Can ‘Dignity’ Guide South Africa's Equality Jurisprudence?

ABSTRACT

This article engages with the current debate over the South African Constitutional Court's equality jurisprudence, in particular the question whether this jurisprudence can serve the transformative purposes underlying the 1996 Constitution. It is argued that the value of dignity, which lies at the heart of the Court's equality right analysis, is well placed to serve these -purposes, but that it is desirable that the Court be more explicit in articulating what it means when it uses the term. These conclusions are drawn after considering concerns that have been expressed regarding the link between dignity and equality, and the implications of this link for substantive equality. The article starts with an examination of the meaning and determinacy of the concept of dignity. The link between dignity as a value and the equality right is then examined in light of a view expressed in the literature that the equality right should be informed primarily by the value of equality. In this discussion, consideration is given to the link between rights and values. In considering the ability of dignity to serve the transformative ideals underlying the constitutional text, it is argued that dignity can serve both individual and collective or group-based concerns, and that it can therefore justify measures that both constrain and enhance liberty, as well as require steps to advance material well-being. The article closes by responding to legal realist concerns about the wisdom of basing equality jurisprudence on general and indeterminate concepts.