Relational Egalitarianism and the Equality Jurisprudence of the Constitutional Court of South Africa

Equality is both a foundational value of the Constitution of South Africa and a protected right. The contours of the right are defined by section 9 of the Bill of Rights, which guaranteees the right to equal protection and benefit of the law, permits positive measures to advance equality, and prohibits ‘unfair discrimination’. The focus of this project is on the prohibition of ‘unfair discrimination’. What exactly does this term mean? What is the difference between unfair discrimination and discrimination that is not unfair? The Constitutional Court of South Africa has confronted this difficult moral question in a number of important equality cases. This project views the Court’s equality decisions through the lens of philosophy, drawing on the theory of relational egalitarianism to illuminate them. Relational egalitarianism identifies the value of equality with the elimination of hierarchies of status that stamp some citizens as superior and other citizens as second class. Its conception of an equal society is one in which all citizens relate to each other as equals and enjoy equal standing. Locating the Constitutional Court’s equality decisions within this conceptual framework promises to provide a theoretically sophisticated and morally attractive justification for them.