Abstract

This response to Professor David Bilchitz attempts to put the two of us back on square. It advances our ‘roughly’ common conception as to how our constitutional order ought to address conflicts between equality and liberty that surface in cases that turn on differentiation and discrimination within religious orders and traditional communities. To that end, this article first clears up any previous misunderstandings, establishes our common ground and adumbrates a (largely) shared paradigm as to when our basic law should identify cognisable harms to the dignity of fellow South Africans and the broad array of remedies at the disposal of our courts. This article then reminds us that we possess a well-developed body of South African jurisprudence that distinguishes the public from the private, and why constitutions are invariably committed to a defence of pluralism and some degree of private ordering. Thereafter, I advance the idea that one might ‘seek justice elsewhere’ as a response to domination and tyranny: either by peregrinations around the globe or by exiting one sub-public and entering or constructing another more felicitous community within one’s birth-state. With respect to the latter form of exit, the community responsible for the expulsion and the impairment of an individual’s dignity should, along with the state, bear some form of material obligation in order to make the creation of a more commodious sub-public a reality. Thereafter, the article relies heavily on theses laid out in Michael Walzer’s Spheres of Justice. Spheres of Justice, which enables us to make critical distinctions between differentiation and domination, as well as between legitimate distributions of social goods and tyrannical abuses of economic, social and political power that invariably lead to the kind of stratified society that we inhabit in South Africa. The article then draws on Walzer’s distinction between differentiation and domination in order to demonstrate how a commitment to remedial equilibration can assist us in developing a sliding scale of ‘interdependent and interrelated’ rights and remedies by which the rules that govern various non-state publics, communities or associations might be measured when charges of discrimination are laid. A court order based upon remedial equilibration possesses a number of distinct virtues. Where differentiation rises to the level of unfair discrimination, remedial equilibration allows a court to: (a) acknowledge the constitutional infirmity of the conduct; (b) appropriately remonstrate the association responsible for such conduct without necessarily eviscerating the power of the association to continue to determine its rules for membership, voice and exit; (c) require the association, and where appropriate the state, to bear the pecuniary costs of the dismissal (or expulsion); and (d) assist the person harmed to secure employment (or some other good) in a more congenial environment and thereby find justice elsewhere.