By Dieter Lubbe

This article, is a part of the Pinion Project research done in preparation for the Media Campaign Against Human Trafficking (MeCAHT) conference 2018.

Connotations

The United States historic pioneering experiment in democracy, demonstrates the messy journey from the claim in the Declaration of Independence — ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Then only to see, many years later that is, the structural emancipation of slaves with the enactment of the 13th amendment (from 1776 to 1865). The government, for and by the people, turned out to be a project fraught with challenges against factionalism from both grass roots and within the halls of authority. What is important to recognise in a general understanding of the connotations historically associated with the word dignity, is this connection between individual dignity and the democratic regime. Dignity in this frame, stems from the development of the west and particularly our efforts to avoid such horrors as found in the Nazi concentration camps.

‘the Holocaust shocked the moral consciousness of all civilised peoples into an increased awareness of the inherent dignity of every human being,” Johannes Morsink, Inherent human rights: philosophical roots of the Universal Declaration.

It is true that the idea is not unique to this moment in history or even the west. Still, I find this formulation of the historical intervention seen in both the American experiment and later in the Nazi — crimes against humanity, instructive with respect to the warrant for the word dignity being included in the Universal Declaration of Rights (1948) affirmation of human rights. This historical perspective also speaks to the method of compromise adopted in order to reach consensus in this regard. To jump ahead a little in history, to the former justice of the Constitutional Court of South Africa, 1994 to 2004, Laurie Ackermann. In his book Human Dignity: Lodestar for Equality in South Africa, Ackermann captures, a nuance perspective of the developed essence of the compromise.

‘…in the Abrahamic religious writings and in secular philosophy,… there is the explicit recognition that human worth (dignity) — or something closely resembling it – is the necessary criterion of attribution when considering issues of equality. Not only do these religious and secular philosophical views, as part of the general history of ideas, inform the legal meaning of equality and human worth, but they quite independently form part of an ‘overlapping consensus’ in the sense that the political philosopher John Rawls uses this concept,… An overlapping consensus of this nature can be constituted although different premises are used by different people to reach the same conclusion, in our case the same legal conclusion regarding dignity and equality.’

What is clear from this observation by Ackermann is, ‘overlapping consensus’ — or something closely resembling it, has played an important role in how the term dignity came to be understood in legal terms. Likewise, the debate pertaining to the soundness of competing worldview premises in support of this idea, Kantian, Aristotelian or Utilitarian for example, remains alive to be debated. We see something of this idea from the pen of Martin Luther King, Jr in his Letter from a Birmingham Jail,

‘How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just.’

In Constitutional Law by Rautenbach-Malherbe, we read, ‘Constitution-makers and those who interpret and apply constitutions do not create and cannot obliterate human dignity by their definitions’. Human dignity in this frame is an ontological claim, suggest Professor of equality and human rights law Christopher McCrudden in his article entitled Human Dignity and Judicial Interpretation of Human Rights, that is it purports to tell to how things are. Much more can be said at this junction. Still, for the purpose of this article, dignity so understood, makes a relational claim, that is we are to recognise the dignity in others. Furthermore, dignity collectively, calls for limited state authority [McCrudden]. ‘As a legal concept, human dignity functions not only as a moral value but also as a universal right that guarantees in principle the respect and protection of humanity per se’. [Steinmann AC, The legal significance of human dignity]

Morel Warrant

Ackermann J in the Sodomy case said, ‘The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.’ Ackermann J ruled that the Constitutional Court could not rule on moral claims without sufficient warrant. Still, the dismissal of moral claims by the court in the Ackermann J ruling, is not to suggest that the court cannot rule on moral claims at all.

State v Jordan [104] All open and democratic societies are confronted with the need to determine the scope for pluralist tolerance of unpopular forms of behaviour. To posit a pluralist constitutional democracy that is tolerant of different forms of conduct is not, however, to presuppose one without morality or without a point of view. A pluralist constitutional democracy does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but it is not neutral in its value system. Our Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep civic morality.

