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

2011] The Right to Dignity 67
Nevertheless, given the increasing frequency with which
courts and legal commentators in the United States are invoking or
criticizing a notion of the right to dignity, and the fact that dignity is
seemingly becoming a more “vital and vibrant” precept, 5 the time has
arrived to explore what is meant by human dignity and, more
significantly, whether and/or how this meaning can be imported into
the domestic legal structure. Given this background, it is essential to
bring some theoretical consistency to dignity rights, together with
some perspective as to what the possible contours of these rights
could be. This goal is normatively desirable because the “[c]onceptual
unity [of the law] is not only fulfilling in itself, however; it is also an
instrument of legal development.” 6 The task of creating some
dependable parameters for the use of dignity rights has an added
layer of importance, because it has been often remarked that the
present use of dignity within a judicial opinion functions as “a hollow
rhetorical device” and thus is worthy of little if any consequence. 7 A
response to such accusations, therefore, seems appropriate.
Dignity is “admittedly [an] ethereal concept” 8 which “can
mean many things” 9 and therefore suffers from an inherent
vagueness at its core. 10 In fact, “[s]ince human dignity is a capacious
concept, it is difficult to determine precisely what it means outside
the context of a factual setting.” 11 The basis of dignity can be said to
lie in the autonomy of self and a selfworth that is reflected in every
5. Paust, supra note 4, at 148.
6. Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer
to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1004 (1964). Others have noted this need
for a consensus when it comes to figuring out the import of dignity within a legal
framework. See, e.g., Ernst Benda, The Protection of Human Dignity (Article 1 of
the Basic Law), 53 SMU L. Rev. 443, 453–454 (2000) (asserting that the
international community needs to reach an agreement concerning the meaning of
dignity).
7. Fyfe, supra note 4, at 11.
8. Castiglione, supra note 2, at 662, 679 (indicating that the concept of
human dignity is “to some extent, inherently ethereal” and applying it to Fourth
Amendment law); see also Hyman, supra note 1, at 3 (characterizing human
dignity as “a slippery concept”).
9. R. George Wright, Dignity and Conflicts of Constitutional Values: The
Case of Free Speech and Equal Protection, 43 San Diego L. Rev. 527, 528 (2006).
10. The European Court of Human Rights, which nonetheless uses dignity
as a yardstick within its jurisprudence, noted that dignity is “a particularly vague
concept, and one subject to random interpretation.” Siliadin v. France, (no.
73316/01), Eur. Ct. H.R. 30 (2005).
11. Edward Eberle, Human Dignity, Privacy, and Personality in German and
American Constitutional Law, 1997 Utah L. Rev. 963, 975 (1997).