- 30.
1998 (12) SA 1517 (CC), para 117.
- 31.
South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).
- 32.
As Donald Kommers (2002, 66) argues: “The other approach—dominant in Europe, Canada, and South Africa—emphasises balance and equilibrium in constitutional interpretation, the harmonisation of conflicting rights and values, and a perspective that envisions the constitution as a unified structure, requiring a holistic approach to interpretation. These differing methodologies are important because they project alternative visions of the human person, society, community, equality, and democracy”.
- 33.
Joseph Raz (1990), as quoted by Neomi Rao (2011b, 223).
- 34.
In the Namibian case of ES v AC 2015 NASC 11, however, the Supreme Court ruled that personal autonomy trumps community interests. In this case, a practising Jehovah’s Witness refused a blood transfusion and opposed her brother’s application to be appointed as her guardian in order to be authorised to request the blood transfusion. Her opposition to the application was dismissed by the High Court but the decision was reversed by the Supreme Court. Judge Shivute held at para 73 that: “moral autonomy is of central importance to the protection of human dignity and liberty in free and open democracies such as ours”.
- 35.
2004 (1) SA 406 (CC).
- 36.
Ibid, para 61.
- 37.
- 38.
George P Fletcher (1984, 176).
- 39.
- 40.
- 41.
Additionally, see Lorraine E. Weinrib (2002, 15): “The rights-protecting instruments adopted in the aftermath of the Second World War invite comparative reflection and analysis because they rest on a shared constitutional conception that, by design, transcends the history, cultural heritage, and social mores of any particular nation-state”.
- 42.
This practise is not necessarily legally sound—see: Rinie Steinmann (2016b, 359–360).
- 43.
Oscar Schachter (1983, 849), shared the same view, stating that dignity must rather be left for “intuitive understanding”.
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Steinmann, R. (2023). Conceptions of Human Dignity in African and European Legal Systems: Consonance or Dissonance?. In: Molefe, M., Allsobrook, C. (eds) Human Dignity in an African Context. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-37341-1_11
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