Human Rights Law Review Advance Access originally published online on May 3, 2007
Human Rights Law Review 2007 7(2):299-329; doi:10.1093/hrlr/ngm002
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Dignity and Equality
*Senior Lecturer in Law, Law Department, Oxford Brookes University.
Inequality remains one of the most challenging issues on the global human rights agenda. It is widely recognised that a formal approach to the assessment of inequality has failed to eliminate entrenched structural social and economic inequality and that a different approach is required in order to tackle the roots of inequality and achieve substantive equality. In seeking to implement an approach to equality that addresses the history of apartheid and the social and economic inequality endemic in South African society, the South African Constitutional Court has rejected formal equality, and is in the process of developing a substantive interpretation of equality based on the protection of human dignity. Critics of this approach have argued that the concept of human dignity is too indeterminate to provide a stable foundation for equality law and that it promotes an excessively individualistic conception of equality. Focussing on key developments in defining human dignity in German and South African constitutional law, this article argues that the concept of dignity is rooted in a rich tradition which is capable of underpinning an approach to equality which avoids excessive individualism and fully recognises the interplay between individual and community needs. A detailed exploration of the equality jurisprudence of the South African Constitutional Court reveals how the dignity-based approach has been developed in order to provide a framework within which the actual experience of victims of discrimination can be explored. It is concluded that this approach has the potential to engage with the realities of the wide range of divisions within South African society and their effects in order to address not only the legacy of apartheid but also to contribute to the creation of a society in which every person is valued equally.
Correspondence: (egrant{at}brookes.ac.uk)
An earlier version of this article was presented at a Colloquium on 30 April 2004 at Oxford Brookes University, jointly organised by the Law Departments at Oxford Brookes University and City University. I would like to thank the participants and also my colleagues Lawrence Schäfer, Penelope Simons and Peter Edge for helpful comments.