menswaardigheid are also highly priced. It is values like these that Section 35 requires to be promoted. They give meaning and texture to the principles of a society based on freedom and equality.
[309]In American jurisprudence, courts have recognised that the dignity of the individual in American society is the supreme value. Even the most evil offender, it has been held, remains a human being possessed of a common human dignity (Furman v Georgia 408 US 238 at 273 (1972)), thereby making the calculated process of the death penalty inconsistent with this basic, fundamental value. In Hungarian jurisprudence, the right to life and the right to human dignity are protected as twin rights in Section 54(1) of that Constitution[1]. They are viewed as an inseparable unity of rights. Not only are they regarded as a unity of indivisible rights, but they also have been held to be the genesis of all rights. In international law, on the other hand, human dignity is generally considered the fountain of all rights. The International Covenant on Civil and Political Rights (1966) G.A. Res 2200 (XXI), 21 U.N. GAOR, SUPP. (No, 16) at 52, U.N. DOC. A/6316(1966), in its preamble, makes references to the inherent dignity of all members of the human family and concludes that human rights derive from the inherent dignity of the human person . This, in my view, is not different from what the spirit of ubuntu embraces.
[310]It is common cause, however, that the legal system in South Africa, and the socio-political system within which it operated, has for decades traumatised the human spirit. In many ways, it trampled on the basic humanity of citizens. We cannot in all conscience declare, as did a United States Supreme Court justice in Furman v Georgia 408 US 238, at 296 (1972) with reference to the American context, that respect for and protection of human dignity has been a central value in South African jurisprudence. We cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage. Indeed, it was an integral part of a system of law enforcement that imposed severe penalties on those who aspired to achieve the values enshrined in our Constitution today.
[311]South Africa now has a new constitution however, which creates a constitutional state. This state is in turn founded on the recognition and protection of basic human rights, and although this constitutes a revolutionary change in legal terms, the idea is consistent with the inherited traditional value systems of South Africans in general—traditional values which hardly found the chance to bring South Africa on par with the rest of the world. As this constitution evolves to overcome the culture of gross human rights violations of the past, jurisprudence in South Africa will simultaneously develop a culture of respect for and protection of basic human rights. Central to this commitment is the need to revive the value of human dignity in South Africa, and in turn re-define and recognise the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings, so that South Africans may also appreciate that even the vilest criminal remains a human being (Furman v Georgia, supra). In my view, life and dignity are like two sides of the same coin. The concept of ubuntu embodies them both.
[312]In the past legal order, basic human rights in South Africa, including the right to life and
- ↑ See analysis in the English translation of Decision No 23/1990 (X31) AB of the Hungarian Constitutional Court.