The essence then of the argument rests on which moral claims are warranted? Professor Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton explains his understanding of moral reasoning this way,

‘…whether in St. Paul or Aquinas—or in Plato, Aristotle, Musonius Rufus, and others untouched by Jewish or Christian thought—not because it tries to read premises or conclusions off biological or sociological facts. It doesn’t. Instead, it considers what are the basic forms of human flourishing: conditions or activities that are good for us in themselves: friendship, knowledge, life and health, and the like. The identification of these of course takes into account biological and other cause-and-effect facts. But it is focused not on those but on the intrinsic goodness of the various elements of human fulfilment. We can then reason to the moral goodness and badness of types of choice and act by considering which choices are consistent with love and respect for ourselves and all others in regard to each of these basic dimensions of fulfilment. A choice consistent with love and respect for all the goods in all persons is morally upright; one that isn’t, is immoral. That determination of consistency must take into account the fundamental circumstances of all our choices and acts. The basic goods for which we can act are many and various, so we cannot realise them all at once. But they all remain always goods, and each in its own irreplaceable way. So in pursuing some, we ought not to choose to denigrate or damage any of the others. And as they are goods for all people, we ought not to let our choosing be deflected by prejudice, wayward passion, and the like. [Public Morality, Public Reason, November 2006]

With this said we can observe that claims that reports something to be unjust are inescapably moral claims and are hence not immune to questions regarding there warrant. Furthermore, postmodern claims — that ideas and beliefs are not true but only useful for controlling the environment, are self refuting. That is when applied to the idea of postmodernism itself, as only useful for controlling the environment, the argument cuts off the branch it is sitting on, so to speak. Likewise, not every interpretation of what is the case is compatible with the world in which we live.

Rawls, in effect, says look religious people have a legitimate complaint against what has gone by the name liberalism to the extent that liberalism allows metaphysical ideas so long as they’re secular to be introduced into public discourse and account as valid reasons for public policy without giving religious reasons the same standing and permission. But instead of saying, therefore, we need to broaden the permission in theory for reliance Rawls narrowed it [Robert P. George]​

Denotation

Dignity is that whereby a person excels, and merits respect or consideration from other persons. ‘People qualify to be bearers of this right simply because they are human. The right protects the worth that attaches to the actuality of being human’ Rautenbach-Malherbe. The Afrikaans word, menswaardigheid captures the sense in which the word is being used (in terms of worth). This is important when it comes to questions of equity. In what sense are all people equal? The notion of dignity provides criteria — from the actuality of being human.

Immanuel Kant’s influence on ideas regarding the objectification associated with prostitution is relevant I believe. Not only has Kantian thought influenced feminists like Catharine MacKinnon and Andrea Dworkin but it can be argued, has influenced the Constitutional jurisprudence as exemplified in the Jordan matter. Kant held, that to allow others to use your body sexually in exchange for money resulted in the loss of humanity and becoming an object. ‘to allow one’s person for profit to be used for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing’ [Kant Lectures on Ethics].

Andrea Dworkin argues, ‘When objectification occurs, a person is depersonalised, so that no individuality or integrity is available socially or in what is an extremely circumscribed privacy. Objectification is an injury right at the heart of discrimination: those who can be used as if they are not fully human are no longer fully human in social terms; their humanity is hurt by being diminished’ .

Of course Kant held that the only relationship choice, consistent with love and respect for ourselves is monogamous marriage. Equality after all must have a criterion of attribution namely human dignity (equality in dignity). The spouses exclusively yield their persons to each other, so neither of them is at risk of losing his or her person and becoming an object. Recently, the United States Court of Appeals for the Ninth Circuit unanimously affirmed that prostitution is not a constitutionally protected fundamental right. The Court ruled that prostitution as a commercial activity is fraught with dangers that the state has a “substantial interest” in preventing.

‘…panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review…relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs’ assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.’

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By Dieter Lubbe

Morality, Human Dignity and Freedom

The focal point of this article, in the context of the Media Campaign Against Human Trafficking (MeCAHT) conference 2018, is to reflect on questions asked of the abolitionist movement in South Africa with particular attention to morality, human dignity and human freedom. This with direct reference to the ongoing debate regarding the decriminalisation of prostituted people in South Africa.

