The Right to Dignity Rex D. Glensy - Columbia Law School

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80 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 The import of this list is that all violations, whether by an official act or statement by the government, or by private actors, should be included within the legal architecture that protects dignity rights. 75 Though Schachter argues for explicit legal protection of dignity rights from a practical standpoint, he also acknowledges that “the idea of dignity reflects sociohistorical conceptions of basic rights and freedoms, not that it generated them.” 76 This is an important summation, because even though Schachter gives credit to the Aquinian notion that rights, such as dignity, “are not derived from the state or any other external authority,” 77 he grounds the notion of the right to dignity in historical fact, thus attempting to marry dignity rights with a more positive notion of the source of rights. This reframing of dignity rights as something more than mere natural rights is a common refrain among those who call for a role for human dignity in law. Thus, advocates for the promotion of a general right to dignity navigate between the attractive, but frowned upon, notion that this right is derived from a “natural” source and the less attractive, but more accepted, idea that the right to dignity is rooted in positive law. Therefore, contemporary scholars have stated that human dignity encompasses both the empowerment of the individual’s autonomy as well as the constraint of the state to impinge on that autonomy. 78 In that vein, they argue that human dignity is not an abstract concept, 79 but a right with a substantive body of law already devoted to it. They similarly attach the right to dignity to other rights that might appear to have a more substantive 75. See id. at 852 (including conduct from demeaning the status, beliefs, or origins of people, to denying them educational opportunities as negatively impacting the dignity of individuals). 76. Id. at 853. 77. Id. 78. See D. Byleveld & R. Brownsword, Human Dignity in Bioethics and Biolaw 1 (2001) (introducing two opposing conceptions of human dignity, one based on empowerment which “treats human rights as founded on the intrinsic dignity of humans,” and the other based on constraint, which takes a “duty driven” approach to human rights). Some have challenged the general orthodoxy that dignity is a oneway ratchet that trends solely towards autonomy. Eichner, supra note 23, at 1617 (“A more appropriate theory [of defining dignity] would conceptualize citizens as existing somewhere on a spectrum between complete autonomy and complete dependence, with their exact position changing over the course of their lives and depending on their individual situation.”). 79. Paolo G. Carozza, Human Dignity and Judicial Interpretation of Human Rights: A Reply, 19 Eur. J. Int’l L. 931, 931 (2008).
2011] The Right to Dignity 81 root, such as the right to work, which, perforce, encompasses the dignity of work. 80 Contemporary commentators have been active in promoting dignity rights in the international human rights discourse, even though, as elsewhere, the conversation seems to suffer from a lack of agreement on a common point of reference. For example, Christopher McCrudden argues, “there is no common substantive conception of dignity, although there appears to be an acceptance of the concept of dignity.” 81 He goes on to state that, beyond a certain minimal collective understanding of what constitutes the right to dignity, opinions on the matter diverge to the point where they do not provide a universally principled basis for judicial decisionmaking. 82 He notes that the recognition of dignity has become context specific, varying from issue to issue, and from jurisdiction to jurisdiction, resulting in widely divergent opinions. 83 Nevertheless, McCrudden does not advocate abrogating dignity from the human rights discourse, but rather, he sees its value as a concept that can channel particular methods of human rights adjudication. 84 It is not clear what concept of dignity has percolated within the American legal collective psyche, both as recounted by commentators and as utilized in judicial opinions and legislative hearings. In the United States, dignity seems to be more about self confidence, where “to treat everybody with dignity means to help them and to respect them but not to undermine their self confidence.” 85 Nevertheless, several commentators have offered thoughts as to the interaction of the idea of human dignity with various aspects of the Constitution and other sources of American law. Some, for example, see dignity as the fundamental value of the Constitution, and thus imply that its meaning should be infused within the interpretation of all relevant provisions. 86 For example, it 80. See Amy L. Wax, Social Welfare, Human Dignity, and the Puzzle of What We Owe Each Other, 27 Harv. J. L. & Pub. Pol’y 121, 135 (2003). 81. McCrudden, supra note 29, at 712. 82. Id. at 713. 83. Id. at 714–19. 84. See generally McCrudden, supra note 29. 85. W. Cole Durham, Eine Grundsätzliche Bewertung Aus Amerikanischer Sicht, in Deutschland und sein Grundgesetz 63 (1993). 86. Murphy, supra note 23, at 758; see also Goodman, supra note 23, at 789–792 (noting that the Supreme Court has repeatedly recognized human dignity as giving meaning to constitutional rights, and advocating for the consistent recognition of the value in the application of existing constitutional standards).
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