Human Dignity, 'Unfair Discrimination' and Guidance

Abstract

In Human Dignity: Lodestar for Equality in South Africa, Justice Laurie Ackermann, one of the 11 judges appointed to the South African Constitutional Court after the end of apartheid, presents the most extensive examination yet of the connection between human dignity, equality and the prohibition of ‘unfair discrimination’ under the South African Constitution. This article focuses on one of Ackermann’s central assumptions: that a deeper understanding of human dignity can provide South African courts with clear guidance in identifying unfair discrimination. I argue that human dignity cannot offer this type of guidance. Instead, I contend that the search for guidance should begin with a closer examination of the Constitutional Court’s reasoning in its unfair discrimination decisions. I proceed to develop a novel understanding of the Court’s reasoning which, I argue, offers a surer route to the guidance that Ackermann seeks and indicates where his important appeals for transparent, rigorous judicial reasoning are best directed.