As an abolitionist movement we have grappled with the framing of our claims in the public domain. Indeed, the challenge to stay true to the facts of the matter, paired with the commitment to be as inclusive as possible is not without challenges. Ideals, even those described as secular and evidence based are not without worldview challenges.

Ultimately, the truth by definition is exclusive and to this end we must commit ourselves lest we become incoherent noise, irrelevant to the struggles of the oppressed both in actions or worse, by the sacrifice of truth in the name of mere pragmatism. As Chief Justice Sandile Ngcobo put it in the constitutional court judgment in State v Jordan, ‘Indeed we are not entitled to set aside legislation simply because we may consider it to be ineffective or because there may be other and better ways of dealing with the problem.’ Pragmatism is an insufficient test for justice and likewise the will of the people does not guarantee that human dignity will be championed.

Abolitionist Movement

The central claims of the abolitionist movement in my view are;

1. Persons should not be prostituted
2. The majority of persons being prostituted are de facto being abused/harmed irrespective of legal regime

If we are correct about prostitution, in that is a diminution of human dignity akin to slavery then our efforts to remedy such an evil in law is warranted. In the State v Jordan, minority judgement, O’regan J and Sachs J observed,

‘Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected… the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.’

From this perspective people are viewed as categorically different from all other animals and objects. This tradition in accordance with the overlapping consensus reached in the Universal Declaration of Human rights. Hence, by definition (as we read in the Cause for Justice Submission to the Multi Party Women’s caucus) ‘the commodification of human sexuality for purposes of the commercial exploitation…’ is disconnected from human dignity. The slavery comparison does seem to fit on grounds that in both cases people are viewed as mere objects to be exploited. This disconnect is a very serious infringement of the right of all human beings and should not be trivialised. In S v Makwanyane and Another/O’Regan J we see dignity is the touchstone of the new political order,

‘Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new constitution’.

However, some may suggest that individuals have the right to relinquish such protection. In Constitutional Law, 6th edition, Chapter 20, by Rautenbach-Malherbe “Any ‘diminution’ of human dignity must be justified in terms of the limitation clauses, even within the context of a waiver of rights.” Hence, we now turn to understanding both the ‘diminution’ of human dignity and arguments for the limitation on any waiver of this right to dignity because it would be unreasonable and not justifiable in an open and democratic society.

A former Public Prosecutor and Senior State Advocate Robin Fudge reminds us, ‘The proposal that prostitution must be decriminalised to realise various constitutional rights is specious. The question of the constitutionality of legislative measures to control adult prostitution has already been adjudicated by the Constitutional Court in the Jordan matter, and any suggestion that the current legislation should be changed to be brought in line with the constitution is simply incorrect’.

Following this reasoning, abolitionists grapple with the overlapping socio-economic factors that concentrate crime in areas plagued by poverty, inequality and unemployment which fuel the demand and supply for both prostituted and trafficked persons. This is not to conflate the crime of human trafficking with the selling of sexual services generally. Rather, we observe that the socio-economic drivers of market demand for consenting or non consenting persons, irrespective of the context (legal regime in respect of prostitution) overlap in ways that are at best difficult to delineate or at worst are indistinguishable from each other. Simply put, the people that comprise the demand aspect of exploitation cannot be neatly cordoned off into legitimate and illegitimate spheres. To suggest that background conditions of such markets can change, especially as the norms of sexuality mutate is I believe mistaken. One need only to look at the claw back efforts in the Netherlands and other nations that have decriminalised prostitution to refute such claims. Any law that uplifts human personality is just.

‘Sexual autonomy should be valued differently from other forms, such as a person’s control over when and to whom they serve food, provide a massage or dance, offer expert advice, or talk philosophy’ [Scott Anderson].

