Much has been said, is still being said and will continue to be said about the reconstitution of the South African legal, political and, perhaps most importantly, ethical order on the basis of the ideal of human dignity. This reconstitution of course took place and form by way of the adoption of the post-apartheid Constitutions (1993 and 1996) that positioned human dignity prominently as the founding ideal of the new South Africa. Currently, the founding provision of the Constitution makes it clear in section 1(a), by referencing human dignity first among the founding “values”, that it is indeed the grundnorm, not only of the legal order, but of the “one, sovereign, democratic state” that is South Africa.
Section 10 of the Bill of Rights goes on to recognise the human dignity of “everyone” and grants everyone the right to have their dignity respected and protected. Because section 10 is part of the Bill of Rights and thus subject to the limitation clause contained in section 36, the right to human dignity is not absolute. Indeed, there are no absolute rights in the Constitution in the sense that a violation of any one of the rights in the Bill may be found to have been justifiably limited by a law of general application. Yet, the way in which the Constitutional Court has interpreted human dignity (both as a founding value and as a right) makes it clear that it enjoys an almost absolute status. For instance, the equality jurisprudence of the court makes it clear that discrimination will be unfair (whether on a ground listed in section 9(3) or not) and therefore unconstitutional if such discrimination could be said to violate the human dignity of the person or persons who are being discriminated against.
In the Dawood decision the Constitutional Court (per O’Regan, J) clarified that the most prominent reason for the near absolute protection of human dignity under the new order, could be located in South Africa’s unenviable past: “The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings.” But the protection of human dignity as the founding norm of ethical life under a Constitution is part of a constitutional revolution that started in the wake of the terrific violations against the very order of the human during World War II. In 1950 Carl Friedrich argued that the post-war constitutions in France, Italy, and Germany expressed a desire that is as simple as it is complex: peace. Friedrich referred to the “the stress laid upon the dignity of man” in these constitutions-for-peace. The argument clearly posits an essential and undeniable link between peace and (the protection of) human dignity.
While all this is old news to constitutional lawyers, a question that continues to occupy the territory of dignity in a somewhat unpeaceable fashion for its proponents, relates to the indeterminacy of dignity. Despite many efforts on the part of philosophers and lawyers alike, there are those who still complain that dignity is overly broad, vague and radically subjective: what I consider a violation of my human dignity is not necessarily that in the eyes of another or, indeed, the law. This argument can of course be made about the meaning of all concepts and words (what is an “apple”, after all?) and it is symptomatic of a kind of hysterical longing for an ontological certainty, an essence that simply doesn’t exist and has never existed. The truth is, dignity (as Aristotle said about life) is hard. It is hard precisely because it does not admit of any full and final set of instances that would firmly fix its meaning and incidences of its violation. To put it in HLA Hart’s terms: dignity has an ever expanding core, because of the penumbra of doubt that it casts. Even when a violation is fairly evident or clear, partly because it has been recognised in the historical record as such, this does not mean that sudden death is visited upon the interpretive work. In each and every instance questions and answers (interpretation) pertaining to the particularity of the case will determine whether the alleged violation is actionable, whether the violation is unconstitutional or whether the violation is justifiable. These are generally the questions that pre-occupy judges and lawyers. They are questions that arise when dignity comes to court.
But, looking back at 2013, I wonder about the everyday violations of human dignity that never come to court and never will come to a court. With “everyday” violations I mean to refer to those routine interactions among humans that can be characterised as marked by a profound lack of understanding, by relentless narcissism, by the zero point of empathy and therefore by a profound failure of thought, in other words, by a spectacular thoughtlessness; what Hannah Arendt described as the inability to think from the position of someone else.
I think that if dignity is really to be lived by South Africans who share this reconstituted space (nomos), we will have to actively direct our attentions constantly away from the old idea that the protection of dignity marks the historical victory and celebration of the Individual, of individualism and of the sovereign master-subject. Here I have recourse to Derrida once more — a thinker who recognised the murderous narcissism of the subject and devoted his whole philosophical life to the undoing or relativisation of such a notion of the human subject: “Pure ethics, if there is any, begins with the respectable dignity of the other as the absolute unlike, recognised as non-recognisable, indeed as unrecognisable, beyond all knowledge, all cognition and all recognition.” Respect for the dignity of the Other as Other. Is that not too much to ask? Perhaps. But as the title of Slavoj Zizek’s latest book reminds us: “Be realistic, demand the impossible.”