An analysis of equality as the cornerstone of every democratic society

The South African Constitution is more explicit than its German counterpart, however, in identifying a set of fundamental constitutional values and in specifying a role for such values. This presupposes an ongoing process of elucidation of the concept through political practice.

However, the post-war usage of the concept in international and comparative human rights law is specifically associated with the need to respond to the horrors of the war and, above all, the Holocaust.

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It has already been shown that in determining the application of the right to human dignity under section 10 of the South African Constitution, the South African Constitutional Court, like its German counterpart, is concerned not only with the individual dimension of human dignity, but also with the need to secure mutual respect for dignity and to safeguard the interest of the whole community in the protection of the dignity of all who belong to it.

In order to gain an understanding of the meaning of dignity in the determination of discrimination, it is, therefore, necessary to consider the three contextual factors in more detail.

As in the UDHR, where, as noted earlier, a connection is made between dignity and socio-economic circumstances, 78 there is in the jurisprudence of the South African Constitutional Court a clear recognition of the physical dimension of human dignity.

It is contrary to human dignity to make persons the mere tools of the state.

An analysis of equality as the cornerstone of every democratic society

For apartheid was a denial of a common humanity. Human nature, in Stoic terms, was characterised by reason. It is contrary to human dignity to make persons the mere tools of the state. Respect for human dignity requires that persons should not be demeaned or treated as if they have no value. Historically, the development of the idea of human dignity is inextricably linked to the emergence of individualism. The economic deprivation experienced by millions of people as a result of apartheid is well known. But if this is true, what was the source of such knowledge? 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. The South African Constitution is more explicit than its German counterpart, however, in identifying a set of fundamental constitutional values and in specifying a role for such values. It was the Stoics who first made the connection between the idea that individuals were reasonable beings who should be respected and the notion of a universal system of rules or law of nature.

Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systemic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy.

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But if this is true, what was the source of such knowledge? Since then the right to equality and the prohibition of discrimination have been incorporated into an array of constitutional and international instruments. Moreover, its relevance is not confined to the Bill of Rights, or even the Constitution, but is integral to legal interpretation at every level, as required by section 39 2. One aspect of this clearly relates to purely psychological treatment. Factors which were taken into consideration by the Court included the minority status and lack of political power of non-citizens, their lack of control over their citizenship and the history of disadvantage suffered by black individuals deprived of citizenship in apartheid South Africa. For apartheid was a denial of a common humanity. The Charter is clear that the intention of the United Nations is not simply to regulate the relations between states for the prevention of war, but to establish a new world order based on the recognition and protection of the rights and dignity of human beings. In particular, it focuses on the extent to which both the psychological and physical dimensions of the concept are recognised within the jurisprudence and whether the balancing of individual and community interests is sustained in the interpretation of the right to equality. The role of the constitutions in both countries, and more particularly the invocation of the concept of human dignity, was, and is, explicitly transformative.

The common denominator is the need to address the legacy of cruel and dehumanising regimes. This does not, however, mean that the concept can be manipulated at will. The almighty totalitarian state demanded limitless authority over all aspects of social life and, in pursuing its goals, had no regard for individual life.

To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

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The distinctive formulation of section 9 3 necessitates a two stage analysis, the first to determine discrimination and the second to assess unfairness. One aspect of this clearly relates to purely psychological treatment.

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