In S v Jordan and Others, the minority judgment found that there are a range of factors relevant to distinguishing the core of privacy from its penumbra: ‘One of the considerations is the nature of the relationship concerned: an invasion of the relationship between partners, or parent and child, or other intimate, meaningful and intensely personal relationships will be a strong indication of a violation close to the core of privacy.’ With this in mind, the commercial nature of prostitution removed it from the inner sanctum of privacy. Scott Anderson writes,

‘…a person’s sexuality almost always figures prominently as an aspect of his or her self-conception, status in society, and economic and social prospects…It is because sex plays such a pivotal role in the lives of most adults…that it creates its own special…realm within which one can be more or less autonomous.’ (Scott Anderson)

We recognise the complex relationships between legal markets, organised crime and informal demand for commercial sex acts. In the case of the latter, it is a mistake to suggest that such behaviour is a private matter between consenting adults.  In S v Jordan. the minority judgment noted, ‘Commercial sex involves the most intimate of activity taking place in the most impersonal and public of realms, the marketplace; it is simultaneously all about sex and all about money.’

What is significant to note is that people like Christopher McCrudden interpret the Jordan judgment as representing something like a collectivist approach as over against the New Zealand individualistic decriminalisation judgment. Pierre de Vos on the other hand framed the Jordan judgment as the court capitulating to public opinion [on his blog Constitutionally Speaking]. I would tend to agree with Christopher McCrudden (not his choice of words) over against Pierre de Vos who in this case I believe is arguably less cogent.

Sexual Permissive Argument

If moral claims cannot be judged as either true or false, then the people claiming. ‘we cannot legislate morality because it is unjust and violates people’s rights cannot be correct. The claim that morals laws are unjust is inescapably a moral claim (Moral skepticism is in this sense, is self-defeating). The essence then of the argument rests on which moral claims are warranted with respect to consent? The harm of the consensual sex work narrative can be seen in the following summery of Angela Franks argument. She illustrates the modern sexual permissive argument as follows with respect to the #MeToo movement (my understanding of it that is).

Premise 1. If something is a basic human good, it is unreasonable to refuse it.

Premise 2. Any sex with anybody is probably a basic good.

Therefore, it is unreasonable to refuse sex with anybody (consent to it)

On this view, the expectation to choose sex with anyone is implicit, the burden of proof shifts to the women (in most cases), to defend her decision to refuse. On challenging premise two, one is inevitably confronted with what constitutes true good in relationships?

Angela Franks writes, ‘The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. We are left with an arbitrary act of the will; it is an empty form with no content. The fixation on consent obfuscates larger problems: don’t we have to start to ask what people are consenting to, for the term to have any meaning? And are there cultural conditions necessary for a woman to be able to give consent?’

The challenge before us then is what legal regime, social and cultural conditions would be necessary for a people to be able to provide legitimate consent? Clearly, any moral conversation that is entirely dependent on consent is insufficient. If a grammar of moral good and evil is allowed, then our moral actions are not grounded on mere support of the will but also buttressed by the intellect ━ what is truth about sex? This Angela Franks suggests, ‘allows for moral responsibility to be shifted from the consent of the victim to the actual choice that the perpetrator made. In this way, a richer moral vocabulary protects the vulnerable.’

The demand for the commodification of human sexuality for purposes of the commercial exploitation is significantly illustrated by C S Lewis in his book Pilgrim’s Regress. Lewis writes of a fictional jailer who tried to brainwash his prisoners by pretending that unlike things are like,

‘You are trying to make us think that milk is the same sort of thing as sweat or dung.’ ‘And pray, what difference is there except by custom?’ ‘Are you a liar or only a fool, that you see no difference between that which Nature casts out as refuse and that which she stores up as food?’

It is therefore incumbent on us to make arguments that at a minimum provide the act itself must be morally good or at least indifferent. Likewise, any good effect should not be produced by means of the evil effect. It follows that nurturing relationships like, birth, marriage or family are absent in prostitution.

​‘central to the character of prostitution is that it is indiscriminate and loveless… It is that the sex is both indiscriminate and for reward… By making her sexual services available for hire to strangers in the marketplace, the sex worker empties the sex act of much of its private and intimate character. She is not nurturing relationships or taking life-affirming decisions about birth, marriage or family; she is making money.’ S v Jordan

The pathos underpinning American Justice Oliver Wendell Holmes saying, ‘I quite agree that a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell…’ is I think a deeply troubling part of the radical ideology of prostitution. Mistaken views are just that, mistaken. The most important investment all South Africans can make is to protect the dignity and safety of all its people by affirming individual dignity and corporate responsibility. This can be achieved  by providing people at risk with dignity affirming options.

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