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

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84 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 first and thirdparty assessments of dignity,” and therefore it “is not an effective policy tool.” 97 In other words, dignity is characterized as merely a pretty concept that varies according to the eye of the beholder. A further accusation under this framework is that the thirdparty assessment of dignity is privileged over the firstparty one, as external values are imposed onto the individual, even though that individual might not accord with the state’s particular interpretation of dignity. 98 However, these critics make overblown claims that the adoption of dignity as a policy standard to be protected and enforced through law would “certainly” require designating the following as “threats” to human dignity: microwave popcorn and Twinkies, on the ground that they lead to obesity, as well as pagers and cell phones, on the ground that they isolate human beings and force them into working all the time. 99 The problem with these assertions is that no notion of dignity is needed to restrict or prohibit the aforementioned “threats.” In other words, whether society decides to adopt food standards to guard against an obese population is dignityneutral. Therefore, these attacks offer nothing on either side of the argument, as they primarily assert that dignity rights will impact issues that have nothing to do with the concept. When boiled down to its essence, modern scholarship is deeply divided as to the propriety and practicality of integrating the protection of human dignity within a functioning legal system. On one side, there are those who believe the task to be hopeless because “[a]ssessments of human dignity are quite subjective, with considerable variation temporally, chronologically, geographically, and culturally.” 100 On the other side are those who posit that “[t]he idea of human beings as ends in themselves forms the foundation for the unfolding of human dignity as a workable legal concept.” 101 The reality is that the truth probably lies closer to the latter statement, as other nations have been perfectly able to subsume the protection of dignity rights within their systems without triggering the parade of horrors identified in the paragraph above. 97. Hyman, supra note 1, at 8, 18. 98. Id. at 10. Hyman also looks to behavioral economics, finding two additional reasons to be skeptical about the importation of dignity standards into legal doctrines. See id. at 1011. 99. See id. at 12. 100. Id. at 4–5. 101. Mahlmann, supra note 12, at 30.
2011] The Right to Dignity 85 B. Legal Pronouncements Scholars and commentators are not alone in pondering the role of human dignity within existing legal frameworks. Jurists around the world have similarly partaken in this exploration, either as part of an established constitutional analysis, or under a context specific inquiry. Christopher McCrudden has remarked that a survey of decisions that invoke the concept of a right to dignity reveals that “human dignity . . . is exposed as culturally relative, deeply contingent on local politics and values, resulting in significantly diverging, even conflicting, conceptions.” 102 While this summation can seemingly be applied to other concepts, such as liberty, equality, or due process, McCrudden’s summation seems to negate the notion that there are cognate contours to these rights that are recognized as ideals, even if the courts treat them clumsily or differently. What is more important to glean from this survey of courts is whether there are certain themes being developed from which a coherent theory can be constructed. Dignity is not mentioned in the Constitution, but nevertheless it is a concept found in some Supreme Court opinions. Gerald Neuman has noted that, at least as dignity pertains to the Constitution, the Supreme Court has, albeit scantily, developed certain narratives based on human dignity as it pertains to certain constitutional rights. 103 In contrast, other national constitutions, such as that of Germany, do have explicit clauses addressing the right to dignity. 104 Major international legal instruments also give importance to the right to dignity, enumerating it as one of the foundational blocks of a global regime based on human rights. 105 Nevertheless, this is only the tip of the iceberg considering that, at least in the last sixty years, the right to dignity has entered the legal discourse in a wide variety of other ways in many different jurisdictions. 102. McCrudden, supra note 29, at 698. McCrudden makes this evaluation in an attempt to answer the question of whether dignity can be a basis for human rights, a synonym for the same, or a right in itself. See id. at 656 (concluding there is little consensus beyond a common minimum core, and the role of dignity role in judicial interpretation may be more institutional than substantive). 103. See Neuman, supra note 12, at 257, 266. 104. See Grundgesetz Fur Die Bundesrepublik Deutchland [Grundgestez][GG][Basic Law], May 23, 1949, BGBI.I (Ger.). 105. See infra Part II.B.
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The Right to Dignity Rex D. Glensy - Columbia Law School

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