The rights of foreigners : dignity, citizenship and the right to have rights
CITATION: Botha, H. 2013. The rights of foreigners: Dignity, citizenship and the right to have rights. South African Law Journal, 130(4):837-869.
The original publication is available at https://journals.co.za/content/ju_salj/132/3
This article examines the rights of foreign nationals in view of Hannah Arendt's thesis that human rights amount to little when severed from the rights of members of a concrete political community. It considers three different theoretical attempts to come to terms with Arendt's challenge and to make sense of her reference to a 'right to have rights'. Drawing upon these theoretical perspectives, the article analyses the judicial reliance on the constitutional value of human dignity to mediate the tension between the rights of foreigners and the sovereign power of a political community to engage in exclusionary practices. In particular, it explores critically the possibilities and limits of the courts' dignity-based jurisprudence with reference to the central but unstable distinction between the dignity of man and the dignity of the citizen.