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

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98 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 dignity of a person,” so that all else must fall in the interest of sustaining human dignity. 152 Yet, this absoluteness is not frozen in time; rather, “[n]ew insights can influence and even change the evaluation” of claims made under the right to dignity because the “understanding of the content, function, and effect” of this right can, and does, deepen. 153 Thus, dignity in German law is both a positive right, imposing affirmative obligations on the state, and a negative right, preventing the state from acting in a way that violates “the highest value” of the German Basic Law, which encompasses “all guaranteed rights” and “also includes a morality of duty that may limit the exercise of [another] fundamental right.” 154 In fact, the German Basic Law provides for exactly that kind of conflict between rights, and specifically directs that “[i]n no case may the essential content of a basic right [such as the right to dignity] be encroached upon.” 155 However, it appears that the resolution of these conflicts in favor of dignity would be difficult to translate in America, where dignity, even though presently in proto form, does not exist as an enumerated right. Further, it is not difficult to see how dignity rights promote a communitarian viewpoint of society that some might consider antithetical to the American libertarian ethos. South Africa is another country that enshrines dignity rights in its constitution: Section 10 provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected,” 156 152. Eckart Klein, Human Dignity in German Law, in D. Kretzmer &E. Klein, The Concept of Human Dignity in Human Rights Discourse 145, 148–149 (2002) (also noting that “[t]he principle of proportionality does not come into play as long as an intrusion upon human dignity has been established.”). The perpetuity of the right even transcends an individual’s death as the German Constitutional Court has held that the German constitution “imposes on all state authority to afford the individual protection from attacks on his dignity . . . even after his death” because “the constitutional commandment [states] that human dignity is inviolate” and it does not include a temporal limitation. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] Feb. 25, 1975, 30 BVerfGE 173 (Ger.), reprinted in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 301, 302–03 (2d ed. 1997). 153. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 21, 1977, 45 BVerfGE 187 (Ger.), reprinted in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 306, 307 (2d ed. 1997). 154. 39 BVerfGE 1 (Ger.). 155. Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. I at art. 19 (Ger.). 156. S. Afr. Const. § 10., 1996.
2011] The Right to Dignity 99 and no less than four other sections also reference the right to dignity that all people possess in South Africa. 157 Importantly, the South African Constitutional Court has held that the right to dignity is not subject to abrogation or subordination to another right. 158 This has led commentators to proclaim that the right to dignity is one of the most important under the new South African legal structure. 159 The South African Constitutional Court has echoed this sentiment by noting that “a right to dignity is an acknowledgment of the intrinsic worth of human beings,” who are entitled to “respect and concern,” thus making the right to dignity “the foundation of many of the other rights that are specifically entrenched in” the South African Bill of Rights. 160 Just as in Germany, the right to dignity in South Africa often clashes with other rights and usually emerges the victor. This is particularly because Section 39 of the Constitution directs the Constitutional Court “[w]hen interpreting the Bill of Rights,” to “promote the values that underlie an open and democratic society based on human dignity, equality, and freedom.” 161 Similarly, the legislature, acting under color of the constitutional right to dignity, has passed legislation restricting the reach of other rights. For example, the South African Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 prohibits hate speech directed at a long list of protected classes, where that speech “undermines human dignity.” 162 In this way, the recognition of dignity curtails another enumerated constitutional right: the right to free expression. Addressing the conflicting nature of rights, the Constitutional Court has summed up the import that dignity rights are meant to have within the architecture of South African law: Human dignity . . . informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This court has already acknowledged that importance of the constitutional 157. See id. §§ 1, 7, 36, 39. 158. See South Africa v. Makwanyane 1995 (3) SA 391 (CC) (S. Afr.). 159. See Ctr. for Applied Legal Studies, Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act: Act 4 of 2000 1 (Cathi Albertyn et al. eds., Witswatersrand Univ. Press 2001). 160. See South Africa v. Makwanyane 1995 (3) SA 391 (CC) at 507 para. 328 (S. Afr.). 161. S. Afr. Const. § 39, 1996. 162. See Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 § 1(1)(xxii)(b)(ii) (S. Afr.).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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