The Genesis of the Generic Idea of Human Dignity in South African Law

The modern idea of human dignity, legalised in 1948, has a rich and profound legal history, also in the South African context. Before 1994, when human dignity was constitutionalised in South African law, the common-law concept of dignitas was intrinsically connected to status and hierarchy in society and it endorsed judicialised inequality and discrimination against certain classes. Yet, as far back as 1934, Gardiner AJA, in a minority judgment in Minister of Post and Telegraphs v Rasool, argued along the lines of critical morality to object to the majority’s ruling that the common-law concept that everyone is equal in the eyes of the law can be abrogated by applying the separate-butequal principle, if such application was not categorically outlawed by legislation. This, according to Gardiner, resulted in the impairment of the dignitas of blacks by relegating them to a lower order in society. But Gardiner AJA’s novel application of the dignitas principle functioned neither as the pre-war paradigm of human dignity as initially formulated by the Stoics, nor as the common-law claim of dignitas. It rather comports with the current paradigm that everyone is equal and inherent human dignity needs to be respected and protected. Rasool was probably the first minority judgment in a Western legal system in which dignitas-ashuman-dignity was applied on a horizontal level, introducing a new line of legal thought that allows all humans to enjoy equal legal capacity to enforce rights outside the moral (vertical) realm. In this contribution, Gardiner AJA’s usage of dignitas-as-human-dignity will be contrasted against the pre-and post-war paradigms of human dignity by using the common-law concept of dignitas as a placeholder to illustrate the differences between the two paradigms and to provide a theoretical justification for the post-war paradigm.