Bridging the Span toward Justice: Laurie Ackermann and the Ongoing Architectonic of Dignity Jurisprudence

• Jurisdiction: South Africa
• Citation: 2008 Acta Juridica 18
• Published date: 15 August 2019
• Date: 15 August 2019
• Author: Drucilla Cornell
• Pages: 18-46

Bridging the Span toward Justice:

Laurie Ackermann and the Ongoing

Architectonic of Dignity Jurisprudence*

DRUCILLA CORNELL†

University of Cape Town

I INTRODUCTION

Justice Laurie Ackermann has played a pivotal role in the development of

the dignity jurisprudence of South Africa. At the heart of Ackermann’s

journey is nothing less than bravery exhibited by a constant struggle with

the development of a dignity jurisprudence worthy of a constitution that

does not simply forsake its moral grounding in ideals and values but insists

that enumerated rights must always be defended alongside the aspiration

to live up to those ideals and values. In a certain sense, then, the

Constitution

1

is both law and an ethical call for its citizens to live up to

the aspirational ideals listed in s 1 of the founding provisions of the

Constitution. As Ackermann writes, there can be no f‌inal Constitution

because it will be up to the people of South Africa continually to

transform this country as guided by the great ideas of dignity, equality and

justice:

[T]he ultimate fate of the Constitution, a bridge with a very long span, will

not be decided by the jurisprudence of its courts alone, however devoted and

inspired that may prove to be. A transforming Constitution such as ours will

only succeed if everyone, in government as well as in civil society at all levels,

embraces and lives out its vales and its demands. It will only succeed if

restitutional equality becomes a reality and basic material needs are met,

because it borders on the obscene to preach human dignity to the homeless

and the starving. This must, however, be achieved in a manner consonant

with the human dignity of all. We are, after 10 years, only at the end of the

beginning.

2

Ackermann takes us on a journey in which his elaboration of the dignity

jurisprudence becomes steadily more connected to the philosophy of

* Based on a keynote address delivered at the Law, Dignity and Transformative

Constitutionalism Conference, University of Cape Town, 26 and 27 July 2007.

† South African Research Chair in Customary Law, Indigenous Values and Dignity

Jurisprudence, Department of Private Law, University of Cape Town.

1

Constitution of the Republic of South Africa, 1996. Unless otherwise indicated all

references to ‘the Constitution’ are to the 1996 Constitution.

2

L W H Ackermann, ‘The legal nature of the South African constitutional revolution’

(2004) 4 New Zealand Law Review 633 at 678–79.

18

2008 Acta Juridica 18

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Immanuel Kant, which eventually leads him to revise and clarify some of

his earlier formulations on the meaning and signif‌icance of dignity.

II FREEDOM, DIGNITY AND THE RECHTSSTAAT OF

REVOLUTION

Two points need to be made before continuing. First, no constitution for

the robust, vibrant, dynamic cultural communities in South Africa with

their own laws and ethical def‌initions of being human, such as, for

instance, ubuntu, could or should be rooted strictly in the writings of

a western philosopher. But, since the notion of a Rechtsstaat is so

profoundly misunderstood in Anglo-American jurisprudence, we can at

least echo Ackermann’s own references to Kant in his constitutional

decisions to help us understand a non-positivist conception of Right – by

which I mean a conception of right as the realm of external freedom,

which, at least for Kant, is understood as a subdivision of the ‘moral’.

3

But

we need to regard the term ‘moral’ with some intellectual suspicion,

because the German word Sitten actually appeals to a larger ethical

activity of justice, toward the aspirational ideal of a free humanity that can

harmonise competing interests not simply through balancing but through

an appeal to ideals and values that attribute ethical meaning to human life.

All of the most controversial issues that arise in debates about South

African jurisprudence, from the question of the justif‌ication for the

plenary jurisdiction of the Constitutional Court to the signif‌icance of the

horizontality of the South African Constitution, ultimately take us back

not only to the question of what kind of revolution took place in the

1990s but also to why dignity – as it is integrally connected to freedom

(both as individual and communal self-legislation) – lies at the heart of

that reconstituted legal system.

Second, we must underscore that Justice Ackermann, although

certainly not alone, has proceeded through an understanding of the new

South Africa as a Rechtsstaat that embodies an objective realm of external

freedom irreducible to the coordination of subjective interests or even of

the legally inscribed protection of individuals against the state. Once we

understand this aspect of the new South Africa, we will be able to

understand the signif‌icance of the contention that there was indeed a

revolution in South Africa – not a peaceful transition. It was a revolution

that grew out of a relentless and courageous struggle for the freedom of

the black population, which included as a last resort the organisation of

the armed struggle under Nelson Mandela.

3

See I Kant ‘The metaphysics of morals’ in I Kant Cambridge Edition of the Writings of

Immanuel Kant: Practical Philosophy translated and edited by M J Gregor & general introduction

by AW Wood (1996) 353 at 365.

19BRIDGING THE SPAN TOWARD JUSTICE

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