The Dignity of Comparative Constitutional Law
| Jurisdiction | South Africa |
| Author | Theunis Roux |
| Citation | 2008 Acta Juridica 185 |
| Published date | 15 August 2019 |
| Pages | 185-203 |
| Date | 15 August 2019 |
The Dignity of Comparative
Constitutional Law
THEUNIS ROUX*
South African Institute for Advanced Constitutional, Public, Human Rights and
International Law
I INTRODUCTION
The question I want to explore in this contribution is whether there is
any non-accidental connection between the two main themes of Laurie
Ackermann’s constitutional jurisprudence: on the one hand, his concern
for human dignity, and, on the other, his often masterful demonstration
of the usefulness and relevance of comparative constitutional law.
Ackermann, as we know, was the foremost exponent of the relevance of
human dignity to South African constitutional law, both as a justiciable
right and as a value informing the entire Bill of Rights. Is there a
connection between that part of his judicial oeuvre and the other main
theme that runs through his constitutional jurisprudence – a commit-
ment to taking up the post-apartheid Constitutions’ invitation to apply
foreign law?
Of course, we could simply ask Ackermann, or read his published
writings on comparative constitutional law,
1
which provide a partial
answer to this question. But that would be too easy and, in any case, as
the post-structuralists are wont to say, an author doesn’t completely
control the interpretation of the texts he generates. If there is a
connection between these two preoccupations, therefore, we are as likely
to find it in a conceptual analysis of Ackermann’sjudicial output as we are
in anything that he may have written about it. Exploring that connection
is both an appropriate task for this conference and also an inquiry that
may help to highlight Ackermann’s special contribution to the field of
comparative constitutional law.
II ACKERMANN’S DIGNITY JURISPRUDENCE
I will leave to other contributors the task of analysing the different aspects
of Ackermann’s dignity jurisprudence. In this section I want simply to
raise and then put aside one seemingly obvious but in the end
* Director, South African Institute for Advanced Constitutional, Public, Human Rights
and International Law. Honorary Professor, University of the Witwatersrand. Extraordinary
Professor, University of Pretoria.
1
L W HAckermann ‘Constitutional comparativism in South Africa: A response to Sir Basil
Markesinis and Jörg Fedtke’ (2006) 80 TulaneLR 169, reprinted in (2006) 123 SALJ 497. See
especially 515 of the SALJ version.
185
2008 Acta Juridica 185
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unsupported connection between Ackermann’s dignity jurisprudence
and his interest in comparative constitutional law, namely, the possibility
that the former is entirely a function of the latter. That possibility is not
far-fetched because, as we know, Ackermann is something of a
Germanophile, and human dignity is at the centre of much of the
German Federal Constitutional Court’s jurisprudence.
2
Was Acker-
mann’s interest in human dignity simply a case, then, of his wanting to
replicate in South Africa the hierarchical relationship that exists in
Germany between human dignity and other values, and thereafter
searching for plausible ways of implementing this self-appointed judicial
project?
I think this possibility can be shown to be false, but to do so I must
enter the quicksand of the debate over the Constitutional Court’s
equality jurisprudence. Readers familiar with the Court’s test for unfair
discrimination will know that dignity features prominently in that test,
both in the determination of whether a particular differentiation
constitutes discrimination, and also in the determination of whether a
particular discrimination is unfair. The elevation of human dignity to this
position of prominence has no obvious textual basis in the Constitution,
and has accordingly been the subject of a lively debate in the academy,
with the Constitutional Court variously charged with having deleted
equality from the constitutional text,
3
or with having ‘proclaimed a
connection between unfair discrimination and dignity’ that does not in
fact exist.
4
The relevance of this debate to my topic is that one of the subsidiary
charges made against the Constitutional Court’s equality jurisprudence is
that it all started with a bad piece of comparative law, namely, the
‘uncritical borrowing’ from Canadian jurisprudence of an individualistic
conception of dignity.
5
The villain of the piece is said to be L’Heureux-
Dubé J’s minority judgment in Egan v Canada,
6
which was cited by
Goldstone J in the first major equality case under the interim Constitu-
tion, President of the Republic of South Africa v Hugo.
7
Ackermann did not
2
Human dignity (Menschenwürde) is inviolably entrenched in art 1(1) of the German
Basic Law, and is the pre-eminent value in the hierarchy of values in German Constitutional
law.
3
See D M Davis ‘Equality: The majesty of legoland jurisprudence’(1999) 116 SALJ 398 at
414.
4
A Fagan ‘Dignity and unfair discrimination:A value misplaced and a right misunderstood’
(1998) 14 SAJHR 220 at 220.
5
Davis (n 3) at 404.
6
(1995) 29 CRR (2d) 79 at 104–5. D M Davis Democracy and Deliberation (1999) 78n26.
This chapter is a modified version of Davis (n 3). For an elegantly reasoned response to Davis,
see S Cowen ‘Can dignity guide South Africa’sequality jurisprudence?’ (2001) 17 SAJHR 34.
7
1997 (4) SA 1 (CC) (per Goldstone J, with a concurring judgment by Mokgoro J and
dissents by Kriegler and Didcott JJ).
186 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER
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