Book Review: Human dignity: Lodestar for equality in South Africa

• Jurisdiction: South Africa
• Pages: 628-631
• Author: JL Pretorius
• Date: 16 August 2019
• Published date: 16 August 2019

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BOOK REVIEWS / BOEKRESENSIES

Human Dignity: Lodestar for Equality in South Africa by L Ackermann.

Juta 2013. 462 pp. ISBN 9780702199011. Price R645.00 (soft cover)

“Justice Laurie Ackermann, one of the 11 judges appointed to the newly established South African

Constitutional Court in 1994, was one of the Court’s most consistent ‘maximalists’… In this

way, he consciously avoided the ‘minimalist’ approach to constitutional adjudication that favours

narrow reasoning and is averse to deeper theorizing.” (C McConnachie “Human Dignity, Unfair

Discrimination and Guidance” (2014) 34 OJLS 609-610)

Laurie Ackermann is deservedly recognised as one of the originators of

South Africa’s equality jurispr udence. His imprint is particularly visible in the

conceptual and doc trinal g roundwork in orienting th at jurisprude nce to the

value of human dignity. It goes all the way back to Prin sloo v Van der Linde

1997 3 SA 101 (CC) (“Prinsloo”), where he (writing with Justices O’Regan

and Sachs) held that unfair discrimi nation “means treating persons differently

in a way which impairs their fundamental dignity a s human beings”. This

framed the un fairness inquiry as a sea rch for actual human dignity violations

and emphasised potential d ignity infringeme nts as the effective marker for the

identication of analogous grounds of dis crimination (6).

The Constitutional C ourt has consiste ntly – in the face of strong init ial

criticism (see H Botha “Human Dignit y in Comparative Perspec tive” (2009)

20 Stell LR 213) – defended the dignity-base d approach to equality adopted

in Prinsloo. Lodestar is a theoretical continuation and just ication of this

jurisprude ntial endeavour. Ackermann insists th at human dignity full s

a crucial and deter minative fu nction in unfai r discrimi nation analysis and

is capable of being given a detailed and pract ically usable content (18).

Further more, he contends that dign ity provides the necessar y guidance t o

illuminate some of equality ju risprudence’s most challenging problems, such

as the horizontal applicat ion of the prohibition of unfair discr imination, a nd

in assessing af rmative action programmes.

Although much of the early criticism has subsided in the course of the Court’s

unfolding equality jur isprudence, doubts regarding d ignity’s inde terminacy

and pliability to suit dif ferent outcomes still linger s. Lodestar suggests that

a deeper underst anding of the meani ng of human dignity cou ld provide clear

signposts to cour ts in adjudicating equality disput es. This quest for enhancing

the methodological and conceptu al clarity of equality ju risprude nce is not

animated by a positivist ic faith in some neutral Beg riffsjurispr udenz; but

rather by the recognition of the i nevitability of judicial “judg ment calls”

that require public justication th rough transparent and rigorous judicial

reasoning. Ackermann tu rns to philosophy and theology (35-85), among other

sources, for guidance and conrmation of the constitutive place that human

dignity should occupy in equality analysis (27-28). The use of both secular

philosophical and theological ideas is justied – in the Rawlsian tradition – as

an attempt to establish a broad “overlapping consensus” regarding the meaning

(2014) 25 Stell LR 628

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